Civil Procedure (Bockrath) Study Guide

Fall 2006
Overview Sheets Topic General Outline for State Personal Jurisdiction .. Specific versus General Jurisdiction for State Personal Jurisdiction .. Minimum Contacts Test . Chart of State versus Federal Jurisdiction .. Boiler Plate Language . Federal Rules of Civil Procedure (in numerical order) ... Case briefs (in alphabetical order) ... Page Number 2 8 9 11 12 15 19

General Outline for State Personal Jurisdiction

Full Faith and Credit Article IV of the United States Constitution: Full faith and credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. o There is also a federal statute that says federal courts must apply full faith and credit to the decisions rendered by state courts. The full faith and credit clause only applies if the court that issued the ruling had jurisdiction over the and . o When determining if the court of the forum had jurisdiction, always begin by looking at the state statute in the forum. o Ex: sues in State A and wins on default judgment. goes to State B and demands the court system in State B apply State As judgment on the . If brings up jurisdictional questions, State B must apply State As statutes to determine if State A had jurisdiction.

Due Process under the 14th Amendment The Due Process clause of the 14th Amendment operates to limit the power of a State to assert in personam jurisdiction over a nonresident o Fourteenth Amendment, 1: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law

Important items to know for every case Defendant () location Plaintiff () location Forum o Forum is the state in which the lawsuit was filed o Whatever court the lawsuit was filed in must have jurisdiction over the person and the subject, or the lawsuit will be dismissed for lack of jurisdiction o It is also important to note the type of court, i.e. state or federal Claim o Claim is where the incident causing the lawsuit took place State statute o There is no such thing as a non-statutory extraterritorial reach for jurisdiction o The State Supreme Court is the final arbiter on how far the state statute reaches

State Jurisdiction over Persons State jurisdiction over persons is not a center of gravity question, i.e. either a state has jurisdiction or it does not o This means multiple states can have jurisdiction o Determining where the lawsuit should occur may take a variety of factors into account, but there is no test of does State A have more or less jurisdiction than State B

Methods by which a state has personal jurisdiction: Consent o consent automatically accepts the jurisdiction of the court which he/she files in o Actual consent If shows up in court to defend him/herself and does not object to the lawsuit on jurisdictional grounds, the has consented to the jurisdiction of the court Actual consent is what occurs in the majority of lawsuits because (typically) the files in the correct court. o Implied consent Implied consent is based on ones conduct rather than from ones direct expression Cases of note regarding implied consent Hess v. Pawloski (SCOTUS, 1927) Service o Jurisdiction through service is granted if the forum is the same state that the is served in. Example: files suit in State A. is physically present in State A and served in State A. o Note, in this method of obtaining jurisdiction over a , neither the or must actually be residents of the state of forum. Moreover, the claim does not have to have happened in the state of forum. o Cases of note regarding service Pennoyer v. Neff Perkins v. Benguet Consolidation Mining, Co (Note: Scalia has said that Perkins has been read incorrectly for years; jurisdiction should have been predicated on the fact that the was served in the forum; his comments have been largely ignored, but given the changing make up of the bench, his comments may need to be re-examined) Burnham v. Superior Court of California establishes that personal service is enough to gain jurisdiction over a transient and one need not apply the minimum contacts test to determine the connection between the and the forum; if the is in the forum and is personally served, that is enough Civil Status o A state has jurisdiction over the civil status of its residents. Example: is married to and they live in State A. high tails it out of State A and cannot be found. State A still has jurisdiction over and can divorce and , regardless of the presence of . Attachment o A state can gain jurisdiction over a with property in the forum, provided that there is a state statute that allows attachment and the connection between the and the forum meets the minimum contacts test (Shaffer v. Heitner, SCOTUS 1977) 3

There is no hard and fast rule about how much contact there must be between the and the forum, but it is inversely related to the tangibility of the product o Cases of note regarding attachment Pennoyer v. Neff Domicile o If is domiciled in the forum, service of process over can take place outside of the forum Definition of domicile for state jurisdiction over persons Natural persons Corporations Corporations have domicile in the A persons permanent, fixed home that he/she intends to
remain at and return to

Domicile is a question of intent do you intend to remain

where you are or return to where you were Establishment of domicile is indicated by doing the things that show intent to stay (ex: buying a house, getting a drivers license) These actions, however, must be volitional, i.e. done at the will of the person, and not compelled, i.e. done at force. A person can only have one domicile at a time. A person retains his/her former domicile until a new one is established. However, the intent to leave one domicile is not enough to create a new one. A person must also undertake tasks to establish a domicile.

state(s) in which they were incorporated

o Note: domicile can be a general jurisdiction case because it is not important that the claim arises from what the did in/with/effecting the forum; only importance is that the is domiciled in the forum o Cases of note regarding domicile Milliken v. Meyer (SCOTUS, 1940) Minimum contacts for specific jurisdiction o Landmark case for minimum contact: International Shoe Company v. Washington (SCOTUS, 1945) International Shoe just tells us that there must be minimal contact it does not tell us what minimal means o In determining if minimum contact existed, always look at the positives in the s complaint, not negatives (ex: did not have an office in the forum is a negative and should not be used to test for minimum contacts, though the negative information is useful for other matters) If the positives are sub-minimal contact, jurisdiction is unconstitutional under the Due Process Clause of the Fourteenth Amendment o Methods of having minimum contact: Sufficient connection between transaction and forum (McGee v. International Life Insurance Co., SCOTUS 1957) When you place something into the stream of commerce with the purpose of it Connection between being sold in the forum, you have created a sufficient connection between the transaction and forum transaction and the forum (Gray v. American Radiator and Standard Sanitary begins with McGee, is changed by Gray, and Corporation et al., Illinois 1961)1

further changed by Asahi

1

Do not quote Gray for purposeful availment = stream of commerce without citing Asahi.

o Note: Gray shifts the burden of persuasion for proving items entered into the stream of commerce from the to the o While the record does not disclose the volume of Titans businessit is a reasonable inference that its commercial transactions, like those of other manufacturers, result in substantial use and consumption in this State. o This shift is made not because the does know the volume of business, but because the has no way of knowing the volume of business As a general proposition, if a corporation elects to sell its product for ultimate use in another State, it is not unjust to hold it answerable there for any damage caused by defects in those products. (Gray v. American Radiator and Standard Sanitary Corporation et al., Illinois 1961) o A manufacturer putting a product into the stream of commerce that makes its way into the forum is not enough of a connection (or purposeful availment) for the forum to have jurisdiction over the manufacturer if it would be unfair to the for the forum to have jurisdiction (Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County, SCOTUS 1987) 4 judges followed the OConnor model that says jurisdiction over a manufacturer is gained if the manufacturer put the product into the stream of commerce and did something else to purposefully avail themselves of the forum (ex: market the product towards the forum, advertise in the forum, etc.) this concept is a control conceptdid the actor do something to exercise control over a particular market 4 judges followed the Brennan model that says jurisdiction over a manufacturer is gained if the manufacturer put the product into the stream of commerce and is aware the final product is being marketed to the forum State Note: Stevens is the Justice who did not pick a side on the issue, but he did state if he had to choose he would side with Brennan (he did not pick a side because he thought the case could be thrown out on fairness factors

Purposeful availment: it is essential in each case that there be some act by which the purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. (Hanson v. Denckla, SCOTUS, 1958) If the manufacturer sells its products in circumstances such that it knows or should reasonably anticipate that they will ultimately be resold in a particular state, it should be held to have purposefully availed itself of the market for its products in that state. (Buckeye Boiler Company v. Superior Court of Los Angeles, California 1969) o Food for thought: How does advertising play in to the equation for purposeful availment? Is the requirement for purposeful availment that the must target a market, or must the be sure to remove their products from a market (ex: NYT in front of law school)? Effects test: Actions performed outside of the forum with intent of having affect inside the forum are enough to constitute forum jurisdiction (Calder v. Jones, SCOTUS 1984) 5

Example: If I stand in Louisiana and fire a bullet into Mississippi, the affects of the bullet will be felt in Mississippi; therefore, Mississippi can claim jurisdiction over me

o Foreseeability aspect to minimum contacts: Foreseeability alone is not enough to constitute personal jurisdiction; foreseeability must be due to activities in/with/effecting the forum. Foreseeability is an extension of the question what did the do in/with/effecting the forum? because it asks, because of what the did in/with/effecting the forum, is it foreseeable that the would be haled into court in the forum? (World Wide Volkswagen v. Woodson, SCOUTS 1980) Foreseeability of being haled into court in the forum is not achieved by mere acquiescence (Kulko v. Superior Court of California, SCOTUS 1978); there must be some activity that connects to the forum o Minimum contacts for contract cases: A contract between two parties ( in the forum; not in the forum) is not enough to allow the forum to have jurisdiction over the ; there must be something more (Burger King Corporation v. Rudzewicz, SCOTUS 1985) However, physical presence is not necessary - So long as a commercial actors efforts are purposefully directed toward residents of another State, [the Court has] consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there. (Burger King) o Jurisdiction over manufacturers: Begins with Gray saying as long as a manufacturer puts their product into the stream of commerce, then there is enough of a connection to have jurisdiction. Buckeye takes the Hanson theory of purposeful availment and says the manufacturer must have known or should have known the product would be sold in the forum in order to have purposefully availed themselves of the forum and thus fall under the forums jurisdiction o Asahi is fantastically unhelpful in resolving the issue because 4 judges say a manufacturer putting a product into the stream of commerce is not enough, the manufacturer must do more; however, 4 judges say a manufacturer putting a product into the stream of commerce with the awareness that the product will be marketed towards with forum is enough o Jurisdiction over retailers: World Wide Volkswagen establishes that when the consumer has brought the product into the forum and the retailer has done nothing to purposefully avail himself of the forum, then the retailer cannot reasonably foresee that he will be haled into court in the forum, so there is no jurisdiction Minimum contacts for general jurisdiction o If the claim is not arising from what the did in/with/effecting the forum, what level of contact must the have with the forum that makes general jurisdiction valid? Maintaining an office in the forum is enough for general jurisdiction (Perkins v. Benquet Consolidation Mining, Co., SCOTUS, 1952) Purchases in the forum are not enough for general jurisdiction (Helicopteros Nacionales de Colombia, S.A. v. Hall et al, SCOTUS 1984) 6

This alludes to the rule that there is no amount of purchase that one can make in the forum such that general jurisdiction is obtained Put another way, no matter the size of the purchase, unless the cause of action is arising from the transaction, the forum does not have jurisdiction over a nonresident If purchases alone are not enough to gain general jurisdiction, this prompts one to believe that sales alone cannot constitute general jurisdiction o Note: this is supported by Follette v. Clairol, Inc (SCOTUS, 1994) which held that Wal-Mart could not be sued in Texas, despite the s operation of 264 stores in Texas (they have no offices there, however, or the court would have followed the Perkins rule of an office is enough for general jurisdiction)

Specific versus General Jurisdiction for State Personal Jurisdiction

Specific jurisdiction is when the claim arises from what the did in/with/effecting the forum General jurisdiction is when the claim does not arise from what the did in/with/effecting the forum Note that unsuccessful cases that fall under specific jurisdiction does not mean that the case can fall into general jurisdiction
Determining line to establish specific jurisdiction is minimum contacts between the and the forum

Claim not related to what did in/with/effecting the forum

Claim related to what did in/with/effecting the forum

No specific jurisdiction

Yes, specific jurisdiction

Yes, general jurisdiction

contact with forum is infinite

No general jurisdiction
contact with forum is zero Activities of the without enough contact to constitute general jurisdiction include: Purchases, regardless of the amount (Helicopteros) Sales, regardless of the amount (Follette v. Clairol, Inc.)

Determining line to establish general jurisdiction is Having an office in the forum

Minimum Contacts Test

First, look at the state statute. o There is no such thing as fictional jurisdiction without a statute or a non-statutory extraterritorial reach for jurisdiction Second, look at the Due Process Clause of the Fourteenth Amendment o Note, the question is not if the statute is constitutional, but whether if the application of the statute to the case is constitutional o To determine, look at the minimum contacts test (developed in Buckeye Boiler Company v. Superior Court of Los Angeles, California 1969): Powers questions (does the court have the power to take the case) burden on : What did the do in/with/effecting the forum? o Use the positives of what the did, NOT the negatives (the negatives will come into play for the proprietary questions) o Make two categories: What the did in/with the forum that gives rise to the claim What the did in/with the forum that did not give rise to the claim o The effects part of this question questions what the did outside of the forum that would have impact within the forum, i.e. firing a gun from State A into State B (Calder v. Jones, SCOTUS 1984) o Note: the domicile of the is not important, provided the state statute does not specify (Keeton v. Hustler Magazine, SCOTUS 1984) o Was it foreseeable from what the did in/with the forum that he would be haled into court in the forum? (Question added by World Wide Volkswagen Corporation v. Woodson, SCOUTS 1980) Is the claim arising from what the did in/with the forum? o If the answer is yes, then there may be specific jurisdiction o If the answer is no, there may be general jurisdiction How little contact is required between the forum and the to establish general jurisdiction? The answer is unknown, but there are some things we know do and do not constitute general jurisdiction: Having an office in the forum is enough to constitute general jurisdiction (according to Perkins v. Benguet Consolidation Mining Co., SCOTUS 1952) Purchases in the forum are not enough to constitute general jurisdiction (Helicopteros Nacionales de Colombia, S.A. v. Hall et. al, SCOTUS 1984) o Note: general jurisdiction is when the claim is not arising from the action in the forum, so in the case of trying to establish general jurisdiction from purchases, the claim is not arising from the purchases Does this mean that any level of sales in the forum do not constitute general jurisdiction? (that is the implication from Propriety questions (should the court take the case) burden on 2:

Note: Once it has been decided that a defendant purposefully established such minimum contacts within the forum state, a presumption arises that jurisdiction is reasonable and the burden of proof and persuasion shifts to the opposing jurisdiction to


The Stevens approach is that the propriety (aka fairness) questions can and should be answered prior to the powers question. Stevens has never garnered enough support for this approach, but he follows it in his concurring opinion in Asahi.

What inconvenience will it cause the to fight lawsuit in the forum? o It cannot be so gravely difficult and inconvenient that the is unfairly placed at a severe disadvantage in comparison to the o Examples: distance will have to travel; if the is an individual, he cannot be in two places at once (a corporation can) o Note: the fact that the is a non-resident does NOT count as a burden the will always be a non-resident o Note: Buckeye tests the burden on the for traveling to fight a lawsuit by establishing if the had a claim arising from a systematic and continuous presence (in the case the reference is to its dealings with Cochin who it directly sold to), would the burden of the be any different? No. Then there is no substantial burden for the . Is there an interest for the in suing locally? o Examples: the is seriously injured; the witnesses all live in the forum; no other forum that could gain jurisdiction over all s Is there an interest in the state for taking jurisdiction? o Examples: there no other forum possible; a state always has an interest in protecting its citizens Is there an interstate judicial systems interest in obtaining the most efficient resolution? (added in de Reyes) Is there a shared interest of several states in furthering fundamental substantive social polices? (added in de Reyes)

present a compelling case that the presence of some other considerations would render jurisdiction unreasonable. de Reyes (quoting Burger King); bottom line, if powers test is yes, then burden shifts to to prove propriety questions are no

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Chart of State versus Federal Jurisdiction

STATE
VENUE
& SUBJECT State courts of general jurisdiction can hear any case state law allows, unless the FSMJ says they cannot

PERSONAL Personal service (Burnham) Consent Domicile (for corporations, domicile in this sense = state of incorporation) Civil Status Minimum Contacts (Shoe) --------------------

PERSONAL Rule 4(K)(1)(a) federal court can obtain personal jurisdiction over a if the state court of general jurisdiction in that state could obtain jurisdiction Rule 4(K)(1)(d) when federal court is given jurisdiction via a federal statute, the can be served anywhere, in accordance with the due process clause of the 5th amendment this blurs state lines

&

FEDERAL
SUBJECT FSMJ is limited jurisdiction, meaning that federal courts are limited to hear only those subject matters set forth by Congress (mostly listed in Tit. 28) FSMJ can never be waived or consented to Exclusive (only federal courts can hear a particular subject matter) or original (a federal court can hear a particular subject matter, but a state court can, too) Note: original and exclusive are not opposites It is the burden of the to establish FSMJ Two type of subject matter in federal courts:
DIVERSITY

VENUE

To determine if the state court of general jurisdiction can obtain jurisdiction, look to the state statute and the due process clause of the 14th amendment

General jurisdiction v. limited jurisdiction

Attachment (Shaffer)

General jurisdiction v. specific jurisdiction

Rule 4(N) a federal court can obtain jurisdiction over a via attachment if all other methods of obtaining personal jurisdiction are unavailable, the assets being seized of the are within the district, and the state in which the district is located in could have obtained jurisdiction

OR

FEDERAL QUESTION

28 USC 1332 This has nothing to do with the type of case; only covers parties involved and dollar amount
DIVERSITY AMOUNT &

28 USC 1331 This has to do with the nature of the claim itself No $ requirement for federal question

&

You can consent to FPJ because you can consent to SPJ, which is how you can determine FPJ

domicile of corp = ppb and state of incorporation

$75,000+ can aggregate his claims; multiple s or s cannot aggregate claims

NOTICE Notice must be given in a statutorily provided manner that is reasonably calculated to reach the under the circumstances (Mullane) note this says nothing about having to reach the Service in the forum folds notice and SSMJ into one

NOTICE Federal Rule 4(c) the person actually serving must be at least 18 years of age and not a party of the suit Federal Rule 4(e) a may be served pursuant to the laws of the forum state or the state the is located in; the service must be given individually to the or to a person of suitable age and discretion who resides in the same abode as the

At behest of , a case may be removed from state court to federal court under the rules laid out in 1441 All cases that can be removed from state court to federal court could have been originally filed in federal court; however, not all cases that could have been originally filed in federal court but were filed in state court can be removed Proper paperwork must be filed within 30 days of the being served or within 30 days of being served an amended pleading that makes the case removable, and if there are multiple s, they must all agree to the removal; if any is domiciled in the state of the state court, the case may not be removed

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Boiler Plate Language

Full faith and credit language Article IV of the U.S. Constitution states that all states must give full, faith, and credit to the judicial decisions rendered in other states courts. FFC requires that the state rendering the decision to be enforced had jurisdiction over the . State statutory language There is no such thing as a non-statutory, extraterritorial reach for jurisdiction; the forum must have an applicable statute, the application of which must not exceed the limits of the due process clause of the 14th amendment. Minimum contacts language Due process (under the 14th amendment) requires minimum contact between the and forum such that the traditional notions of fair play and substantial justice are not offended. The quantity/quality of contact required is dependent on the relationship between -forum contact and the s claim, and the foreseeability that the would be haled into court in the forum based on his contact in or with it. If this threshold is met, the court must balance their power to acquire jurisdiction with the propriety of acquiring jurisdiction. To determine fairness, the court may look at the burden placed on the , the interest of the in suing locally, and the states interest in serving as the forum. Minimum contacts language: purposeful availment Foreseeability that the would be haled into court in the forum can be determined by whether or not the purposefully availed himself of the privilege of conducting activities in the forum, thus invoking himself of the benefits and protections of the forums laws. Minimum contacts language: manufacturers Post-Asahi, there is no settled explanation of when it is foreseeable that a manufacturer would be haled into court in the forum based on an item he put into the stream of commerce. The two schools that have emerged set different criteria: the Brennan school of placing an item into the stream of commerce with the foreseeability that it would reach the forum is enough to grant personal jurisdiction in the forum and the OConnor school that some affirmative act (be it advertising, marketing, etc.) towards the forum is additionally required. Minimum contacts language: effecting the forum It may be foreseeable that the would be haled into court in the forum based on what the did effecting the forum, regardless of if those activities were done outside of the forum. Minimum contacts language: contracts According to Burger King, a contract between a in the forum and a outside of the forum is alone not enough to constitute jurisdiction; the must have also purposefully directed his efforts towards the forum in some manner. However, it is not necessary that the have a physical presence in the forum.

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Minimum contacts language: general jurisdiction If the claim is not arising from what the did in or with the forum, the court may still have general jurisdiction over the based on the s contact with the forum not related to the claim. Exactly how much -forum contact is required for there to be general jurisdiction is undefined, but from Perkins, we believe having an office in the forum constitutes general jurisdiction (though Justice Scalias comments thereafter and the shift on the court have made us rethink this assessment), and from Helicopteros and Follette we believe that no amount of purchases or sales in the forum are enough to constitute general jurisdiction. 4k1A language Rule 4(k)(1)(A) allows a federal court to obtain personal jurisdiction over an absent if the state court of general jurisdiction in that state could have obtained jurisdiction over the , except in cases of attachment. 4k1D language According to Rule 4(k)(1)(D), if a federal statute authorizes service anywhere, then state lines become irrelevant for jurisdictional purposes and the only minimum contact required is between the and the country, as stated by the due process clause of the 5th amendment. 4n language According to 4(n), a federal court can obtain personal jurisdiction via attachment over an absent if all other reasonable manners of obtaining personal jurisdiction in the district over the are ineffective, the s assets that are being seized are located within the district, and the state in which the federal district court is located could have obtained personal jurisdiction via attachment over the . Amount of contact needed for attachment language How much contact is needed between (D) and (state) is inversely related to the tangibility of the asset being seized and dependent on how the property reached the (state). People should be able to structure the risk in their lives and know if the acquirement of an asset will make them subject to the jurisdiction of a particular state. Notice language Notice must be given in a statutorily sanctioned manner that is reasonably calculated to reach the under the circumstances. 4c language Under Rule 4(c), notice must be served by a non-party over the age of 18. 4e language Under Rule 4(e), notice may be given by the statutorily sanctioned manner of the state in which the district court sits in or the state in which the is located. Notice must be served to the personally or to someone of suitable age and discretion who resides in the s abode.

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 1331 language Federal subject matter jurisdiction under 1331 requires the claim itself to be regarding a federal question. 1332 language Federal subject matter jurisdiction under 1332 requires the parties be diverse and the amount in question be $75,000+. For federal subject matter jurisdiction, the domicile of a corporation includes the corporations state of incorporation and the corporations principle place of business (PPB). For federal subject matter jurisdiction, the domicile of an unincorporated association is the entitys PPB. The domicile of aliens with permanent resident status is the State in which they are domiciled. An executor takes the domicile of the decedent(s). The Strawbridge rule requires complete diversity, but only governs cases brought under 1332(a)(1). Principle place of business When a corporations activities are far flung, the sole nerve center from which a corporation radiates out to its constituent parts is the PPB. When corporation has its sole operation in one state but officers in another, the place of operation is the PPB. When the activity of the corporation is passive and the brain of the corporation is located in another state, the location of the brain is the PPB. Aggregating s and s in federal court language An individual may aggregate his claims for diversity purposes under FSMJ, regardless of if the claims are related. Removal language A case can be removed by the from state court to federal court provided that the case originally could have been filed in federal court. Additionally, the proper removal paperwork is filed within 30 days of the being served or within 30 days of the being served an amended pleading that makes the case removable, and if there are multiple s they all must agree to the removal. If any of the s are domiciled in the state of the state court, then the case may not be removed.

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Federal Rules of Civil Procedure

Rule 4(c): Service with Complaint; by Whom Made. (1) A summons shall be served together with a copy of the complaint. The plaintiff is responsible for service of a summons and complain within the time allowed under subdivision (m) and shall furnish the person effecting service with the necessary copies of the summons and complaint. o Subdivision (m) allows for 120 days to serve (2) Service may be effected by any person who is not a party and who is at least 18 years of age. At the request of the plaintiff, however, the court may direct that service be effected by a United States marshal, deputy United States marshal, or other person or officer specially appointed by the court for that purpose. Such an appointment must be made when the plaintiff is authorized to proceed in forma pauperis pursuant to 28 U.S.C. 1915 or is authorized to proceed as a seaman under 28 U.S.C. 1916. o The only requirements of the person who is physically serving are: He/she cannot be a party to the suit Must be at least 18 years of age o Bockrath language: Under Rule 4(c), notice must be served by a non-party over the age of 18.

Rule 4(e): Service upon Individuals Within a Judicial District of the United States Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effect in any judicial district of the United States: Incompetent = judged as incompetent Infant = certain age requirements o (1) pursuant to the law of the state in which the district court is located, or in which service is effect, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State; or Either use the service of notice rules of the forum state or of the state in which the is located o (2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individuals dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. What determines suitable age and discretion? There is no specific rules that sets for what this means Note, it is not required that the actually receive the notice only required that a person of suitable age and discretion is delivered the notice Similarly, it is not enough that the actually receives the notice; if the person who was delivered the notice was not of suitable age and discretion, then even if the notice made it to the , the process would still be invalid Bockrath language: Under Rule 4(e), notice may be given by the statutorily sanctioned manner of the state in which the district court sits in or the state in which the is located. Notice must be served to the personally or to someone of suitable age and discretion who resides in the s abode.

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Rule 4(g): Service upon Infants and Incompetent Persons Service upon an infant or an incompetent person in a judicial district of the Untied States shall be effected in the manner prescribed by the law of the state in which the service is made for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state. Service upon an infant or an incompetent person in a place not within any judicial district of the United States shall be effected in the manner prescribed by paragraph (2)(A) or (2)(B) of subdivision (f) or by such means as the court may direct. o Incompetents and infants must be served by the procedural methods of the state in which they reside (i.e. not the rules of the forum state)

Rule 4(k): Territorial Limits of Effective Service (1) Service of a summons or filing a waiver of service is effective to establish jurisdiction over the person of a defendant This rule tells where one can establish jurisdiction o (A) Who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located, or Court of general jurisdiction refers to subject matter jurisdiction in state court This is different than general jurisdiction in the personal jurisdiction context of specific v. general jurisdiction This authorizes the federal court to use the state court methods for determining jurisdiction, i.e. does the application of the state statute violate the due process clause of the 14th amendment In turn, that means you apply the minimum contacts rule if a state court of general jurisdiction would have been able to gain jurisdiction over the , then the federal district court can obtain jurisdiction Sentence Bockrath wants you to use on the exam to deal with the shift in jurisdiction from state to federal: Rule 4(k)(1)(A) allows a federal court to obtain personal jurisdiction over an absent if the state court of general jurisdiction in that state could have obtained jurisdiction over the , except in cases of attachment. o (B) who is a party joined under Rule 14 or Rule 19 and is served at a place within a judicial district of the United States and not more than 100 miles from the place from which the summons issues, or This is the bulge rule Requires to be within 100 miles, in a US jurisdiction, and in a different state Why must it note it be a different state? If was in the same state he would just be personally served This rule really only applies to the northeastern states o (C) who is subject to the federal interpleader jurisdiction under 28 U.S.C. 1335, or There is rule interpleader and statute interpleader keep them separated Title 28 USC is where the statute can be found o (D) when authorized by a statute of the United States. If a fed statute authorizes service anywhere, then state lines become irrelevant for jurisdictional purpose Only thing required is minimum contacts between the and the country as stated in the 5th amendment This is only when specifically authorized by a fed statute Ex: anti-trust 16

Note, this says statute, not rule so you have to find something in USC that says jurisdiction over in this circumstance is authorized wherever the may be served All you have is 5th amendment due process, which will only require sufficient contact with the country (this is different than part A, which uses 14th amendment due process only because thats what states use)

(2) If the exercise of jurisdiction is consistent with the Constitution and laws of the United Sates, serving a summons or filing a waiver or service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state. o The consistent with the Constitution is referring to the due process clause of the 5th amendment o With respect to claims arising under federal law requires us to look at federal subject matter jurisdiction over questions of federal law Two branches of federal subject matter jurisdiction: Diversity jurisdiction Federal law question jurisdiction o This is the type of federal subject matter jurisdiction this rule is focused on o In summary, this rule tells us that if you could not use 4(k)(1)(A), and there is no state in which you could gain jurisdiction of the , but the claim arises under federal question law, then the service and summons of complaint establishes jurisdiction in federal court o Where would the have to receive the service of process? Wherever they are. Other parts of Rule 4 say how to serve the and some treaty measures that affect notice

Rule 4(n): Seizure of Property; Service of Summons Not Feasible (1) If a statute of the United States so provides, the court may assert jurisdiction over property. Notice to claimants of the property shall then be sent in the manner provided by the statue or by service of a summons under this rule. o This is the rule that explains how to deal with attachment. Basically, this is the rule to follow for a Shaffer case that occurs in federal court (2) Upon a showing that personal jurisdiction over a defendant cannot, in the district where the action is brought, be obtained with reasonable efforts by service of summons in any manner authorized by this rule, the court may assert jurisdiction over any of the defendants assets found within the district by seizing the assets under the circumstances and in the manner provided by the law of the state in which the district court is located. o Before you can use attachment in federal court, the must show there are no other reasonable methods of obtaining jurisdiction o Note that this establishes assets must be in the district, not the state District state o Once the other steps have been met, the state standards for attachment are used to determine if there is federal jurisdiction o So, in a nutshell, the steps to using Rule 4(n) are: Exclude all other manners of obtaining personal jurisdiction Establish that the assets are located in the district Apply the state statute and method of gaining in rem jurisdiction over a foreign (this means you have to apply the minimum contacts test, based on Shaffer) Sentence to use for Bockrath to deal with Rule 4(n): According to 4(n), a federal court can obtain personal jurisdiction via attachment over an absent if all other reasonable manners of obtaining personal jurisdiction in the district over the are ineffective, the 17

s assets that are being seized are located within the district, and the state in which the federal district court is located could have obtained personal jurisdiction via attachment over the .

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Case Briefs
This covers the majority of cases discussed in Civil Procedure, but it is inevitably lacking a few

KEY: Red type covers the factors you must know for every case (, , C, F) Blue type covers the state statute Black type covers the discussion

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Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County (SCOTUS, 1987) Facts o Original is Zurcher, the victim, who is domiciled in California for this jurisdictional proceeding is Cheng (manufacturer of tube), who is domiciled in Taiwan o Original is Cheng Taiwan for this proceeding is Asahi who is domiciled in Japan o C California o F California (state court) o State Statute: California long-arm statute State can authorize jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States. o manufacturers a valve in Japan and sells the valve to incorporates the valve into his tire tubes Tire tubes are sold (by ) in California and original purchases a motorcycle with one of the tire tubes Is injured due to a defect in the tire tube, which turns out to be the valve Procedural Background o Zurcher (victim) files suit against Cheng Shin (manufacturer of the tube) o Cheng Shin files cross-complaint against Asahi Metal Industry (manufacturer of tubes valve) o Zurcher v. Cheng Shin was eventually settled o Cheng Shin v. Asahi Asahi filed a motion to quash Superior Court denied, claiming Asahi did international business and should expect to defend their product on an international scale Appellate court reversed Superior Court (no jurisdiction) Supreme Court of California reversed Appellate Court (yes, jurisdiction) Legal Issue o Is there a state statute? Yes. California long arm statute o What did the do in/with the forum? sold valves to Cheng Shin, who incorporated the valves into his product and sold 20% of his product in the forum Was it foreseeable that the would be haled into court in the forum? 4 judges (Part II-A written by OConnor): No. The placement of a product into the stream of commerce, without more, is not an act of the purposefully directed toward the forum State. Additional conduct of the may indicate an intent or purpose to serve the market in the forum State o Examples of additional conduct: Designing product for market However, if designed for all markets, then its designed for no market in particular Advertising in forum Establishing channels for providing regular advice to customers in the forum Marshall used this idea in World Wide Volkswagen, but it did not gain ground 20

Marketing the product through a distributor who has agreed to serve as the sales agent in the forum This idea is the goal of Louisianas statute part A(8) 4 judges (Part II-B written by Brennan): Yes. Putting something into the stream of commerce refers to the regular and anticipated flow of products from manufacture to distribution to retail sale. As long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise. o Brennan approach: stream of commerce + awareness = jurisdiction o Is the claim arising out of what the did in/with the forum? o Is there an advantage to the to litigate in the forum? o Is there a disadvantage to the to litigate in the forum? 8 judges: Huge burden on Asahi because Asahi is located in Japan, so they must travel and defend Stevens approach (which has 3 votes) says you do not need to worry with themselves in a foreign legal system the minimum contacts test because Forcing to travel would not comport with fair play you can start with the propriety test and substantial justice (aka fairness questions)note, this theory of beginning with the propriety Consider how this works with the test in questions has never gained enough BuckeyeBuckeye had a connection (though votes to become case law. unrelated) to the forum, and the Court said it would not be a bigger burden in the instant case than it would be if Buckeye was sued by their forum connection o Does the forum state have an interest in litigating this case? 8 judges: no there is no interest because is not a resident In Keeton, Court said New Hampshire had an interest in protecting its residents, but they say there is no need to protect Californians because the safety issues of this case have been worked out in the settlement (note: Bockrath disagrees with this assessment, but these are the types of analysis we should do on the exam) There is also uncertainty about whos law will apply: Taiwanese, Japanese, California?? California is only an expert in California law, so if their law is definitely being applied, they have an incentive to provide the forum (note: this is the case in Burger King) Holding o Reverse State Supreme Court no jurisdiction

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Buckeye Boiler Company v. Superior Court (California, 1969) Facts o o o o o o

F - California C - California 1 (medical) California 2 (Buckeye) Ohio - California State statute: 411(2): authorizes service of process on foreign corporations doing business in this state [California] o Pressure tank manufactured by Buckeye explodes in General Electric in California; injures Flynt Unclear how pressure tank got to GE Procedural Background o Buckeye moves to quash saying it wasnt doing business in state, so court has no jurisdiction Motion denied o Now Buckeye is applying again to quash Legal Issue o Did the violate the California statute? Yes. The statute is like Louisianas Part B and strives to reach as far as possible o Does the application of the statute violate the Due Process clause of the 14th Amendment? What did the do in the forum? Buckeye sells pressure tanks to Cochin Manufacturing Company and ships the tanks to Cochins plan in California One of Buckeyes tanks wound up in California at GE Purposeful availment: A manufacturer engages in economic activity within a state as a matter of commercial actuality whenever the purchase or use of its product within the state generates gross income for the manufacturer and is not so fortuitous or unforeseeable as to negative the existence of an intent on the manufacturers part to bring about this result. o Engaging in economic activity within the forum = commercial actuality = purposeful availment o If the manufacturer sells its products in circumstances such that it knows or should reasonably anticipate that they will ultimately be resold in a particular state, it should be held to have purposefully availed itself of the market for its products in that state. Is the claim arising from what the did in/with the forum? Yes the claim is arising from the tank at GE o Propriety questions Is there undue burden on the to defend itself in the forum? No, because if the tank had exploded at Cochin, Buckeye would be required to defend itself in the forum By doing business with Cochin, Buckeye is saying that traveling to the forum for a lawsuit is not too much of a burden Is there a benefit to the in suing locally? No other forum could gain jurisdiction over all of the s Is there a benefit for the state in taking jurisdiction? Holding o Writ denied California has jurisdiction over Buckeye Louisiana perspective 22

Burger King Corporation v. Rudzewicz (SCOTUS, 1985) - Florida - Michigan C Florida F Florida (federal court U.S. District Court for the Southern District of Florida) State Statute: long arm statute Covers any person, whether or not a citizen or resident of this state, who breaches a contract in this state by failing to perform acts required by the contract to be performed in this state o allegedly breached a franchise agreement with a by failing to make required payments in Florida, and then would not shut down their operations, so they infringed upon copyright rules Procedural Background o Trial court rules against saying the had breached their franchise agreement and infringed on Burger Kings trademark rights o appeals to 11th Circuit 11th Circuit reversed saying the was bereft (deprived) of reasonable notice and financially unprepared for the prospect of franchise litigation in Florida so this would offend notions of fundamental fairness (i.e. Florida did not have jurisdiction over ) o appealed decision, but SCOTUS turned down appeal because jurisdiction by appeal does not properly lie SCOTUS accepted petition for a writ of certiorari Legal Issue o Is there a state statute? Yes state long arm statute o What did the do in/with the forum? Purchased $165,000 worth of restaurant equipment from Burger Kings Devmor Industries in Florida Signed a contract with Burger King agreeing that Florida substantive law would control disputes Agreed to make payments to Burger King in Florida Negotiated with the Miami headquarters over details of franchisee (i.e. building design, computation of monthly rent, etc.) and secured concessions from the Miami headquarters Was it foreseeable that the would be haled into court in the forum? Rule of law from Burger King case: a contract alone is not enough to make being haled into court foreseeable, but a contract plus something is enough In this case, purposefully availed himself of Florida because Jurisdiction is proper where the contacts proximately result from actions by the himself that create a substantial connect with the forum State. o Physical presence in the state is not necessary o So long as a commercial actors efforts are purposefully directed toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there. o Is the claim arising out of what the did in/with the forum? Yes, it is arising out of s not paying the contract o Is there an advantage to the to litigate in the forum? o Is there a disadvantage to the to litigate in the forum? has not proved that there are factors that should outweigh his litigating in the forum 23 Facts o o o o o

o Does the forum state have an interest in litigating this case? Florida has an interest in providing means of redress for its citizens The state whos substantive law is going to be used (due to the contract) always has an interest in being the forum because that state is the expert on their own law ( Holding o Reverse appellate court Florida does have jurisdiction over Dissent o There is an unfairness in requiring a franchisee to litigate in the forum of the franchiser Predominate contacts were with the Michigan office Forcing to litigate in Florida is wrong because bereft of reasonable notice and financially unprepared

Note: Burger King implies that the two-part test from Buckeye should be read simultaneously.

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Burnham v. Superior Court of California (SCOTUS, 1990) - California (Mrs.) - N.J. (Mr.) F California (state) CStatute long arm and Francine married in W.Va. They move to N.J. and have kids then decide to get divorce and that she will file for divorce He files for divorce in N.J. but never serves her She files for divorce in California and serves him when he is visiting California to see kids Procedural Background o moved to quash divorce case on jurisdictional grounds; denied by trial court o Appellate court affirmed trial court o State supreme court affirmed Legal Issue o Is personal service in the forum enough? Scalia: Yes, for historical reasons Brennan: Yes, for modern reasons (uses the Shoe test) By visiting the forum the is purposefully availing himself of the forum Holding o Personal service in the forum is enough to gain jurisdiction over a transient Facts o o o o o o

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Calder v. Jones (California, 1984) Facts o - California o (Calder President of National Enquirer) Florida (South reporter for National Enquirer) Florida o F California (state) o C California defamation o State statute: long arm statute A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States. o printed a libelous story that caused the IIED and invaded the privacy of the story said the drank so much that she could not work Procedural Background o Trial court said there was no jurisdiction o Appellate court reversed, saying there was jurisdiction Legal Issue o Was there a state statute? Yes. The long arm statute. o What did the do in the forum? Calder has been to California twice once on pleasure, once to testify in an unrelated trial; he oversees all of the Enquirers activities South travels to California on business more than 20 times in 4 years conducted phone interviews to California for this story He has spoken to the about the article However, what did Calder/South do outside of the state that would impact inside the state? (essentially, shooting in the forum) this case adds the idea of an effects test, which is enough to gain jurisdiction California is the focal point for the story and the main place where harm was suffered Under the circumstances, petitioners must reasonably anticipate being haled into court there to answer for the truth of the statements made in their articleJurisdiction over petitioners is therefore proper in California based on the effects of their Florida conduct in California. o s actions were intentionally aimed at California and the knew the brunt of the article would be felt by the in California o Is the claim arising form the action with/in the forum? Story was written with the intention of it having an effect in California o Propriety questions: interests burden Shouldnt be burdensome because has already had to testify in California for other case State interest Holding o Appellate Court affirmed Louisiana Application o Nonresident o Violates number 4: 26

Caused injury in the state by an act done outside of the state Regularly does business in the state and derives revenue from goods consumed in the state o Act arises from violation o Holding: Louisiana would have jurisdiction

Note: this case establishes the effects test in the powers questions Note: This case establishes that 1st Amendment claims have no place in jurisdictional questioning due to advancements in defamation law.

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Gray v. American Radiator and Standard Sanitary Corp (Illinois, 1961) Facts o o o o o

F = Illinois C = Illinois = Ohio (Titan) /Pennsylvania (American Radiator) = Illinois State statute: 17 (1)(b): a nonresident who, either in person or through an agent, commits a tortious act within this State submits a jurisdiction o Water heater valve was manufactured by Titan Valve Manufacturing Company in OH sold to American Radiator in PA American Radiator used valve in water heater water heater sold to Gray in IL valve was defective and water heater exploded and injured Gray Procedural Background o Trial court quashed on jurisdictional grounds Legal Issue o Did (Titan) break the Illinois statute? Yes Titan committed a tortious act in Illinois through an agent The Illinois Supreme Court is the final authority on what the Illinois statute means; they are the final arbitrator on their own state laws o Does the application of this statute violate the 14th amendment? Did the have minimum contacts with the forum? o What did the do in the forum? Positives of Titan: A product manufactured in Ohio was incorporated in a water heater in Pennsylvania and sold to a third party in Illinois Negatives of Titan: Unknown if Titan has ever done any other business, directly or indirectly, with the forum New test for minimum contacts test: it is sufficient if the act or transaction itself has a substantial connection with the State of the forum. Did the transaction or act allow the to invoke the benefits and protections of the law of the forum? It is a reasonable inference that its commercial transactions, like those of other manufacturers, result in substantial use and consumption in this State. o When the would not be able to prove that the sold a number of goods in the forum, it can be inferred that a number of goods were sold o This shifts the burden of proof to the o Is the claim arising from the connection with the forum? Yes the claim is arising from the injury caused by the valve being sold to Gray. By putting an item in the stream of commerce, a is purposefully availing itself of the forum Note: Gray is not using the test set forth in Hanson, but uses the idea of purposeful availment to establish a new test of transaction connection to the forum As a general proposition, if a corporation elects to sell is products for ultimate use in another state, it is not unjust to hold it answerable there for any damage caused by defects in those products. o Proprietary questions: What inconvenience will it cause the to fight a lawsuit in the forum? Is there an interest in the for suing in the forum? 28

The was injured in the forum Witnesses are located in the forum Is there an interest in the state for taking jurisdiction? The Illinois law will govern the substantive questions

Holding o Reverse and remand trial court Louisiana perspective: o nonresident o Breaks number 8 Manufacturer Caused damage IN the state When the put the valve into the stream of commerce it could have foreseen that product would be found in the forum o Claim arose from the transaction o Holding: Louisiana could claim jurisdiction

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Hanson v. Denckla (SCOTUS, 1958) Facts o - Delaware for Wilmington Trust (the we care about) Other was Hanson, who is domiciled in Florida o - Florida (s are Denckla and Stewart) o C - Florida o F Florida o State statute: o Donner creates a trust in Delaware with the beneficiaries being Hansons children Donner moves to Florida and dies Her will says that anything not accounted for goes into her estate; the beneficiaries of the estate include Denckla and Stewart o Executor (Hanson) puts extra money in the trust Procedural Background o Wilmington Trust is an indispensable party, meaning that in order for the forum to have jurisdiction, they had to have jurisdiction over Wilmington Trust This is because of the nature of Donners trust (Wilmington Trust was a trustee) o Wilmington Trust does not appear in court; default judgment issued against o take holding to Delaware for FFC; Delaware says forum didnt have jurisdiction Legal Issue o Did Wilmington Trust have minimum contact with the forum? No because Wilmington Trust did not have purposeful availment in the forum The must purposefully avail itself of the privilege of conducting activities within the forum, thus invoking the benefits and protections of the law The interactions that Wilmington Trust had with Florida happened only because of Donner What purposeful availment means will change from case to case Meaning changes as the changes Also changed based on the type of law (i.e. tort v. contract) Holding o Florida did not have jurisdiction over Wilmington Trust o Black Letter Law: Unilateral activity with a non-resident does not satisfy the requirement for minimal contact with the state; the non-resident must purposefully avail itself of the privilege of conducting activities within the forum State Louisiana Application

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Helicopteros Nacionales de Colombia, S.A. v. Hall et al (SCOTUS, 1984) - unclear (all U.S.) - not Texas (Columbia) C not Texas (Peru) F Texas (state) State Statute: long-arm statute (Texas Supreme Court said the intention of the legislature was to reach as far as the constitution allowed) o provides helicopter transport for oil and construction companies in South America; while 4 Americans were on board (employees of WSH) the helicopter crashed Procedural Background o Trial court found for and awarded $1.14 million to o Appellate court reversed trial court, saying there was no jurisdiction o Texas Supreme Court originally affirmed Appellate court; then on a motion for rehearing, reversed and affirmed trial court Legal Issue o What did the do in/with/effecting the forum? Held a negotiation session in Houston Purchased 80% of its fleet (more than $4million) from Fort Worth Trained pilots in Fort Worth Received payments from Texas (keep in this mind, this is not the same thing as receiving payments in Texas, particularly if it was requested by ) o What is it that Helicopteros failed to do that would have given Texas general jurisdiction? o Are these contacts systematic and continuous enough to warrant general jurisdiction? No. mere purchases, even if occurring at regular intervals, are not enough to warrant a States assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions. Purchases are not enough so, is there an amount of purchases in the forum that is sufficient to support general jurisdiction? o There is no amount of purchases in the forum that allow for general jurisdiction o Soooo.is there any amount of purchases in the forum that do not support specific jurisdiction? Is there no amount of sales that can support general jurisdiction? (look at Walmart rule) o Why did the not argue that this was a specific jurisdiction case? They had agreed in advance that claims arising out of the sale would be tried in Peru Holding o No jurisdiction Facts o o o o o

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Hess v. Pawloski (SCOTUS, 1927) - Pennsylvania - Massachusetts Claim Massachusetts Forum Massachusetts State statute: Pursuant to a state law in Massachusetts, was served through the Registrar of Motor Vehicles o was driving on a highway in Massachusetts when he hit Procedural Background o Jury in trial court found for the o Massachusetts Supreme Judicial Court affirmed the judgment appealing to SCOTUS Legal Issue o Did the imply consent by driving on Massachusetts highway, and if so, is service to the Registrar of the Motor Vehicles enough? A state has the right to govern use of its highways by both citizens and non-citizens Non-citizens should be on the same playing field as citizens; this statute achieves that goal Motor vehicles are dangerous, so a state has a public interest in ensuring the safety of both citizens and non-citizens while traveling on them Holding o A state statute can say an out-of-state is implying consent to the jurisdiction of the state he/she is driving in. Therefore, serving the motorist through a government agent of the state where the claim took place (and where the forum is), is sufficient, and does not deny the motorist of due process of law o Affirmed Note: this case would show that an isolated incident is enough for jurisdiction, but the danger of the vehicle is too substantial a part of the opinion to say that when non-dangerous items cause a tort, the state has jurisdiction Louisiana application o Non-resident test - is not a resident o #3 applies: an act in the state caused injury/damage o Specific jurisdiction test yes, claim arose from act o Holding: Louisiana would have jurisdiction Facts o o o o o

Note: implied consent is a fictional consent

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International Shoe Company v. Washington (SCOTUS, 1945) Facts o - Delaware is the domicile (where they are incorporated) Positive interaction with forum 11 to 13 employees sent to forum to get orders for shoes from 1937 1940 Employees generated more than $31,000 in commission during this time period Negative interaction with forum No offices in forum Orders were not filled in forum (sent to Missouri) Employers paid by office in Missouri o - Washington o C Washington o F Washington o State statute: All employers in the state of Washington must pay into the state unemployment fund; if they do not, the state has jurisdiction over them and can serve them by mailing them notice to the last listed address (or serve him personally in the state) o International Shoe did not pay into the unemployment fund for the years it sent employees into the state Procedural Background o Trial court, appellate court, and Washington Supreme Court ruled in favor of Legal Issue o Did the state of Washington have jurisdiction over International Shoe? First, the state law was met International Shoe had a minimum contact with the state It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. The casual presence of the employer in the forum may not be enough for the forum to gain jurisdiction, but International Shoe has a systematic and continuous presence in the forum By having minimum contact with the forum, the company gets certain benefits; as such, he also has certain obligations Holding o Affirm Washington State Supreme Court holding Louisiana Application o Nonresident test yes o #2 International Shoe was contracting to supply things in the state o Claim arose from the doing business

Note: International Shoe says a systematic and continuous presence means the forum has jurisdiction, but it does not limit minimum contact to a systematic and continuous presence.

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J.A. Olson Co. v. City of Winona (5th Circuit, 1987) Facts o - incorporated in Illinois; primary place of business in Mississippi o - incorporated in Mississippi Procedural Background o District court dismissed due to lack of diversity of jurisdiction Legal Issue o To determine where a corporations primary place of business is, use a total activity test: When a corporations activities are far flung, the sole nerve center from which a corporation radiates out to its constituent parts is the PPB. When corporation has its sole operation in one state but officers in another, the place of operation is the PPB. When the activity of the corporation is passive and the brain of the corporation is located in another state, the location of the brain is the PPB. Holding o Affirmed

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Keeton v. Hustler Magazine (SCOTUS, 1984) - New York - Ohio (domicile); California (primary place of business) F New Hampshire (federal) C all states State statute long arm statute Has been construed by the NH supreme court to reach to the fullest extent of the constitution, and has a 6 yr statute of limitations o printed 5 libelous stories about Procedural Background o sued for libel, but trial court dismissed because is a non-resident o Appellate court affirmed Legal Issue o Is there a state statute? Yes, the long arm statute o What did the do in/with/effecting the forum? distributed 10 15K magazines per month in the forum ...such regular monthly sales of thousands of magazines cannot by any stretch of the imagination be characterized as random, isolated, or fortuitous. choosing to sell magazines in the forum was purposeful availment of the forum Does the s residence matter? But s residence in the forum State is not a separate requirement, and lack of residence will not defeat jurisdiction established on the basis of s contacts. Legislative history shows that in 1971, NH changed the long arm statute from having to be committed against a NH resident, to excluding the s residence as a consideration o Was it foreseeable that the would be haled into court in the forum for what it did in/with/effecting the forum? Yes o Does the claim arise out of what the did in/with the forum? Yes claim arises from magazines the sold in the forum o What burden is caused to the for litigating in the forum? o Is there an advantage to the to litigate in the forum? Yes NHs statute of limitations (6 years) for libel is the longest in the country, and at the point of the suit, the only forum the could sue in o Is there a reason the state would want jurisdiction? is not a resident of NH, so NH is not protecting its own, but it does have an interest in redressing injuries caused in NH NH may want to redress to discourage the deception of its citizens Holding o Reverse (NH does have jurisdiction) Louisiana Application Facts o o o o o

Note: the difference between this is and Calder is who the and are: CALDER = editor/reporter = resident of forum KEATON = Magazine = non-resident 35

How would the cases work if you reversed the s and s?

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Kulko v. Superior Court of California (SCOTUS, 1978) - New York - California F California (state court) C California/New York State statute: long arm statute A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States (extends to the limits of the constitution) This is like Louisianas part B o Kulkos marry in California, though they are domiciled in New York Return to New York, have two children there, and live there until they divorce in New York o After divorce, Mrs. Kulko moves her domicile to California, where she marries Horn (Mrs. Kulko now Horn) Terms of divorce said kids would live in New York during school year, but visit California for summer and vacations Kids decide after one year that they would rather live in California and visit NY on vacations and during the summer o Horn (Mrs. Kulko) suing Mr. Kulko for increased support and custody Procedural Background o Trial, appellate, and state Supreme Court say California has jurisdiction over Legal Issue o What did the do in/with the forum? married in California Acquiesced to kids wishes and allowed them to move to California o Was it foreseeable that Horn would hale Kulko into court in California? No, acquiescence is not enough of a connection between the and the forum Foreseeability is based on what the did in/with the forum Acquiescence purposeful availment; acquiescence (in this case) = promotion of familial harmony There is no commercial act/reward in sending your children to live with the other parent because the reward is dependent upon the absence of the children o Propriety questions These questions are unnecessary here because California does not have the power to claim jurisdiction, but it should be noted that merely because California is the center-ofgravity does not mean California has personal jurisdiction over Propriety questions do not overrule powers questions Holding o Reversed and remanded Facts o o o o o

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Mas v. Perry (5th Circuit, 1974) - France and Mississippi - Louisiana C Louisiana rented an apartment in Louisiana from and later found out there was a two way mirror in their bedroom and the had been watching them during the first 4 months of their marriage Procedural Background o District court held for (awarded $20,000 in total) Legal Issue o Federal law requires for diversity of citizenship: original jurisdiction in federal district courts of all civil actions that are between, inter alia, citizens of different States or citizens of a State and citizens of foreign states and in which the amount in controversy is more than $10,000. The amount has been raised to $75,000 Burden to prove diverse citizenship falls to o How do you determine where someone is a citizen? Citizenship = domicile To be a citizen of a state, you must first be a U.S. citizen and a domiciliary of the State Domicile = place of true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom (same as in state personal jurisdiction) Domicile can be changed by a combination of two elements: (1) taking up residence in a new domicile and (2) intending to remain in the new domicile Ma (female) is a domicile of Mississippi because: She does not automatically give up her domicile (and in this case citizenship) by marrying a foreigner She had no plans to remain in Louisiana, and you maintain your old domicile until you obtain a new one o The amount of the award by the court need not be more than the minimum; the amount of the controversy is determined by the amount claimed by the s Holding o Affirmed Facts o o o o

When does diversity jurisdiction have to occur? When the suit is filed. It doesnt matter if they are diverse when the suit occurs or at the trial. Does this allow people to move to create diversity? Yes, but remember if you move for the sole purpose of creating diversity, you probably have not created a new domicile because you lack the retention to remain.

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McGee v. International Life Insurance Co. (SCOTUS, 1957) Facts o - Texas is the state of primary business, but it does not say if they are incorporated in Texas or not; one thing we know, it is NOT California Positive contacts with forum Mailed reinsurance to in California Received payments from in California o - does not say, but presumed to be California o C - California o F California o State statute: foreign corporations are subject to suit in California on insurance contracts they have with residents of that state, regardless of where the foreign corporation may be located o s son bought life insurance from Empire Mutual, an Arizona firm Empire Mutual sells company to International Life o s son dies (suicide); International Life does not pay out Procedural Background o wins on default judgment in California o takes judgment to Texas for FFC; Texas says California did not have jurisdiction over Legal Issue o Did have minimum contact with forum? Yes, the notion of minimum contact from Shoe is prevalent here The contact was isolated (the s son was the only person the insured in California), but it was also continuous in that the coverage lasted for a number of years Holding o Reversed and remanded Louisiana Application o Non-resident test: yes o #2 contract to supply services in state o Claim arose from contract

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Milliken v. Meyer (SCOTUS, 1940) - Wyoming; served with process in Colorado - Wyoming Claim - Colorado Forum Wyoming State statute: and were in a business deal of sorts (profiting from oil) together when defrauded of his rights Procedural Background o Default judgment against Legal Issue o Can a person be served in a state other than the forum if that person is domiciled in the forum? The authority of a state over one of its citizens is not terminated by the mere fact of his/her absence from the state The state must have employed a reasonable method of apprising the absent citizen of the lawsuit; the states method must not offend the traditional notions of fair play and substantial justice Holding o If a person is domiciled in the forum, then service of process may take place outside of the forum o Affirmed Louisiana Application Facts o o o o o o

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Mullane v. Central Hanover Bank and Trust, Co. (SCOTUS, 1950) - not NY - NY C - NY F (state court) NY State statute: NY law allows for the pooling for small trusts into a common fund Understanding trust pools: Trust pools are when people with small sums of money pool their funding together as to receive greater earnings on the trust and attract a bank to serve as the trustee (banks will not front the overhead costs for small trusts) According to NY law, the bank for a trust pool must go before a judge every so often and account for all of the money; after this, a judgment is sent down and binds the beneficiaries, such that the beneficiaries cannot sue the bank for mismanagement The is the lawyer for the unrepresented beneficiaries and he is contesting whether or not the bank properly notified the unrepresented beneficiaries Note: two groups of unrepresented beneficiaries the court will discuss known and unknown Procedural Background o Trial court ruled in favor of Legal Issue o What notice of suit is required to be constitutional? o (and state) are arguing they have a right to discharge trustees Court does not question this right, but the question is by what means must the give beneficiaries to contest the dischargement of a trust o The fundamental requisite of due process of law is the opportunity to be heard This must be balanced with the States interest in bringing a settlement of fiduciary claims for people who are outside of the forum o A fundamental requirement of due process is to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. This seems to institute requirements of: Knowledge action is going to occur Information on the action Reasonable amount of time to respond to the action o It would be idle to pretend that publication alone, as prescribed here, is a reliable means of acquainting interested parties of the fact that their rights are before the courts. o Publication may be enough IF it is supplemented with other action which in itself may reasonably be expected to convey a warning Examples of other actions: Attachment of a chattel Entry upon his real estate The only time publication alone would be acceptable would be if it is not reasonably possible or practicable to give more adequate warning. o The court recognizes that some people may be so far removed who can receive benefits from the trust that it would be unreasonable to require to search for them Facts o o o o o o

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So accordingly we overrule appellants constitutional objections to the published notice insofar as they are urged on behalf of any beneficiaries whose interests or addresses are unknown to the trustee. BUT, this only applies to those that it would be unreasonable for For beneficiaries in which the residence is known (names and post office addresses), publication is not enough o The statutory notice to known beneficiaries is inadequate, not because in fact it fails to reach everyone, but because under the circumstances it is not reasonably calculated to reach those who could easily be informed by other means at hand. The fact that mailed stuff at one point to all beneficiaries only further highlights that they have the easy means to do so Mail is a valid means of communication o Great caution should be used to ensure that fair play is not denied. Holding o For a person whos whereabouts are known, the NY law is unconstitutional in its manner of notice o Reversed (find for ) - notice must be reasonably calculated under the circumstances to reach the

Mullane Test 1. What is the state statute? 2. Are the methods of notice under the state statute reasonably calculated under the circumstances to reach the ? Keep in mind, the method of notice must be statutorily stated. It does not matter if your method is superior to the statutes method. Follow the statute or your out.

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Pennoyer v. Neff (SCOTUS, 1878) - Oregon - California F Oregon C Oregon State statute says that for the state of Oregon to claim jurisdiction over a non-resident, the must have property therein [the state]; and in the last case, only to the extent of such property at the time the jurisdiction attached o Mitchell performed legal services for Neff to acquire property in Oregon; Neff never paid for the legal services o Mitchell files suit against Neff and wins on default judgment and attaches Neffs land to suit o Sheriff sells land in an auction (to Neff); buyer (Neff) gives land to Pennoyer o Neff reappears a couple of years later and wants his land back Procedural Background o Trial court rules in favor of Neff, saying the Oregon court did not have jurisdiction over Neff Legal Issue o Did the state of Oregon have jurisdiction over Neff? The state statute was not met the property was not attached at the beginning of the lawsuit o Every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory. Holding o The original court did not have jurisdiction over Neff, so the original holding is not valid; thus Louisiana Application Facts o o o o o

A judgment rendered in violation of due process is void in rendering State and is not entitled to full faith and credit elsewhere. ~ Black Letter Law from Pennoyer, as stated in World-Wide Volkswagen

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Perkins v. Benguet Consolidation Mining Co. (SCOTUS, 1952) Facts o - not Ohio Who was served? President of corporation was personally served in the forum Question: can you gain jurisdiction by personally serving the President of the corporation in the forum? Note: Scalia thinks this case has been misread for ages and is really a question of service o - not Ohio o F Ohio (state originally filed in Court of Common Please of Clermont County) o C uncertain where he was suppose to do whatever it was he didnt do (pay the dividends) o State statute o is suing for not paying dividends from profits in mines operated in the Philippines and for not issuing her certificates of stock QUESTION: Could this be spun around into a specific jurisdiction case? Procedural Background o Trial court, appellate court, State Supreme Court sustained motions to quash service of summons on the mining corporation Legal Issue o What did the do in/with/effecting the forum? is a mining company with continuous and systematic (though limited) presence in Ohio during Japanese occupation of the Philippines Maintained an office in Ohio (this is enough!) o This case has been taken to mean that if a corporation has an office in the forum, that is enough for general jurisdiction Had several directors meetings in Ohio Had 2 active bank accounts for company in Ohio Supervised policy dealings from Ohio Was it foreseeable from what the did in/with/effecting the forum that he would be haled into court in the forum? o Is the claim arising from what the did in/with/effecting the forum? No. This is a question of general jurisdiction. There is ample connection to the forum. As long as there is ample connection, the state is entitled to take jurisdiction, but not required to o NOTE: the Due Process clause is stated in the negative so states are not required to take jurisdiction o Is there a burden on the in litigating in the forum? o Is there an advantage to the in litigating in the forum? o Does the state of the forum have an interest in litigating the case? Holding o Reverse and remand

Note: This is the first case that SCOTUS finds it is okay to have jurisdiction when the claim is unrelated to what the did/in with the forum Question: How little contact is sufficient when the corporation is not incorporated in the forum in order for the forum to have jurisdiction over a claim unrelated to what the did in /with the forum? If we establish what the minimum is, once a has hit that minimum, isnt it true that anyone could sue? 44

Randazzo v. Eagle-Picher Industries, Inc. (F.R.D., 1987) Facts o claims the is domiciled in Pennsylvania, but who knows what that means Procedural Background o Dismissed (with 10 days to refile) because did not establish domicile of Legal Issue o It is the burden of the to establish diversity of jurisdiction o Both the principle place of business and the state of incorporation must be different Holding o Dismissal

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Shaffer v. Heitner (SCOTUS, 1977) - nonresident of Delaware - nonresidents C - Oregon F Delaware (state court) State statute For all purpose of title, action, attachment, garnishment, and jurisdiction of all courts held inthis State, but not for the purpose of taxation, the situs of the ownership of the capital stock of all corporations existing under the laws of this State, whether organized under this chapter or otherwise, shall be regarded as in this State. o has one share of stock in company (Greyhound) which is domiciled in Delaware filed suit in Delaware against Greyhound and 28 present/former employees for violating duties by engaging in actions that resulted in the corporation being held liable in a private antitrust suit and criminal contempt action Also filed a motion for an order of sequestration of the Delaware property of the s in his suit s shares of stock in Greyhound were seized based on the sequestration motion Stock considered to be in Delaware (its situs legal location is Delaware) made aware of suit via certified mail and ad in paper Procedural Background o file motion to quash saying that the sequestration procedure did not accord them due process under the 14th amendment and they did not have sufficient contacts with Delaware to sustain jurisdiction there Trial court denied motion to quash o Appellate court affirmed trial court Legal Issue o Quasi in rem jurisdiction based on the courts power over property within the territory (Pennoyer) Under Pennoyer, even though a state may not have personal jurisdiction, they could have in rem jurisdiction because the proceeding is against the property and not the person Many lower courts have questioned this theory and have said that perhaps the idea of fair play should be used to determine in rem jurisdiction SCOTUS has previously held that property cannot be subjected to a courts judgment unless reasonable and appropriate efforts have been made to give the property owners actual notice of the action o Should International Shoe minimum contacts test be applied to in rem cases? Restatements 56: juridical jurisdiction over a thing is a customary elliptical way of referring to jurisdiction over the interest of persons in a thing In other words.to justify jurisdiction over a thing, the basis of the jurisdiction must be jurisdiction over the interests of persons in a thing Restatement 66: a wrongdoer should not be able to avoid payment of his obligations by the expedient of removing his assets to a place where he is not subject to an in personam suit We therefore conclude that all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny. o NOTE: A literal reading of this rule means that minimum contacts is an umbrella for all jurisdiction question (think about how this applies for Burnham) 46 Facts o o o o o

When a person has property in a state, usually they would meet this test because they have probably purposefully availed (Hanson) themselves of the forums benefits Injury on a piece of land in the forum would probably constitute jurisdiction Ergo applying minimum contacts test should not alter many cases It only becomes an issue in cases (like this one) where the property which is serving as the basis for state-court jurisdiction is completely unrelated to the s cause of action (general jurisdiction) o Counter arguments to the application of International Shoe minimum contacts test This doesnt discuss how the court should take into account if the property placed such to escape jurisdiction All it really suggests is that a state should have the ability to attach the property as security for a judgment being sought somewhere where there is jurisdiction Minimum contacts test: o What did the do in/with the forum? The holdings in Greyhound are insufficient claims the s positions as officers of a Delaware corporation are enough to provide sufficient contacts there This is insufficient because Delaware state law bases jurisdiction on the presence of property, not presence of corporation o Note: Bockrath thinks that they have purposefully avilaed themselves because they are choosing to be directors of corp of the forum o Note: This case was probably overruled in part by Burger King. The do these folks have minimum contacts? post-BK, the court may have said there were minimum contacts o Is there an advantage in the state serving as the forum? Yes. Delaware has an interest in asserting jurisdiction to adjudicate claims of mismanagement of corporations domiciled in the state Holding o Reversed o Rule: Apply the International Shoe minimum contacts test in cases of state in rem jurisdiction Stevens concurrence o Things should be looked at as a structure of risk o We should provide a level of predictability for people to structure their lives and know when they will be subjected to jurisdiction and when they wont o There was no jurisdictional risk when you buy shares of stock because you have no clue where the corporation is incorporated o Jurisdictional risk is a yes or no. the amount of risk is quantitative

Question: How much contact need a have with the forum for in rem jurisdiction to withstand? Answer: The tangibility of the product will alter what constitutes minimum contacts.

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Smyth v. Twin State Improvement Corp. (Vermont, 1951) - Massachusetts - Vermont C - Vermont F Vermont State statute: If a foreign corporation contracts with a Vermonter to do something in whole or part in Vermont, if the foreign corporation commits a tort against a Vermonter, then the foreign corporation did business in Vermont and Vermont has jurisdiction over him Note: this state statute requires a certain domicile of the o re-roofed a house for in Vermont and damaged the house Procedural Background o Trial court dismissed the claim on factual matters, but also said there was no jurisdiction; is appealing Legal Issue o Did the state have jurisdiction over the ? The state law was met International Shoe says the must have minimum contact with the forum No reason a tort committed in the forum does not constitute minimum contact o Foreign corporations should be held responsible for torts committed in the forum, just as local corporations would be responsible Holding o Reverse and remand Louisiana Application o Non-resident test: yes o #3 applies (injury was caused by an act in the state) o Claim arose from act in the state Facts o o o o o

Note: this implies that an isolated incident is enough for minimum contact to exist; it does not settle the issue because the holding is from the Vermont Supreme Court, not SCOTUS

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Strawbridge v. Curtiss (SCOTUS, 1806) Facts o - Massachusetts o - some from Massachusetts, one from Vermont (Curtiss) Procedural Background o District court dismissed because of lack of jurisdiction Legal Issue o Congress has said for diversity of citizenship The suit is between a citizen of a State where the suit is brought, and a citizen of another State o This means that all s must be able to be sued in federal court, i.e. they all have to be citizens of another state o This establishes the complete diversity rule Holding o Affirm no jurisdiction

The Strawbridge rule requires complete diversity, but only governs cases brought under 1332(a)(1).

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World Wide Volkswagen Corporation et al. v. Woodson (SCOTUS, 1980) Facts o - resided in New York (Traveling through Oklahoma); were moving domicile to Arizona, but hadnt gotten there yet, so technically domicile is still New York o - World-Wide is domiciled in New York (incorporated there) distributes vehicles to NY, NJ, CT no relations to Oklahoma It is not known if any car from World-Wide has ever entered Oklahoma except for the car Other - Seaway is the retail dealer and is incorporated in New York o F - Oklahoma o C - Oklahoma o State Statute (long-arm statute): A court has jurisdiction over a person who causes tortious injury in this state by an act or omission outside this state if he regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state o buy an Audi from Seaway, and while driving through Oklahoma, the is struck by another car Trunk of car catches on fire and are severely injured Procedural Background o District court and Oklahoma Supreme Court rule that Oklahoma has jurisdiction over the because the could foresee the use of the car in Oklahoma Legal Issue o Did the violate the state statute? Yes there was a tortious injury in Oklahoma caused by an act in New York, but Did the do or solicit regular business in Oklahoma? Oklahoma Supreme Court says that the use in Oklahoma was foreseeable, so indirectly business was solicited in Oklahoma o Does the application of the statute violate the Due Process clause of the 14th Amendment? What did the do in the forum? Positives: o One isolated incident the car sold in NY was in a wreck in Oklahoma Negatives: o They carry on no activity whatsoever in Oklahoma o No services in Oklahoma o Solicit no business there Does foreseeability count as what the did in/with the forum? o Foreseeability has never been a sufficient benchmark for personal jurisdiction o Foreseeability is not just the mere likelihood that a product will find its way into the forum State. Rather, it is that the s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. Rule of law: Foreseeability is based on foreseeability of being haled into court in the forumthis question is added to the powers questions o Note: the dangerousness of the product is irrelevant because of the manner that tort law has developed In Asahi, Stevens tries to bring back the idea that the dangerousness of the product should matter, but he does not have enough votesyet 50

o Brennans dissent: placing an item in the stream of commerce means you (and therefore jurisdiction) travel with the product In Asahi, Brennan is able to get 4 votes on board with the idea that putting an item into the stream of commerce with the awareness that the product is being marketed towards the forum; however, he is never able to get a majority o Marshalls dissent: The has a connection to the forum because he is part of the network of Volkswagen dealers In Asahi, OConnor mentions the idea of establishing channels for providing regular advice to customers in the forum as a means of providing the something more that she says is necessary to gain jurisdiction over a manufacturershe was only able to get 4 judges on board, though Holding o Reverse Louisiana Application

In WWVW, the Court rejected the assertion that a consumers unilateral act of bringing the s product into the forum State was a sufficient constitutional basis for personal jurisdiction over the . Asahi WWVW does not tell us if Buckeye and Gray are still applicable because WWVW deals with jurisdiction over retailers, and Buckeye and Gray deal with jurisdiction over manufacturers.

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