Civil Procedure Flashcards
(44 cards)
what is Personal Jurisdiction (PJ)
Personal jurisdiction refers to the ability of a court to exercise power over a particular defendant or item of property.
Limitations on Personal Jurisdiction: The exercise of personal jurisdiction generally must be authorized by statute and must be constitutional.
Statutory Limitations (state law), and Constitutional Limitations.
Statutory Limitations
States have the power to decide over whom their courts may exercise jurisdiction. Therefore, the first place to look to determine whether the court has properly exercised personal jurisdiction usually is state law. If no state statute grants the court the power over the parties before the court, the court lacks personal jurisdiction.
Constitutional Limitations (Exercise of personal jurisdiction over a defendant in violation of these constitutional requirements is not valid, even if a statute purports to grant the court jurisdiction.)
- The defendant must have such contacts with the forum state that the exercise of jurisdiction would be fair and reasonable.
- The defendant must be given appropriate notice of the action and an opportunity to be heard.
3 types of personal jurisdiction
In Personam Jurisdiction, In Rem Jurisdiction, and Quasi In Rem Jurisdiction
In Personam Jurisdiction
In personam jurisdiction exists when the forum court has power over the person of a particular defendant
Most states have statutes granting their courts in personam jurisdiction in the following four situations:
- Where the defendant is present in the forum state and is personally served with process (even if merely passing through, however service by fraud or force is invalid. Also parties or witnesses to a judicial proceeding in the state or elsewhere are given immunity by most states);
- Where the defendant is domiciled in the forum state (Domicile = Physical presence + intent to make the place home) (a US citizen domiciled abroad is subject to personal jurisdiction in the US);
- Where the defendant consents to jurisdiction (Express or Implied Consent or even voluntary appearance) (Express Consent - By contract, By appointment [agent for service of process] required by the state to do business) (Implied Consent - If a state has a strong reason to regulate a nonresident’s activity within its borders, it can require that the nonresident, by doing that activity, agrees to let a specific state official accept legal documents on their behalf); and
- Where the defendant has committed acts within the State bringing him within the forum state’s long arm statutes (Unlimited Long Arm Statutes or Limited or Specific Long Arm Statutes).
Constitutional Limitations on In Personam Jurisdiction
- Sufficient Contacts with the Forum
- Notice
Sufficient Contacts with the Forum
- Contact: Purposeful availment of the forum’s state privileges and foreseeability that the defendant may be sued in the forum state;
- Relatedness (“arise out of and relate to”). Relatedness determines whether jurisdiction will be based on general PJ or specific general PJ. whether the claim asserted against the defendant arises out of or relates to the defendant’s contacts with the forum, if yes - specific jurisdiction, if no - general jurisdiction (check domicile). ; and
- Fairness (specific PJ only): Burden/convenience, state’s interest, and plaintiff’s interest.
Notice/Service of Process
In addition to PJ, the defendant is entitled to notice that she has been sued. As a constitutional matter, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the action.”
In a regular lawsuit, notice consists of two documents: (1) a summons, which is a formal court notice of suit and the timing for response; and (2) a copy of the complaint. Together, these two documents are sometimes called “process.”
WHO CAN SERVE PROCESS?
Any person who is at least 18 years old and not a party to the action may serve process.
The process server need not be appointed by the court. (Some state courts require appointment by the court.)
WHEN MUST PROCESS BE SERVED?
If the defendant is to be served within the United States, service must take place within 90 days of the filing of the complaint. This period may be extended for good cause.
HOW IS PROCESS SERVED on an Individual within the US?
a. Personal Service - For personal service, process is given to the defendant personally anywhere.
b. Substituted Service - Substituted service means serving a substitute for the defendant. Substituted service can be done only (1) at the defendant’s usual place of abode; (2) with someone of suitable age and discretion; (3) who resides there. In federal court, substituted service may be used even if personal service is possible.
c. Service on Agent - Process can be delivered to the defendant’s agent. This is OK if receiving service is in scope of agency, for example, when the agent is appointed by contract. Agent service can be used even if personal service is possible.
d. In addition, methods for serving process that are permitted by the law of the state (1) where the federal court sits or (2) where service is made are permitted. What is a good example of how state law might apply? Some states allow service of process by mail.
HOW IS PROCESS SERVED on a business or organization in the United States
They may be served by:
- Delivering to an officer (for example, president, treasurer) or a managing or general agent a copy of the summons and of the complaint, OR
- Using a method permitted by the state: (1) where the federal court sits or (2) where service is to be made.
HOW IS PROCESS SERVED on a minor or an incompetent person in the US
Service on a minor or incompetent person may be made only by a method permitted by the law of the state in which service is to be made.
HOW IS PROCESS SERVED on parties in a foreign country
A method allowed by international agreement (for example, the Hague Convention) may be used. Or, if there’s no such agreement on point, the options (subject to the constitutional requirement that the method must be reasonably calculated to give notice) are:
- As directed by the American court; or
- Method allowed by the foreign country’s law; or
- Method directed by foreign official in response to a letter of request (letter rogatory) from the American court; or
- Personal service in the foreign country (unless prohibited by its law); or
- Mail sent by the clerk of the American court, requiring signed receipt (unless prohibited by the foreign country’s law).
WAIVER OF SERVICE OF PROCESS
Formula: How to Waive Service of Process
Step 1: Plaintiff sends a waiver request.
Must include:
- A copy of the complaint
- Two copies of a waiver form
- A prepaid return method (e.g., a self-addressed stamped envelope)
Step 2: Defendant responds.
- Defendant has 30 days to sign and return the waiver form. If not the defendant must pay the cost of service.
- (60 days if the defendant is outside the U.S.)
- By returning the form, the defendant waives formal service of process.
Applies to:
- Individuals and entities. Waiver becomes effective once Plaintiff files it with the court
Effect of Waiver on Other Defenses
A defendant who waives service of process does not waive any defenses like lack of PJ.
Subject Matter Jurisdiction (SMJ)
SMJ is about the court’s power over the case, and not over the parties.
Federal courts have limited subject matter jurisdiction, so they can only hear certain kinds of cases. Also, they specifically decline to hear actions for divorce, alimony, child custody, and actions to probate an estate.
State courts can hear any kind of case except patent infringement, bankruptcy, some federal securities, and antitrust claims.
SMJ (cannot be waived like PJ): Federal Courts can only hear:
- Federal Questions Jurisdiction Cases and
- Diversity of Citizenship Jurisdictions which includes alienage cases
2 Requirements for diversity of citizenship (and alienage) cases
- The case is either (a) between citizens of different U.S. states (diversity); or
(b) between a citizen of a U.S. state and a citizen of a foreign country (alienage); and
- The amount in controversy exceeds $75,000.
Whether the case is between citizens of different US states (complete diversity)
Diversity of citizenship jurisdiction exists only when all plaintiffs are citizens of different states than all defendants. (domicile)
Where is the citizenship of a natural person? Everyone has only one domicile.
Physical presence in the place + intent to make the place your home for the indefinite future
Where is the citizenship of a corporation?
A corporation is a citizen of:
1. where it is incorporated and
2. where it had its principal place of business (PPB) (nerve center, corporate headquarters)
