CIVIL PROCEDURE - Personal Jurisdiction

Question 1

What are the types of personal jurisdiction?

Answer 1

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

Question 2

What are the three (3) issues to consider when assessing the reasonableness of general jurisdiction?

Answer 2

1) Burden on Defendant - can defendant show that the forum is unconstitutional (i.e. “so gravely inconvenient” that she will be at a serious disadvantage in litigation)?
2) Plaintiff’s Interest in Obtaining Relief - will the plaintiff be able to obtain relief in another forum?
3) Interest of the Forum State - the forum state has an interest in providing a forum for its residents and protecting their health and safety

Question 3

How can notice be provided?

Answer 3

1) Personal service
2) Substitute service
3) Service upon authorized agent
4) Service by publication
5) Waiver by mail
6) State law methods

Question 4

Define waiver by mail

Answer 4

The defendant waives her right to formal service of process if notice is mailed first class with prepaid postage to the defendant and the defendant returns waiver within 30 days.

Question 5

When is a person immune from service of process?

Answer 5

In state to appear in other civil action - federal courts grant immunity from service of process to parties, witnesses and attorneys who have entered the state to appear in another action.
OR
Fraud or deceit - a defendant is immune from service of process if the plaintiff used fraud or deceit to induce defendant to enter the state

Question 6

Define service upon authorized agent

Answer 6

Service on an agent of the defendant who is authorized (e.g. registered agent for service of process) to receive service of process (e.g. corporations).

Question 7

Define in rem jurisdiction

Answer 7

Jurisdiction based on power over a piece of property within the forum state, i.e. a court’s power to adjudicate the rights to a given piece of property.
The presence of property in the forum state is constitutionally sufficient for the exercise of jurisdiction over that property.

Question 8

When is service by publication permitted?

Answer 8

Service by publication is not sufficient unless publication is the only possibility, because the plaintiff does not have defendant’s address and does not have a surrogate to serve the process on
MUST BE a MEANINGFUL PUBLICATION, i.e. a publication that is calculated to get to the defendant.

Question 9

What are the requirements for physical presence at time of personal service? The exceptions?

Answer 9

Jurisdiction based on defendant’s presence in the forum state at the time of personal service (Pennoyer v. Neff), unless the defendant was tricked or forced into the forum.
Exceptions:
Fraud or force - service by fraud or force is invalid.
Immunity - most states grant non-resident defendants immunity from personal jurisdiction while appearing in the forum state as parties or witnesses in another judicial proceeding.

Question 10

Define in personam jurisdiction

Answer 10

Jurisdiction based on power over the particular defendant (i.e. person or entity)

More specifically: a court’s power to bring a person or entity into its adjudicative process

Question 11

What kind of notice is required?

Answer 11

A defendant must be given REASONABLE NOTICE that under the circumstances is actually calculated to give the defendant ACTUAL NOTICE (Mullane v. Central Hanover Bank and Trust Co.)

Question 12

Define specific personal jurisdiction

Answer 12

The claim arises out of the defendant’s contact with the forum state.

Continuous and systematic contacts with the forum state not required for specific personal jurisdiction.

Question 13

Define personal service

Answer 13

Papers served to defendant personally anywhere in the forum state.

Question 14

What is a long-arm statute?

Answer 14

A long-arm statute specifies when a state court may exercise personal jurisdiction over a particular defendant.

For example, CA’s long arm statute confers jurisdiction to the extent constitutionally permitted by the 14th Amendment’s right to due process.

Question 15

What state law methods of service are permitted?

Answer 15

In federal court, the plaintiff may also use any methods of service of process permitted under the state law of the state 1) where the federal court sits or 2) where service is effected.

Question 16

What kind of conduct is sufficient to constitute purposeful availment?

Answer 16

The defendant must have voluntarily reached out to the state (i.e. “It is essential that in each case there be some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum state, thus involving the benefit and protections of its laws)
Accidental contacts are not sufficient for purposeful availment.

Question 17

Define quasi in rem jurisdiction

Answer 17

Jurisdiction not based on power over a person but based on that person’s interest in property located within the court’s jurisdiction. Note that this type of jurisdiction has nothing to do with the property.

When it is not possible to obtain in personam jurisdiction, seek quasi-in-rem jurisdiction–often referred to as SECOND BEST because recovery by the plaintiff is limited to the value of the property (i.e. any judgment cannot be enforced against any other property belonging to defendant).

Question 18

How is domicile determined for individuals?

Answer 18

You must have 1) physical presence and 2) intent to remain for indefinite future.

Question 19

How is domicile determined for corporations?

Answer 19

State of incorporation AND
State of principal place of business (NERVE CENTER OF OPERATIONS)

A corporation will be automatically subject to personal jurisdiction ONLY if it is incorporated within the forum state.

Question 20

What are the traditional bases of personal jurisdiction?

Answer 20

1) Physical presence at time of personal service
2) Domicile
3) Consent

Question 21

Define general personal jurisdiction

Answer 21

The claim does not arise out of the defendant’s contact with the forum state.
DEFENDANT FEELS AT HOME: SCOTUS has held that general personal jurisdiction can only exist if the defendant feels at home in the forum state.

Question 22

Who can serve process?

Answer 22

In federal court, service can be done by anyone who is not a party to the action and who is at least 18 years old.

Question 23

What are the types of consent?

Answer 23

1) Express consent: by waiving jurisdictional objections (i.e. voluntary general appearance) or by agreeing to jurisdiction by contract (i.e. consent to jurisdiction clauses).
2) Implied consent: statutes that confer personal jurisdiction over specific classes of defendants in particular circumstances (e.g. nonresident motor statutes)

Question 24

Define personal jurisdiction
Are state and federal standards the same? Different?

Answer 24

Whether a defendant can be sued in the forum state

The standard for personal jurisdiction is the same in both federal and state court

Question 25

What is the sliding scale test for jurisdiction based on internet activity?

Answer 25

1) Active = general jurisdiction. Active websites (i.e. conduct business over the internet (e.g. Amazon).
2) Interactive = purposeful availment. Interactive websites have been held sufficient for purposeful availment if the defendant target residents in the forum state. A few isolated transactions, however, are unlikely to be sufficient for general jurisdiction (i.e. the claim does not arise out of the contact).
3) Passive = not sufficient contacts. Passive websites merely make information available to anyone. Passive websites are used solely to post information (e.g. website describes company’s services), not to conduct business transactions (i.e. website does not permit any transactions to be completed online).

Question 26

What are the three questions you should ask when determining if the court has personal jurisdiction?

Answer 26

1) Is there a traditional basis of jurisdiction?
2) Is jurisdiction based on some long-arm statute?
3) If (2) is yes, is the application of the long-arm statute constitutional?

Question 27

What are the constitutional limitations on personal jurisdiction? Put another way, what is the constitutional two-step for personal jurisdiction?

Answer 27

First ask: Does the applicable long-arm statute reach this particular defendant?
If the answer is yes, is the exercise of jurisdiction consistent with the due process clause of the US Constitution (International Shoe)?

Question 28

Is service outside of the state permitted?

Answer 28

A federal court can allow service of process on a defendant located outside the state in which it sits only if it is permitted under the state’s statutes and rules for extraterritorial service.

Question 29

What is the test for minimum contacts?

Answer 29

Defendant must have certain minimum contacts with the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.
1) Minimum contacts: There must be a relevant connection between the defendant and the forum state–PURPOSEFUL AVAILMENT; AND
2) It must have been foreseeable that the defendant would be sued in the forum state.

Question 30

Define substitute service

Answer 30

Service at 1) defendant’s usual place of abode 2) on a person of suitable age and discretion who resides there.

Question 31

What are the incentives for waiver by mail?

Answer 31

1) More time to answer: The defendant is given more time to answer the complaint (60 days instead of 21)
2) Penalty = Costs of Formal Service. If the defendant does not agree to waive and does not have good cause for doing so, the court shall impose the costs of formal service on the defendant.
3) Only Waives Formal Service of Process - waiving formal service of process does not give up any material objections the defendant may have to the venue or to the jurisdiction of the court over the defendant.