The Effects Test is used in order to...
...determine if there are minimum contacts necessary.
The Effects Test
a) The Δ’s intentional tortious actions b) are expressly aimed at the forum state; and c) cause harm to the Π in the forum state (the “effects”) of which the Δ knows is likely to be suffered
Factors that determine "Express Aiming":
Circulation/users in that state, applications, advertising, mailing lists, promotional activities, general information, if does business in that state.
(Potential) Order of Analysis:
1. Check long arm statute 2. Minimum Contacts and c/a arises out of contacts: Consider the four ways to establish min contacts 3. Fair Play & Substantial Justice * In both 2 and 3, look at the CONTEXT of the case: International parties, bargaining power/Savvy/businessmen Δ’s, commercial case, internet, Δ’s that are solvent/bigger pockets
Fair Play & Substantial Justice Analysis:
A) The burden on the Δ B) The forum state’s interest C) The Π's interest in a convenient forum D) The interstate judicial system’s interest in efficient resolution of controversies E) Shared interests of several states in furthering substantive social policies
Additional considerations to FP&SJ:
A) If solid yes, would it be really unfair? (Asahi—RARE) → Deny jurisdiction B) If weak yes, ask would it still be fair? (e.g. Burger King) → Accept jurisdiction
Two Forms of Personal Jurisdiction:
1) Specific 2) General
A single contact can be sufficient for in personam jurisdiction if the claim arose out of the Δ’s contacts with state and there is purposeful availment and FP&SJ.
In personam jurisdiction exists over a Δ, if Δ's contacts with forum are substantial, continuous and systematic even if lawsuit is completely unrelated to Δ's contacts with that forum.
What is Continuous & Systematic Contact?
a) Domicile (Milliken v. Meyer) b) Principal Place of Business/Headquarters (Perkins) c) Place of Incorporation d) How about high volume of sales with no physical presence? (Helicopteros) Sometimes. * (Likely) must be consistent with notions of FP & SJ ** Note: No "arising out of" requirement (c/a does not need to be related to the contacts with the forum)
4 Ways to establish minimum contacts for Specific Jurisdiction:
1) Purposefully direct activities to forum State 2) If Contact based on Stream of Commerce 3) If it's a business relationship with an instate company or person, how substantial is the relationship and connections 4) If involves internet
Zippo Sliding Scale
a) Passive (no interaction) likely no jurisdiction b) Active (conduct business on internet) likely jurisdiction c) Middle interactivity—go back to Calder effects/express aiming test and SHOE
4 Stream of Commerce: (ASAHI/McIntyre)
1) Brennan: stream enough 2) O’Connor: need more (e.g. targeted advertising) 3) Stevens: volume quantity, hazardous 4) McInTyre Plurality: purposeful directed activity that equals consent to submit to jurisdiction in that state
Interstate Business Relationship Factors: (BK)
a) Who initiated the business relationship b) Prior negotiations (where) c) Contemplated future consequences/work d) Terms of the CONTRACT (choice of law provision, length) e) Parties actual course of dealings f) Any terms regarding regulation by one party that is headquartered in the forum state?
General and Specific Jurisdiction Continuum:
A) The more contacts you have, the less related they have to be to establish jurisdiction. B) The more related the contacts, the fewer you need to have. (a) Cause of Action Related to Contacts? (b) Was the contact the proximate cause of the cause of action? (c) “But For” Test (“Of but for the contact, would the cause of action have happened?”)
3 Justifications for "Tag, You’re It": (Burnham)
Unanimous Court says that “transient presence” is still a basis for establishing in personam jurisdiction Court split as to the reasoning: A) Scalia (4 Votes) – original intent governs. This was permissible at time 14th Amendment was drafted; it’s ok now. B) Brennan (4 votes) – evolving notions of Constitution. Should adopt a Shoe-like analysis (as Shaffer suggests) that focuses on contacts/fairness, and conclude that Δ availed himself of privileges of state while visiting. C) Stevens – no need to decide; this case is easy.
In Personam Jurisdiction
Literally, "against the person". In personam refers to courts' power to adjudicate matters directed against a party.
In Rem Jurisdiction
From Latin, "against a thing." Concerning the status of a particular piece of property. In rem jurisdiction refers to the power of a court over an item of real or personal property. The "thing" over which the court has power may be a piece of land or even a marriage.
Basis for In Personam Jurisdiction
1. Voluntary Presence (Burnham) 2. Domicile 3. Consent [under Rule 12 (b)]
Consent to Jurisdiction: Π vs. Δ
1) Π consent to personal jurisdiction by filing suit. 2) (a) Δ may agree in advance by contract or authorizing an agent to accept service or process. (b) Voluntary appearance of Δ in court automatically subjects Δ to personal jurisdiction EXCEPT in the case special appearance. Failure to timely and properly challenge is treated as a waiver of that defense.
Δ appears in court in order to object to jurisdiction. Must be filed beforehand.
Π asserting a personal claim against Δ may use attachment of property as a device to obtain jurisdiction and satisfy judgment, but only if claim is related to the ownership of the property OR if minimum contacts between Δ and the forum state can be satisfied. Shaffer v. Heitner, 433 U.S. 186 (1977). Notice and an opportunity to be heard are also constitutionally required.
Full Faith and Credit of Article IV:
If someone is tried in one state, another state has to recognize that decision.