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Flashcards in Personal Jurisdiction Deck (37):
1

What is the general rule on Personal Jurisdiction?

In addition to having subject matter jurisdiction, a court must be able to exercise judicial power over the persons or property involved in the cases or controversies before it. This authority is broadly referred to as personal jurisdiction and is governed by state statutes regarding jurisdiction and the due process requirements of the US Constitution.

2

What are the three types of personal jurisdiction?

1) In Personam Jurisdiction
2) In rem jurisdiction
3) quasi-in-rem jurisdiction

3

What is the effect of State Jurisdictional Statutes on Personal Jurisdiction in Federal Court?

In general, a federal court does NOT have nationwide personal jurisdiction. Under Rule 4(k)(1)(A), the service of a summons in a federal action establishes personal jurisdiction over a defendant "who is subject to the the jdx of a court of general jdx in the state where the district court is located.

Thus, a federal court will look to state jdx statutes to determine if it has authority over the parties before it and will be subject tot he restrictions on states imposed by the Due Process Clause of the US Constitution.

4

In general, a federal court does not have nationwide personal jurisdiction; instead, a service of summons establishes personal jdx over a defendant who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located. What are the exceptions to this rule?

1. Nationwide service of process
2. "Bulge Provision"
3. Rule 4(k)(2)

5

What is the Nationwide service of process exception to the federal court's limited scope of personal jurisdiction?

The nationwide service of process exception states that a federal court may have national personal jurisdiction for special types of statutorily-created actions, such as federal statutory interpleader actions

6

What is the "Bulge Provision"

The "Bulge Provision" is an exception to the federal court's limited scope of personal jurisdiction. Under Rule 4(k)(1)(B), aka the Bulge Provision. A federal court has personal jdx over a party who is served within a US judicial district and not more that 100 miles from where the summon is issued, even if state law would otherwise not permit such service.

NOTE: This special rule only applies to two types of parties: a third-party defendant who is joined under rule 14 (third-party practice) and a require party who is joined under rule 19 (required joinder).

7

What is the Rule 4(k)(2) exception to the federal court's limited scope of personal jurisdiction?

Rule 4 covers summons, and rule 4(k)(2) addresses Federal Claims Outside State-Court Jurisdiction.

A federal court may have personal jurisdiction under 4(k)(2) if ALL FOUR of the following are met:

1) The plaintiff's claims are based on federal law
2) No state court could exercise jurisdiction over the D's
3) The exercise of jurisdiction must be consistent with the laws of the US
4)The exercise of jurisdiction must be consistent with the US Constitution. In other words, there must be "minimum contacts"

8

What are the due process requirements for Personal Jurisdiction?

Minimum contacts, notice, right to be heard:

The Due Process Clause also limits a court's exercise of personal jdx over the parties. A court may not exercise personal jdx over a D unless the D has "minimum contacts" with the state in which the court sits (aka the forum state), and the exercise of jdx would be fair and reasonable.

A court is also required to notify a party of the commencement of an action in which his interests are at stake and provide an opportunity for a party to be heard.

9

Subject matter jurisdiction is not waivable; what about personal jurisdiction?

Yes, a party may consent to personal jdx. The consent may be express, implied, or made by voluntary appearance.
An objection to a court's exercise of personal jdx over persons or things can also be waived. Under rule 12(b), the defenses of lack of jdx over the person, insufficiency (of service) of process, must be asserted in responsive pleadings or by a motion BEFORE a responsive pleading is submitted. A failure to object in accordance with rule 12 waives the objection.

10

What is personal jdx versus in personam jdx?

Personal jurisdiction refers to the court's general jdx over persons or property; In Personam jdx is the power that a court has over an individual party.

11

When is in personam jdx required?

In personam jdx is the power that a court has over an individual party. It is required whenever a judgment is sought that would impose an obligation on a defendant personally. When such personal jdx exists, the court has the authority to issue a judgment against the party personally, which can be satisfied by the seizure of all the party's assets. Such a judgment is entitled to full faith and credit of other states.

12

What are the five circumstances that establish in personam jurisdiction?

1. Voluntary Presence
2. Domicile
C. Consent
D. Long-arm statutes
E. Attachment

13

When does voluntary presence create the possibility of in personam jurisdiction?

If a defendant is voluntarily present in the forum state and is served with process while there, then the state will have personal jdx over the defendant. However, most courts today have two exceptions:

1. If a P fraudulently brings a D into the state for the purposes of serving process on him, then the service will most likely be invalid.
2. An individual will also likely be immune if he is just passing through the state to attend other judiciary proceedings.

14

When does domicile create the possibility of in personam jurisdiction?

If authorized by statute, a state can have jdx over a person who is domiciled within the state, even if the person is temporarily absent from the state. Domicile is established when a person with capacity intends to make that stat his home.

Statutory authorization can be enacted retroactively to apply to a cause of action arising before the enactment of the statute. Additionally, the US has authority to subpoena a citizen of the US living abroad to appear in court to testify. The same rules of domicile apply as when discussing citizenship of the parties.

15

When does consent create the possibility of in personam jurisdiction?

Personal jdx can be established by a party's consent. Under rule 12(b), the defense of a lack of personal jdx must be asserted in a responsive pleading or by motion before a responsive pleading is submitted. Te failure to timely object to a court's assertion of personal jdx waives the objection.

16

How to D's and P's consent to in personam jdx?

P's are always said to have consented to personal jdx by filing the lawsuit

D's can either give express consent, implied consent, or make a voluntary apearance.

Express consent: agreeing in advance by contract (only valid if not a contract of adhesion); Stipulating to personal jdx once the action is brought. Consent is also said to be given if a person authorizes an agent to accept service of process, and usually a state will require non-residents doing business in a heavily-regulating industry to appoint an agent.

Implied Consent: a defendant may be deemed to have consented through conduct, such as by filing a counterclaim or driving a vehicle through the state.

Voluntary Appearance: The voluntary appearance of a D in court automatically subjects the D to personal jdx UNLESS he is present to object to jdx.

17

When does a long-arm statute create the possibility of in personam jurisdiction?

Most states have enacted statutes that authorize personal jdx over non-residents who engage in some activity in the state or cause some action to occur within the state. In many states, the long-arm statute authorizes jdx to the extent possible under the Due Process clause. Thus, a federal court in those states need only to determine whether the exercise of personal jurisdiction comports with due process. A few states have enacted statutes of more limited scope.

18

CA Disinction: Long-Arm Stututes

CA has a long-arm statute that allows its courts the broadest jdx that comports with due process.

19

When does attachment create the possibility of in personam jurisdiction?

Attachment Jdx (historically a type of quasi-in-rem jdx), a P asserting a personal claim against the D would use attachment of the property as a device to obtain jdx and satisfy the judgment, if successful. But when the claim is not related to the ownership of the property that has been attached, there must be minimum contacts between the D and the forum state to establish Jdx

20

What are the due process requirements for personal jdx

In general, due process requirements are satisfied if the nonresident D has certain minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice (Int'l Shoe)

ESSAY NOTE: When analyzing personal jdx questions, focus on contacts with forum state and then whether the assertion of jdx by the court would comport with fair play and substantial justice.

21

What are the four general considerations when assessing whether a D has had minimum contacts?

1) Shaffer
2) Purposeful availment
3) Specific and general jdx
4) Imputed Contacts

22

When assessing minimum contacts for in personam jdx, what is the Shaffer test?

While before Shaffer it was possible to gain jdx over a person merely on the basis of the presence within the state of the person or property of the person, AFTER: any attempt to gain personam jdx, under whatever basis, is subject to to the Int'l Shoe Minimum Contacts test.

Exceptions: actions to enforce previous judgments buy such remedies as attachment, garnishment and sequestration

23

When assessing minimum contacts for in personam jdx, what is purposeful availment?

To warrant the assertion of in personam jdx, a D's contacts with the forum statemust be purposeful and substantial, such that the D should reasonably anticipate and foresee being taken to court there.

Foreseeability depends on whether a D recognizes or anticipates that by running his business, he runs the risk of being arty to a suit in a particular state.

24

When assessing purposeful availment/foreseeability, what is the analysis for more difficult situations, such as stream of commerce?

When a product is put into the stream of commerce, not necessarily by the manufacturer, but by a third party who purchases the product to use in their product, the court is split. One half of the court believes that it is enough to know that his product that he sold will be put into the stream of commerce, while the other half believe a more affirmative step is necessary.

25

When assessing minimum contacts for in personam jdx, what is the the specific and general jdx analysis?

The scope of the contacts necessary for the assertion of personal jdx depends on the relationship to the cause of action has with the forum state.

When a cause of action arises out of or closely relates to a D's contact with the forum state, jdx may be warranted even if that contact is the D's only contact with the forum state; this kind of jdx is often referred to as specific jdx.

However, when a cause of action does NOT arise out of or relate to the D's contacts with the forum, jdx is only warranted when the D's contact with the state have been SYSTEMATIC AND CONTINUOUS.

26

What constitutes systematic and continuous contacts with a forum state?

Conducting business activities in a state (keeping an office, conducting correspondence, maintaining active banks accounts, conducting meetings, and paying salaries) is sufficiently systematic and continuous to allow a court to exercise personal jdx over the business for causes of action that are unrelated to the business's activities. aka general jdx.

27

When assessing minimum contacts for in personam jdx, what are imputed contacts?

In some circumstances, the contacts of one defendant with the forum state may be imputed to another defendant for the purposes of determining jdx:

1) Employees/Independent Contractors
2) Partnerships
3) Corporations

28

When assessing minimum contacts for in personam jdx, when can an employee or independent agent's contact in a forum be imputed to their employer?

Contacts by a nonresident employer's agents or employees are generally imputed to the employers when the agent or employee is acting within the scope of the agency or employment. An out-of-state corporation though, is generally not subject to personal jdx solely b/c of contacts in the state by an independent contractor.

29

When assessing minimum contacts for in personam jdx, when can partnerships in a forum state lead to imputed contacts?

Each partner is generally an agent of the partnership for the purpose of its business. Accordingly, a partner's activities on behalf of the partnership can confer personal jdx over the partnership entity. Such contacts, however, may not necessarily establish personal jdx over that partner or the other partners in the partnership in their individual capacities.

30

When assessing minimum contacts for in personam jdx, when can a corporation's contacts in a forum state lead to imputed contacts?

An out-of-state corporation's contacts with the forum state will not automatically establish jdx over a wholly-owned subsidiary of the corporation, and contacts by a wholly-owned subsidiary of the corporation will not automatically confer jdx over a corporate parent. IF, however, the subsidiary is the corporate parent's alter ego or is specifically acting as the corporate parent's agent, then its contacts may be imputed to the corporate parent.

31

What is the Fair Play and Substantial Justice test in assessing personal jdx?

Once minimum contacts are established, a court must still examine the facts to determine if maintenance of the action would "offend traditional notions of fair play and financial justice." There are four factors considered when making this decision:

1) the interest in the forum state in adjudicating the matter
2) The burden of the defendant of appearing in the case
3) the interest of the judicial system in the efficient resolution of controversies
4) The shared interest of the states in promoting common social policies.

32

When can a federal court exert in personam jdx over a corporation?

for in personam jdx purposes, a corporation will be a resident corporation only if it is incorporated in the forum state. Any action may be brought against a corp that is incorporated in the forum state. If the corporation is not incorporated in the state, then it is a foreign corp for purposes of in personam jdx.

33

When can a court find in personam jdx over a foreign corporation?

The rules of minimum contacts and substantial fairness apply to foreign corporations.

34

Does a web presence constitute minimum contacts for purposes of in personam jdx?

No; it is generally accepted that merely having a website does not subject a D to process everywhere that the site can be viewed. Most courts will follow the approach of Zippo, which bases jurisdiction over a nonresident corp's website on the degree of interactivity between the website and the forum. The court set forth a sliding scale approach with regard to interactivity, ranging from passive sites to those that are integral to the defendant's business (like an online store). In Zippo the web site had a commercial interactions with 3k residents and ISPs.

35

In general, when can suits based on a K allow for in personam jdx?

1. The K can be relevant to establishing minimum contacts: Although the fact that one party to a K is a resident of the forum state will not, by itself, confer personal jdx over the nonresident party to the K, the existence of the K can be a significant factor in determining that minimum contacts exist, such that the exercise of personal jdx over the nonresident is appropriate.

36

What about personal jdx and choice-of-law provisions in Ks?`

If the K contains a choice of law provision indicating that the forum state's law is to be used in any action with regard to the K, then this will be a significant factor in finding jdx, as it establishes that the nonresident purposefully availed herself of the benefits of the forums laws.

37

What about Ks of adhesion or procured by fraud?

If the K is adhesive or was procured by fraud, then personal jdx based on the K is not appropriate.