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I. PERSONAL JURISDICTION Doctrinal Bases of Personal Jurisdiction Full Faith and Credit Authority: Article IV, §1 Sister states must give credit to a valid and binding judgment Judgment is valid when court has good personal and subject-matter jurisdiction State Sovereignty States only have power over persons and property within their territorial limits 19 th century concepts of fairness rooted in state sovereignty (fairness to states) Due Process Authority: 14 th Amendment Violation of due process to bind decision where court d/n have good jurisdiction 20 th century concepts of fairness rooted in due process (fairness to Δ) Traditional Bases: Territorial Theories Strict definition of jurisdiction based on presence and property, as articulated in Pennoyer; strictly construed due to state sovereignty concerns In personam Territorial reach of a court over persons to render a binding judgment jurisdiction Invoking: service of process over persons w/in court’s territory, long-arm statutes over persons w/o court’s territory In rem jurisdiction Adjudication concerning interests and rights in property Invoking: seizure or attachment of property within court’s territory Quasi in rem 1) Adjudication over personal rights related to property under court’s control, where property is unrelated to the jurisdiction substantive cause of action 2) Adjudication over intangible asset, such as debt Invoking: seizing the asset, attaching the property, or garnishing a debt. PRESENCE Physical presence: Residence or presence within state Tag jurisdiction: Nonresident transient presence within state, w/o regard to whether cause of action related to activities in state; independent of minimum contacts (Burnham v. Superior Court) Absent Residents: 1) Federal--Absent American citizens subject to in personam jurisdiction in federal court (Blackmer v. United States) 2) State—Same principle applied to residents absent from state (Milliken v. Meyer) PROPERTY Physical property in state: Used as means of jurisdiction over nonresident Δ if seized and attached prior to institution of proceedings (Pennoyer v. Neff) Can be used to satisfy judgment of personal liability over nonresident Δ up to value of property in question Intangible Property: Debt clings to debtor wherever he goes (Harris v. Balk)

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Page 1: I. PERSONAL JURISDICTION Doctrinal Bases of Personal ... · I. PERSONAL JURISDICTION Doctrinal Bases of Personal Jurisdiction Full Faith and Credit Authority: Article IV, §1 Sister

I. PERSONAL JURISDICTION Doctrinal Bases of Personal Jurisdiction Full Faith and Credit Authority: Article IV, §1

Sister states must give credit to a valid and binding judgment Judgment is valid when court has good personal and subject-matter jurisdiction

State Sovereignty States only have power over persons and property within their territorial limits

19th century concepts of fairness rooted in state sovereignty (fairness to states) Due Process Authority: 14th Amendment Violation of due process to bind decision where court d/n have good jurisdiction 20th century concepts of fairness rooted in due process (fairness to Δ) Traditional Bases: Territorial Theories Strict definition of jurisdiction based on presence and property, as articulated in Pennoyer; strictly construed due to state sovereignty concerns In personam Territorial reach of a court over persons to render a binding judgment jurisdiction Invoking: service of process over persons w/in court’s territory, long-arm statutes over

persons w/o court’s territory In rem jurisdiction Adjudication concerning interests and rights in property Invoking: seizure or attachment of property within court’s territory Quasi in rem 1) Adjudication over personal rights related to property under court’s control, where

property is unrelated to the jurisdiction substantive cause of action 2) Adjudication over intangible asset, such as debt Invoking: seizing the asset, attaching the property, or garnishing a debt. PRESENCE Physical presence: Residence or presence within state

Tag jurisdiction: Nonresident transient presence within state, w/o regard to whether cause of action related to activities in state; independent of minimum contacts (Burnham v. Superior Court)

Absent Residents:

1) Federal--Absent American citizens subject to in personam jurisdiction in federal court (Blackmer v. United States)

2) State—Same principle applied to residents absent from state (Milliken v. Meyer)

PROPERTY Physical property in state: Used as means of jurisdiction over nonresident Δ if seized and

attached prior to institution of proceedings (Pennoyer v. Neff) Can be used to satisfy judgment of personal liability over nonresident Δ up to value of

property in question Intangible Property: Debt clings to debtor wherever he goes (Harris v. Balk)

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Quasi in rem: Supreme Court rules that all assertions of jurisdiction must pass Int’l Shoe minimum contacts test (Shaffer v. Heitner)

Previously, only in personam actions were subject to due process analysis (minimum

contacts) Pure in rem always passes minimum contacts standard; therefore, only quasi in rem

actions are affected by this ruling, in practice CONSENT

Express Consent: 1) Voluntary appearance (Pennoyer v. Neff) 2) Appointment of in-state agent (Kane v. New Jersey

Law requiring appt by out-of-state motorist upheld 3) Contractual forum selection clauses:

Business-business (Bremen v. Zapata) Business-consumer (Carnival Cruise v. Shute)

Implied Consent:

1) Inherently dangerous activity (Hess v. Pawlowski) 2) Waiver or consent by failure to object--Rule 12(h)(1) 3) Nonresident π in cross-actions or counter-claims asserted by Δ as part of

same proceeding (Adam v. Saenger) Rationale: π chose forum in the first place

4) General appearance presenting other defenses or objections Modern Bases: Due Process Theories Expansion of traditional bases beyond physical presence, to keep up w/ modern technology/travel, but still limited by fairness to Δ by measuring minimum contacts with forum as proxy for presence

LONG ARM First step in analysis for asserting personal jurisdiction over nonresident Δs is STATUTES interpreting state long-arm statute 2 Types of Long-arm statutes:

1) Illinois-style: Detailed, requiring construction 2) California-style: Broad, allowing assertion of personal jurisdiction up to

limits allowed by Constitution

Process of analysis:

1) Does acts or conduct of Δ come within enumerated bases for jurisdiction under state long-arm statute?

2) If no, no personal jurisdiction; if yes, move to minimum-contacts analysis (must satisfy both prongs)

MINIMUM 2-part inquiry: (1) Minimum contacts? (2) Assertion of jurisdiction offends CONTACTS “traditional notions of fair play and substantial justice”?

Int’l Shoe (1945) did not set out criteria, stating test is not quantitative and mechanical; instead, observe nature and quality of contacts on case-by-case basis

Examples of state contacts:

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1) Presence of agents 2) Offices 3) Residence of agents 4) Derivation of substantial revenue 5) Solicitation of orders

Further considerations:

1) Burden and inconvenience on Δ 2) Systematic and continuous activity w/in state 3) Enjoyment of benefits and protection of law

Only contacts between Δ and forum state are relevant to inquiry; quality of πs contacts is not relevant (Keeton v. Hustler, 1984)

Minimum contacts analysis:

Purposeful Availment Introduced: (Int’l Shoe v. Washington, 1945) If Δ exercises the privilege of conducting activities within a state, enjoying the benefits and protection of the laws of the state, this gives rise to obligation

Refinements:

Unilateral activity: Minimum contacts governs relationship between Δ and state; unilateral activity of third party (Hanson v. Denckla, 1958) or π (WW Volkswagon v. Woodson, 1980) not sufficient to assert jurisdiction over Δ

“Center of Gravity”: Court rejected jurisdiction based on “center of gravity” of events giving rise to dispute; argument of most convenient forum is not sufficient (Hanson v. Denckla, 1958)

Forseeability: Not mere likelihood of a product ending up in forum state; rather, party must “reasonably anticipate being haled into court” there, which results from purposeful availment (WW Volkswagon v. Woodson, 1980)

Mere forseeability is not enough in absence of purposeful availment

Contract Introduced: (McGee v. Int’l Life Insurance, 1957)

Sufficient as minimum contact if there is a substantial connection w/ forum state and state has manifest interest in adjudicating

Refinements: Contract alone not sufficient; must consider contemplation of future consequences, terms

of k, party dealings, etc.—“Contracts plus” (Burger King v. Rudzewicz, 1985) Choice of Law Introduced: (Hanson v. Denckla, 1958) Question of whether a state’s law will govern a dispute is different from question of

whether jurisdiction exists; mere fact that state’s law may apply is not basis for contact under minimum contacts test

Refinements: Contract: However, contractual choice of law provision can be basis for good jurisdiction

even in absence of forum selection clause (Burger King v. Rudzewicz, 1985)

Rationale: Choice of law provision signals purposeful availment of state’s laws as well as reasonable forseeability to Δ

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Effects Test Introduced: (Gray v. American Radiator, 1961) A nonresident who causes an injurious effect (tort, etc) in a forum state can be held liable

for that effect in the forum state Refinements: Applies to only wrongful activity; simply causing an effect is insufficient without

purposeful availment (Kulko v. Superior Court, 1978) Stream of Commerce Introduced: (Gray v. American Radiator, 1961)

Manufacturing a product and placing it in the stream of commerce means Δ can reasonably foresee Refinements: Forseeability: Added requirement of reasonable expectation; party must “reasonably anticipate being haled into court” there (WW Volkswagon v. Woodson, 1980)

Unilateral activity: Product must be brought to forum state by actions of Δ, not unilateral activity of π (WW Volkswagon v. Woodson, 1980)

Purposeful availment: Δ must purposely avail himself of the privilege of conducting business w/in the state (WW Volkswagon v. Woodson, 1980)

Purposeful direction: Merely placing product in stream of commerce is not enough; action must be purposefully directed at the forum state (Asahi Metal v. Superior Court, 1987) Additional Conduct showing purposeful direction:

1) Designing the product for the market 2) Advertising in the state 3) Establishing channels for providing regular advice to customers in a

state 4) Marketing a product through a distributor who has agreed to serve as

the sales agent in the state

Int’l Context: Must consider basic fairness of jurisdiction and whether jurisdiction would infringe on foreign policies, the federal prerogative, etc. (Asahi Metal v. Superior Court, 1987) **Additional conduct was not approved by the majority; lower courts split between using WW Volkswagon 5-factor test and Asahi’s contacts plus test**

Fairness and Reasonableness analysis: Affiliating Redefined minimum contacts jurisprudence (WW Volkswagon v. Woodson, Circumstances Test 1980) Affiliating Circumstances Test: Evaluates the “reasonableness” and “fairness” component

of minimum contacts jurisprudence First, assess minimum contacts; second, consider:

1) Burden on Δ

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2) Forum state’s interest in adjudicating the dispute 3) Plaintiff’s interest in obtaining convenient and effective relief 4) Interstate judicial system’s interest in obtaining the most efficient resolution

of controversies 5) Shared interest of the several states in furthering fundamental substantive

social policies (World Wide Volkswagen)

Purpose of Affiliating Circumstances: If interests are great, can be used to lessen standard when contacts are weak OR increase standard if other party interests outweigh minimum contacts (interests of Δ) “minimum requirements inherent in the concept of ‘fair play and substantial justice’ may defeat the reasonableness of jurisdiction even if the defendant has purposefully engaged in forum activities”

First Amendment Court weighed First Amendment concerns against jurisdiction which would concerns otherwise be proper under the Due Process clause and ruled that First Amendment

concerns have no bearing on jurisdictional analysis (Keeton v. Hustler) and (Calder v. Jones)

State Choice If jurisdiction is not compelled, State may decline or accept it General vs. Specific Jurisdiction Specific Jurisdiction Supreme Court declined to consider issue because “it was not briefed” by parties in

Helicopteros; as of yet, no specific test has been endorsed by the Supreme Ct Specific jurisdiction is used when general jurisdiction fails (contacts are not systematic

and continuous) Lower courts use different tests for specific jurisdiction:

1) “Arise out of”: Classic view 2) “Related to”: Made up by Brennan in Helicopteros 3) “But for”: But for activities of Δ in forum state, cause of action would not

have arisen; followed by some lower cts and 7th and 9th Fed Circuit courts SUMMARY: Process of analysis

• Do any of these apply? (No minimum contacts analysis necessary in these cases) 1) Physical presence 2) Express or implied consent 3) Pure in rem 4) Forum selection or choice of law clause

o Unless unconscionable or unreasonable 5) “Tag” jurisdiction

• Does act or conduct fall under state long-arm statute? • Does act or conduct satisfy 5-factor WW Volkswagon test? • Does act or conduct meet fairness requirements?

1) Systematic and continuous business 2) Purposeful availment 3) Stream of commerce 4) No unilateral activity? 5) Foreign policy concerns? 6) Reasonably forseeability