Jurisdiction over the Parties or Their Property (jop)

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Civil Procedures Outline
Jurisdiction over the Parties or Their Property (JOP)

  1. Three Kinds of JOP

    1. In personam – gives the court power to issue a judgment against someone personally. All of a person’s assets may be seized to satisfy a judgment

    2. In rem – jurisdiction over a thing, gives a court power to adjudicate a claim make about a piece of property or about a status

    3. Quasi in rem – action begun by attaching property owned by D, or debt owed to D w/in forum state. A pretext for the court to decide the case w/out having In personam jurisdiction. Judgment affects only the property seized

  2. Long arm statute – most states have statutes which permits the court of a state to obtain jurisdiction over persons not physically present w/in the state at the time of service

    1. Typically provide for substitute means of service, since in-state personal service is not possible

  3. Jurisdiction over Individuals

    1. Presence – jurisdiction may be exercised over an individual by virtue of his presence w/in the forum state. Game of Gotcha

      1. Pennoyer v. Neff - Service by publication against non-residents is insufficient to confer jxn. States have jxn over persons/property in the state. Publication may be sufficient for proceedings in rem (and quasi in rem with proper attachement).

      2. Burnham - In CA on business. Ex-wife lived in CA. He was served w/ divorce papers while in CA on this trip.

        1. The 14th Amendment doesn’t deny a state jxn over a person personally served while temporarily in a state, in a suit unrelated to his activities in the state. If served while physically present in state, jxn is proper.

    2. Domicile – jurisdiction may be exercised over a person who is domiciled w/in forum state, even if the person is temporarily out of state

      1. Current dwelling place

      2. Intent to remain for an indefinite period

    3. Residence – some states allow jurisdiction allowed on residence even if absent. A person may have several residences simultaneously

    4. Consent – a person may consent to jurisdiction

    5. Non-resident motorist – most states have statutes allowing jurisdiction over non-resident motorists who have been involved in accidents in a state

      1. Most of these statutes provide for in-state service of process on a designated state official and for registered mail service on the out of state D

      2. Hess v. Pawloski - Hess, from PA, injured Pawloski in a car accident in Mass.

        1. MA statute appointing registrar of motor vehicles as non-resident’s agent for service of process does not violate due process. D must still receive notice. D received benefit of MA services, so jxn proper. Implied consent

    6. In-state tortiousness – statutes allowing jurisdiction over persons committing tortious acts w/in state

      1. Some have been interpreted to include acts done outside a state which product tortious consequences inside a state. (products liability)

      2. Gray v. American Radiator - Gray alleged that Titan, an Ohio corp., sold a shoddy valve to American Radiator to be built into a water heater. The water heater exploded, injuring an Illinois resident. Titan did no business in Illinois.

        1. If the act/transaction has a substantial connection to the jxn, jop proper. Did D invoked the benefits/protections of the law of the state?

    7. Owners of in state property

    8. Conducting business w/in forum state

    9. Domestic Relations

      1. Kulko- A father who sends his daughter to live with the mother in CA is not purposefully availing himself.

  4. Jurisdiction over Corporations

    1. International Shoe

      1. Forum state may exercise JOP over corporation only if the corp. has minimum contacts w/ forum state “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice

      2. Look at quality, nature of activity. “systematic and continuous.”

    2. Internet Websites

      1. Passive v. Active sites

      2. Pebble Beach v. Caddy (p. 150) - Caddy operated Pebble Beach bed and breakfast in England. Pebble Beach sued Caddy in CA. Caddy’s website was passive, not active (or interactive).

        1. D must purposefully avail or purposefully direct activities toward forum. Availment is action taking place in the forum that invokes the benefits and protections of the laws in the forum. Purposeful direction requires more than foreseeable effect.

    3. Claims unrelated to in-state activities – where the cause of action does not arise from the company’s in-state activities, greater contacts between D and forum state are required. The in-state activities must be “systematic and continuous

      1. Helicopteros - Helicopteros purchased helicopters, received training, etc. in TX. A crash occurred in Peru, killing some Texans. Suit brought in TX.

        1. When a D’s contacts with the state do not relate to the transaction forming the basis of the action, the D must have systematic and continuous contacts. In this case, mere purchase did not constitute systematic and continuous contacts.

        2. Specific jxn- D’s contacts relate to transaction,

        3. General jxn – systematic and continuous contacts.

    4. Products liability

      1. There mere fact that a product manufactured or sold by D outside the forum state finds its way into the forum state and causes injury there is not enough to subject D to JOP there. D can be sued in the forum state only if it made some effort to market in the forum state

        1. World-Wide Volkswagen – fiery car crash in OK

          1. D must “purposefully avail” himself of the jxn. In this case, the foreseeability that a car purchased in NY would be driven in OK is not sufficient to constitute minimum contacts.

          2. Reasonably anticipate being haled into court there

          3. Considerations

            1. Burden on the defendant

            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

            5. Shared interest in furthering fundamental substantive social policies

      2. Knowledge of In-state sales – but if the out-of-state manufacturer makes or sells a product that it knows will be eventually sold in the forum state, this fact by itself is probably enough to establish minimum contacts.

        1. Asahi - Facts: Asahi (Japan) makes tire valves, sells to Cheng Shin (Taiwan), Cheng Shin sells motorcycles. Zurcher was hurt on the bike, sued Cheng in CA, Cheng sought indemnity from Asahi

          1. Minimum contacts sufficient to sustain jxn are not satisfied by simply placing a product in the stream of commerce couple with an awareness that product would reach the forum state. There must be purposeful availment.

        2. Goodyear supp p.532 – France bus wreck

          1. General jurisdiction - when their affiliations with the State are so "continuous and systematic" as to render them essentially at home in the forum State

          2. Specific jurisdiction - depends on an "affiliation between the forum and the underlying controversy, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation

          3. Rule - Courts cannot assert jurisdiction over foreign subsidiaries with sporadic sales in the forum State in cases not related to the sales in the forum State.

        3. J. McIntyre Machinery v. Nicastro (p. 550 supp) - Nicastro, of NJ, injured by machine made by McIntyre (of UK). Company’s products sold through an independent co. McI had attended some conferences/trade shows.

          1. It is not enough that D might have predicted that goods will reach forum state. Requires consent to jxn, presence in state when served, citizenship/domicile, or purposeful availment.

          2. Dissent, Ginsburg - one sale + an attempt to reach all of the American market is sufficient.

    5. Suits based on a contractual relationship –

      1. Burger King Corp. v. Rudzewicz – D runs a fast food franchise in MI from P, which has its headquarters in FL.

        1. Designation of law clause – major factor, indicates purposeful availment

        2. Reasonable anticipation – could the D have reasonably anticipated being required to litigate in the forum state?

        3. A party who established purposeful minimum contacts with a state is subject to that state’s exercise of personal jxn

  5. Jurisdiction over Things

    1. Quasi In Rem

      1. Shaffer v. Heitner – Quasi-in-rem must meet the same standards as in personam jurisdiction (International Shoe)

        1. Basically abolishes quasi-in-rem jxn, narrow exception is where minimum contacts are present, but the state long-arm for JOP is too narrow to reach D, yet a state attachment statute applies Harris v. Balk


  1. Court may not proceed unless D has received adequate notice

  2. Reasonableness Test

    1. In order for the defendant to have received adequate notice the procedures used to alert him must have been reasonably likely to inform him, even if they actually failed to do so.

      1. Mullane v. Central Hanover Bank & Trust Co. p. 199

        1. notice must be “reasonably calculated to succeed”

        2. Cannot be less likely to come to their attention than any other method that might bring it to their attention

  3. Substitute Service

    1. Personal service or In hand service – always sufficient service

    2. Substitute service – service other than personal service

      1. Leave at dwelling – papers may be left at D’s dwelling, usually with an adult who is reasonably likely to deliver them [FRCP 4(e)(2)]

      2. Mail – Some states and the federal system allow by first class mail (usually by waiver) [FRCP 4(e)(1)]

      3. Agent notice FRCP 4(e)(2)

        1. Nat'l Equipment Rental, Ltd. v. Szukhent – An agent's prompt acceptance and transmittal to the respondents of the summons and complaint is sufficient to validate the agency

  4. Out of state Service

    1. In a State suit forum must have long-arm statute

    2. Mail – registered or certified mail

    3. Public Official – State official + mail

    4. Newspaper Publication – May only be used where D truly cannot be found

    5. State Ex Rel. Sivnksty v. Duffield

      1. Nonresidents of a county or state charged with a crime are immune from civil process

      2. If you are in the county or state voluntarily at the time you are arrested, you are not immune from service

  5. Opportunity to be heard

    1. Before property can be taken or any significant interference with his property rights, D must have opportunity to defend himself

    2. Pre-judgment remedies

      1. Protects P from D’s hiding or squandering his assets

    3. Fuentes v. Shevin p.240 – Goods seized before a written summons, repo the stove

      1. Even a temporary deprivation of property is a deprivation under the 14th amendment, and due process is required.

        1. If the right to notice and a hearing is to serve its full purpose, it must be granted at a time when the deprivation can still be prevented.

        2. Must have notice before seizure of goods

        3. Exceptions - secure a gov't or public interest, need for prompt action, strict control p.246

        4. Can you waive right to prior notice? Probably. For a waiver of const. rights in any context must, at the very least, be clear

    4. Three part test Connecticut v. Doehr p.254

      1. Degree of harm to D’s interest from the pre-judgment remedy

      2. The risk that the deprivation of D’s property right will be erroneous (especially if the state could have used additional procedural safeguards against this but did not)

      3. The strength of the interest of the party seeking the prejudgment remedy

Jurisdiction over the Subject Matter of the Action – (SMJ) see US Constitution Art. 3, 28 USC §§ 1251,1331-1346

State Court SMJ

  1. Lacks v. Lacks (p.267) - D contends that because P is not a resident of NY according to statute, the court lacked SMJ. Divorce case.

    1. A final judgment is not void for lack of SMJ if the defect alleged concerns a judicial error as to the existence of a necessary element of the cause of action.

Federal Courts

  1. Diversity Jurisdiction – the Const. gives fed courts jurisdiction over “controversies between the citizens of different states”

    1. Party’s citizenship is determined from the date of the commencement of the action

      1. Later change doesn’t change diversity (if the parties later become citizens of same state, diversity intact)

    2. Domicile – controls for citizenship, not residence. True fixed permanent home.

      1. Resident alien – citizen of state in which he is domiciled

      2. Presence of foreigner – doesn’t destroy diversity

      3. Mas v. Perry (p. 278) - Mere residence in a state does not establish domicile for purposes of diversity jxn. Domicile-1 physical presence, 2 intent to remain, elements must concur.

    3. Complete diversity – required, no P is a citizen of the same state of any D

      1. Court looks beyond the pleadings to determine diversity

    4. Corporations – deemed a citizen of any state where it is incorporated and the state where it has its principal place of business.

      1. Nerve center – corporate headquarters, home office

        1. The Hertz Corp v. Friend (p 588 supp) - Citizenship for a corporation is its principal place of business (the “nerve center”) (and where incorporated). Why nerve center test is best: supported by statute language, simplicity of administration, legislative history.

      2. Bulk of activity – main production or service activities

  2. Federal Questions

    1. § 1331 – fed courts have jurisdiction over “all civil action arising under the Const., laws, or treaties of the U.S.

      1. Fed Law is source of P’s claim

      2. Merrel Dow

    2. Anticipation of defense – Fed Q must be integral to P’s cause of action. It does not suffice for Fed Q jurisdiction that P anticipated a defense based on a federal statute, or even that D’s answer does raise a fed Q. Fed Q must be part of well pleaded complaint

      1. Louisville & Nashville R. Co. v. Mottley - Alleging an anticipated constitutional defense in the complaint does not give a federal court jxn if there is no diversity. 28 USC 1331 case must “arise under” constitution, laws, or treaties of US.

    3. Merrell Dow Pharmaceuticals v. Thompson p. 309 - Federal question jurisdiction would exist only if the plaintiffs' right to relief depended necessarily on a substantial question of federal law.

      1. Federal question jurisdiction is present if

        1. A substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims

        2. Federal forum is warranted to ensure uniform interpretation of the federal statute

        3. Special circumstances relating to the extraterritorial effect of the statute warrant affording a federal forum

    4. Grable and Sons Metal Products v. Darue Engineering (p. 317)

      1. Efficiency (caseload)

      2. Class of cases is likely to turn on issues of state or federal law

      3. The extent to which a sympathetic tribunal is necessary

      4. To what extent should this be in control of the Fed gov't v. State gov'ts

  3. Amount in Controversy

    1. Diversity only – must exceed $75,000

      1. Not including interests or court costs

      2. Just has to show some possibility that that much is in question

        1. AFA Tours v. Whitchurch (p. 285)- Cannot be dismissed unless it “appears to a legal certainty” that the claim is really for less than the jurisdictional amount

        2. If P eventually recovers less doesn’t render the verdict subject to reversal

          1. § 1332(b) - May deny costs to P, and even impose costs if less than $75,000

        3. Usually according to P

      3. Aggregation of claims

        1. Aggregation by single P – if P has claim in excess of $75,000, he may add to it any other claim of his against the same D, even though these other claims are for less

          1. If P does not have a single claim that exceeds $75,000, he may add together all of his claims against a single D. Jxn if total more than $75,000

          2. May not aggregate claims against multiple D’s

        2. Multiple P’s – at least one P must meet the amount, but the other P’s don’t have to

          1. If no single P can meet the amount aggregation is not allowed.

            1. Unless two P’s can unite to enforce a single title or right in which they have a common and undivided interest

          2. Exxon Mobil - Where one P’s claim satisfies the minimum amount in controversy requirement for fed diversity jxn, and another P’s related claim doesn’t, § 1367 allows fed courts to exercise supplemental jxn over the claim that is less than required amount

  4. Supplemental Jurisdiction § 1367

    1. Term replaces Pendant and ancillary jurisdiction

    2. § 1367(a) – in any civil action of which the district courts have original jxn, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in that they form part of the same case or controversy

      1. Gibbs - Under pendent jxn, federal courts may decide state issues which are closely related (same set of facts) to the federal issues being litigated. § 1367.

    3. Fed Q – when the original claim comes within the court’s Fed Q jurisdiction § 1367 allows the court to hear any closely related state-law claims.

      1. Allows additional parties to be brought in, or just the original parties

    4. Diversity – some exclusions

      1. Applies when

        1. 13(a) – compulsory counterclaims

        2. 13(h) – joinder of additional parties to compulsory counterclaims

        3. 13(g) – cross claims

        4. 14 – impleader – for claims by and against 3rd party P’s, and claims by 3rd party D’s, but not claims by the original P against 3rd party D’s

        5. Multiple P’s who join together under Rule 20’s permissive joinder

        6. Joinder of P for Rule 23 class action based on diversity

      2. Does not apply when

        1. 14(a) Claims against 3rd party D’s

        2. 19(a) Compulsory joinder – neither a claim against such a person, nor a claim by that person comes within supplemental jxn in diversity only

        3. 20 – permissive joinder

        4. 24 – intervention –P’s who intervene do not get benefit of Supp jxn

      3. Basically additional claims asserted by D fall w/in supp jxn, but additional P claims are generally not included.

    5. Executive Software – Absent extraordinary circumstances, § 1367(c)(1)-(c)(3) sets forth the exclusive circumstances under which a fed court may appropriately decline pendent jxn.

      1. 1367(c)(4) sets forth discretionary remand if compelling reasons and should be construed narrowly, if it best accommodates economy, convenience, fairness, and comity.

  5. Removal

    1. Any action brought in state court that the P could have brought in Fed court may be removed by D to fed court

      1. Diversity limitation – In diversity, the action may be removed only if no D is a citizen of the state in which the action in pending

        1. Exception – state class actions can be removed even though one or more D’s are citizens of the forum state

    2. Diversity and amount in controversy rules applicable

    3. Only D may remove – P defending counterclaim may not remove

    4. Decided from the face of the pleadings – P’s complaint controls

    5. Multiple claims – when P asserts against D in state court 2 claims one of which can be removed and one can’t

      1. Diversity – defeats removal, whole case must remain in state court

      2. Fed Q - § 1441(c) – if there is another separate and independent claim for which there is no fed jxn, D may remove whole case

        1. Fed court may remand state law matters – may even remand fed claim if state law predominates in the whole controversy

        2. Borough of West Mifflin v. Lancaster (p 356) - Case removed to fed court, then remanded to state court because state claims predominate.

          1. A district court may not remand to state court an action on the grounds that the state law claims predominate. § 1441(c) allows remand only when fed claims are separate and independent from state claims.

    6. Compulsory remand – if fed judge concludes that removal did not satisfy the statutory requirements, she must remand

    7. Time – D must usually file for removal w/in 30 days of the time he receives service

    8. All D’s must join in the notice of removal


Definition – the place within a sovereign jurisdiction in which a given action is to be brought. It becomes a consideration only when jurisdiction over the parties has been established

  1. State action – determined by statute, not really determined by the Constitution

    1. Most commonly venue is authorized based on the county or city where the D resides. Many states also allow venue based on where the cause of action arose

    2. Forum non conveniens – state may use its discretion not to hear the case in a county where there is statutory venue

      1. Whether plaintiff is a resident

      2. Whether the witnesses and sources of proof are move available in a different state or county

      3. Whether the forum’s own state laws will govern the action

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