PERSONAL JURISDICTION
• (A) TRADITIONAL BASIS
◦ 1. Physical Presence
• Non-resident D subject to PJ where they are properly served with with process
while physically present in forum state, or by D's voluntary appearance.
▪ In personam: Transient jurisdiction, physically present within the state, or above in
a plane.
▪ In rem: Substiute for D's body.
• True in rem: Property being seized is the same as the subject of the lawsuit →
basis for PJ
• Quasi in rem: Property being seized that is not the subject of the lawsuit → used
to satisfy judgment
◦ 2. Citizenship
▪ Citizenship = Domicile (same as SMJ): Forum state citizen always subject to PJ, no
matter where they are served.
◦ 3. Consent or Waiver
▪ On Purpose:
• Forum Selection Clause: Can be expressly written within the K, in the event that
a dispute arises out of this K, it will be litigated in state or federal court in state
X. (Unreasonable only if:
◦ A) Not vital to K: What is the link between clause and K?
▪ Place of business?
▪ Language of clause itself – is it silent or does it explicitly say why is it
important?
▪ Applies to everyone or one-time occurrence?
▪ Not feasible to be called to defend all over. Predictable forum.
◦ B) Selects remote and alien forum: Does forum have anything to do with
claim filed? How far and burdensome will it be litigate here?
▪ Place where transactions have been or are to be performed.
▪ Location of the parties.
▪ Convenience of prospective witnesses and accessibility of evidence.
◦ C) Was negotiated in bad faith: Show that it's more than adhesive K.
▪ Overreaching
▪ Fraud
▪ Takes advantage of one party.
▪ Bad faith: Small type face, denial of the right to talk to a lawyer,
deliberate use of complicated terms, use of foreign language, legal ease.
▪ By Accident
• No special appearance = waiver
• (B) MODERN BASIS
◦ Modernly, a non-resident D is subject to personal jurisdiction in any state where 1) the
state's LAS purports to reach them and 2) they have such minimum contracts with the
forum state that defending there would not offend traditional notions of fair play and
substantial justice.
◦ 1. Does the long arm statute purport to reach?
▪ Specific Acts Statute: Long-arm statute specifies the acts that subject a person to
PJ i.e. a long arm statute that allows jurisdiction for claims “arising out of tortious act
committed in this state.”
▪ Cop-Out Statutes: Court may exercise PJ on any basis not inconsistent with the
Constitution of this state or the US. “Intended to reach to the limits of Due Process”
→ watch out for this
◦ 2. International Shoe Test (MC = FP + SJ)
▪ The D must have purposefully availed itself of the privilege of conducting activities
within the forum state, thus invoking the benefits and protections of its laws. This
language emphasizes that the D must have made a deliberate choice to relate to
the state in some meaningful way before D can be made to bear the burden of
litigating there. Unilateral contracts by any P will simply not suffice.
▪ Minimum Contacts
• Purposeful Availment (IS) HISCG
◦ Has Effects
◦ Intentional
▪ 1) Solicits Business; 2) Advertises; 3) Agents; 4) Property/Offices, 5)
Designing Product for the Market, 6) Marketing Product Through a Forum
Distributor, 7) Negotiations
◦ Substantial
▪ 1. Continuous and systematic activities – actual course of dealings
▪ 2. Even single or occasional acts, due to their, quality & circumstance,
may be enough.
▪ 3. Money exchanged/large volume transacted
▪ 4. Future consequences → Contract
◦ Confers Benefit: A) Gets money; B) Laws and protections of the state
◦ Gives Rise to the Claim: “But for” test
• Purposeful Availment (AIN'T) NAIUF
◦ No impact
◦ Accidental: Acts of God
◦ Insignificant: Isolated and sporadic. Casual and irregular.
◦ Unilateral by non-D
◦ Foreseeable: Just because the company may have been “merely aware”
that their products might end up through distribution in the forum state is a
far cry from purposeful availment.
▪ Fair Play and Substantial Justice
• In addition to Minimum Contracts, the P must still show the reasonableness of
personal jurisdiction over the out-of-state D. In addition, it is possible to have
weak minimum contacts yet strong argument for the reasonableness, and
comport with the due process clause of the 14th Amendment.
• 1. Plaintiff's Interest In Litigating Forum (C, W & E, I)
◦ a) C: Citizen of the forum; b) W: relative ease of access to witnesses &
evidence already located in forum; c) I: place of injury; d) notice here, D's
interest are the same except in D's interest we also consider the BURDEN to
D.
• 2. Defendant's Interest in Avoiding the Forum (W & E, B)
◦ a) Opposite of P's interest; b) W: D's access to relevant witnesses & evidence
may be beyond subpoena power, not in the state; c) B: too far to litigate –
large out of pocket costs; d) burden too great? Modern transportation &
communication have made it easier. D must show actual hardship.
• 3. Forum State's Interest (P, P, B, C)
◦ Not asking if there is another state with a better interest, just if the interest
is strong enough. Connections with the case.
◦ a) P: Protect injured citizens; b) B: Businesses affected? Did state benefit
from D's actions; c) P: forum's policies implicated?; d) C: choice of law
provision: evidence of strong state interest → state X is best at interpreting
State X law; e) Use of state resources; f)
• 4. Interstate Judicial System's Interest
◦ Burden on court system – efficiency and economy → avoid duplicate
litigation.
◦ a) Interest is avoiding hearing the same case with the same evidence more
than once; b) collection of all state and federal courts whose resources might
be implicated by bringing this suit: If more than 1 place where case can be
tried, does it pose a burden to bring the suit in 1 state as opposed to
another?
• 5. Shared Substantive Interest of Several States
◦ Does it serve policy interests of all states?
◦ a) Promotion of public good and social justice; b) if there is some
fundamental policy interest (safety of cars) shared by two states, and there is
more than one state where the suit may be brought, then leave the lawsuit in
the forum state; c) if case affects more than 1 state or has a different policy,
may not be wise to keep in forum; d) if forum state isn't going to promote
good policy you may not want to litigate there b/c the first judgment is
binding in other states.
• CHALLENGING PERSONAL JURISDICTION
◦ 1. Direct Attack
▪
◦ 2. Collateral Attack
▪
NOTICE
• Rule 12(b)(5) – is a motion to dismiss for service of process [has to do with the manner]
• Must distinguish this form …. A defect in the notice itself i.e. the writing “Surrender
Dorothy” lacked the proper language.
• Rule 12(b)(4) – when serve summons without complaint or vice versa …. written in foreign
language …. words don't convey that this is a wrongful death action based on the house
falling on the witch's sister.
• (A) MECHANICS (FRCP)
◦ 1. Upon Natural Persons
▪ In-hand delivery: Best type. Placing and leaving with D.
▪ Substituted service:
▪ Appointed agent:
▪ Other (forum's law):
◦ 2. Upon Fictitious Defendant's
▪ Manager Partner or General Officer
• CFO, CEOs, certain VPs, certain Stock Holders
• Limited Partnerships: look for managing partners, those that can make company
liable
• Unions: President
▪ Appointed agent: most laws require appointment of agent to receive service
◦ 3. Other (forum's law)
• (B) FAIRNESS
◦ Is the method of service, authorized by law, constitutional under the circumstances?
◦ 1. Reasonably Calculated: most effective means. Cost benefit analysis → more
expensive, less reasonable. (Mullane: Newspaper not good enough for known
beneficiaries.)
◦ 2. Under the circumstances: Wuchter: motorist statute didn't require notice. Greene:
taking on door insufficient – taken down by children.
◦ 3. To give actual notice: Not always required, attempt may be good enough.
VENUE
• (A) VENUE = DISTRICT = WHERE §1391
◦ Look at first two rules, then look at 3rd. Need only one to transfer venues. Which district
court in the federal system should hear the case? Transfer from one district court within
the federal system to another in a different state or district.
◦ A) Any Defendant Resides, If All in Same State
▪ If 1 D: Venue is proper in the district where the D resides
▪ If multiple D's: Venue is proper if at least 1 D resides in the district and no D's are
from outside the state.
▪ Exception: Does not work if any D is from another state.
• Residence: Courts equate residence with domicile for venue purposes.
◦ B) Event(s) or Omission(s) Occurred
▪ Venue is properly laid in any district where a substantial part of events or omissions
giving rise to the claim occurred (or a substantial part of property that is the subject
of the action is situated.)
▪ Focus is on the basis of the claim instead of the residents/citizenship. A crucial piece
of claim must have incurred in venue.
• If contract → where was the K created? OR wherever the substantial part of the K
occurred
• If tortious act occurs → where did the tort occur?
◦ C) Last Chance Option
▪ Diversity: All D's = PJ
• Diversity actions may be brought in “a judicial district in which any D is subject
to PJ at the time the action is commenced”
◦ If case is in federal court on diversity, venue is proper in any district where all
D's are subject to some basis on PJ.
◦ Use PJ analysis on venue considered. 1) Traditional Basis and 2) International
Shoe Test
▪ If no PJ → No last chance option
▪ Federal Question: Anywhere a D can be found
• Federal Q cases may be brought in a judicial district “in which any D may be
found”
◦ If a federal Q case → we do not care about PJ. In a federal Q matter, the US is
the sovereign power that's exercising jurisdiction (limited by 5th not 14th so
long as US has contact with D.
◦ Where any single D can be found w/sufficient contacts – typically applies to
corporate D (chain stores)
• (B) CHALLENGING VENUE
◦ 12(b)(3) → Motion to dismiss the claim because of no proper venue
▪ If the above three don't work, then there is still a place the person can be sued →
State Court
◦ 12(b)(3) is disfavored and the motion to transfer is favored.
• (C) TRANSFER OF VENUE §1404 & §1406
◦ IF venue IS properly laid, and one of the D's say it's not fair for the venue to exist here.
◦ Purpose:
▪ This is a remedy for filing in the wrong court w/o having to dismiss the case
▪ Venue may be appropriate to transfer where the transferor venue is the venue but
the transferee venue is appropriate.
▪ If the transferor venue is proper and the transferee venue is proper but the
transferee venue is better
◦ Transferee Venue Satisfies §1391
▪ Transferee venue is better venue (If not satisfied then not appropriate)
▪ P's motion: Where D could have initially been served.
▪ D's motion: Where P could have had the right, independent of A's wishes, to bring
the action. Consent of D will not permit transfer where the action could not have
been originally commenced.
◦ Convenient for litigants, Witnesses
▪ Venue is oriented toward D but this also adds P and Witnesses
▪ Look for easy access to relevant witnesses
• 1404(a) – for convenience of parties & witnesses, in the interest of justice a
district ct may transfer any civil action to any other district or division where it
might have been brought – although P may have laid proper venue.