PERSONAL JURISDICTION
Can the court exercise jurisdiction over the defendant and create a binding decision?
Federal or State Court?
Federal court– FRCP 4(k)
 Rule 4(k)(1)(a) – apply state court jurisdiction tests
o
CIV PRO
PJ
Except when
 100 Mile Bulge rule for joinder (=PJ) FRCP 4(k)(1)(b)
 Federal statute authorizes (=PJ) 4(k)1(c)
 Not subject to any of 50 state’s jurisdiction but subject has min. contact with the U.S. FRCP 4(k)(2)
 D consents
State court
 Does the state’s long-arm statute authorize personal jurisdiction over the defendant?
o Enumerated statute – Do D’s contacts fall within the statute?
 Yes = proceed to constitutional analysis
 No = No PJ
o Rhode Island model – jurisdiction allowed up to constitutional limits
 Proceed to constitutional analysis
Constitutional Analysis
 Due process clause of 14th Amendment is the primary constitutional authority
 Does D appear voluntarily?
o Yes = PJ
o No = Special appearance, writ of mandamus or other contest of jurisdiction, so proceed.
 Was the D served with process while in the state?
o Transient service (Burnham)
Direct Attack: Contest of jurisdiction before trial
 Scalia approach = automatically creates PJ
Collateral Attack: Contest judgment after trial for
 “traditional” and historic standard
lack of jurisdiction, D cannot contest the facts
 Brennan approach = generally creates PJ
 Apply International Shoe
 Has D given consent?
o Forum selection clauses are generally enforceable (Carnival Cruise Lines)
 Exceptions: Subject to judicial scrutiny for fundamental fairness
 Fraud, overreaching, lack of notice, discouragement of legit claims
o Other contexts for consent
 State domestication statutes/Registration of businesses or appt. of agents – courts divided
 Consent by estoppel / D is uncooperative during discovery related to forum contacts
 May still challenge jurisdictional ruling on appeal of final judgment (collateral attack)
 Is D a resident of the state?
o Yes = PJ, even if not present in the state (general jurisdiction? Cont. and syst. contacts)
o No = Apply International Shoe test
 Continuous and systematic activities and cause of action is related = Both gen and spec. juris (Int Shoe)
 Continuous and systematic activities and cause of action is unrelated = General jurisdiction
 State of incorporation = PJ, PPB = probably PJ
 Running business from forum = PJ (Perkins)
 Regular purchases from forum alone, training, meeting in forum = No PJ (Helicopteros)
 Single and isolated activities and cause of action is unrelated = No PJ
 Single and isolated activities and cause of action is related = PJ (Specific Jurisdiction)
 The latter two bullets are the most important and involve a determination of specific jurisdiction
under International Shoe and its progeny
 -“due process requires only that in order to subject a defendant to a judgment in personam, if
he be not present within the territory of the forum, he have certain minimum contacts
with it such that the maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.’“
Minimum Contacts Test
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Purposeful availment: essential that there be some act by which the defendant purposely avails itself of the privilege
of conducting activities within the forum state, thus invoking the benefits and protections of its law. (Hanson)
Unilateral activity of others claiming some relationship with the non-resident defendant cannot satisfy minimum
contacts. (Hanson)
Foreseeability of suit is a factor of purposeful availment but it is not the only factor. (WWV)
Sufficient: Sales agents (Int Shoe), offices, sales, “enjoys the
benefits and protections of the laws of that state” (Int Shoe),
contract w/ resident of forum state (McGee), regular monthly
sales (Keeton), revenue (Keeton), intentional harmful effects
on P in forum (Calder – “Effects” Test), 20-year K w/ D in forum
state (Burger King), choice-of-law provisions in K support
purposeful availment b/c creates benefits and protections in
forum state (Burger King – contrary to Hanson), contracts w/
3,000 individuals and 7 internet service providers in forum
(Zippo)
Insufficient: K not created or executed in forum state
(Hanson), no office (Hanson), no business (Hanson),
no solicitation of business (Hanson), , no sales (WWV,
no services (WWV), no privileges under forum’s law
(WWV), only one isolated occurrence (WWV), wife
and kids move to forum state (kulko), random,
fortuitous, or attenuated contacts (Burger King),
online article and web presence only designed to
serve a local market, libelous internet article targeted
at non-forum residents (Young)
Other factors: where K was created and executed (Hanson), a K
does not automatically create minim contacts (Burger King),
prior negotiations and future consequences of a K
Non-factors: revenue derived from forum state
(WWV), convenience to parties and choice of law
(Hanson), if P is forum shopping for a favorable
statute of limitations (Keeton), choice of law concerns
(Keeton), residence of P in forum state (Keeton)
Stream of Commerce (SOC) cases:
WWV: “forum State does not exceed its powers under the Due Process Clause if it asserts jurisdiction over a corporation
that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in
the forum state. “
Asahi
O’connor approach – Most widely used
 Awareness that stream of commerce will bring product into the forum is insufficient
 Additional conduct is required (designed for the forum’s markets, advertised in the forum, marketing
with a distributor (sales agent) in the forum, channels for product advice in the forum, etc (all these add
purposeful availment)
Brennan Approach
 Awareness that stream of commerce deposits products in the forum is sufficient
o (law suit would be foreseeable, benefits of forums laws that regulate commerce
Stevens Approach
 Volume, value, and hazardous character of products into the forum state is the test
o Context of purposeful availment
Contract cases:
McGee – TX corp had ONLY 1 K in CA, court said it was enough
Hanson – Not exactly a K, trust account. At any rate, it was not created in the forum but was executed in the forum. Still
there was no PJ because D (trust companies) didn’t have purposeful availment
Burger King
 A contractual relationship with a party in the forum does not alone create jurisdiction over D
 Contract-Plus Analysis
o K plus additional factors determine purposeful availment / min contacts
 negotiations, terms, consequences of K
 Choice of Law clause supports purposeful availment because it shows foreseeability of suit
o In Burger King: deliberate negotiations with a FL corp., 20 year K, choice of law clause, foreseeable injuries
to P in FL were sufficient additional factors
Minimum
Contacts Test cont...
Intenti onal Tort Cases (Calder)
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Calder Effects Test
o D intentional harms P in forum state + P has significant contacts w/ forum
o Creates foreseeability of suit, purp.avail, min contacts
o Some courts have interpreted test broadly (any tort against a forum resident will create PJ for tortfeasor
o Other courts have interpreted test strictly (D must expressly aim tort at P in forum, knowing that P will
suffer most of the harm in that forum)
Also, Young (see below)
Modern media/Internet cases:
Inset – NO ONE follows this case. BAD LAW. (Internet presence establishes jurisdiction in all states)
Young
 Facts: Libel suit, P is VA prison warden, internet audience was CT readers
 Express aiming test or Internet-Plus approach
o For PJ, internet activity must be expressly targeted / directed at the forum state.
 Factors
 Content, links, advertisements, focus of articles, commercial activity
 Most courts prefer the Young/4th Circuit approach over Zippo!!!
Zippo
 Sliding Scale approach
o Internet presence (web site) + actively doing business = PJ
 Presence of Ks w/ forum residents supports PJ
o Passive Internet presence = no PJ
o Interactive Web Site = no definite answer. Court must examine:
 Level of interactivity
 Commercial nature of the exchange of information
In Rem actions = PJ, generally
 Apply International Shoe
o All (not really) assertions of state court jurisdiction must be evaluated under the standard of International
Shoe and its progeny (Shaffer)
Quasi in Rem actions = sometimes PJ, depending on contacts {why use? Maybe, claim not covered by long arm statute}
 Apply International Shoe
o All assertions of state court jurisdiction must be evaluated under the standard of International Shoe and its
progeny (Shaffer)
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Were minimum contacts established by the three concepts (purposeful availment, unilateral activity, and
foreseeability) and the material in above in the boxes?
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NO = NO PJ
YES = Consider the fairness factors
o Minimum contacts create a presumption of jurisdiction. (Burger King)
 Two-part test: First establish min. contacts, then apply fairness factors
o D must show/prove unfairness or unreasonableness of constitutional magnitude to defeat jurisdiction.
 Asahi is the only case in the supreme court’s history, in which the fairness factors have outweighed
minimum contacts (main concern was heavy burden on D of international lawsuit)
 Factors are: (from WWV) (should be evaluated all together, not disjunctive or conjunctive)
 Burden on the defendant (primary concern),
 State’s interest,
 Plaintiff’s interest,
 Interstate judicial system’s interest in obtaining an efficient solution
NOTICE
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Most states have a statute governing sufficiency of notice, also FRCP Rule 4 in federal courts
Due Process / Constitutional Test:
Fundamental requirement is that notice is “reasonably calculated, under all the circumstances, to apprise interested
parties…” (Mullane)
o Highly fact-specific inquiries
o Must convey the required information
o Must give sufficient time to D
o Is there a better alternative available?
Publication is sufficient when (Mullane)
o During an in rem action, the property has also been seized
o Missing or unknown persons
o OR other circumstances where it is not reasonably possible or practical to provide better notice/service (by
mail or personal service)
Mail service is sufficient when (Mullane)
o Under the circumstances, it is reasonable calculated to apprise the interested parties
Personal service is ALWAYS sufficient. (Mullane)
ACTUAL NOTICE IS NOT REQUIRED, just application of Mullane standard ex ante (Dusenberry)
P / Government must act as if “desirous of actually informing” the D (Jones)
If certified mail is returned undelivered, additional reasonable steps are required to give D notice (Jones)
o Possible additional steps: regular mail, personal service, put up a sign on the property to be seized, publication,
notice to a relative, etc. (Jones)
Mullane v. Central Hanover Bank & Trust
 Facts: Trust accounts - Publication was insufficient because of nonresident parties, no names in the publication,
unlikely to give actual notice, and mail service was an available alternative
Dusenberry v. U.S.
 A federal prisoner never received mail that his property was seized and sued
 Court ruled that it was reasonably calculated ex ante. No actual notice is required.
Jones v. Flowers
Facts: Jones didn’t pay property taxes. Government sent certified mail which was returned undelivered and then sold the
house to Flowers by auction (published notice).
 Held. Government did not act as if “desirous of actually informing” the D. Should have taken additional steps to notify
o Possible additional steps: regular mail, personal service, put up a sign on the property to be seized, publication, etc.
-Q’s ???
Do we need to know the procedural methods of challenging jurisdiction? Writs of prohibition (challenges jurisdiction), writ of
mandamus, special appearance, etc? Do we need to know at what point in the trial these procedures are used?
What is the difference between a collateral and a direct attack? See outline from PAD.
Clarify role of Calder’s “Effects” test.
Where does the random, isolated, or fortuitous language come from?
Do we need to know FRCP Rule 4 or just constitutional standard for service?