Personal Jurisdiction Final Outline PDF

Caroline Rowland Fall 2022 | Civ Pro PERSONAL JURISDICTION I. Traditional Personal Jurisdiction (Pennoyer– rule of territoriality) A. In Personam: Jurisdiction over the...

Caroline Rowland Fall 2022 | Civ Pro PERSONAL JURISDICTION I. Traditional Personal Jurisdiction (Pennoyer– rule of territoriality) A. In Personam: Jurisdiction over the person (full faith and credit) 1. General or specific a) General: defendant can be sued in this state for a claim that arose anywhere in the universe b) Specific: the defendant is being sued from a claim that arose in the forum state 2. Ways: a) Domicile: the unique “home state” of a natural person (1) Change this by: (1) being physically present in a new state and (2) forming the intent to remain in that new state indefinitely (a) Bank one factors (8) b) Voluntary appearance: appearing in court without making a timely objection to the court’s jurisdiction c) tag/transient: physical present of D in forum when served with process (Burnham v. Superior Court– transient jurisdiction is consistent with due process so no minimum contacts analysis needed) (if the D is a natural person and you tag them then it establishes adequate notice and PJ) d) Consent to service on an agent: appointing an agent for service of process B. In Rem: jurisdiction over property (tangible or intangibles) in a suit (Harris) (requires 14A DP Minimum Contacts Test and Reasonableness Test) ( Shaffer) 1. True: 2. Quasi in Rem: attaching property to defendant a) Has to be reasonable b) No FFC in other state courts Similarities between modern and traditional: concerns pertaining to sovereignty and legitimate scope of state power, AND the express or implicit requirement of meaningful connections with the forum state II. CONSTITUTIONAL DUE PROCESS ANALYSIS: Modern Personal Jurisdiction (International Shoe) A. Long arm statute 1. State: a) “Limits of due process” (majority) b) Enumerated (minority): have to interpret and apply the specific language of the statute and it can be more restrictive so a court  Caroline Rowland Fall 2022 | Civ Pro might lack power to hear the case even though minimum contacts and reasonableness are satisfied 2. FEDERAL LONG ARM STATUTE: a) FRCP 4(k)(1)(A): federal courts can borrow the long-arm statute and other jurisdictional statutes of the state in which they ist (1) The only exception to federal courts using state long arm statutes. Rule 4(k)(1)(C) allows federal courts to exercise PJ when authorized by a federal statute b) FRCP 4(k)(2) Worldwide service of process– a person can be served anywhere in the world, and it be constitutional under these federal long arm statute c) SCOTUS hasn't really focused on this but lower courts have agreed that in federal LAS cases the focus under the 5th Amendment must be on a D’s national contacts B. 14A DP Minimum Contacts Test 1. Purposeful Availment a) Activities (International Shoe= Minimum contacts + fairness)-- Sales, employees, offices, etc. b) Contracts (Burger King)-- Contract + activity directed at forum (McGee)-- solicitation (Hanson) – D must contact forum (1) Burger King Factors (4): (a) D reached out to the forum state to pursue business relationship (b) Amount of money in the K (c) Choice of law clause pointing to the forum state (d) D submitted to ongoing interactions with and supervision from forum state c) Torts (Calder) (Walden) (1) Calder Effects Test (a) Intentional Tort (b) Directed at the forum (c) Harm felt in the forum d) Stream of Commerce (J. McIntyre) (Asahi) (1) Pure Stream of Commerce (Brennan) (a) Placing the product in the SoC creates foreseeability (2) Volume, Value, Hazard test (Stevens) (a) Middle ground (b) PA is determined by the volume, value, and hazardous nature of the product (3) Stream of Commerce Plus (O’Connor)  Caroline Rowland Fall 2022 | Civ Pro (a) Have to put the product in the stream of commerce AND have to reach out to the forum in some way (b) Least strict on corporations and companies (4) Liability ends when the product reaches its final destination (World Wide VolksWagen) e) Internet (1) Old way: (a) Commercial and interactive websites: through which the nonresident defendant engages in business (amazon) (b) Interactive websites: users of the site can exchange information but on which no business transactions occur (Reddit) (c) Passive websites: do little more than make information available to those who access them (photobucket) (2) New way: (a) New analysis for internet is to ask what the D is actually doing with their internet connections (b) Sales on a website automatically equal purposeful availment anything else you have to look at further 2. Relatedness (“where the P’s claim arises from OR relates to” a) Thematic (Ford Motor Co.-- all have to do with the theme of Ford SUVs.) (1) But for (2) Substantial Connection Test (3) Lies in the wake of b) Causal (Bristol Myers) (Nowak) (1) Proximate cause (2) Bristol Myers eliminated the sliding scale (weaker the P’s showing on the first two prongs the less the D must show for unreasonableness and vice versa) III. Reasonableness (burden shifts to D) A. Considerations or factors for fair play and substantial justice 1. Gestalt Factors: (Asahi) a) Burden on Defendant (Asahi) (international) b) Forum State’s Interest c) Plaintiff’s Interest d) Administrative Efficiency (big, hard to move evidence) e) Other Relevant Social Policies (Nowak)  Caroline Rowland Fall 2022 | Civ Pro f) Tie always go to the plaintiff IV. General Jurisdiction Analysis A. Long Arm Statute B. Purposeful availment 1. So continuous and systematic that it is essentially at home a) Essentially At Home Test (Daimler) (1) Place of Incorporation (2) Principal place of business (3) Special high amount of activity relatively (large % of total sales) (not super influential has to be something special at that state that makes it different from everyone else) (a) Go read daimler footnote 20 2. General jurisdiction if the subsidiary is the “alter-ego” of the corporation (Daimler) a) Toughest test to pass is the alter ego test 3. Cannot be at home everywhere C. Person is always subject to GJ in their domicile ATTACKS TO PERSONAL JURISDICTION P must show by a preponderance of the evidence that the court has jurisdiction over the D Direct Attack: the jurisdictional objection is raised in the same proceeding in which jurisdiction is sought to be exercised. This can be made by a pretrial motion to dismiss for lack of PJ (FRCP 12(b)(2)) or in the answer to the complaint 21 days after service of process , (FRCP 12(a)(1)(A)(i), if the motion is denied an answer is due in 14 days (FRCP 12(a)(4)(A). The defendant must raise the defense to PJ in the first thing it files or the defense is waived (FRCP 12(h)(1)(A)). ○ Things to remember: FRCP 12(a)(1)(A)(i) – deadline for answer Response must be within 21 days of service FRCP 12(a)(4)(A) – If motion denied then answer is due in 14 days FRCP 12(b)(2) – motion to dismiss for lack of PJ FRCP 12(h)(1)(A) Defendant must raise the defense to PJ in the first thing it files or the defense is waived FRCP 60(b) – defendant can make a post judgment attack on validity of a final judgment against it, in the same federal court that entered the judgment Collateral: The jurisdictional challenge is raised in a different proceeding. In order to raise a collateral attack a defendant must have totally ignored the proceeding and allowed  Caroline Rowland Fall 2022 | Civ Pro a default judgment to be entered against them. Cannot later come back to attack the judgment on jurisdictional grounds but can ask for a post judgment attack on the validity of a final judgment (FRCP 60(b)) SERVICE The method of service must be authorized by the particular service laws that apply and meet the constitutional due process requirement of reasonableness if federal Possible Methods of Service: Personal service of process (generally the best) Mailing the summons and complaint to D’s address ○ Service via ordinary mail is okay if the D admits to having received the summons and complaint by mail because it resulted in actual notice (Snider) ○ Courts are split but most are reluctant to uphold the use of first class mail by itself unless other more certain and verifiable means have first been attempted and failed (Miserandino) (Weigner) Posting a notice ○ Sometimes this alone is not sufficient like in a housing project where other people could remove notices from the doors (Greene) Publishing an ad in a newspaper that describes the parties and the lawsuit I. Service formalities A. FRCP 3: a civil action is commenced by filing a complaint with the court. B. FRCP 4: sets out the main requirements for service made in civil actions in a federal district court 4(a), 4(b) – Summons and complaint 4(c) – who can make service 4(d) – waiver Anti gotcha rule Have to send waiver and S/C in two separate 4(e) – serving an individual in the US (1): allows P to use modes of service authorized by the laws of the state in which the federal court sits or the state where service is going to occur (2): leave S and C at the defendant’s dwelling or usual place of Abode with someone of suitable age and discretion who resides There OR deliver copies to an agent who has been authorized by appointment or by law to receive service on the D’s behalf 4(h)-- serving a corporation, partnership, or association (Mullane) 4(h)(1) – serving an organization in the US (A): if within the US, allows the P to borrow state law rules of service as permitted under 4(e)(1)  Caroline Rowland Fall 2022 | Civ Pro (B): allows P to deliver S and C to “an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process” (Affinity Card) 4(f)– serving individuals outside of US 4(m): have to be served within 90 days after the complaint is filed; if no Waiver is received after the end of 30 days then the plaintiff has to make actual service C. Substantial Compliance: the court takes a more flexible approach with the service rules and will sometimes excuse less than perfect compliance by P with the applicable formalities looking at (Affinity card: reasonable, good faith mistake): 1. Procedural posture of the case 2. The type of service involved 3. Whether the plaintiff made a reasonable, good faith mistake 4. Whether the defendant was evading service 5. Whether the relevant service provision is inherently ambiguous 6. Whether the defendant received actual notice 7. Whether justice would be served by a relaxed construction II. DUE PROCESS RIGHT TO BE AFFORDED ADEQUATE NOTICE OF THE SUIT under the due process clause of the 14th Amendment (state court) or the 5th Amendment (federal court) When in state court you just have to follow the state laws and the constitutional requirements of DP A. A judgment made in the absence of the DP right to be afforded adequate notice of the suit is void and the adequacy of notice depends on the particular circumstances in the case and the likelihood that the method of service employed will be either effective or no less effective than any other reasonably available means B. Mullane Reasonableness standard: 1. Rule: “Due Process requires that notice must be reasonably calculated under all the circumstances to apprise the party of the proceeding and afford them an opportunity to present their objections” 2. Requirements: a) Method employed must be one desirous of actually informing the absentee and he might reasonably adopt and accomplish it; OR (1) (Covey) the city notified D by direct mail to her home, posted it at the post office, and publication in two local papers and a default judgment was brought about but it was not upheld because the city knew the D was mentally incompetent  Caroline Rowland Fall 2022 | Civ Pro b) Where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring notice than other feasible/customary substitutes 3. Results of Mullane: a) Known beneficiaries: mail notice was constitutionally adequate given facts b) Unknown beneficiaries: publication + was constitutionally adequate given facts because their interests would be adjudicated by the known beneficiaries of the fund 4. DP requires further responsibility when the plaintiff becomes aware that it’s attempt at notice has failed a) (Jones) (1) Mail was returned, a person who actually is desirous of informing the D would take further steps if they knew the certified letter had been sent back unclaimed (2) P tried to differentiate between Covey saying there the city knew the lady was incompetent before calculating how to best serve process but this does not excuse the P in Jones III. ATTACK ON SERVICE OF PROCESS A. Direct attack 1. Objection must be raised under Rule 12(b)(5) motion to dismiss OR under Rule 12(b)(4) for motion to dismiss for insufficient process OR in the answer; WHICHEVER IS FILED FIRST Rule 12(h)(1) B. Collateral Attack: 1. Makes no appearance in the action and has a default judgment entered against them can later challenge the sufficient by filing a motion to vacate the judgment under Rule 60(b)(4) on the basis that it is void (Affinity Card). C. There is no time limit on when relief can be sought so it can be years after it was entered Subject Matter Jurisdiction: A Federal Court has independent duty to assure its own subject matter jurisdiction in each and every case before it (FRCP 12(h)(3)) I. Constitution: Article III; Federal Question (§1331) “arising under” CITIZENSHIP/AMOUNT IN CONTROVERSY ARE IRRELEVANT A. Article III, section 2 1. Potential federal ingredient test a) A cases arises under federal law for purposes of Article III whenever the original “cause” or claim implicitly includes a  Caroline Rowland Fall 2022 | Civ Pro “federal ingredient” even if that ingredient plays no active role in the pending case (Osborn) B. 28 U.S.C. §Federal Question) District courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the US 1. Creation test (American Well Works) a) Federal statute gives a cause of action (front door) b) Think Title IX, Sherman Antitrust Act, 1983, etc. 2. Essential Federal Ingredient Test (EFI) (Gunn) (Smith) a) Side door b) 4 elements (Grable) (1) Necessarily raised a federal law issue (2) The federal law issue must be actually disputed (3) The federal law issue must be substantial (4) If the federal court decides to hear the state law claims raiding this federal issue, it would not significantly disrupt the balance between federal and state court responsibilities II. Constitution: Article III; Diversity of Citizenship (§1332) (Strawbridge: Complete Diversity) MAIN QUESTION: was diversity satisfied at the time the suit was filed, if so then post filing changes in party citizenship cannot destroy subject matter jurisdiction A. Article III, Section 2 1. Minimal diversity (State Farm) 2. Amount in controversy does not matter here B. Statutory: 28 USC 1332 (Amount in Controversy must be >$75K (Coventry Sewage)) 1. Amount in controversy 1332(a) must be >$75K (Coventry) St. Paul Mercury “good faith” test (objective and subjective) -Objective: what a reasonable person would have known -subjective: what the plaintiff actually knew *Good faith tested under: Legal Certainty test* If it is legally certain that the plaintiff cannot recover the jurisdictional minimum, it usually follows that the amount in controversy does not meet the threshold for bringing it to federal court Whatever the P claims governs unless it is clear to a legal certainty that she cannot recover more than $75,000 Aggregation: where we must add multiple claims to get over $75k, we aggregate the P’s claims of one P versus one D. no limit to the number of claims that can be aggregated. We cannot aggregate if  Caroline Rowland Fall 2022 | Civ Pro we have multiple parties on either side unless the claims involve a single title or right which the parties have a common and undivided interest (troy) Joint claims: with a joint claim you use the total value of the claim (number of parties is irrelevant) 3 ways: 1. Plaintiff-viewpoint rule 2. Either-viewpoint rule 3. The value of the suit to the party invoking federal jurisdiction 2. Complete Diversity (Strawbridge) a) Cant have any plaintiff and defendant be from the same place 1332(a)(1)=citizens of different states 1332(a)(2)=US Citizen v. foreign national. Can’t have Aliens on both sides 1332(a)(3)=citizens of different states and foreign nationals as additional parties US v. US A. Can have aliens on both sides as long as there is a genuine dispute between the citizens of different states 1332 (b) victorious P may have to pay D’s court costs if P recovers less that $75,000 1332 (c) how to determine “citizenship” of a corporation for diversity purposes 1332 (e) “states” includes DC, PR, and territories C. Determining Citizenship 1. Natural person (Senor Frog)(US citizen is a citizen of the US state where they are domiciled) a) Place of domicile (at time of filing) b) Presumption of continuing domicile c) In order to change domicile: (1) Physical presence in the new state (2) While in the new state you form the intent to stay in the new state indefinitely (a) Bank One Factors (8) (i) Where the party exercises civil and political rights (ii) Pays taxes (iii) Has real or personal property (iv) Has a driver’s or other license (v) Has bank accounts  Caroline Rowland Fall 2022 | Civ Pro (vi) Has a job or owns a business (vii) Attends church (viii) Club memberships 2. Corporations (1332(c)(1)) a) Place of incorporation b) PPB (1) Old test: Muscle Test (a) Where the state corporation earns the most revenue from, what state has the most employees in it, and which state has the more employees (2) New Test: Nerve Center (Hertz) (a) The place where the corporation is directed and controlled from the highest level. Typically the corporate headquarters (b) Where the managers direct,control and coordinate corporate activities 3. Unincorporated Partnership (Carden) a) Any state/country that a member is a resident of (at the time of filing)(Grupo v. Dataflux) b) Can drop a party to fix diversity even if after the time of filing as long as they are not indispensable to the suit(Caterpillar) (1) Has to be a full party, not a member like in Grupo 4. Aliens (Eze) a) Treated as a foreign citizen OR b) A permanent resident of the state they live in (1) Use whichever would eliminate diversity (judicial convenience) III. ATTACKS AGAINST SUBJECT MATTER A. Direct Attack 1. Can be made at any time prior to the completion of the appellate process in that proceeding by either party or the court itself 2. Cases originally filed in federal court a) Can be raised in the district court through a pretrial motion to dismiss Rule 12(b)(1) or after by either party or court (Grupo) 3. Cases originally filed in district court a) §1447: anytime before final judgment it appears the district court lacks SMJ then the case is remanded b) Most states say a lack of subject matter can be challenged at any time during the litigation process and during appeal B. Collateral Attack (CANT REALLY DO THIS)  Caroline Rowland Fall 2022 | Civ Pro 1. Traditional approach a) Judgment in a court lacking subject matter is void 2. Modern approach a) In federal courts the policy against permitting collateral attacks on a federal district court’s subject matter is very strong (Chicot County Drainage District) b) State court is a little more flexible on this and allows collateral attacks (Kalb). Supplemental Jurisdiction: Lets federal courts hear state claims that are not within their original jurisdiction (§§1331, 1332) as long as those state claims are sufficiently related to one or more claims that are within the original jurisdiction that the claims can be treated Q: Is this state law claim entitled to “tag along” into federal court with other claims in the same lawsuit that do satisfy §1331 or §1332? I. Pre 1990 A. Pendent jurisdiction (Gibbs) 1. State and federal claims must derive from a common nucleus of operative fact OR 2. Exercised over non federal claims asserted by a plaintiff as part of a federal question suit B. Ancillary Jurisdiction (Owen) 1. Allows a federal court to hear a claim that would normally be outside of its subject-matter jurisdiction if it is substantially related to a second claim that is within the court’s jurisdiction II. Post 1990 (Modern) A. Article III 1. Plaintiff’s claims are related enough to plaintiff’s federal law claims that they all form a single case B. Statutory 1. 28 U.S.C. §1367 a) Allows federal courts to hear state law claims that do not fall under federal jurisdiction as long as they form part of the same case or controversy with an action that the court has original jurisdiction over (§1331 OR §1332) (1) Two different tests for the same case or controversy requirement: (a) Strict Relatedness (majority) (i) Gibbs test: Same common nucleus of operative fact  Caroline Rowland Fall 2022 | Civ Pro (b) Loose factual connection test: Minority of sizable lower courts (i) b) No supplemental jurisdiction for sole diversity cases (§1332) (1) SECOND SEMESTER TOPIC c) Even if the basic requirements of 1367 (a) and (b) are met, the federal district court still has discretion whether to decline to exercise its supplemental jurisdiction if one of these are present: (1) Novel/Complex state law issue (first appearance) (a) 1367(c)(1) (2) State claim is predominant purpose of suit (state claim worth SIGNIFICANTLY more money) (can argue against this with public policy) (a) 1367(c)(2) (3) District Court has dismissed all claims over which it has original jurisdiction (a) 1367(c)(3) (4) Exceptional circumstances (a) 1367(c)(4) d) TOLLING: If a federal district court declines to exercise SMJ over eligible state law claim (Passes through 1367 a and b), the passing of the applicable statute of limitations is tolled while the claim was in federal court and for 30 days after dismissal e) PR, DC, territories are states First ask does 1367(a) grant supplemental jurisdiction over this claim? The answer is yes if it meets Gibbs (CNOF) CNOF is always met if the claims arise from the same transaction or occurrence Second question is does 1367 (b)(2) or 1367(c) takeaway jurisdiction? REMOVAL JURISDICTION Q: If this action had been originally filed in federal district court, would there be an adequate basis for federal SMJ over every claim in the action? Must consider §1331, §1332, and §1367 A: If yes, then the action is one of which the federal district courts have original jurisdiction so it is properly removable under §1441(a) as long as the special limit in §1441(b)(2) does not apply If no, then the action is not properly removable under §1441(a) Follow up Q: To which federal district court must D remove the action? A: The federal district court for the district and division embracing the place where the state court action was brought §1441(a)  Caroline Rowland Fall 2022 | Civ Pro 28 U.S.C. §1441: Removal Requirements (exclusive privilege of the D) §1441(a): Any civil action brought in a state court where the federal court has original jurisdiction may be removed by the defendant to the district court for the district where the action is pending. (b)(2): “home state D” exception. If the only basis for removal is §1332, the defendant may not remove the action if any of the defendants are citizens of the forum state. (c): Joinder claims (Ettlin) (c)(1): if a civil action includes (c)(1)(A): a claim within §1331, AND (c)(1)(B): a claim not within the original or supplemental jurisdiction of the district court, THEN it may be removed if the action would be removable. (c)(2): The district court will sever the claims that are not within the original or supplemental jurisdiction of the district court and remand them to the state court. The only defendants who have to consent are the ones from §1331 28 U.S.C. §1446: §1446(a): A defendant wanting to remove any civil action must file in the district court of the US for the district and division within which such action is pending notice of removal and contains a short and plain statement for grounds of removal with copy of all process, pleadings, and orders (b): requirements (b)(1): notice of removal must be within 30 days after the receipt by the D or within 30 days after the service of summons has been filed (whichever is shorter). (b)(2)(A): When an action is solely §1441(a), all defendants must join in or consent to the removal (c)(1): limits any time extension for the removal of diversity cases to 1 year after commencement of the action unless the P acted in bad faith to remove the D from removing (c)(2): The sum demanded in good faith and in the initial pleading shall be deemed to be the amount in controversy (d) requires the removing part to provide a prompt written notice of the removal to all adverse parties and to file a copy of the notice with the clerk of the state court. 28 U.S.C. §1447– Procedure following removal (a) Authorizes the district court to take control over the removed case by asserting its authority over the parties (b) Records that are to the above proceeding (c) Addresses the potential remand of a case improvidently removed (d) Remanding a case based on a defect in the removal procedure or lack of SMJ (e) If the P seeks to join additional Ds whose joinder would destroy SMJ, the court may deny or permit the joinder and remand the action back to state court/  Caroline Rowland Fall 2022 | Civ Pro D sued in state court. With removal the D can have that case transferred (removal) to the federal system. If the P thinks removal is improper they will move to remand to send the case back to state court. Only STATE to FEDERAL. Not FEDERAL to STATE. PLAINTIFF CAN NEVER REMOVE Five basic rules: 1.) D can remove if the case could have been brought in federal court (falls under 1331 or 1332) a.) EXCEPTION: cannot remove a diversity case if any D is a citizen of the forum (in state defendant rule) ONLY APPLIES IN DIVERSITY 2.) Must remove within 30 days of service of process 3.) All D’s who have been served with process must join in the removal 4.) The thirty days of removal starts afresh for each newly served defendant 5.) Remove only to the federal district that embraces geographically the state court where the case was filed