Personal Jxn

Introduction

  1. Approaches / Views
    1. Assume that can bring axns anywhere then look @ limitation
    2. Look historically where limited options expanded
  2. Imp. of Parties
    1. Concerned about D, where D lives, & binds on the person
  3. Components of Pers. Jxn
    1. Notice
    2. Territorial jxn, jxn'al basis, & jxn 2 adjudicate
  4. Territorial Jxn, Jxn'al Basis, & Jxn 2 Adjudicate
    1. Basic Framework of Analysis
      1. Need state L-A stt. 2 exercise jxn over nonresident
        1. Look @ Gray, stt'ory construction, etc.
        2. Before specif. list of jxn's but now gen. / ct. interp's gen.
      2. Const'al 14th Amend. D/P analysis where Sup Ct interp's the outer limit that state can try 2 reach
      3. Two part test & must 1st satisfy state L-A stt.
      4. Can B waived unlike subj. matter jxn
    2. Trad'al Basis (Pennoyer v. Neff): Clear rule from Pennoyer
      1. Jxn over D by pers'al serv. w/in forum state
        1. Axn filed in state
        2. D present in state
        3. Pers'al serv. made in state
      2. Jxn over D by prop. as basis : Quasi-in-rem
        1. Need 2 seize the prop.
        2. And must B @ the outset where it's after filing case but before jgmt
        3. Minimal notice: seizure is constructive custody
        4. Prob's of this
          1. No link btwn litig. & prop.
          2. Ez 2 apply but no guarantee that prop. is in state
          3. Only allowed 2 give protection against non-resident & state sov.
      3. Agent
        1. If do busi. instate, state can req. agent so fix so that have somebody 2 serve in state
      4. Consent
        1. Agmt in K
        2. Showing up / vol. appearance
        3. If come 2 let ct. know is protesting jxn but did it wrong
      5. Determining Civil Status like Marriage
        1. No need 2 serv. / pers'al notice when state have rt. 2 do cert. proceedings
        2. Marriage consid'ed as prop. & in rem
      6. Wyman v. Newhouse qualification
        1. Fraudulent inducement 4 pers'al serv. is no good but fraud after getting 2 state o.k.
    3. Transition: Hess v. Pawloski
      1. Specif. stt. by agent & consent
    4. Modern Test: Int'l Shoe
      1. Two Parts
        1. Min. contacts
        2. Fair, just, & rsbl
      2. Min. Contacts
        1. Gen v. Specific
          1. Gen
            1. Cause of axn not arise out of / rel. 2 the contact btwn D & the forum state so need more contacts (Perkins)
            2. Need cont. & sys. activities (look @ facts in Perkins)
            3. Remeber Helicopteros: Need lots of contact
          2. Specific
            1. Claim arise out of / rel. 2 the contacts outsider D had w/F state
            2. Can B casual / isolated
            3. Element of purposeful availment by outsider D 2 F (Hanson)
              1. D sought out / initiated contact P (McGee)
              2. D acted in a way it knew would injure / have effect in F state knowingly so could expect 2 B "haled in"
            4. But unilateral activity by P w/nonres. D not good enough 4 pers. jxn
            5. Would like 2 find specif. jxn b/c not need as much contact as gen.
      3. Fair, Just, & Rsbl (WWV & Burger King)

Personal Jxn Cont'ed

Analysis

  1. Three Part Cnxn: D, forum, & litig.
  2. In Personam v. In rem
  3. Subst
    1. State L-A stt 4 jxn / Fed Rule 4)k (look @ lec 16 & basically fed. like state law)
    2. Due Process analysis (min. contact)
  4. Proced.
    1. State / Fed Rule 4 4 notice
    2. Due Process analysis (Mullane)
  5. Territorial Jxn, Jxn'al Basis, / Jxn 2 Adjudicate
    1. Int'l Shoe Test
      1. Min. Contact
      2. Fair Just & Rsbl
    2. Fair, Just, & Rsbl (WWVW, BK, & Asahi)
      1. One v. Two Inquiries
        1. WWVW said need commercial purposeful cnxn b/c rsbl & fair not enough so 2 inquiries
        2. BK, 1 inquiry of min. contact & rsblness so purposeful then it's rsbl & if rsbl, not need as much contact
        3. Asahi has 2 inquiries where if either 1 not satisfied (fairness) then no jxn
      2. BK Factors
        1. Burden on D
        2. Forum state's int. in adjudicating
        3. P's int. in conv. & effective relief
        4. Interstate jud. sys's int. in obtaining most eff. rsln
        5. Shared int. of sev. states in furthering fund'al subst. soc. policies
      3. Pg. 103 where in Bk, if meet purposeful min. contact & not unrsbl, then need compelling case 2 say it's unrsbl
      4. Asahi of foreigness factor
        1. Unrsbl & unfair 2 litig. b/c it's 2 non-US entities w/nothing 2 do w/forum state's int.
    3. BK Case
      1. Choice of law cl.
      2. Contrast 2 WWVW where it's cont'ing set of rel. so rsbl
      3. K case not just prod. case where if not vol arr. then can get out by K law
    4. Asahi
      1. Stream of Commerce
        1. Brennan said awareness enough even though WWVW said foreseeabiltiy of prod. not enough
        2. O'Connor wants more than awareness 4 intent / purpose (p.108)
          1. Design the prod. 4 mkt in forum state
          2. Ad in forum state
          3. Est'ing channels
          4. Mkt'ing prod.
        3. Steven + Brennan = purposeful availment
      2. Commercial Supplier of Goods
        1. Look @ both WWVW & Asahi where ct's concerned about looking 4 specif. efforts on D 2 get benefit of mkt so awareness might B enough
    5. Intangible Injury Cases
      1. Calder v. Jones & Hustler cases (same test0
      2. Kulko Case (family law)
    6. In Rem
      1. Harris v. Balk said can attach intangible prop. like debts & stock where debt is located wherever debtor is
      2. Shaffer v. Heitner said since really about person's int. in prop, apply Int'l Shoe test so prop. will no longer the det. factor
    7. Person's Presence
      1. Burnham v. Superior Ct relied upon historical pedigree & trad. not on min. contact 2 find that presence of person in state still o.k. jxn
    8. Consent
      1. Consent in Forum Before Litig.
        1. Carnival Cruise w/Forum selection cl (NOT choice of law) on tix b/c of litig. cost, econ, etc.
        2. Although said can consent by K before w/o limitation, qualif. b/c Carnival Cruise is FED ADMIRALTY case....states may not follow it
        3. Can consent not 2 litig. --forum ouster cl.
      2. Consent 2 Outset of Litig.
        1. Waiving by litig'ing instead of challenging even if unintended
      3. Implied Consent (Hess v. Pawloski)
      4. Consent by Waiving in Course of Litig.
        1. Ins. corp. of Ireland v. Compagnie des Bauxites de Guinee where D was uncoop. in est'ing / not est'ing contact so said consent 2 contact
      5. Jxn by nec.
        1. never officially recog'ed but sugg. if no state forum has any better contact, & only other possible litig. outside US
  6. Challenging Jxn
    1. Options
      1. Litig.
      2. Default
        1. Not appear then obj.
      3. Spec. Appearance
        1. Show up when proceeding go on (Rule 12)b)2)
        2. Only 1 chance & must follow through
    2. Kinds of Attack
      1. Direct
        1. Attack in very proceeding by appealing in the process
      2. Collateral
        1. 2nd proceeding after the case over on merits & everything dec'ed
        2. Can B after litig'ed OR after taking default jgmt
  7. Notice
    1. Due Process: Mullane v. Central Hanover Bank & Trust Co.
      1. Must B rsbly Calculated under all circ. 2 the axn pending & opp. 2 present obj.
        1. Convey info rsbly
        2. Rsbl X 2 make appearance
      2. Only rsbl chance that people get it not that will get it
      3. Factors
        1. Cost & $
        2. People
        3. Conseq. of notifying some but not all
      4. Convey Imp.
        1. Can't just put notice on door
        2. If can't read, then serve by auth / envelope sugg'ing imp. etc.
      5. Miedreich v. Lauenstein
        1. If P innocent & really tried by rsbl means, if D not get it, P off hook
    2. Stt: Rule 4
      1. Sub e-j classif's ways 2 serve dep'ing on those types of people
      2. Sub l: proof of serv.
      3. Sub m: 120 days
      4. Sub n: seizure of prop.
      5. Rule 5 AFTER axn started
      6. Rule 4)e)2: dwelling / usual place of abode dep's on facts (Leigh v. Lynton & Nat'l Devt Co v. Triad Holding Corp)

This material is copyrighted by the author. Use of the material for profit is expressly prohibited without the written permission from the author.

Go Back to Law School Notes

Ms. Haeji Hong

January 15, 1998
1