I.

A Survey of the Civil Action

A. FRCP goal is to secure just and accurate, speedy, and inexpensive trials
B. Power of state courts:
1. Can hear almost anything
C. Power of federal courts: constitution sets maximum jrsd that can be reduced in
Art III.2
1. Questions arising out of federal or Constitutional law
2. All cases involving foreign ambassadors, ministers, etc.
3. Admiralty and maritime
4. Controversies where U.S. is a party
5. Controversies between states
6. Controversies between a state and citizens of another state
7. Between citizens of different states (diversity)
8. Citizens of states claiming lands under grants of a different state
9. Between state/citizens and foreign states, citizens, subjects

II. Jurisdiction Over the Parties or Their

Property
A. Jurisdiction Defined
1. Personal: The power of a court over a person or a thing
a. Court can assert p jrsd only if authorized by statute and w/in Due
Process
2. General: Claim brought against anything
a. Physically present whether it relates to actions or not
b. Citizen or domicile
c. Incorporation
d. Principle place of biz
e. Consent
3. Specific jrsd: Claim arises only over act committed in forum state
a. International Shoe test
b. Do you have purposeful min contacts w/forum state w/claim arising
out of contacts? (most important)
c. Fair and reasonable and convenient to D (only used in Asahi)
4. In personam: Directed at the person
5. In rem: Directed at the thing
a. suing property itself
b. notice to all parties interested in property
6. Quasi in rem: Judgment at property to satisfy other
a. Any judgment limited to value of property
B. The Traditional Basis for Jurisdiction: “Territorial”
1. Pennoyer v. Neff (Purely territorial)
a. State may exercise quasi in rem jurisdiction over property only if it
is attached at the beginning of the suit
b. Cannot exercise personal jurisdiction over non-residents unless they
are served within the state.
c. Every state has jurisdiction over persons and property within the
state.
d. Judgments in personam (against the person) ex parte (with only one
side present) are not enforceable
e. Publication only valid if proceeding in rem. If property is attached
before litigation, owner may find out.
2. Blackmer (1932): Personal jurisdiction expanded to US citizens in
other countries because they continued to owe allegiance to the US
3. Milliken v Meyer (1940): Authority of a state over one of its citizens is
not terminated by the mere absence from the state. Domicile is legal
home, residence is where you happen to be.
4. Adam v Saenger (1938), plaintiff submitted himself to action in an
unrelated court by suing in that court

C. A New Theory of Jurisdiction: Some circumstances,

reach beyond border w/minimum contacts
1. International Shoe v. Washington (1945): Relaxes Pennoyer
a. Systematic and continuous operation of biz to extent that corp:
i. Exercises privileges of conduct in state
ii. Enjoys benefits and protections of laws of that state
iii. Obligations arise out of or are connected to activities in state
b. Establishes two-part test:
i. Purposeful minimum contacts w/forum state and claim arising
out of contacts?
ii. Is jrsd fair, reasonable, and convenient to D?

D. Specific Jurisdiction, Due Process, and State Long-

Arm Statutes
1. Defined:
a. Legislature/statute must authorize jurisdiction
b. Must be within constitutional limits of due process
i. Statute can be less than constitutionally allowed
ii. Exceeds due process, then unconstitutional
2. McGee v. Int’l Life Insurance Co. (1957)
a. Only one contact was sufficient for p jrsd over nonres because
claim arose directly from that contact
b. Corp purposefully entered business in CA
3. Hanson v. Denckla (1958)
 a. FL’s exercise over a DE trust invalid because FL had no contacts
w/trustee: no biz in FL, cause doesn’t arise out of action in FL
b. Mere transaction w/res not enough, no privilege exercised in FL
c. Trustee didn’t solicit business in FL; title fully transferred to DE
4. World-Wide Volkswagen v. Woodson (1980)
a. To be subject to p jrsd, D must have chosen to have some contact
w/state; considerations of fairness, convenience, and interests of
state irrelevant
b. D did not purposefully avail themselves of forum state’s laws
c. Foreseeability not sufficient benchmark: every seller of chattels
would appoint the chattel his agent for service, amenability to suit
travel w/chattel
5. Regularly selling magazines in forum state sufficient contacts. Keeton
v. Hustler Magazine
6. Consenting to child living in state was not “causing an effect;” effect
only limited to commercial activity or wrongful activity affecting state
resident. Kulko v. Superior Court
7. Libel suit brought in CA. First amendment concerns do not enter into
jrsd analysis. FL residents had “effects” of their conduct publishing in
CA. Calder v. Jones
8. Walden v. Fiore
a. Contacts have to be in the state itself, not indirectly screwing up
activity in state.
b. Even if it causes an effect in the state, it does not create contact.
c. Contacts have to arise out of actions of Defendant himself, not
conduct of persons residing in the forum.
d. Injury to forum resident is not a sufficient connection to forum.
9. Burger King v. Rudzewicz
a. Contract alone not sufficient minimum contact; “contract plus”
must evaluate prior negotiations, contemplated future
consequences, terms of K, course of dealing.
b. Franchise grew out of K w/substantial connection to FL
c. Resp “reached out beyond” MI to neg w/FL corp
d. 20 year relationship envisioned contacts in FL
e. Caused foreseeable injuries to corp in FL
f. K+ doesn’t make sense. Hasn’t been addressed since this case.
10. Asahi Metal Industry Co. v. Superior Court (1987)
a. II-A (plurality): Substantial connection between D and forum nec
for finding min contacts must come about by an actions of D
purposefully directed toward the forum state. Awareness that
“stream of commerce” may sweep product to state not sufficient.
b. II-B (majority): Burden of travel, foreign laws, slight interest of
plaintiff, and slight interest of CA makes p jrsd inconsistent w/fair
play and substantial justice; unreasonable and unfair
c. This is the ONLY case where it turned on convenience to D
 d. BIG deal: Sovereignty of CA encroaching on sov of other
NATIONS
i. Foreign relations enumerated to fed gov’t
11. J. McIntyre v. Nicastro
a. Plurality: Must require purposeful availment to meet minimum
contacts, stream of commerce not sufficient
b. Concurrence: Failed to meet minimum contacts, does not change
rule

E. General Jurisdiction and State Long-Arm Laws

1. Gen jrsd defined
a. Shoe: Continuous corporate operations so substantial to justify
causes of actions entirely distinct from those activities
b. Corporation must be “at home” in the state. Incorporated or
principle place of business.
2. Flow of product into forum may bolster spec jrsd but not gen jrsd.
Connection so limited is inadequate for exercise of gen jrsd. Goodyear
v. Brown
3. Philippine corp’s President moved to OH to conduct all business there.
OH was corp principal place of business, corp “at home” in OH.
Continuous and systematic biz contacts. Perkins v. Benguet Consol.
Mining Co.
4. Mere purchases, even if occurring at regular intervals in forum state, are
not enough to warrant assertion of jrsd over nonres for action not related
to purchases. Helicopteros.
5. Foreign corp can be subject to general jrsd on contacts of in-state
subsidiary only when former is so dominated by latter as to be its alter
ego. Expansive jrsd may impede foreign biz dealings. Daimler AG v.
Bauman

F. Internet and Other Technological Contacts

1. Community Trust Bancorp v. Community Trust Financial Corp.
a. Did not meet second requirement that cause of action arises from
D’s activities in forum state
b. No connection between KY res accessing and underlying trademark
claim
c. If they could actually open an account online and someone in KY
opened a TX account, under Zippo there is a substantial connection
related to the trademark infringement
2. Zippo
a. D purposefully avails himself of privilege of acting in state through
website if it is interactive to degree that reveals specifically
intended interaction w/res of state
b. Sliding scale: Fully interactive with knowing and repeated
transmission, passive websites that just make info available.
G. Jurisdiction Based Upon Power Over Property
1. Pennington v. Fourth National Bank (1917)
a. Although Pet did not reside in forum state, attachment of in-state
bank account satisfied due process.
b. State possesses jrsd over property w/in borders, Pennoyer rule
includes tangible and intangible property such as debt
c. Garnishment for foreign attachment is quasi in rem.
2. Creditor may sue and recover debt no matter where situs of debt was
originally. Debt follows the debtor.
3. Shaffer v. Heitner
a. Heitner filed shareholder’s derivative suit for Greyhound,
incorporated in DE w/principal biz in AZ, in rem attaching stock
b. Delaware had no limited or special appearance and no statute
authorizing jrsd—must make general appearance before contesting
on merits. In rem used to coerce into in personam.
c. All assertions of state-court jrsd must be evaluated according to the
standards set forth in Int’l Shoe.
d. Property is not subject matter nor is it cause of action, therefore no
contacts to support jrsd
e. This decision makes quasi in rem much more rarely, for example, if
claim is for less than value of property… prevents them from
moving assets
f. If test is same for quasi in rem as any other jrsd, more likely to want
p jrsd so you can get at all assets

H. Transitory Jurisdiction
1. Burnham v. Superior Court
a. Jrsd based on physical presence comports w/due process regardless
of contacts w/forum state.
b. No minimum contacts required when physically present, no matter
how fleeting. Shoe and Shaffer applied to absent D’s.
c. Burnham and wife married in NJ. She moved to CA w/kids. He
went to CA for a biz trip and visited kids, she served him
w/divorce.

I. Consent
1. Consent by presence:
a. Sov can always exercise jrsd over people who consent and make
general appearance by showing up and not objecting.
b. If someone fails to comply with requested information in discovery
to prove jrsd, refusal to produce evidence is an admission of the
want of merit of defense of p jrsd. Insurance Corp. of Ireland v.
Compagnie des Bauxites de Guinee
c. Nonresident corporations consenting to in-state agent by
registration applicable in some jurisdictions, but not all
 2. Can imply consent to jrsd by using hwy; can’t opt out of implied
consent
a. Hess v. Pawlowski (1927)
i. Out of state res driving on MA hwy implied consent for service
on instate agent for purposes of accident arising from hwy use
ii. Difference between formal and implied consent for appointment
of agent not substantial.
3. Consent by Contract:
a. Forum-selection clauses are prima facie valid by fed cts sitting in
admiralty unless circumstances are unreasonable.
b. To expand American business, we cannot always litigate in our
laws, so forum-selection clause to litigate in London valid.
i. Bremen v. Zapata. SCOTUS. Contract between rig and towing
company contained provision that all disputes would be before
London Court of Justice.
c. Minimum contacts not necessary.
i. Carnival Cruise Lines v. Shute. SCOTUS. Forum clause for
FL on cruise ticket permissible because cruise has special
interest in limiting fora, it dispels any confusion in trial and
saves time and money, savings passed on to customers in form
of reduced fares.

J. Jurisdiction of Federal District Courts

1. Federal courts can only exercise jrsd if power authorized by statute and
comports with due process.
2. Statute can be by the state in which the court sits or federal statute.
3. 4(k)(1)(A): General service rule courts can use when fed stat does not
otherwise authorize jrsd. “Piggy-backs” on long-arm statute in state
where court sits. If state can’t exercise p jrsd, then fed ct can’t either.
4. 4(k)(1)(B): Parties joined by R 14 and 19 and allows service w/in
judicial district and not more than 100 miles from summons.
5. 4(k)(1)(C): Permits service when authorized by a federal statute.
6. 4(k)(2): Two-step inquiry.
a. Inquiry if D is subject to p jrsd in any one of fifty states.
i. Service may be affected if D acknowledges he cannot be sued in
forum state but declines to identify a state w/jrsd
b. Whether D’s contacts w/nation satisfy Due Process.
i. Rule permits aggregation of D’s nationwide contacts and there
are sufficient minimum contacts as a whole.

K. Challenging Personal Jurisdiction

1. Special appearance—challenge exercise of p jrsd w/o submitting to gen
jrsd. Doing anything else before objection submits to gen jrsd.
2. Collateral attack on p jrsd—someone may not challenge jrsd again in a
later action if he loses objection due to res judicata. (Iowa Homestead.)
 a. D who makes no appearance remains free to challenge collaterally a
default judgment for want of p jrsd.
b. Strategy, but risky: can’t contest merits if state rules for p jrsd.
c. Used if you think you’ll lose on merits and want advantage of
contesting jrsd in home state.
3. Limited appearance problem—limited appearance to defend quasi in
rem action without submitting to full p jrsd. Without provision, must
choose between appearing and submitting to gen jrsd or not appearing
and forfeiting property. (Shaffer)

III. Service
A. Requirement of Reasonable Notice
1. Service must be reasonably calculated to give D actual notice.
2. Publication
a. Not reasonably calculated under circumstances to provide actual
notice reach those who could have easily been informed by other
means at hand and does not comply with Due Process. For those
whose whereabouts were unknown, publication has to be
sufficient—no choice. Mullane v. Central Hanover Bank
b. Notice by publication and posting did not provide a mortgagee with
adequate notice of a proceeding to sell property for nonpayment of
taxes even though D may have known. Cost of finding one D is
low, must balance w/benefit. Whole property at stake. Mennonite
Board of Missions v. Adams
3. A statute authorizing in-state service to a nonresident but not explicitly
requiring notice be given to D violates due process even if notice is
given. Wuchter v. Pizzutti
4. If identity is reasonably ascertainable, due process requires actual
notice. Tulsa Prof. Collection Services v. Pope.
5. Notices posted on apartment doors not valid. Greene v. Lindsay
6. When certified mail is returned unclaimed, government should take
“additional reasonable steps” to ensure notice of sale of property. Jones
v. Flowers
7. Not giving more than a few days to respond to service violates DP.
8. P has to act like they want D to be served.

B. Mechanics of Giving Notice

1. “Where there is actual notice, every technical violation of the rule or

failure of strict compliance may not invalidate the service of process.”
a. Courts don’t like it if you challenge service when you got notice!
2. 4(d): Action commences when P sends an official form “Notice of
Lawsuit and Request to Waive Service of a Summons by mail or some
other “reliable” means. D has at least 30 days from date of request sent
 to return waiver, otherwise they will be charged w/costs associated with
providing formal service.
3. 4(e): Personal delivery
a. (2)(B): A person can have two or more dwellings or abodes, service
can be reasonably calculated to provide actual notice of the action.
National Development Co. v. Triad Holding Corp.
b. (2)(C): Delivering a copy of summons and complaint to agent of D
who is “authorized by appointment or by law” to receive process.
Must be evidence that D intended to confer such authority upon the
agent.
i. A private party in K may appoint an agent to receive service
when agent is not personally known to the party and where agent
has not expressly undertaken to transmit notice. Nat’l
Equipment Rental v. Szukhent
A. Agency valid because actual notice was given.
B. If agent had not promptly notified D, it would
invalidate agency
C. Distinguished from Wurchter because that was a state
statute and must comply w/14th amd, this case is a
private K
4. 4(h): Serving a corporation, partnership, or association
a. Most invoked is (B), permitting service by delivery to an officer,
managing agent, or a general agent.
b. Does not require formally titled officials, but upon representative so
integrated that he will know what to do with the papers. Insurance
Co. of North America v. Hellenic Challenger. BC: Dist ct, no
one will follow this because no line drawn.
c. A corporation may assign the task of accepting process and may
establish procedures for insuring that the papers are directed to
those ultimately responsible for defending its interests.
Appointment could be implied by continued acceptance of services.
Fashion Page Ltd. V. Zurich Ins. Co.
5. For “clickwrap,” rule varies. 2nd Cir held that assent to terms on bottom
of page after download button not valid, but 10th held that presentation
of a copy of terms and clicking “I agree” was.

C. Service of Process and Statute of Limitations

1. Statute of limitations supplemented by when causes of action
“accrue”—clock begins to run—and when they are “tolled”—suspended
because P has been prevented from asserting rights
2. In Fed, suit is commenced when complaint filed w/D Ct
3. Under state law, depends on state stat of limit
4. 4(m) requires dismissal w/o prej if D not served w/in 120 days of filing
5. If stat of limit expires during that period, P may refile and maintain if it
could have been avoided by using 6(b) to extend time of service
6. Unlimited time for service under 4(f) for foreign D