JURISDICTION IN CIVIL ACTIONS

Territorial Basis and Process Limitations on Jurisdiction o f State and Federal Courts Fourth Edition

Volume OneROBERT C. CASÄDJohn H. and John M. KaneProfessor of Law EmeritusThe University of KansasMember of Kansas and Minnesota Bars

WILLIAM M. RICHMAN Distinguished University Professor Emeritus University of Toledo College of Law

STANLEY E. COX Professor of Law Emeritus New England Law I Boston

fP ‘ LexisNexis-

Volume 1 Table ofA COMPLETE SYNOPSIS FOR EACH CHAPTER APPEARS AT THE BEGINNING OF THE CHAPTER VOLUME 1

CHAPTER 1 FUNDAMENTAL CONCEPTS AND TERMINOLOGY

§ 1.01 Jurisdiction[1] Jurisdiction of the Subject Matter[2] Jurisdiction of the Person

[a] Basis[b] Process

[3] Jurisdiction over Property§ 1.02 Alternatives to the Traditional Terminology

[ 1 ] General, Specific, and Limited Jurisdiction[2] Territorial Jurisdiction

§ 1.03 Jurisdiction and Venue Distinguished[ 1 ] Transitory Actions

[a] State Courts[bj Federal Courts

[2] Local Actions[3] Effect of Improper Venue

§1-04 Forum Non Conveniens§ 1 05 Fraud, Force, or Artifice in the Invocation of Jurisdiction§ 1 -06 Immunity from Jurisdiction§ 1 -07 Prorogation Agreements: Forum Clauses§ 1 08 Continuing Jurisdiction

CHAPTER 2 CONSTITUTIONAL LIMITATIONS ON THE _________________ EXERCISE OF STATE COURT JURISDICTION

§ 2.01 History of the Constitutional Limitations on State-CourtJurisdiction— Full Faith and Credit

11 ] History and Purpose[2] Prohibiting Relitigation in Sister States[3] Significance of Jurisdiction

§ 2.02 More History: The Due Process Clause and the Bases ofState-Court Jurisdiction

[ 11 Pennoyer v. N eff[a] The Court’s Analysis of In Personam Jurisdiction

[i] The Traditional Bases[ii] Full Faith and Credit and Due Process Standards

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Volume 1 Table o f Contents[b] The Court’s Analysis of In Rem and Quasi In Rem

Jurisdiction[i] Service by Publication and Prior Attachment[ii] Significance of Attachment

[2] The Territorial Power Principle[a] Historical Origins[b] Practice Under the Theory: The Traditional Bases

[i] The Bases[ii ] Necessary and Sufficient for Jurisdiction

[3] Modifications of the Power Principle[a] Quasi In Rem: Tangible and Intangible Property[b] Jurisdiction for Divorce Actions: Marital Status as a Res[c] Jurisdiction Over Corporations: Actions In Personam

[i] Domestic Corporations[ii] Personal Service on Agents and Officers[iii] Foreign Corporations: “Doing Business,” Implied

Consent, and PresenceLd] Jurisdiction Over Nonresidents Doing Business[e] The Implied Consent of Nonresident Motorists

[4] The Decline of the Power Principle§ 2.03 The Development of Modern Jurisdictional Theory:

Minimum Contacts . . . Fair Play and Substantial Justice 111 International Shoe v. Washington

[a] Facts and Holding[b] Unresolved Ambiguities

[2] McGee v. International Life Insurance Co.[31 Hanson v. Denckla[4] Shaffer v. Heitner[5] Kulko v. Superior Court[6] World-Wide Volkswagen Corp. v. Woodson[7] Insurance Corp. o f Ireland, Ltd. v. Compagnie des

Bauxites de Guinee[8] Keeton v. Hustler Magazine, Inc.[9] Calder v. Jones[10] Helicopteros Nacionales de Colombia v. Hall[11] Burger King v. Rudzewicz[12] Asahi Metal Industry Co., Ltd. v. Superior Court[13] Burnham v. Superior Court[14] J. McIntyre Machinery, Ltd. v. Nicastro[15] Goodyear Dunlop Tires Operations, S.A. v. Brown[16] Daimler AG v. Bauman

§ 2.04 Modern Jurisdictional Theory and the Traditional Bases

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Volume 1 Table o f Contents[ 1 ] Personal Service While Present Within the State

[a] History[b] Burnham v. Superior Court

[i] Justice Scalia and Historical Pedigree[ii] Justice Brennan and Contemporary Notions of Due

Process[iii] Justice White[iv] Justice Stevens[v] Implications

[2] Domicile—Residence— Citizenship[3] Incorporation in the Forum[4] Appearance and Consent

[a] Contractual Consent[b] Plaintiffs’ Consent

§ 2.05 Personal Jurisdiction From the Present Perspective[1] Constitutional Source[2] The Elements of the Test

[a] Contacts, Purposefulness, and Fairness[b] General/Specific Jurisdiction Distinction

[3] General Jurisdiction[a] Contacts[b] Purposefulness[c] Fairness

[4] Specific Jurisdiction[a] Contacts

[ij Whose Contacts?[ii] Quantity[iii] The Meaning of “Minimum.”

[b] Purposefulness[i] A Separate Requirement[ii] Physical Entry[iii] Foreseeability v. Purposeful Availment[iv] Purposeful Availment and Initiation— Who Went to

Whom?[v] Purposeful Availment and the Stream of Commerce

[c] Cause of Action Must Arise Out of Defendant’s Forum Contacts

[d] Fairness[i] Fairness Required[ii] Defendants Burden of Proof[iii] The Fairness Factors

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Volume 1 Table o f Contentsfiv] The Burden on the DefendantM The Forum State’s Interest in Adjudicating the Dispute[vi] Plaintiff’s Interest in Obtaining Convenient and

Effective Relief[vii] The Interstate Judicial System’s Interest in Obtaining

the Most Efficient Resolution of Controversies[viii] The Shared Interest of the Several States in Furthering

Substantive Social Policies[5] Summary

[6] International Treaties[7] A New Challenge to Jurisdictional Theory: Minimum

Contacts in Cyberspace[a] Introduction to Cybertalk[b] Jurisdiction and the Internet

[i] Easy Cases[ii] The Hard Case

§ 2.06 Jurisdiction Over Property[11 Traditional Jurisdictional Classification

[a] Personal Jurisdiction Distinguished[b] Types of In Rem Jurisdiction

[2] Constitutional Limitations on Property-Based Jurisdiction[a] History

[i] Pennoyer v. N eff[ii] Harris v. Balk—Intangibles

[b] The In Rem Revolution: Shaffer v. Heitner[3] Property-Based Jurisdiction From the Current Perspective

[a] In Rem and Quasi-In-Rem Type I Jurisdiction[b] Attachment Jurisdiction

[i] A Close Relation Between the Claim and the Property[ii] Minimum Contacts[iii] Attachment to Enforce[iv] Attachment as Security[v] Land[vi] No Other Forum

§ 2.07 The Process That Is Due: Notice and Opportunity to Defend[1] Notice and Basis[2] An Adequate Officially Prescribed Procedure

[a] Relation to Actual Notice[b] Deviations From Prescribed Procedure[c] Timing of Notice

[3] The Standard for Adequate Methods for Giving

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Volume 1 Table o f ContentsNotice—Mullane v. Central Hanover Bank & Trust Co.

[a] The Mullane Decision[b] The Extension of the Mullane Rule— Universal

Application[c] The Standard Applied: Constitutionally Adequate

Methods[4] Provisional Remedies and Prior Notice

[aj Sniadach v. Family Finance Corp.[b] Pre-Seizure Hearing and Attachment Jurisdiction

§ 2.08 Jurisdiction and Choice of Law[1] Co-extensive Limits?

[a] The First Hypothesis[b] The Second Hypothesis

CHAPTER 3 STATUTORY REQUIREMENTS FOR THE EXERCISE OF JURISDICTION: TRADITIONAL

_________________ JURISDICTIONAL BASES_________________________

§ 3.01 In Personam Actions Against Individuals and Corporations[ 1 ] Personal Service[2] Service on an Agent or Attorney of Individual or

Corporation[a] Agent Authorized by Law[b] Agent Authorized by Appointment

[3] Substituted or Constructive Service at Residence or Abode[a] Identification of Residence or Abode[b] Physical Dimensions[c] Acceptable Recipients of Service[d] Procedural Deviations and Actual Notice

[4] Constructive Service[a] Publication[b] Service by Mail[c] Absentee Process[dj Posting

[5] Jurisdiction Predicated on Defendant’s Submission[a] General Appearance

[i] Special Appearance[ii] Appearance After Default Judgment[iii] Appearance by Formal Document[iv] Estoppel

[b] Waiver of Jurisdictional Defects: FRCP Rule 12[i] Waiver of Defenses: FRCP Rules 12(g) and 12(h)

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Volume 1 Table o f Contents[ii] Relationship of Defenses: FRCP Rules 12(b)(2),

12(b)(4), and 12(b)(5)[iii] Pre-Pleading Motions[iv] Challenging Jurisdiction in the Answer[v] Amendments to Plaintiff’s Complaint[vi] Unauthorized Attorney Purportedly Representing

Defendant[vii] Counterclaims, Cross-Claims, or Third-Party Claims

[cj Express Agreements Submitting to Jurisdiction

[i] Ongoing Actions[ii] Actual Consent by Implication[iii] Express Consent as a Contract Term[iv] Prorogation Agreements[v] Cognovit Notes

[6] Formal Defects of Process[a] Designation of Court and Time[b] Name of Defendant

[i] Fictitious Name[ii] Misnomer[iii] Wrong Party Named and Served

[7] Proof of Service[a] The Verity Rule[b] Amendment of the Return[c] Absence of Proof of Service[d] “Sewer Service”

[8] Time Limitations on Service§ 3.02 In Personam Actions Against Private Corporations

[ 1 ] Domestic Corporations[2] Foreign Corporations

[a] Qualifying Corporations[i] Claims Arising Outside Forum State[ii] Due Process

[b] Non-Qualifying Corporations[i ] Presence and Implied Consent[ii] Parameters of “Doing Business”[iii] Solicitation[iv] Continuity of Operations[v] Independent Agents[vi] Franchisees or Distributors[vii] Automobile and Aircraft Manufacturers[viii] Publishers

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Volume 1 Table o f Contents[ix] Parent and Subsidiary Corporations

§ 3.03 In Personam Actions Against Partnerships andUnincorporated Associations

[1] Partnerships[2] Limited Partnerships[3] Unincorporated Associations

§ 3.04 The National Bank Venue Act and Actions Against NationalBanks

§ 3.05 In Rem and Quasi In Rem Actions§ 3.06 Actions by or Against Decedents’ Estates

[ 1 ] Probate and Administrative Proceedings[2] Foreign Personal Representatives[3] Outside the State of Primary Administration

§ 3.07 Subpoenas

CHAPTER 4 STATE LONG ARM STATUTES’ RELATION TO _________________ PERSONAL JURISDICTION______________________

§ 4.01 Overview of State Long Arm Interpretation Problems[1] Introduction[2] Development and Types of Long Arm Statutes

[a] Brief History of Long Arms[b] The Three Types of Long Arm Statutes[c] Mixing Statutory and Constitutional Analysis[d] Expansion or Interpretation to Due Process Limits?

[ij Hybrid Statutes Construed to Reach to Due ProcessLimits

[ii] Enumerated Act Statutes Construed to Due Process Limits

[iii] Only a Minority of States Do Not Construe to Reach Due Process Limits

[3] Federal Court Misinterpretation of State Long Arm Requirements

[4] Overview of Interpretation Problems and Possibilities Regarding the Most Important Enumerated Provisions

[a] Interrelation of Provisions[b] Quondam Lack of Long Arm Authorization for General

Jurisdiction[c] Overlap and Expansion of Enumerated Provisions,

Especially Using the “Transacting Business” Provision for Tort Actions

[d] “Dual Jurisdiction” as Another Way to Stretch Long

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Volume 1 Table o f ContentsArm Provisions That Don’t Quite Reach

[5] Three Specific Types of Provisions That Have InvitedDifferent Interpretive Approaches

[a] Transacting Business Provisions[b] Tortious Act Provisions[c] “Arising From” or “Arising Out o f ’ Provisions

[6] Coda: Long Arm Law Is State Law§ 4.02 Overview of State Long Arm Approaches, State by State

[ 1 ] Alabama[21 Alaska[3] Arizona[4] Arkansas[5] California[6] Colorado[7] Connecticut[8] Delaware[91 District of Columbia[10] Florida[11] Georgia[ 12] Hawaii[13] Idaho[14] Illinois[15] Indiana[16] Iowa[17] Kansas[ 18] Kentucky[19] Louisiana[20] Maine[21] Maryland[22] Massachusetts[23] Michigan[24] Minnesota[25] Mississippi[26] Missouri[27] Montana[28] Nebraska[29] Nevada[30] New Hampshire[31 ] New Jersey[32] New Mexico[33] New York

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Volume 1 Table o f Contents[34] North Carolina[35] North Dakota[36] Ohio[37] Oklahoma

[38] Oregon[39] Pennsylvania[40] Rhode Island

[41] South Carolina[42] South Dakota[43] Tennessee[44] Texas[45] Utah[46] Vermont[47] Virginia[48] Washington[49] West Virginia[50] Wisconsin[51] Wyoming

§4.03 Miscellaneous Long Arm Issues

[1] Retroactive Application[2] Tolling Issues[3] Plaintiff Residence as Restriction on Long Arm

Applicability[4] Attorney’s Fees for Questionable Plaintiff Assertions of

Jurisdiction

CHAPTER 5 INVOKING JURISDICTION OF FEDERAL COURTJ

§5.01 Constitutional Limitations

[1J Subject Matter Jurisdiction of Federal Courts[2] Territorial Jurisdiction of Federal Courts

§5.02 The Federal Rules of Civil Procedure

[1] The Text of the Rules[2] History of the Rules[3] The Process Provisions of Rule 4

[a] Waiver of Service of Process: Rule 4(d)

[i] Purpose and Basic Procedure

[ÜJ The Consequences of the Defendant’s Decision[iii] Novel Nomenclature[iv] Application to Defendants Outside the Forum State[v] Use of Means Other Than First Class Mail[vi] Time for the Defendant’s Return of the Waiver

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Volume 1 Table o f Contents[b] Conventional Service of Process[c] Time for Service[d] Service of Process Other than Summons or Subpoena

[4] Basis Provisions of Rule 4[a] State Law Bases[b] The 100-Mile Bulge[c] Federal Statute[d] Federal Claim Outside State-Court Jurisdiction[e] Supplemental Personal Jurisdiction

§ 5.03 Nationwide and Worldwide Service Acts[ 1J Actions Against Federal Officials[2] Federal Interpleader Act[3] The Clayton Act

[a] Supplement to Other Venue Provisions[b] Terms Defining Contacts

[i] “Inhabitant” and “Found”[iij Transacting Business

[4] The Securities Act and the Securities Exchange Act[a] National or State Contacts[b] Terms Defining Contacts

[i] “Inhabitant” and “Found”[ii] Transacting Business

[5] Foreign Residents in Patent Action[6] Actions Against Foreign States[7] Employee Retirement Income Security Act (ERISA)[8] Racketeer Influenced and Corrupt Organizations Act

(RICO)[9] Comprehensive Environmental Response, Compensation,

and Liability Act[ 10] False Claims Act[11] Antiterrorism Act

§ 5.04 Personal Jurisdiction in Removed Cases§ 5.05 Enforcement or Removal of Liens or Claims to Property

[ 1 ] Appearance[2] Property Within the District[3] Pre-Existing Lien Requirement

§ 5.06 Venue[1] Venue Transfer[2] Dismissal for Forum Non Conveniens[3] Goldlawr Transfer[4] Transferred Diversity Actions

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Volume 1 Table o f Contents§ 5.07 Admiralty Actions§ 5.08 Bankruptcy

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