Jurisdiction Over the Parties or Things – Personal Jurisdiction
Substantive due process:
Procedural due process:
As explained in the previous subchapter, personal jurisdiction is jurisdiction over the persons or entities involved in the lawsuit. One way to think about personal jurisdiction is to ask the following question: “What right does a court have to determine the rights of the parties involved in the action?” In other words, the question of whether a court has personal jurisdiction over a person involves the question as to whether it would be fair for the court to issue a judgment against that person.
There are two elements that must be satisfied for a court to have personal jurisdiction:
1) The law that governs the court must give it authority to assert jurisdiction over the parties to the case; and
2) The jurisdiction, even where allowed by the law governing the court, must not violate the "due process" clause of the Fourteenth Amendment to the Constitution.
Due process is divided into two categories: substantive due process and procedural due process. "Substantive due process", in our context, can be explained as a limitation on the power of the court to act and exercise power over property or a person or entity. The "substantive due process" inquiry involves an examination of the contacts between the state in which the court has jurisdiction and the defendant or property. "Procedural due process" requires that the defendant receive adequate notice of the pending action and an opportunity to be heard. Both substantive due process and procedural due process are imposed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
The essence of substantive due process is that it must not be fundamentally unfair for the court to exercise personal jurisdiction over the defendant. It must be fair that the defendant be hailed into the jurisdiction in which the court sits and will determine the defendant’s rights and responsibilities. For example:
Bob lives in Washington state. He has never crossed the state borders, has never done any business outside of Washington state, has never conversed about business on the telephone with anyone outside of Washington state, and he has never purchased anything manufactured outside of Washington state. Bob is involved in a motor vehicle collision on a local road in Washington state. The other person in the collision has filed a summons and complaint against Bob with a trial court in Vermont. Bob has never had any contact with Vermont, has never been in Vermont, and certainly does not want to have to travel three thousand miles to defend himself in a Vermont court. This is an extreme example of a situation in which the Vermont court would not have personal jurisdiction over Bob. It would be fundamentally unfair for Bob’s rights and liabilities to be determined by a court in a jurisdiction in which he has had no contact and to which he does not consent to jurisdiction.
There are several ways in which a state can acquire personal jurisdiction over a party so that its courts will be able to determine that party's rights and responsibilities. Consent, service of process while in the jurisdiction, and sufficient contact with the state are examples of such ways to satisfy the need for fairness in an assertion of jurisdiction. See Pennoyer v. Neff, 95 U.S. 714 (1877).
The plaintiff corporation has its principal place of business in Florida. The defendants are residents of Iowa. The plaintiff has brought a cause of action against the defendants in a Florida federal court, claiming that the defendants defaulted under a construction equipment lease. Contained in the signed lease was a paragraph that stated, “The Lessee designates Joe Smith of 12 Main Street, Jupiter, Florida, as agent for the purpose of accepting service of any process within Florida.” The defendant did not know Joe Smith. The plaintiff commenced the action by filing in the federal court in Florida a summons and complaint in which the plaintiff claimed the defendants failed to make three consecutive payments on the lease. Two copies of the summons and complaint were delivered to Joe Smith, who on the same day mailed one of the copies to the defendants with a letter stating that he had been served as the defendants’ agent for service of process in Florida. The plaintiff also informed the defendants by certified mail of the service upon Joe Smith. Even though the defendants did not personally know Joe Smith, the appointment of Joe Smith as the defendants’ agent for service of process within Florida is permissible. “[P]arties to a contract may agree in advance to the jurisdiction of a given court, to permit notice to be served by the opposing party, or even to waive notice altogether.” National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 315, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964).
Even if a party consents to jurisdiction through contract or agreement, such consent may not be valid. The United States Court of Appeals for the 6th Circuit has ruled that consent clauses will be presumed valid only in the absence of fraud, overreaching, grave inconvenience, or violation of the forum’s public policy. See Shell v. R.W. Sturge, Ltd., 55 F.3d 1227 (6th Cir. 1995). Unequal bargaining power between parties is a factor that may render the consent ineffective.
A very common way for a party to consent to jurisdiction is by waiving objection on the basis of lack of personal jurisdiction or by failing to object on that ground in a timely fashion. Most jurisdictions have rules setting forth time periods by which a party must object to personal jurisdiction and in what form the party must object. Under FRCP Rule 12, a defendant normally has 20 days after being served with the summons and complaint to file an answer or to object to jurisdiction. Rule 12(b)(2) allows the defendant to object to jurisdiction over the person by motion. Rules 12(g) and 12(h)(1) provide that an objection not raised is waived. For example:
Plaintiff brought action against defendants in federal court and served defendants with a summons and complaint. Defendants included objection to personal jurisdiction in their original answer. Plaintiff then filed an amended complaint containing a new count. Defendants did not object to jurisdiction regarding the new count. Because the defendants failed to object, the defendants waived lack of jurisdiction as a defense, even as to the additional count. See Preferred RX, Inc. v. American Prescription Plan, Inc., 46 F.3d 535 (6th Cir. 1995).
The United State Supreme Court has held that a plaintiff, by virtue of filing the complaint, consents to personal jurisdiction over any counterclaims filed against it. See Adam v. Saenger, 303 U.S. 59 (1938). Whether, however, this rule applies to all counterclaims or only to counterclaims that are at least somewhat related to the underlying cause of action is unclear. See Threlkeld v. Tucker, 496 F.2d 1101, 1103 (9th Cir. 1974). Whether this rule applies to situations where the underlying action is an in rem action (an action only against a specific piece of property- discussed in the next subchapter) is also unclear. For example, in United States v. One Lear Jet Aircraft, 836 F.2d 1571, 1576-77 (11th Cir. 1998), the 11th Circuit held that for in rem actions, personal jurisdiction does not automatically extend to the plaintiff. However, other courts have ruled that personal jurisdiction does extend to plaintiffs in such actions.
Finally, a defendant can consent to personal jurisdiction for the limited purpose of deciding whether the court actually has personal jurisdiction over him. In doing so, the defendant has preserved his objection to jurisdiction for later on, in case he loses the preliminary motion and the court does, in fact, assert jurisdiction. See Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).
Presence within the jurisdiction:
A court gains personal jurisdiction over a person who is served with process within the court’s jurisdiction, regardless of whether the person lives within the jurisdiction or is just visiting. For example:
John and Cathy were married in Delaware and moved to New York a year later. Eleven years after being married, John and Cathy decided to separate. Cathy moved to Alabama and then filed for divorce in Alabama state court. A few weeks later, John visited Alabama on business. When he arrived at his wife’s house after spending some time with his children, John was served with an Alabama court summons and a copy of the divorce petition. John then returned home to New York. Despite his objections, the Alabama court obtained jurisdiction over John simply because he was served with process while in Alabama. See Burnham v. Superior Court, 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990).
This type of personal jurisdiction is also referred to as transient jurisdiction because the person served does not live within the jurisdiction, but is transient, i.e., just passing through. However, when the defendant is either forced into the jurisdiction or coerced into the jurisdiction through fraudulent means, any service of process will not give the court personal jurisdiction over the defendant. See Wyman v. Newhouse, 93 F.2d 313 (2d Cir. 1927).
Another way for a court to obtain personal jurisdiction over a "foreign"(out of state) defendant is if the defendant has the requisite minimum contacts with the state. Even if the defendant is served outside the confines of the jurisdiction, the court may have personal jurisdiction if the defendant has sufficient contact with the state. The rationale for this is that if the defendant has sufficient contact with the state, the defendant can reasonably anticipate the possibility of being hailed into court in that state. It is not clear what the level of these "contacts" must be for personal jurisdiction over a foreign defendant to apply. The Supreme Court has stated merely that obtaining personal jurisdiction over a defendant based on its contacts with the state must not “offend traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed.2d 95 (1945).
Contacts do not, however, have to be physical. For example:
The Tastee Corporation (“Tastee”) is a Delaware corporation. Its principal offices are in Dover, Delaware. Tastee is a franchise-based corporation that allows franchisees to run standardized Tastee restaurants. All contracts entered into between Tastee and franchisees provide that the franchise relationship is established in Dover, that the contract is governed by Delaware law and that all monthly fees and all correspondence be sent to Tastee’s principal offices in Dover. District offices monitor the franchisees and report to the principal offices. John and Brian entered into a franchise agreement with Tastee to operate a Tastee restaurant in Connecticut. John and Brian are both Connecticut residents. Eventually, John and Brian become delinquent in making their monthly payments to Tastee. Tastee initiates a cause of action against John and Brian in federal court in Delaware. John and Brian move to dismiss the complaint on the basis that the federal court in Delaware lacks personal jurisdiction over them because they are Connecticut residents and because Tastee’s claim did not arise within Delaware. John and Brian’s motion to dismiss will be denied because they have intentionally created substantial connections with Delaware. “Jurisdiction is proper . . . where the contacts proximately result from actions by the defendant himself that create a ‘substantial connection’ with the forum State. . . . Thus where the defendant ‘deliberately’ has engaged in significant activities within a State . . . or has created ‘continuing obligations’ between himself and residents of the forum . . . he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by ‘the benefits and protections’ of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.” Burger King v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).
Just because a defendant has contacts with a state does not necessarily mean that the interests of due process are satisfied. “Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process to insure.” International Shoe Co. v. Washington, supra, 326 U.S. 319.
Factors the court may consider are:
Whether the contacts are substantial: The more contacts a defendant has with a forum state, the more likely that due process concerns are satisfied. How much business a corporation does in a state and how much money is generated is an example of how to determine whether contacts are substantial. See Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir. 1995).
Whether the contacts are purposeful: If a defendant has purposely established contacts with the forum state, the court likely has personal jurisdiction over the defendant. The United States Supreme Court has said that “the constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ in the forum State.” Burger King v. Rudzewicz, supra, 471 U.S. 462, 474. “Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’ . . . Thus courts in ‘appropriate case[s]’ may evaluate ‘the burden on the defendant,’ ‘the forum State’s interest in adjudicating the dispute,’ ‘the plaintiff’s interest in obtaining convenient and effective relief,’ ‘the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,’ and the ‘shared interest of the several States in furthering fundamental substantive social policies.’ . . . These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required.” Id., 476-77.
Even if the defendant has not intentionally or deliberately established contacts with the state, if the nature of the defendant’s business is such that it’s reasonably foreseeable that contacts with the forum state will be made, personal jurisdiction over the defendant by the forum state may be established. What can be considered “reasonably foreseeable,” however, still must be decided on a case by case basis. For example:
Bo and Luke purchased a new car from General Lee, Inc., in New York. Bo and Luke resided in New York. Because Uncle Jessie needed the boys back home, Bo and Luke decided to move back to Alabama. While on their way, driving through Virginia, another car collided with Bo and Luke’s car, causing a fire from which Bo and Luke sustained serious injuries. Bo and Luke brought a product liability action against General Lee, Inc., in state court in Virginia, and also joined the car’s manufacturer, importer and distributor, National General Lee & Co. National General Lee & Co. is incorporated and has its business offices in New York, and it distributes automobiles to retailers like General Lee. General Lee is also incorporated and has its business offices in New York. The National General Lee & Co. and General Lee, Inc., have moved to dismiss the complaint on the basis of lack of personal jurisdiction. Bo and Luke can produce no evidence that either National General Lee & Co. or General Lee, Inc., conduct any business in Virginia, sell any automobiles or ship any automobiles to Virginia, or advertises in Virginia. There is also no evidence that any automobile sold by either defendant has ever entered Virginia, except for Bo and Luke’s car. Even though it is reasonably foreseeable that an automobile sold by the defendants may find its way into Virginia, such remote foreseeability is not enough to establish personal jurisdiction.
See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). ([T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being hailed into court there. . . . The Due Process Clause, by ensuring the ‘orderly administration of the laws,’ . . . gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.” Id.
Whether the contacts are “systematic and continuous”: The more a defendant’s contacts with a forum state are systematic and continuous, the more likely the court can maintain personal jurisdiction over him. All contacts, however, do not need to be systematic and continuous – this is just one of the factors the court will explore. A single contact, depending on its size and consequences, may be all the court needs to find a basis for personal jurisdiction.
Whether the contacts and the underlying cause of action are related: The less of a relationship that exists between the defendant’s contacts with the forum state and the underlying cause of action, the less likely it is that a court will sustain personal jurisdiction over the defendant. In other words, if there is a lack of a relationship between the contacts and the underlying cause of action, the plaintiff has a greater burden to prove that the court has the requisite personal jurisdiction. See Glater v. Eli Lilly & Co., 744 F.2d 213, 216 (1st Cir. 1984).
Whether witnesses and evidence are readily or at least somewhat conveniently available: If access to witnesses and evidence is inconvenient, the court is less likely to sustain personal jurisdiction over the defendant. See Terracom v. Valley National Bank, 49 F.3d 555, 561 (9th Cir. 1995).
Whether the forum is interested in the action: The more interested a forum is in the action, the more likely it is to sustain personal jurisdiction over the defendant. For example, states have strong interests in adjudicating matters that involve real estate within their own borders, but not as great an interest in adjudicating matters that involve only personal property. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984); Shaffer v. Heitner, 433 U.S. 186, 206, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977).
Other criteria that will establish personal jurisdiction are:
Domicile: Even if the defendant is absent from the forum state, if the defendant is domiciled within the state, personal jurisdiction may be exercised. A person is domiciled in the state if he has his current dwelling place within the state and has an intention to be domiciled in the state indefinitely.
Residence: Some states allow residence to be a basis for personal jurisdiction.
Non-resident motorist: Most states have passed legislation that allow courts to exercise personal jurisdiction over non-resident motorists who have been involved in motor vehicle collisions within the state. See Hess v. Pawloski, 274 U.S. 352 (1927).
Tortuous acts within the state: Most states have passed legislation that allow courts to exercise personal jurisdiction over a defendant who has committed a tortuous act within the state.
Every state has statutes, called “long-arm” statutes, which extend the state’s jurisdiction over foreign (that is, out of state) defendants who do not consent to jurisdiction. See, e.g., NY CPLR § 302. Satisfying the issues of due process discussed above is not enough to establish personal jurisdiction. The requirements of due process and the long-arm statutes must be satisfied before personal jurisdiction may be exercised. The long-arm statutes may not violate due process as established by the Constitution. The following is an example of a long-arm statute:
“Every foreign corporation
shall be subject to suit in this state, by a resident of this state
or by a person having a usual place of business in this state, whether
or not such foreign corporation is transacting or has transacted business
in this state and whether or not it is engaged exclusively in interstate
or foreign commerce, on any cause of action arising as follows: (1)
Out of any contract made in this state or to be performed in this state;
(2) out of any business solicited in this state by mail or otherwise
if the corporation has repeatedly so solicited business, whether the
orders or offers relating thereto were accepted within or without the
state; (3) out of the production, manufacture or distribution of goods
by such corporation with the reasonable expectation that such goods
are to be used or consumed in this state and are so used or consumed,
regardless of how or where the goods were produced, manufactured, marketed
or sold or whether or not through the medium of independent contractors
or dealers; or (4) out of tortuous conduct in this state, whether arising
out of repeated activity or single acts, and whether arising out of
misfeasance or nonfeasance.” Connecticut
General Statutes § 33-929(f).
To satisfy procedural due process, a court must give the defendant adequate notice of the pending action. Additionally, the defendant must be notified of his opportunity to be heard and, if applicable, assert a defense. This is usually accomplished through service of process. How process may be served, however, is dependant upon the forum’s rules, which often vary from forum to forum. See Federal Rule of Civil Procedure Rule 4. Service of process is discussed more expansively below.
It should be noted that for some cases, Congress
has authorized federal courts to exercise personal jurisdiction nationally.
Additionally, authorizes federal courts,
in particular situations, to exercise personal jurisdiction over certain
persons within 100 miles of the courthouse, regardless of whether those
100 miles cross state lines.
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