1L Civ Pro Personal Jurisdiction

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1L Civ Pro Personal Jurisdiction
2011-08-30 18:14:20
1L Civ Pro Personal Jurisdiction

Civ Pro Personal Jurisdiction
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  1. Define PJ
    power of a court to enter a judgment against a specific defendant
  2. Who has the duty to prove PJ?
    • It is the duty of the party asserting a claim (usually the P) to demonstrate that the
    • court has PJ
  3. How/When is PJ raised?
    • RULE 12(b)(2)-Lack of personal jurisdiction. Defendant must raise challenge to
    • personal jurisdiction within the initial response or it is waived. No other
    • party other than D will/can raise motion (no sua sponte decision or P)
  4. Define in personam jurisdiction:
    • Jurisdiction over a person based on the person’s obligations in the
    • state. A person’s actions/personal
    • obligations are at issue (IE: torts like speeding).

    • I) Stems from
    • the notion that a state has exclusive control over all people within its
    • territory; usually accessed when person is physically present or is a citizen

    • II) Corporations
    • are a legal entity which can only act through its agents and agencies
  5. Define in rem:
    • Jurisdiction over a D based on the D’s actual property within the state (but only up the the
    • value of the property). Status of property is at issue (IE: challenging title
    • to property like liens, AP)

    • II) State can
    • obtain in rem jurisdiction if the nonresident owns property within the state
    • and that property is attached is of issue at the very outset of litigation; constructive notice sufficient if property is attached to suit

    III)Tangible Property (land) or Intangible Property (bank accounts or debt)
  6. Define quasi in rem
    • A person’s actions/personal obligations are at issue (action against the person—suit
    • is unrelated to property) but they own property within the state that subject
    • the D to PJ

    I) Recovery is limited to the value of the property that is within the jurisdiction
  7. Define long arm statute
    a legislative grant that allows a state to extend and exercise jurisdiction over a non-resident defendant.
  8. What is NC's Long-arm statute?
    N.C.G.S. 1-75.4

    • P.S. She Asked
    • If God Promised Forgiveness Cuz That
    • Is Really Material

    • (1) Local Presence
    • or Status

    • (a) Presence
    • within state

    (b) Domicile (individual or corp)

    • (c) Substantial
    • activity within the state

    (2) Special Jurisdiction Statutes—another statute says PJ is proper

    • (3) Local Act or
    • Omission—tort occurred in the
    • state

    • (4) Local Injury;
    • Foreign Act—tort occurred in the
    • state, but caused a tort produced outside the state plus at the time of injury:
    • (a) Solicitation
    • or services in NC

    • (b) Use or consumption
    • of D’s products in NC (Grey)

    • (c) Advertisements/Junk
    • Mail

    • (5) Local Services, Goods or
    • Contracts—contracts where
    • performance occurs in the state

    • (a) Includes D
    • ships goods/service to D in NC (w/ or w/o regard to where delivery ends)

    • (i) Brennan’s
    • approach to the stream of commerce

    (6) Local Property—real, personal, or tangible property in the state

    • (7) Deficiency Judgment on a Local Foreclosure
    • or Resale—debt still owed in NC

    • (8) Director or Officer of a Domestic Corporation—Corporation incorporated in NC-can bring in
    • director/officer (even if director/officer outside state) *(does not include principal place)*

    (9) Taxes—owe taxes in the state

    • (10) Insurance or Insurers—insurance company
    • insures in NC

    • (11) Personal Representative—executor, legal representatives take NC domicile of decedent of any
    • event based on 2-10

    • (12) Marital Relationship—Couple marries in
    • the state… PJ exist if a spouse remains in NC
  9. Domicile and PJ?
    • jurisdiction even when the D is not physically
    • within the state when served.

    • (a) Individual—domicile:
    • residence and the intent to remain indefinitely.

    (b) Corporation—

    • (i) State of
    • Incorporation
  10. Physical Presence and PJ?

    What's transient jurisdiction?
    • voluntary physical presence comports with due process, regardless of D’s contacts with
    • the forum state.

    • (a) Transient (or “Tag”) Jurisdiction—if present and served in the forum state, then that alone
    • is enough, no matter how fleeting the visit. Does not violate Due Process. Applies to individuals traveling through a state.

    • (b) Ineffective
    • when—

    • (i) Present
    • because of fraud or misrepresentation.

    (ii) Present by force or duress

    (iii)Present as a witness in a legal proceeding
  11. Consent and PJ?
    • Jurisdiction
    • based on voluntary physical presence comports with due process, regardless of D’s
    • contacts with the forum state

    • (a) If a party
    • consents to jurisdiction, the Due Process requirement of fairness is satisfied.

    • (b) A D consents to PJ either by expressly
    • agreeing to submit to the court or by performing certain acts that constitute a
    • waiver of objections to PJ or by failing to assert a defense of lack of
    • jurisdiction.
  12. Forum selection v. choice of law
    • (i) Choice of Law Provision—specifies
    • what law governs disputes but does not specifiy the state forum; —may
    • indicate that a party purposefully availed himself of the benefits and protections of the forum state.

    • (ii) Choice of Forum Provision—indicates
    • location the lawsuit takes place
  13. K plus factors
    1. Negotiations

    • 2. Contemplated
    • future consequences of K

    • 3. Terms of the
    • K

    4. Course of dealing
  14. What's the general rule for a tort that occurs in a state?

    What's the effects tests?
    • GR: merely causing an effect within the forum
    • state without purposeful availment will not support jurisdiction.

    P's unilateral acts are not sufficient!!!!!!

    3 Prong Effects Test

    1. Committed an intentional tort

    2. Expressly aimed at the forum state

    • 3. Causing harm, the brunt of which is sufferend and which the D knows is likely to
    • suffer

    …in the forum state
  15. What are the reasonableness and fairness factors?
    • jurisdiction cannot offend traditional notions of
    • fair play and substantial justice

    (a) Burden on the D

    • (i) Foreign v.
    • local citizenship; judicial systems

    • (ii) Availability
    • of witnesses, evidence, costs, etc.

    • (b) Interests
    • of the forum state

    • (i) Protecting
    • its own citizens.

    • (ii) Enforcing its
    • own laws.

    (c) P’s interest in obtaining relief

    • (d) Interstate
    • and international judicial efficiency (commodity)

    (e) Shared interests of states to further social policies
  16. What is pendent jurisdiction?
    RULE 4(k)(1)(a) – Pendent Jurisdiction: Federal Court Piggy-Backs on State Court

    • I) Once a district court has personal jurisdiction over a D for one claim, the federal
    • gov’t can "piggyback" onto that claim other claims over which it lacks independent personal jurisdiction, provided that all the claims arise
    • from the same facts as the claim over which it has proper personal
    • jurisdiction.
  17. Interlocutory appeals:
    Interlocutory—appeal before the litigation is completed

    II) NC-PJ is considered a SUBSTANTIAL RIGHT, therefore the D can file an interlocury appeal to challenge PJ

    • III)Federal—D cannot file an interlocutory appeal to challenge PJ, D will have to wait until
    • after initial judgment, then file appeal