personal jurisdiction and notice / service of process

personal jurisdiction

the court's power over the parties

ask: does the defendant have sufficient contacts with the forum state so that the exercise of personal jurisdiction is fair and reasonable?

two-step personal jurisdiction analysis

1) must fall within a state statute

2) must satisfy the Constitution (due process)

first step of personal jurisdiction analysis

• in most states, long arm statute simply stating it allows courts to exercise PJ to full extent of Constitution, so statutory grant is the same as constitutional test (second step)

• other states, laundry list of specific situations where PJ is authorized

second step of personal jurisdiction analysis

does the defendant have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice?

• contact

• relatedness

• fairness (specific PJ only)

contact

two factors:

• purposeful availment

  • defendant must voluntary reach out to the forum

  • the contact must result from this targeting of the forum

• foreseeability

  • is it foreseeable that defendant could be sued in the forum?

relatedness

does plaintiff’s claim arise from or relate to defendant’s contact with the forum?

• if yes — specific jurisdiction

• if no — general jurisdiction

specific jurisdiction

plaintiff’s claim clearly arises out of defendant’s contact if defendant’s contact caused the harm to plaintiff

general jurisdiction

defendant’s contact did not clearly cause the injury to plaintiff, so:

if defendant has “substantial contact” with forum state, relatedness is satisfied if the claim merely relates to defendant’s contacts

TEST

defendant either must be:

• “at home” in the forum OR

  • individual — where she is domiciled

  • corporation — state in which it is incorporated AND state in which it has its principal place of business

• must have registered to do business in the state AND have appointed an agent for service of process there

  • ONLY IF state law authorizes general PJ on this basis**

tag jurisdiction

court has general PJ when defendant is served process in the state

fairness (specific PJ only)

• burden on defendant and witnesses

  • constitutionally okay UNLESS defendant can show that it puts her at a severe disadvantage in litigation

    • (hard/expensive for defendant and witnesses to travel to forum is not enough)

• state’s interest

  • state may want to provide a courtroom for its citizens allegedly being harmed by out-of-state defendants

• plaintiff’s interest

  • plaintiff is maybe injured in forum state and/or wants to sue at home

notice / service of process generally

• must be reasonably calculated, under all the circumstances, to apprise interested parties of the action

• process consists of two documents:

  • summons — formal court notice

  • copy of complaint

who can serve process?

any person who is

• at least 18 years old AND

• not a party to the action

NOTE: person need not be appointed by the court

when must process be served?

within 90 days of filing the complaint

NOTE: may be extended for good cause

how is process served on an individual within the US?

• personal service

• substituted service (alt. even if personal service possible)

• service on agent (alt. even if personal service possible)

• state law methods

personal service

process is given to defendant personally anywhere

substituted service

can be done only if:

• at defendant’s usual place of abode

  • NOTE: defendant need not reside there every day of the year to qualify as usual place of abode

• with someone of suitable age AND discretion

• who resides there

NOTE: may be used even if personal service is possible

service on agent

can be delivered to defendant’s agent if receiving service is in the scope of agency

NOTE: may be used even if personal service is possible

state law methods

permitted methods of service by the law of the state where

• federal court sits OR

• where service is made

how is process served on a business or organization in the US?

• delivery to an officer (ex: president, treasurer) or managing or general agent OR

• using a method permitted by state where

  • federal court sits OR

  • where service is to be made

how is process served on a minor or incompetent person in the US?

made only by a method permitted by the law of the state in which service is to be made

how is process served on parties in a foreign country

• method allowed by international agreement OR

• if no international agreement,

  • as directed by American court

  • method allowed by foreign country’s law

  • method directed by foreign official in response to a latter of request (letter rogatory) from American court

  • personal service in foreign country (unless prohibited by its law)

  • mail sent by clerk of American court, requiring signed receipt (unless prohibited by foreign country’s law)

waiver of service

to request waiver, plaintiff must

• mail defendant a notice and request to waive, including

  • copy of complaint AND

  • two copies of waiver form

  • with a prepaid means of returning the form

if defendant executes and mails waiver form within 30 days (60 days if outside of US), waives formal service of process

NOTE: can be used for individuals and entities

effect of waiver, when it is effective, and penalty for failing to waive

• effect of waiver does not waive any defenses

• effectiveness — act as though defendant was served with process on the day plaintiff filed the waiver form with court

• if defendant fails to return waiver form:

  • plaintiff must serve personally or by substituted service

  • defendant must pay costs of service if no good cause for failing to return waiver form

proving service of process

• unless service waived, process server files a report with the court detailing how process was made

• if server was a civilian — report is by affidavit

NOTE: failure to file report does not affect validity of service

geographic reach of service of process

• process may be served within state in which federal court sits

• may be served outside that state if state law allows

service immunity

defendant cannot be served with process for a civil case in federal court in state X if defendant goes to that state to appear as a party, witness, or attorney in a different civil case

service of other documents

• service by delivering or mailing to party’s attorney or pro se party

• may serve by email if parties agree

  • 3 extra days added to number of days the receiving party has to respond to requests or other documents by mail