Civil Procedure II

19 September

• Pennoyer as practice: serving someone with process while they are in the state, or attaching their property before filing the suit could have gotten jurisdiction.
• It's not enough just to know about the suit, but notice is a strong objection.
• Because the due process clause restricts the power of state governments, SCOTUS proclamations about the boundaries of personal jurisdiction bind state courts.
• A judgment rendered without personal jurisdiction is not entitled to full faith and credit. This is how collateral attack works.
• Mitchell's original suit against Neff is in 1866, and 14A doesn't get passed until 1868.
• All legal systems recognize that they're not competent to handle every dispute in the world. So how do we define the suits we're not going to handle? By limiting jurisdiction as Pennoyer did.
• Pennoyer in a nutshell:

  So, there can be jurisdiction if you are served with process while present in the state, if property in the state is attached before the suit, if the defendant is a state resident, or if there's a valid statute conditioning the ability to do business in the state as a submission to jurisdiction.

• Corporations are subject to jurisdiction either by consent (registering to do business in a state other than their state of incorporation), or by their presence in a state (as defined by the courts).
• How do you you attack the result of a case? Appeal is the standard way. Collateral attack is another. Or starting a whole second suit.
• If you raise personal jurisdiction and lose, you need to appeal if it goes against you, or you're waiving. Even though a ruling against you is a non-final order, you can file a motion for leave to appeal from a non-final order so you can get the jurisdiction issue decided before you have to defend the whole entire suit. You have to show you have a substantial probability of prevailing, and you also have to show the harm would be substantial.
• Hypo:
  A (MN res) sues B (ND res) in MN where B owns some land. Does Pennoyer answer these scenarios?
  1. A serves B in ND; B moves to dismiss for lack of personal jurisdiction. Dismissed.
  2. B defaults, judgment is entered agains. B argues the judgment is invalid when A takes the judgment ot ND to enforce it. Dismissed.
  3. A serves B while B is in MN on business. B moves to dismiss for lack of personal jurisdiction. Jurisdiction: served in the state.
  4. Same as (3), but B defaults, and appears at the ND enforcement proceeding and contests jurisdiction. Enforcement: served in the state, and also B has lost the chance to litigate on the merits of the suit.
  5. A attaches B's land in MN, gets judgment against B, then seeks to have the land sold to enforce the judgment. A sues to block the sale. Enforcement: attachment obviates the need for personal service.
  6. A serves by publication (land is not attached). This is Pennoyer. No jurisdiction.
  7. A and B are married, and the suit is for divorce. A notifies B in ND, and B's lawyer moves to dismiss on the ground that the MN court lacks personal jurisdiction. Jurisdiction exists: this is the "status" of which Pennoyer speaks. If you're married in MN, you're in for the divorce suit..
  8. Same as in (8), but the suit is for alimony. No jurisdiction.
• Alternative ways to challenge jurisdiction:

  A, an IL resident, sues B a CA resident, in IL. B thinks she is not subject to personal jurisdiction. She can do nothing, but that is risky: all your eggs are in the collateral attack basket. Or you can raise jurisdictional objection in an answer or by motion (i.e., 12(b)(2).

  12(b)(2-5) have to be raised in a motion or in an answer or else they are waived. 12(b)(6) is not, nor is 12(b)(1).

• Waiver hypos. Was the issue waived?:
  1. D makes a 12(b)(6) motion; it's denied. Files a second pre-answer motion under 12(b)(2). Defense is waived: 12(h)(1)
  2. D makes a pre-answer 12(b)(6) motion; it's denied. Now D files an answer containing a defense on the merits and a 12(b)(2) motion. Defense is waived: also 12(h)(1)
  3. D makes no pre-answer motion, but includes a 12(b)(2) defense in answer. Defense is preserved.
  4. D makes a pre-answer 12(b)(1) motion; it's denied, then makes a 12(b)(2) motion. Defense is waived.
  5. D makes a 12(f) motion; then a 12(b)(2) motion. Waived.
  6. D moves to transver venue under 28 USC § 1404 (NB: not motion for improper venue, just for discretionary change of venue); denied, then 12(b)(2) motion. Harder to say-- it's not technically a Rule 12 motion, but courts might enforce it that way on policy grounds.
• Removal from state court puts a matter into the federal court with jurisdiction where the state court was. Then you move to dismiss for lack of personal jurisdiction or in the alternative to remove it to the district you want. You do this in one motion, both out of caution and to save time.
• Why does personal jurisdiction have to be raised right away?

  Possibly because if it's not inconvenient enough to be raised at the start, it can't possibly be unconstitutionally invonvenient, and personal jurisdiction is about the defendant's convenience.

  Maybe it's like recusal, though: we don't want defendants to be able to sample a few rulings and then get out from under the judge.

  Also, just keeping things moving once they've started.

• A shift in the standard: Pennoyer: Is it there? International Shoe: Is it fair?
• Pennoyer uses the due process clause to limit the full faith and credit clause: this solves a key problem of the 19th century: out-of-state land ownership.

21 September

• International Shoe
  Minimum contacts sufficient that the suit doesn't offend traditional notions of fair play and substantial justice.

  You can almost never say never, bus sometimes you can say always:

  1. Individuals sued in state of domicile
  2. Corporations in state of incorporation or state of principal place of business

  Harder cases (specific jurisdiction vs general jurisdiction):

  • Shoe's driver in MT gets blown across the border into WA, and hits P's car. Probably; international shoe seems sueable there.
  • Independent trucker based in OH, on a regular run from MO to WA collides in WY with a WA tourist who sues in WA. Jurisdiction in WA? Depends on the degree of the trucker's contact with WA.

  This case means state courts have more long-arm jurisdiction power over remote defendants. Related WI rules

  • §801.01 - objection to personal jurisdiction (12(b)(3))
  • §802.01 - pleadings allowed, form of motion
  • §802.04 - form of pleadings
  • §802.05 - signing of pleadings, motions (Rule 11)
  • §802.06 - 12(b)(6)

  After Internaltional Shoe: does this affect individuals as well as corporations (Harris v. Balk: yes, to absurd degrees)

• McGee v. International Life
  This is kind of cryptic: the reasoning suggests that anyone can sue anyone anywhere. But states tend to be strongly interested in regulating insurance-- maybe its holding is only really strong in an insurance contact.
• Hanson v. Denkla
  Different conclusion from McGee although the facts are similar. But there was no mailing of an offer-- no solicitation here. Maybe that's the difference.
• Sending a demand letter or draft of a complaint might create a race to the courthouse, and if the defendant wins the race it might affect your rights (e.g., admissibility of expert testimony).
• Shaffer v. Heitner
  You can no longer use in rem jurisdiction as an end-run around International Shoe. Attachment can violate due process.