Civil Procedure: Personal Jurisdiction and Minimum Contacts, Exams of Nursing

Download Civil Procedure: Personal Jurisdiction and Minimum Contacts and more Exams Nursing in PDF only on Docsity! Civil Procedure questions and answers rated A Personal Jurisdiction General - The power of a court to affect rights of person or thing. Limited by constitutional impositions of due process Determining Whether court can exert PJ - 1. Determine if Defendant has waived personal jurisdicion by consent 2. **Federal Courts look to Rule 4k1a and 4k1b 3. Examine state long arm statute 4. Perform due process analysis using Burger King for core analysis Types of Personal Jurisdiction - 1. In personam 2. In Rem 3. Two Types of Quasi in Rem PJ - In personam - Jurisdiction over a person. Cannot have constructive service PJ - In rem - Jurisdiction over property. Can have constructive service PJ - Type 1 Quasi in rem - Resolves dispute about the property PJ - Type 2 Quasi in rem - Dispute is unrelated to the property. The property is attached to assert the court's jurisdiction over the property. *must be attached at the outset (Pennoyer) Civil Procedure questions and answers rated A Consent: Generally - when given PJ is waived even if the party has no contacts with the state Consent: Implied Consent (Hess v. Pawloski - D, a non resident gets into an accident with P when driving in P's state. State statute says D, by driving on state roads, gave implied consent to be served through a third party in state. Consent: Filing an Action - P submits to a court's jurisdiction by filing an action. Never overturned. Consent: General Appearance - D's appearance in court to contest case on the merits constitutes consent to a court's jurisdiction Consent: Express or by Contract - Party may agree to jursidicion before claim arises. Often part of commercial contract in the form of a "forum selection clause." never overturned Consent: Appointed Agent for Service - D has appointed an agent for service within the jurisdiciton of the court Civil Procedure questions and answers rated A Modern Standard for PJ: Purposeful Availment - Effect of Unilateral Activity - a. P's unilateral activity of bringing product into forum doesn't satisfy minimum contacts b. D's foreseeability that product might make it into forum doesn't create jurisdiction c. D must reach out to forum to establish minimum contacts Modern Standard for PJ: Purposeful Availment - 5 Factors for No Jurisdiction (the No No's) - 1) No business activity in the forum 2) No sales or services 3) No purposeful availment of privileges and benefits 4) No solicitation of business 5) No attempt to serve forum's market directly or indirectly Modern Standard for PJ: Two Pronged Test - Burger King - 1) Purposeful Availment - Contract alone doesn't establish minimum contacts. 2) No jurisdiction if contract is obtained fraudulently Modern Standard for PJ: Purposeful Availment Prong (Burger King Test) 4 Factors - 1) Prior negotiations 2) Contemplated future actions 3) Terms of contract 4) Actual course of dealings Modern Standard for PJ: Reasonableness Standard Prong (Burger King Test) 5 Factors - 1) Burden on D 2) Forum's interest in adjudicating the dispute 3) P's Civil Procedure questions and answers rated A interest in obtaining relief 4) Interstate judicial system's interest in resolving disputes efficiently 5) Interest of all the states in furthering social policies Choice of Law Clause - Identify's which state law is to be applied. Does not necessarily mean that the case must be tried in that state only what law is to be applied Choice of Forum Clause - Identify's which forum the case is to be tired in. Constitutes a waiver for PJ in that forum Modern Standard for PJ: Stream of Commerce (SOC) Theory Applied - Asahi - A minimum contacts theory - you place a product in a stream of commerce and you are subject to PJ wherever that stream may take it. Modern Standard for PJ: SOC - The Asahi Case - Court could not agree as to whether or not the SOC theory constitutes minimum contacts only that California's assertion of PJ over Asahi could not pass the reasonableness test Modern Standard for PJ: SOC - O'Connor Decision in Asahi (Four in Support) - Placing a product in SOC is insufficient for minimum contacts. Civil Procedure questions and answers rated A Modern Standard for PJ: SOC - O'Connor Decision in Asahi - 5 ways to avail yourself - 1) Intend to serve forum market 2) Design product for that market 3) Advertise in forum market 4) Establish channels for providing service in that market 5) Have designated distributor in the state Modern Standard for PJ: SOC - Brennan Decision in Asahi (Four in Support) - Putting product in SOC with expectation it may be sold in forum establishes minimum contact. Even indirect efforts to market in forum establish min. contacts Modern Standard for PJ: SOC - Brennan/O'Connor Synthesis (Two Options to Establish a Majority) - 1) If you have a product in the SOC and you have established additional contacts as outlined by O'Connor than you have a majority of 8 justices 2) If you have a product in the SOC and over 100,000 units than you have a majority of 5 justices Modern Standard for PJ: SOC - White Decision in Asahi - if there are over 100,000 units in the SOC than Minimum contacts is met. Modern Standard for PJ: Physical Presence as Basis for Jurisdiction - Left off pg. 4 of outline