CIV_PRO_Mullenix_1_02

CIV_PRO_Mullenix_1_02 - Civil Procedure Section 4 –...

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Unformatted text preview: Civil Procedure Section 4 – Mullenix I. PERSONAL JURISDICTION Doctrine of State Sov. States only have power over persons and property within their limits Full Faith and Credit To apply, the judgment must be valid In personam Authority of a court over persons to render a binding judgment jurisdiction Invoking: service of process over persons within court’s territory, long-arm statutes In rem jurisdiction Adjudication concerning interests and rights in property Invoking: seizure or attachment of property within court’s territory Quasi in rem Adjudication over personal rights to property, where property is unrelated to the jurisdiction substantive cause of action Invoking: seizing the asset, attaching the property, or garnishing a debt. Court can render a binding judgment against a nonresident defendant to the extent of property being used as a basis for the suit. BASES FOR PERSONAL JURISDICTION PROPERTY / State/courts have jurisdiction over all persons and property within its boundaries PRESENCE However, attachment must occur BEFORE the institution of the proceedings ( Int’l Shoe ) Debt (property) clings to debtor wherever he goes and is the basis for quasi in rem jurisdiction ( Harris v. Balk) Tag jurisdiction valid since it is a traditional notion of fair play and justice (majority). Concurrence argues that tag jurisdiction must (and does) pass minimum contacts test. Burnham Supreme Court rules that all assertions of jurisdiction must pass Int’l Shoe minimum contacts test ( Shaffer v. Heitner ). Due Process rights cannot depend on whether the classification of an action is in rem or in personam CONSENT Express Consent Pennoyer Implied Consent 1) Motorist statute ( Pawlowski) “ Inherently dangerous business activity” 2) Failure to Object (Waiver/Rule 12 (h) (1)) 3) Waiver as Sanction ( Insurance Co. of Ireland ) 4) Consent by Π / cannot oppose a counterclaim ( Keeton ) 5) Forum Selection Clause. Supreme Court will enact clause unless it is unreasonable: consider if clause was freely negotiated, the business sophistication of parties, inconveniences, public policy considerations ( Bremen, Carnival Cruises ). Not reading clause is no defense. 1 General Appearance Appear to argue merits of case (submit to jurisdiction) Special Appearance Appear for the limited purpose of opposing jurisdiction LONG ARM STATUTES Illinois style (detailed, requiring construction) vs. California style (broad, conflating personal jurisdiction analysis to test of Constitutionality) CONSTITUTIONAL LIMITS OF PERSONAL JURISDICTION States’ attempts to bring nonresidents within their jurisdiction are constrained by Due Process concerns. The 14 th Amendment focuses on being fair to the defendant who must have certain minimum contacts with the forum....
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This note was uploaded on 08/28/2008 for the course LAW 431 taught by Professor Dzienkowski during the Spring '00 term at Ohio State.

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CIV_PRO_Mullenix_1_02 - Civil Procedure Section 4 –...

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