CIVIL PROCEDURE OUTLINE

I. INTRODUCTION

Constitution only requires Supreme Court. All other federal courts created by statutes.

28 USC 1331 - fed district court jurisdiction with federal question

28 USC 1332 - diversity of citizens & amount in question over $50,000; complete diversity = no plaintiff is a citizen of the same state as any defendant - STRAWBRIDGE v. CURTIS (1806).

Rule 19 - necessary, Rule 20 - permissive joinder requires diversity.

Rule 14 Impleader - no diversity. But P may not assert claim against 3P D if not diverse.

28 USC 1738 - Full Faith and Credit. If you have valid judgement for payment of money, then good against any property owned by D in any state. Judgment good against any asset has now or will acquire/inherit, subject to state exemptions.

original jurisdiction 1 concurrent jurisdiction 2 exclusive jurisdiction

Strategy for using federal court: 1) may get higher award (find in published legal newspaper) 2) faster adjudication 3) outsider might avoid forum with local prejudices.

Any individual can have only one domicile even though more than one citizenship: look to voter registration, driver's license, expressed intention, where go to church, domicile of spouse and family. "domicile" in personal jurisdiction = "citizenship" in subject matter jurisdiction

animo manendi - intent to remain

Requirements for Diversity of Citizenship Test. GORDON v. STEELE (W.D. PA 1974)

Idaho student girl files malpractice claim against PA. doctors.

1. Citizenship at the time of filing suit which controls.

2. Where plaintiff is challenged on her claim of diversity, she has burden to show evidence that diversity jurisdiction exists.

3. The fact of residency must be coupled with a finding of (subjective) intent to remain indefinitely to establish citizenship.

4. The fact that Plaintiff may leave Idaho after graduation and relocate to another state or country does not negate her claim to Idaho citizenship. Plaintiff's indefinite plans do not set a period of time around her intention to live in Idaho: P has no definite plans to leave Idaho.

Comment: The court does not need to view facts in a light most favorable to the party opposing the motion.

age of majority - able to enter into legal contracts and deprived of the defense of minority age.

FRCP 11 - provides for award of attorney fees for defending a frivolous complaint. Complaint must be ground in fact or warranted by existing law or a good faith argument for extension of the law. Form 9 provides some guidance as to what must be included in a Complaint.

Bell v. Novick Transfer (D Md 1955)

Rule 8 only require "a short and plain statement of the claim showing the pleader is entitled to relief." Maryland may require a more detailed statement, i.e., the FRCP are more liberal than state procedures. By informing Ds of the nature of P's legal theory, Ds could frame a response. Instead of Rule 12(e) motion, the better rule of law is that such information (clarifying the complaint) be obtained by Interrogatories under Rule 33, or other discovery procedure, unless it is really necessary to enable the party to frame his responsive pleading.

Process: summons & complaint

II. JURISDICTION

PENNOYER v. NEFF (U.S. 1877)

1. The common law rule for in personam jurisdiction has two requirements: all Ds, whether residents or nonresidents, must be personally served with process; and all nonresident Ds must be physically present within the forum state when such service is made.

2. The first requirement ensures Ds have definite notice of the lawsuit. The second requirement limits the power of a state over persons and property and businesses within its borders and no power over those parties outside its borders. The second part establishes the Pennoyer "borders test" that would be overruled in favor a "fairness test" in Shaffer v. Heitner, (1977), and International Shoe (1945).

3. The state court's exercise of in rem jurisdiction was defective, because the court did not first seize, or attach, Plaintiff's property. If Mitchell had first obtained in rem jurisdiction by seizing the property at the time suit was commenced, the eventual land sale probably would have been upheld. But Neff did not own Oregon land at time suit was filed.

4. A state court cannot bring a person or property outside of the state into its jurisdiction simply by using substituted services. States do have the power to regulate the transfer of property within their borders.

5. The presence of property could be the basis for jurisdiction over claims of any sort. (mere ownership of land confers in rem jurisdiction.) For out of state non-resident, "the jurisdiction of the court extends only over such property (within the state)."

6. Substitute service, by newspaper publication, is allowed for proceeding in rem.

7. Jurisdiction can also conferred by "voluntary appearance." Leads to controversies where states try to imply consent for suits of corporations doing business in their states.

NOTE: Although Court mentions the Due Process Clause of the 14th Amendment and "Full Faith and Credit" Clauses of 28 USC 1738, the Court uses common law reasoning rather than reliance on the Fourteenth Amendment to define requirements for in personam jurisdiction. There would be constitutional violations in service in this case. By invoking the 14th Amendment, the Supreme Court's ruling on service of process becomes binding on state courts even in cases where all the parties reside in that state.

2. Pennoyer conceptual scheme appears to have three elements: power, consent, and notice. Power in Harris v. Balk, 198 U.S. 215, (1905). Harris owed Balk money. Balk owed Epstein money. When Harris traveled from North Carolina to Maryland, Epstein had him served with process, and Maryland court entered judgment against him saying Harris should pay the money he owed Balk to Epstein instead. A state could acquire jurisdiction over person whenever their debtors were present in that state by attaching the debts. The result was to make creditors liable (to the extent of amounts owed them) in any state in which their debtors set foot.

3. Consent - nonresidents who had no property in a state were nevertheless subject to its jurisdiction if they had consented to its exercise - e.g., by designating an agent in the state who would accept service of process on their behalf. The state might require persons and organizations to appoint such agents (and thereby "consent" to jurisdiction). Could a state require someone to "consent" to jurisdiction as the price of doing something he had a constitutional right to do in any case?

If consent implied, then it was limited to suits arising from the transaction of business in their state. Then defining the term "presence," the Court held a corporation was subject to general jurisdiction (for all claims).

In Hess v. Pawloski, 1927, U.S. Supreme Court sustained right of Massachusetts to assert jurisdiction over out-of-state motorist involved in a traffic accident. Later doctrine applied to securities selling. "Implied consent" fiction.

The PENNOYER REGIME Pennoyer's rule for in personam jurisdiction proved difficult for courts to follow. New modes of transportation and communications caused courts to create exceptions to Pennoyer's border test. In personam jurisdiction over nonresidents was asserted based on D's prior consent to jurisdiction and based on a host of legal fictions -- "implied consent," "corporate presence," "doing business," etc. There was a need for a comprehensive rule for in personam jurisdiction; one that could reconcile Pennoyer's rule with its exceptions and comply with Due Process. International Shoe eliminates these legal fictions.

Writ of Execution - order from the court authorizing sheriff to seize land. We deduct execution costs from proceeds of sale of property. After satisfying judgment, we give the remainder to the landowner. Post notice on title - size or attachment. Seizure conveys notice and gives jurisdiction under Pennoyer.

**Difference between personal and property judgment: you can register personal judgment in another state. If only property jurisdiction, judgment only relevant on property attached.**

B. CHALLENGING JURISDICTION. JURISDICTION (Validity of Judgment), BUT ONLY Validity of judgment, is open to COLLATERAL ATTACK. (Direct attack - challenge jurisdictional ruling on appeal)

Default judgment can only be challenged on validity issue. The merit of the judgment is not considered. If sued in state system, must raise jurisdiction question in state court system (where judgment is trying to be enforced). Due Process of 14th requires the state to give a party the opportunity to challenge jurisdiction.

Some state courts require defendants to enter a "special appearance" to argue jurisdictional claim. In some cases, if defendant does not accept default judgment and argue jurisdiction on appeal, then the act of litigating on the merits changes to a "general appearance" and a waiver of the jurisdictional defense.

Under the FRCP, defendant must raise objection to personal jurisdiction in a pre-answer Motion. Rule 12(b)(2). And otherwise must include it in her answer. Failure to do so results in a waiver of the territorial jurisdictional defense. If B raises the objection at the proper time, B does not waive it by joining it with other defenses or objections. Also, if B's jurisdictional motion is overruled and B litigates on the merits and loses, she can continue to press the jurisdictional objection on appeal. Anytime you make a Rule 12 motion, must include 12(b)(1) - 12(b)(5) objections, or you waive them.

Rule 12(b)(6) - motion to dismiss for failure to state a claim upon which relief can be granted; usually dismissed with leave to amend the complaint.

Rule 12(g) - requires that party must consolidate all pre-answer motions to dismiss in a single motion. Cannot file 12(b) motions sequentially. Must include all Rule 12 motions.

Rule 12(h)(1) provides that objections to the court's jurisdiction are waived unless they are made by motion or by answer and are waived if a 12(b) motion is made raising other issues but not raising the territorial jurisdictional issue, even though it is put in the answer. If you do not file motion 12(b)(2), then must include 12(b)(2) objection to jurisdiction in answer. Courts want objections in first pleading.

At least one court has ruled that asserting a permissive counterclaim Rule 13(b) constitutes a waiver of jurisdictional objections. On the other hand, asserting compulsory counterclaims under Rule 13(a) has not been held to constitute a waiver of jurisdictional objections.

A "limited appearance" is an appearance limited to the value of the res that has been seized by attachment jurisdiction. Rule 13(a) indicates that if the only basis for jurisdiction is attachment, the defendant need not make what would otherwise be a compulsory counterclaim (thereby making a general appearance). Shaffer v. Heitner diminishes the importance of "limited appearance" in cases where D can have the quasi in rem or in rem action dismissed for lack of minimum contacts.

Fourteenth Amendment's Due Process Clause - limits jurisdiction of states.

Supremacy Clause - allows federal law to prevail over state law, and federal constitution to prevail.

Milliken v. Meyer (U.S. 1940). SC held domicile in the state is alone sufficient to bring absent D within the reach of the state's jurisdiction.

C. THE MODERN CONSTITUTIONAL FORMULATION OF POWER

Whether in personam, in rem, or quasi in rem, the exercise of valid state court jurisdiction today must comport with the Due Process of the 14th Amendment, which means it must comport with "fair play and substantial justice." This requirement (i) places constitutional constraints on the exercise of state power over the individual, (ii) extends constitutional considerations to the defendant's act of consenting to jurisdiction, and (iii) raises the requirement of notice from a formulation regulating state power to a constitutional imperative.

1. Redefining constitutional power. A state statute must first authorize a court to exercise power over a defendant before one can even consider the constitutional issue. The state jurisdictional statute is called a long arm statute. If it meets the long arm test, then it must be determined whether the assertion of state power over the defendant is constitutional, i.e., comports with "fair play and substantial justice." This is a "fairness test," as distinguished from Pennoyer's "border test" or "physical power test " which governs all forms of territorial jurisdiction - in personam, in rem, quasi in rem. Int'l Shoe expands Pennoyer by considering fairness & reasonableness even when Ds are outside of the forum.

a) Elements of the fairness test. The fairness test has two elements or subtests: minimum contacts (what some might call the "power test" or "purposeful act requirement") and other factors (or the "reasonableness test"). First a court must find MINIMUM CONTACTS SUCH THAT FAIR AND REASONABLE ****.

b) INTERNATIONAL SHOE CO. v. WASHINGTON, (U.S. 1945).

1. The 14th Amendment's Due Process Clause gives a court authority to exercise in personam jurisdiction only if minimum contacts, ties, or relations exist between D and the forum state.

2. Such minimum contacts exist in this case because D's in-state activities "were neither irregular nor casual. They were systematic and continuous throughout the years in question" and accorded D "the benefits and protection of the laws of the state, including the right to resort to the courts for enforcement of rights."

3. D was "doing business" in Washington, was present in Washington on a continuous basis, and thus the court's jurisdiction met "traditional notions of fair play and substantial justice."

4. COMMENT: Minimum contacts - decided on facts of case-by-case. Note that because P's claim arise out of, or is related to, D's in-state activities, this is a case of specific jurisdiction. But because D's in-state activities are found to be substantial (i.e., "systematic and continuous"), the court could have asserted general jurisdiction, which would not have been limited to claims concerning D's in-state activities.

2. ABSORBING IN REM AND QUASI IN REM JURISDICTION The modern constitutional formulation of state power (International Shoe's fairness test) absorbed in rem and quasi in rem jurisdiction in SHAFFER v. HEITNER (U.S. 1977). (Corporation would not sue, because officers would not authorize suit. Heitner wants officers to pay for fine in Oregon).

1. Henceforth, all assertions of state court jurisdiction must meet International Shoe's constitutional test. The test has expanded in personam jurisdiction, will have little effect on in rem jurisdiction, and will greatly affect the type of quasi in rem jurisdiction represented in Harris v. Balk.

2. Ds' only contact with Delaware is their stock in Greyhound Corporation which, because Greyhound is incorporated in Delaware, is deemed to be present in Delaware. The presence of such stock in Delaware is the sole basis for the court's exercise of jurisdiction, but the stock is totally unrelated to P's underlying cause of action. There are not enough contacts among Ds, the forum state, and the underlying litigation to satisfy the requirements of minimum contacts and reasonableness for general jurisdiction.

COMMENT: This case settled that the constitutional test ("fair play and substantial justice") and analysis are exactly the same for all types of territorial jurisdiction cases. This case (Shaffer) overrules Harris v. Balk, 198 U.S. 215 (1906), where Epstein asks Court to have Harris pay loan to Epstein rather than to Balk, even though Epstein's underlying claim of $300 against Balk was unrelated to the Balk-to-Harris loan. Replaces "patchwork of legal and factual fictions" created by Pennoyer.

3. After Shaffer, presence of property is sufficient to assert jurisdiction if cause of action is related to the property****: 1) ownership dispute, 2) use of property dispute, duty as owner. Nature of the property does not matter; relation of property to the claim matters.

3. Requirements: systematic and continuous, isolated

General Jurisdiction - can sue D on any claim if business in forum is big enough, continuous and systematic, even if unrelated claims to forum activities.

If either (1) casual, isolated, irregular but claims related to forum activities, then maybe court has territorial jurisdiction depending on other factors; (2) systematic and continuous but unrelated - then sometimes court has territorial jurisdiction, depending on the scale of activities.

If casual and unrelated - court does not have jurisdiction. Pennoyer would have given jurisdiction (based on presence).

Outside motorist involved in accident in foreign state - court has jurisdiction. Reason: state has the right to regulate its own highways. State can fairly insist that you come back and answer questions about your driving behavior. HESS v. PALOWSKI (U.S. 1927) Isolated physical presence - gives rise to jurisdiction.

CONTACT - any circumstance (physical or non-physical) to link Ds to forum state. MINIMUM CONTACTS - not "best" forum, just an "acceptable" forum (as distinguished from maximum contacts). Critical: whose activities (P's or D's) establishes contact with the forum state. D must establish contact with forum state for minimum contacts.

Foreseeability - circular argument.

4. DEFINING SUBSTANTIAL JUSTICE

A) Product in "stream of commerce." WORLD-WIDE VOLKSWAGEN CORP. V. WOODSON, 444 U.S. 286 (1980). Ds were never physically present like in Shaffer. Specific jurisdiction - isolated and related contact. Interlocutory appeal (before final judgment) - would not occur in federal court or most jurisdictions. Writ of prohibition against Judge Woodson. Emphasized unfair treatment to Ds. contacts with forum not fairly attributable to Ds. Burden on Ds. State interest.

1. A court may exercise in personam jurisdiction over a defendant only if the defendant has purposefully availed itself of the forum state's benefits and protections. Since Ds in this case "have no `contacts, ties, or relation'" with Oklahoma, it cannot be said that they have purposefully sought to avail themselves of Oklahoma's benefits and protections. Ds intended to accept the benefits and protections of only those states within their sales territory - New York, New Jersey, and Connecticut.

2. A product must leave the stream of commerce within the forum state before it can be said that the forum state accords benefits and protections to the product. The product in this case, the Audi, never left the stream of commerce in Oklahoma. "A state does not violate due process if it asserts jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state."

3. The purposeful act requirement does not mean foreseeability in the sense of the "mere likelihood that a product will find its way into the forum state." Rather, it means foreseeability in the sense "that the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there." This case reveals no facts suggesting that Ds should reasonably anticipate being haled into an Oklahoma court.

4. Financial benefits are not critical for jurisdiction. Must have some other basis for jurisdiction. In Woodson, relationship to Oklahoma established not by Ds but by P. For minimum contacts, D must establish contact with forum state.

5. Seaway would lose no $ if Oklahoma dropped off the globe. If seaway advertises in a state, it avails itself of pecuniary benefits there. Jurisdiction is then fair if it advertises.

DISSENT IMPORTANT (Brennan, J): 1. By focusing solely on the existence of contacts between the forum state and the defendant, the Court applies the minimum contacts rule too narrowly. "The clear focus in International Shoe was on fairness and reasonableness." Thus, International Shoe teaches us that in addition to minimum contacts, the Court must look at the reasonableness of the assertion of jurisdiction.

2. The existence of defendant ties to the forum state is only one way of determining fairness and reasonableness. "The interests of the State and other parties in proceeding with the case in a particular forum are ... [other relevant] considerations."

3. The forum state has a strong interest in the litigation because the accident occurred in Oklahoma, Ps were hospitalized in Oklahoma when they brought the lawsuit, essential witnesses and evidence were in Oklahoma, and the state has a legitimate interest in enforcing its "substantial benefits" from a nationwide network of highways, of which Oklahoma's highways are a part.

4. As to minimum contacts, Ds have ties to the forum state because an "automobile is intended to be moved around" and because each D "sold the automobile which in fact was driven to Oklahoma where it was involved in an accident....The sale of an automobile does purposefully inject the vehicle into the stream of commerce..."

COMMENT: Burger King and Asahi, infra, suggest that Justice Brennan's understanding of the constitutional test is correct. Although the majority also believes that the forum state's interest must be taken into account, it does not seem to view that interest as separate from the minimum contacts requirement, as does Brennan. Significantly, Brennan wrote the decision in Burger King.

B) Defendants reaching out into Plaintiff's forum state

CALDER v. JONES Supreme Court unanimously upheld territorial jurisdiction in California arguing that Enquirer reporter and editor new they would be defaming Shirley Jones in California, which is also one of their biggest markets. Shirley Jones is the classic "sitting at home" Plaintiff. "Not untargeted negligence"

KEETON (NY) v. HUSTLER (Ohio/Cal). Cathy Keeton filed libel suit in New Hampshire, because statute of limitations had run in every other state. Supreme Court said Hustler can be sued in NH. Does not matter that P does not live there. NH has interest in opening court to injuries in NH. But she could, by the single publication rule, sue for damages sustained outside of state. Hustler could foresee being haled into court in every state in which it sold magazine.

MCGEE CASE Texas insurer had one customer in Cal. Supreme Court upheld personal jurisdiction in Cal. CRITICAL: intentionally reach into state to establish business relationship. Just getting revenue from out of state citizens not enough to give the court jurisdiction. Insurance company (1) received benefits from Cal. (2) engaged in conduct that Cal. treats to special legislation. ONE OF THE FEW TIMES THE COURT HAS TALKED ABOUT BURDEN ON PLAINTIFF

Territorial Jurisdiction after Woodson: 1) fairness to D/convenience - burden of inconvenient forum; 2) federalism, state interest - state must have reason to open up its courts. HOWEVER, even if a forum is the most convenient for litigation and D is not inconvenienced at all, due process clause may still limit territorial jurisdiction. ??Ask Sobieski for example:

Fed. Court Jurisdictions: 1) Fed. Rule of Civil Procedure 4: fed ct same within limits of state where they sit. 2) unless other provisions of the rules - authorize long-arm statutes 3) unless fed. statute allows jurisdiction beyond state - federal interpleader, securities fraud. "nationwide service of process" 3 "nationwide territorial jurisdiction" constitutional because domiciled in the U.S. Sovereign can always compel its own citizens to defend in its courts. Some jurisdictions, therefore, can impose more burden than others.

3. Balancing conflicting interests -- BURGER KING CORP v. RUDZEWICZ, 471 U.S. 462 (1985). 1. The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations. Thus, D must purposefully establish minimum contacts within the forum state.

2. Applying the minimum contacts test to the facts in this case, Ds have had no physical ties to Florida, save for a brief training course in Miami. Yet this franchise dispute grew directly out of a contract that had a substantial and continuing connection with the state. Ds reached out to negotiate with a Florida corporation and agreed by long-term contract to be regulated from Florida, to make franchise payments to Florida, and to have disputes about the contracts governed by the laws of Florida. (Does not mean suits have to be in Florida)

3. If D purposefully established minimum contacts within the forum state, then move on to considered if fair and reasonable. Thus courts in "appropriate cases" may evaluate the burden on the defendant, the forum state's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of the several states in furthering fundamental substantive social policies. These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required.

On the other hand, where D, who purposefully directs his activities at forum residents, seeks to defeat jurisdiction, he must present a compelling case that other considerations render jurisdiction unreasonable. Most such considerations usually may be accommodated through means short of finding jurisdiction unconstitutional. For example, the potential clash of the forum's law with the fundamental substantive social policies of another state may be accommodated through application of the forum's choice-of-law rules. Similarly, a defendant claiming substantial inconvenience may seek a change of venue. Nevertheless, minimum requirements inherent in the concept of "fair play and substantial justice" may defeat the reasonableness of jurisdiction even if the defendant has purposefully engaged in forum activities.

4. Applying the reasonableness test to the facts of this case, there is no danger that allowing a franchisor to sue its franchisees in the former's home state will "sow the seeds of default judgments against franchisees owing smaller debts." And there is no other evidence to suggest that the exercise of jurisdiction in this case would otherwise be unfair.

COMMENT: Prior to Burger King, it was generally believed that the term "minimum contacts" was a proxy for "substantial justice and fair play." Now it appears that minimum contacts - the notion that D must purposefully establish meaningful contacts, ties, or relations with the forum state - and a balancing of other factors probative of the reasonableness of jurisdiction - such as the state's and P's interest in the litigation - are components of the inquiry into substantial justice and fair play, and that this inquiry is the essence of the constitutional test. Whatever name is given to the constitutional test, it is clear that the jurisdictional inquiry must focus on a fair balance of P's, D's, and the state's ties to the litigation and forum state.

Difference between Burger King and L.L. Bean: 1) franchise vs. sales contract; 2) 20 year duration vs. one-shot deal; 3) Rudewicz solicited Burger King franchises combined with profit motive; 4) negotiated contract over long period and represented by counsel.

4. Jurisdiction unreasonable despite minimum contacts - ASAHI METAL INDUSTRY CO. v. SUPERIOR COURT, 480 U.S. 102 (1987). SUMMARY: Five justices suggested that minimum contacts would exist over D, which put its goods into the stream of commerce flowing into the forum state. Eight justices held that exercising jurisdiction would be unreasonable, considering the severe burdens on D of defending in a foreign legal system, the slight interests of P and California in the exercise of jurisdiction, and the international interests in not subjecting this alien corporation to an indemnification offshoot of a product liability action in an American court.

BREAKDOWN: (O'Connor, Rehnquist, Powell, Scalia) No minimum contacts can be found here, because D did not intentionally or purposefully market its product in the forum state. Also exercise of personal jurisdiction over D is unreasonable. (Scalia no opinion on reasonableness test). Japanese Co. did not decide where to send product. No different from Seaway and World-Wide in Woodson. If American corp. rather than jap, O'Connor's group would say no min. contacts but at least fair.

(Brennan, White, Marshall, Blackmun). Minimum contacts exist, because D was aware that its product was regularly sold in the forum state. Also, jurisdiction was unreasonable.

(Stevens, White, Blackmun). Minimum contacts exist, because D purposefully marketed its product and was aware of the sale of its product in the forum state. Also, jurisdiction is unreasonable.

COMMENT: As Justice Brennan observed, Asahi is one of those rare cases in which personal jurisdiction is held unconstitutional because, even though it passes the minimum contacts test, it fails the reasonableness test. Personal jurisdiction was unreasonable primarily because P settled the main lawsuit and has an obvious alternative forum for its second lawsuit against D - namely, Taiwan or Japan, where both P and D have more substantial contacts than in California.

Impleader or Third-party action: FRCP 14.

Reasons Taiwan corp wants to get it resolved in California: 1) convenience - already in court once; 2) favorable law - California permits indemnity or contribution; 3) proof available here, not in Taiwan; 4) could get two different decisions and not be able to establish claim in two separate cases. Taiwan corp. will likely say to suppliers "show up in Cal. ct. or agree to accept judgment" - indemnification would require them to appear. (??? Sobieski)

FACTORS AFFECT SPECIFIC JURISDICTION (claim related to contacts): 1) purposefully (D knew it would harm her and knew at time it would be suffered in Cal. Calder v. Jones); 2) profit-making (McGee, Woodson); 3) state's interest in opening up its courts (P domiciled, event occurred, nature of the claim); 4) governing law; 5) characteristics of litigants; 6) D's convenience; 7) international vs. domestic; 8) availability and ease of access to another forum. Kulko 9) comparative responsibility for establishing contact.

KULKO v. SUPERIOR COURT (1978). SC held divorced father had not engaged in "purposeful act" by sending his daughter to California for the school year.

(1) The purposeful act requirement means that D must be purposely availed himself of the forum state's benefits and protections. By acquiescing to his child's desire to live with her mother, D did not purposefully seek any benefits or protections from California.

(2) As to the reasonableness test, Cal. may have conferred benefits and protections on his child, but this is not the same as conferring benefits and protections on D. D must receive direct benefits and protections from the forum state to assert territorial jurisdiction; vicarious benefits are not enough.

(3) wife is comparatively responsible for contacts with forum state. For public policy purposes, SC did not want to discourage parents from entering into reasonable visitation agreements.

Differences with McGee: 1) no profit motive; 2) not corporate D, noncommercial actor; 3) not receiving economic benefit from Cal. (pecuniary benefit results from child not being in NY, not necessarily being in Cal.); 4) alternative forum more convenient using ERISA; 5) domestic relations

5. Transient Jurisdiction -- BURNHAM v. SUPERIOR COURT, 495 U.S. 604 (1990). She could have gotten divorce in Cal., but Cal state courts could not divide up property or give child support. To alter legal status - can bring suit as long as either party is domiciliary. Rule of Pennoyer is still constitutionally valid in this case. Different from Kulko because D actually went to California.

1. The Due Process Clause permits exercise territorial jurisdiction over a nonresident who was personally served with process while temporarily in that state, for a claim that is unrelated to his in-state activities. Transient jurisdiction is constitutional. Physical presence + service = suff. for juris. At least physical presence test is clear.

SUMMARY: While the decision upholding transient jurisdiction was unanimous, the reasoning was not. Four Justices believe that transient jurisdiction comports with traditional notions of fair play and substantial justice, simply because it has been consistently upheld since the 19th century and is supported by the consensus of state court judges today. Four other justices believe transient jurisdiction passes the fairness test because it satisfies both the minimum contacts and reasonableness subtests.

(Scalia, Rehnquist, White, Kennedy) Jurisdiction based on physical presence alone constitutes due process, because it is one of the continuing traditions of our legal system. Pennoyer is traditional; "it is unconstitutional to have an original thought." Thinks Shaffer is wrong, but tries to distinguish it and makes a fool of himself.

(Brennan, Marshall, Blackmun, O'Connor). Setting foot avails yourself of police, fire, medical protection. Therefore, state interest. Open up suit to anyone who has been to California.

(White) Does not like treatment of Shaffer. "Presence in the forum state is intentional" - worried about kidnap victim, military personnel, prisoners, flying somewhere.

(Stevens) Justices Scalia and Brennan's opinions are unnecessarily broad. "For me, it is sufficient to note that the historical evidence and consensus identified by Justice Scalia, the considerations of fairness identified by Justice Brennan, and the common sense displayed by Justice White, all combine to demonstrate that this is, indeed, a very easy case."

COMMENT: It could be said that the major difference between Scalia and Brennan is that Brennan would subject each assertion of transient jurisdiction to a case-by-case fairness scrutiny whereas Scalia would not. However, it could also be argued that the major difference goes much deeper than that: for Scalia any assertion of territorial jurisdiction is backed by tradition and current consensus is constitutional; for Brennan even tradition and consensus do not escape the fairness scrutiny. This, of course, would suggest that Scalia is offering an alternative analytical framework that - at least for transient jurisdiction - would supply the Burger King fairness test. If that is the argument, then Brennan wins because Scalia's opinion is only a plurality opinion. Thus it Scalia's opinion cannot be read as "law" that alters the Burger King analytical framework.

WHAT DO WE KNOW AT THIS POINT ABOUT JURISDICTION: 1) Can assert jurisdiction based on physical presence; 2) Shaffer still good law (in rem jurisdiction of Pennoyer is dead); 3) for out-of-state service, Int'l Shoe's minimum contacts such that fair and reasonable.

E. THREE CASES PERTAINING TO GENERAL JURISDICTION