Civil Procedure

Personal Jurisdiction

Jurisdiction refers to the power of the court to decide a case.  I.e., to render a decision that will be recognized and enforced by authorities and other courts.  Jurisdiction is of two types:  Subject matter jurisdiction and jurisdiction over the parties.  A court must have both types of jurisdiction before it has jurisdiction to decide the case.

Jurisdiction over the parties (personal jurisdiction) relates to the question of whether someone from another state, Alaska, New York, or Nevada can be forced to come to the state where the lawsuit was filed (the "forum state") e.g. California, to defend against the lawsuit.  The existence of personal jurisdiction depends upon a sufficient connection between the defendant and the forum state to make it fair to require defense of the action in the forum.

Jurisdiction Over Persons or Things

In personam, (or personal jurisdiction) is the power of a court to adjudicate the personal legal rights of parties properly brought before it.  Requires that the court not only have jurisdiction over the subject matter of the action, but also that it have jurisdiction over each party to the action. Due process of law requires appearance or service of process (notice of pendency of the lawsuit) before the defendant can be personally bound by any judgment.

A person is subject to in personam jurisdiction on any of the following theories:

(1)  Presence, i.e., being served with a copy of the summons and complaint while physically present in the forum jurisdiction.  The physical presence of a defendant in the forum is a sufficient basis for acquiring jurisdiction over him, no matter how brief his stay might be. (Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 24 L.Ed. 565 (1877). )

(2)  Domicile (residence) alone is a basis for exercising jurisdiction over an absent domiciliary.  (Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940).)  I.e., a person may always be sued for all claims, regardless of where they arise, in their state of permanent residence or in the case of a corporation, the state in which it is incorporated.

(3)  Consent to personal jurisdiction.  A defendant who has not been personally served in the jurisdiction can nevertheless voluntarily appear and submit himself to jurisdiction.  In such cases defendant is said to have "consented" to jurisdiction.  Can consent be obtained in advance of any lawsuit being filed?  Can consent be implied?  Hess v. Palowski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927) says yes.  A state can legislate that a nonresident motorist using its highways be deemed to have appointed a local official as his agent to receive service of process in any action growing out of the use of the vehicle within the state.  However, the state must provide actual notice to the nonresident defendant.

(4)  Minimum Contacts.  Having sufficient dealings or affiliations with the forum jurisdiction which make it reasonable to require the defendant to defend a lawsuit brought in the forum state.  (Int'l Shoe)  Hence, a defendant who has never set foot in California may nevertheless be subject to valid personal jurisdiction so as to be compelled to defend a lawsuit in California provided that he has minimum contacts with the forum state such that compelling him to appear and defend in the forum does not offend traditional notions of fair play and substantial justice.  (International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).) I.e., the due process clause does not permit a state to exercise personal jurisdiction over an individual or corporation with which the state has no contacts, ties or relations.


Minimum Contacts - The Four Principles of International Shoe

1)  Jurisdiction is permissible when the defendant's activity in the forum is continuous and systematic and the cause of action is related to that activity.

2)  Sporadic or casual activity of the defendant in the forum does not justify assertion of jurisdiction on a cause of action unrelated to that forum activity.

3)  A court may assert jurisdiction over a defendant whose continuous activities in the forum are unrelated to the cause of action sued upon when the defendant's contacts are sufficiently substantial and of such a nature as to make the state's assertion of jurisdiction reasonable.  ("general jurisdiction")

4)  Even a defendant whose activity in the forum is sporadic, or consists only of a single act, may be subject to the jurisdiction of the forum's courts when the cause of action arises out of that activity or act.  ["specific jurisdiction"] (Friedenthal § 3.10)

Helicopteros Nationales De Colombia, S.A. v. Hall, 466 U.S. 408, (1984)  recognizes a distinction between "general" and "specific" jurisdiction.  In order to assert general jurisdiction there must be substantial forum related activity on the part of the defendant.  The threshold for satisfying minimum contacts is higher than in specific jurisdiction cases.  (Friedenthal 3.10)

Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed. 1283 (1958) held that the "minimum contacts" a defendant must have with the forum state must be in the form of a purposeful affiliation on the part of the defendant.  I.e., jurisdiction is impermissible where the defendant's contact with the forum is not purposeful.  (Friedenthal § 3.10)

"Long -arm" statutes (a reference to the authorization to "reach out" beyond the borders of a state) predicate jurisdiction over nonresidents upon a variety of contacts with the forum, including the transaction of business in the state, the commission of certain acts within the state, e.g., the commission of a tort, ownership of property, entering into a contract.  (Friedenthal § 3.12) California's long-arm statute is short and simple, yet it authorizes the exercise of personal jurisdiction to the broadest extent that due process will permit as set forth in the International Shoe, supra, case.

A court may also take jurisdiction over a thing as opposed to a person

In rem jurisdiction is the power of a court to deal with a thing (e.g. a parcel of land, an automobile, a ship) and to determine its status in relation to the legal rights of all persons known and unknown.  I.e., in a proceeding in rem the court exercises its power to determine the status of property and the determination of the court is binding with respect to all possible interest holders in that property.

Quasi-in-rem jurisdiction is similar to in rem.  In a proceeding quasi-in-rem, the court renders a judgment for or against a person but recovery is limited to the value of property that is within the jurisdiction and thus subject to the court's authority.  The dispute that gives rise to an action quasi-in-rem may be related to the property or unrelated to it.  In an action quasi-in-rem, the property may be used to satisfy any judgment in the action.

The Int'l. Shoe standards of fairness and substantial justice that govern in personam actions are applicable to in rem actions as well . (Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)

Challenging Jurisdiction

By making an "appearance" in response to a lawsuit a defendant is in effect submitting to the jurisdiction of the court and waiving any defects, if any, in personal jurisdiction.  In most states a defendant who wishes to challenge jurisdiction may do so by making a special appearance which is limited to the issue of jurisdiction.  (See, e.g., Cal.Code.Civ.Proc. § 418.10) If he or she raises any other issues or claims he has made a general appearance and waives any defects in jurisdiction.  In federal courts no special appearance is necessary.  Jurisdiction may be challenged in a FRCP 12(b) motion or included as a defense in the answer.

How to Analyze a Personal Jurisdiction Issue

1.  Does a statute (long-arm-statute) purport to authorize the exercise of personal jurisdiction?

If answer is "no" then end of analysis.  No personal jurisdiction can be asserted.  If the answer is "yes" then;

2.  Does the statute go beyond the constitutional limits of due process set forth in International Shoe?

If "yes" then no personal jurisdiction.  If "no" then personal jurisdiction can be constitutionally asserted.

Chart: Obtaining Jurisdiction

The Requirement of Notice

The existence of personal jurisdiction depends upon a sufficient connection between the defendant and the forum state to make it fair to require defense of the action in the forum and the giving of reasonable notice to the defendant that an action has been brought.  If the defendant has not received proper notice, the court's power to adjudicate is imperfect.  Notice is usually given by serving the defendant with the "process" (e.g. a copy of the summons and the complaint) of the court.

Service of process is governed by FRCP 4.  The three methods of serving process are personal service, substituted service, and constructive service.  Due process does not require that the defendant be served personally however, notice "reasonably certain" to reach the defendant is required.  I.e., Notice must be reasonably calculated under all the circumstances to apprise the defendant of the pendency of the action.  (Mullane v. Central Hanover Bank, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).)

 How to analyze the issue of whether the notice given is valid

1. Is there a statute which authorizes this particular method of notice?

2. If so, does the statute meet the minimum constitutional requirements?

Attacking Notice

Defective service of process can be challenged by a FRCP 12(b)(5) motion to dismiss or the objection can be made in the answer.  Defective service of process goes to lack of notice.  Due process requires notice and an opportunity to be heard.


If jurisdiction determines what state a suit can be brought in, venue determines what county or judicial district it may be brought in.  The purpose of venue rules is to limit the plaintiff's choice of forum in order to insure that the locality of the lawsuit has some logical relationship to the litigants or the subject matter of the dispute.  Venue, unlike subject matter jurisdiction, may be waived.  Stated another way, the distinction is this:  jurisdiction is the power to adjudicate, venue relates to the place where judicial authority may be exercised and is intended for the convenience of the litigants.  (Wright, § 42)

28 U.S.C. § 1391  Summarized:  In federal courts, venue is proper in the district all defendants reside if all the defendants reside in the same state, or in the district in which the claim arose, or, alternatively, where any of the defendants may be found. 

Transfer or Change of Venue & Forum Non Conveniens

This doctrine permits a court having jurisdiction over an action to refuse to exercise its jurisdiction when the litigation could be brought more appropriately in another forum.  (Friedenthal, § 2.17)

28 U.S.C. § 1406(a) provides that if a civil action is commenced in the wrong district or division, the court shall dismiss, but if it is in the interest of justice, the court may instead transfer the case to any district or division in which it could have been brought.  Transfer is preferable to dismissal since it avoids the necessity of commencing a new lawsuit.  Transfer can be ordered only if the court in which the action was brought has jurisdiction of the subject matter but it is not necessary that it have personal jurisdiction.

28 U.S.C. § 1404(a) states:  For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."  Under the rule of "forum non conveniens" a court can dismiss a suit even though it has both personal and subject matter jurisdiction and the venue is properly laid if there exists another forum so much more convenient for the parties and the courts that plaintiff's privilege of choosing his forum was outweighed.  The enactment of 1404(a) means that it is now only in rare instances where the alternative forum is a state court or the court of a foreign country may the federal court dismiss on grounds of forum non conveniens.

Procedure for Transfer under section 1404(a) Motion for transfer may be made by any party, including the plaintiff.  Motion may be made at any time though delay in moving is a factor that will be considered in passing on the motion.  Once the motion is granted the transferor court loses all jurisdiction over the case.  If the transfer is on motion of the defendant, the transferee court must apply the law that would have been applied in the transferor court;  a change in forum means only a change of courtrooms but not a change of law.  This means that in passing on the motion to transfer the court must consider the effect that retaining the law of the transferor state will have.  (E.g., if law is unclear in transferor state that would militate against transfer.)  (Wright, § 44)

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