So today we're going to be diving into personal jurisdiction. This brings us to the first question that we ask when we're going to be filing a lawsuit, namely, where geographically do I, as the plaintiff, want this litigation to take place?

Where to File?

That is, in what state can this lawsuit occur? That is what personal jurisdiction is all about. And we could be either in state court or in federal court. This is important. That usually is not going to make any difference when it comes to personal jurisdiction. So again, the central question that we're going to be focused on is, where in the country is this lawsuit going to take place? Let's do a little bit of table setting.

Courts can have jurisdiction over persons or over things. Now, happily, you're a person. Good to know. A corporation, for these purposes, is also considered a person. By contrast, your property is considered a thing. We're going to be focusing on the jurisdiction over persons, and this is what we call "in personam jurisdiction."

It's always good to throw in a little Latin just to keep us feeling smart, but basically just talking about jurisdiction over persons. And let's just remember what this ultimately means. If a court has jurisdiction over you, it has the power, then, to determine your rights and liabilities. And this is a pretty significant power because, accordingly, it can then order you to do something or to even refrain from doing something that you would otherwise be at liberty to do.

Or it can now tell you that you owe the plaintiff some amount of money damages, and it can even take away your property if you don't pay up. So, given all that is at stake, you can see why it is that parties care so much about where that litigation actually occurs. And now let's try to bring this back to our hypo that we first talked about in our introduction.

Hypothetical

We have our friends, Patty and Dave, they get into a car accident in New York. Patty decides that she wants to sue Dave where she's from, the state of Alaska. She gets to live at home while she's bringing her lawsuit. She might even know something about the legal community. She might know of a good lawyer from a friend. It's going to be super convenient for her. So, all in all, it's advantageous to her to bring the suit in Alaska.

But for Dave, remember, he's our defendant, he's the one who's at risk of having to pay money damages as the defendant. If he has to fly all the way across the country to defend himself, well, this suit just became a whole lot more burdensome to him.

So it's precisely because of these kinds of concerns, the burden that we're placing on the defendant, that we could be making things unfair for him, the Supreme Court has held that there are limits, and specifically, there are constitutional limits on the plaintiff's choice of forum.

Pennoyer v. Neff

So the first big case on personal jurisdiction that came from the Supreme Court was a case called Pennoyer v. Neff. This was decided all the way back in 1878. And if this is giving you some unpleasant thoughts from your first-year Civ Pro class, do not worry. We're just going to break down exactly what you need to know from Pennoyer.

So, first, what we were just saying was, well, yeah, of course there are going to be constitutional limits on the plaintiff's choice of forum, but you might be thinking, where does that come from? Like, I don't remember opening up the Constitution and seeing the words "personal jurisdiction" and "limits," and that's, of course, because they're not to be found there.

So what Pennoyer tells us is that those constitutional limits that we were just describing come to us from the Due Process Clauses of the Fifth and Fourteenth Amendments. And that makes sense, I think, intuitively, because both basically say that the government cannot deprive people of life, liberty, or property without due process of law.

Even in these civil lawsuits, at the end of the day, a court being backed up by the state can tell you, "Well, you owe this other person money," or there's a permanent injunction, meaning the court can order you to do something or to not do something. So, one of the key holdings of Pennoyer is that the court must have personal jurisdiction over the parties, and that stems from the constitutional guarantee of due process.

Consent

The second thing that Pennoyer did that was really important is that it gave us a few concrete ways for courts to establish personal jurisdiction over a party. A few of those ways are still good today and I want to start by walking us through them.

So the first and most obvious basis for personal jurisdiction is consent. And here's the way to be thinking about it. The right to due process is considered an individual right, and like other rights, it can be waived. So, going back to our favorite hypothetical, if Dave is like, "You know what? I've always wanted to go to Alaska. Sounds like it's a great place to visit. I'm happy to head up there."

And then he marches into court in Alaska and says, "I want to litigate my case here." Well, that actually is going to work just fine.

So that was the law under Pennoyer and that is still good law today. And it's for this reason that personal jurisdiction cases always focus on the defendant.

Remember, the plaintiff is the person who starts the lawsuit. She's the one who's choosing the forum. So the plaintiff clearly will have consented to suit in that forum. The defendant also can consent, but it's just not as automatic.

The defendant certainly can show up and say, "I'm happy to keep litigating here," but you should be aware the consent need not be explicit. The defendant can be deemed to consent to suit in a particular forum simply by showing up and litigating the merits of his case. So Dave doesn't actually have to announce that he's perfectly happy to defend himself in Alaska.

If he just shows up and litigates the case, then he's deemed to have consented.

Personal jurisdiction is like other objections that the parties can raise. You actually have to raise the objection or you might be found to have waived it. So that's really important to keep in mind in the background, and that's something that the bar examiners like to test you on.

Citizenship

So again, that first basis for personal jurisdiction is consent, and that's still good law today. The second basis for personal jurisdiction that Pennoyer identified is citizenship. And this is a pretty straightforward concept. The idea is if you're a citizen of a state, well, then it's pretty fair for you to be sued in that state. The courts are going to have personal jurisdiction over you.

This actually speaks directly to one of the concerns we were just talking about a few moments ago. We can be worried in these cases about fairness to the defendant. Like it seems really unfair if Dave has to travel all the way to Alaska from his home in North Carolina. That's the kind of concern that the Constitution is really speaking to.

Notice here that the burden on the parties, and really on the defendant, that concern goes away when the defendant is from the forum state. It's not always going to be perfectly convenient for the defendant, but we're not worried about significant unfairness to that defendant. As a result, you can pretty much always sue someone in their home state for anything.

A court in that state is going to have personal jurisdiction over that person for any lawsuit. That continues to be the rule today, though, as you'll see, we think about it using different terms. We refer to that as "general jurisdiction." We're going to hold off on that and come back to it in just a little bit.

Served with Process

The final basis that Pennoyer identified for personal jurisdiction is presence in the state, meaning that you, as the defendant, were physically present in the forum state. Now, you might be thinking, "Okay, well, present, at what point? Like, at what time?" The answer is at the point of service of process, and that's relevant because when you get served with process, meaning you get handed that summons and that complaint, that is the formal moment when the court's jurisdiction attaches. So the idea is if you are in the forum state right at the time when you get served, that's going to be enough for the court in that state to have personal jurisdiction over you.

Let's imagine that Dave decides to head up to Alaska for the summer. He's heard it's really beautiful. He wants to get in some hiking, some fishing. So he decides he's going to spend a few months up there. And while he's there, he gets served with that summons and that complaint. Unfortunately for Dave, it is game over. Alaska now has personal jurisdiction over him for the purposes of this particular lawsuit.

Now, keep in mind, there are a few minor exceptions to this general rule. Like, we can't kidnap Dave and drag him all the way to Alaska just to have him served. We can't trick him. But, assuming that he goes to the forum state willingly and intentionally, and he gets served while he's there, well, that is totally fine. That is enough for Alaska to have personal jurisdiction over him for that case.

Tagged - Burnham

And if you're thinking, "I seem to recall this from Civ Pro all the way back in 1L year," the relevant case here that you may have read is a case called Burnham. This is from the Supreme Court and it doubled down on all of that.

So Burnham was all about a couple. We had Mr. And Mrs. Burnham living on the East Coast, and sadly, they separated and they agreed to a divorce. And Mrs. Burnham moves out to California. Now, it's a little bit trickier from here on out. So the couple had agreed to an irreconcilable differences divorce, but then Mr. Burnham, kind of being a jerk, decides to file for divorce in New Jersey on the grounds of desertion. He doesn't follow up on that. Nothing much comes of that.

So Mrs. Burnham, for her part, during all this, is like, "I want to get this divorce done." So, when Mr. Burnham comes out to California for a three-day trip, she arranges to have him served with process when he stops by her house.

Probably that was not the happiest of reunions we can imagine. So this comes up to the Supreme Court, and the court says, "You know what? This is perfectly fine."

And this is what we referred to as tag jurisdiction, just like the game tag that kids like to play. And so the idea is, yeah, even though Mr. Burnham isn't from California, he was in the state just at the time when he was served with process, meaning he got tagged. And that is sufficient to give a court in California personal jurisdiction over him for purposes of this divorce case.

And, in fact, what the court ended up saying is that, more broadly, tag jurisdiction of this kind is going to be constitutional in most cases. You can't trick somebody, you can't kidnap and bring them across state lines, but otherwise, that's going to be perfectly fine.

Recap

So again, these concepts that came out of Pennoyer still apply today. So a court can have personal jurisdiction over you if, first and foremost, you consent to personal jurisdiction, then relatedly, if you waive any objection that you might have to personal jurisdiction. The next one is if you are from a particular state, meaning, if you are domiciled in that state. And then the final basis for personal jurisdiction, as we were just mentioning, is if you are present in that forum state at the time of service of process.

So that's all well and good, but on the bar, most personal jurisdiction questions actually involve a different basis for personal jurisdiction altogether. And that comes to us from a case called International Shoe and its progeny. And that's what we're going to discuss in our next lesson.