Pg 6

Question 1

How do you challenge personal jurisdiction in federal court?

Answer 1

It is limited by the fifth amendment which requires an appropriate relationship to the United States, meaning the person must be domiciled there or have minimum contacts there. Federal courts are restricted by the FRCP when exercising personal jurisdiction over out-of-state defendants, but they have personal jurisdiction over defendants subject to general jurisdiction in the same state and to the same extent that state courts would have.

Question 2

What is involved in FRCP 12b regarding personal jurisdiction?

Answer 2

Federal defendants can preserve their right to challenge personal jurisdiction by including an objection as an affirmative defense in the responsive pleading, or they can object by motion to dismiss under the FRCP. These supersede special appearance rules and allow more flexible ways to assert objections

Question 3

If a person doesn’t raise an objection to personal jurisdiction in the answer or the initial motion in federal court, can they do it later?

Answer 3

No

Question 4

What are the two major ways to object to personal jurisdiction?

Answer 4

– direct attack: Challenge jurisdiction in the rendering state
– collateral attack: Challenge jurisdiction in the enforcing state

Question 5

What are the different ways you can challenge personal jurisdiction by direct attack?

Answer 5

This is done in the rendering state by any of the following:
– special appearance: challenge jx without submitting to the court’s jurisdiction just because you appeared.
– Federal rules: object to personal jx and raise other objections at the same time without submitting to the jurisdiction
– interlocutory appeal: some states allow an immediate appeal to an appellate court if jurisdiction objection is rejected. But federal courts don’t allow this and many state courts do not either

Question 6

If you make a special appearance to directly attack personal jurisdiction, what is involved and what can you not do?

Answer 6

This means you challenge jx without submitting to the court’s jurisdiction just because you appeared. You cannot raise any issue going to the merits, otherwise you waive your objection and you voluntarily submit to the court’s jurisdiction

Question 7

What is involved in objecting to personal jurisdiction under the federal rules?

Answer 7

You can object to personal jurisdiction and raise other objections at the same time without submitting to the jurisdiction. But if it is not at the same time, your objection is lost and you have submitted to the court’s jurisdiction

Question 8

What is involved in the proper chain for a direct attack on personal jurisdiction?

Answer 8

• make an objection
  – have a hearing on the issue
  – if the court decides there was no basis for jurisdiction, then the claim is dismissed
  – if the court decides there was a basis for jurisdiction, then proceed with the case by defending on the merits.
• that will not waive your objection to jurisdiction, so if you lose, you can appeal claiming that the court did not have jurisdiction

Question 9

What is involved in making a collateral attack on personal jurisdiction?

Answer 9

This is when you challenge jurisdiction in the enforcing court. This is an attack on the previous judgement once it is rendered. The Supreme Court doesn’t allow these. The defendant can challenge the original court’s jurisdiction in an enforcement action instead of directly in the original suit, but they cannot reopen the merits of the original case.

Question 10

Does a collateral attack on personal jurisdiction mean that you can ignore a suit?

Answer 10

Yes because the judgement is unenforceable if there really was no jurisdiction.

Question 11

Why is it dangerous to ignore a suit if you were objecting to personal jurisdiction?

Answer 11

Because if the court really does have jurisdiction, a default judgement gets entered against you and then you have missed your chance to defend on the merits

Question 12

What does domesticating the judgement mean?

Answer 12

Once a plaintiff gets a money judgement against the defendant who ignored the suit, the plaintiff has to take it to the state where the defendant lives or has property and then get a court order from that state authorizing law-enforcement to sell the defendant’s assets to satisfy it

Question 13

What are the two ways that you can domesticate a judgement?

Answer 13

– traditional procedure: file a new action on the judgement seeking judgement on the judgment
– registration procedure: file a certified copy of the judgement in the enforcing court and then there’s no need for a new suit

Question 14

What is involved in the full faith and credit clause of the Constitution?

Answer 14

Courts must honour judgements of other states by entering judgement on them and letting out-of-state creditors use their courts to collect debts

Question 15

What are the two major exceptions to the full faith and credit clause of the Constitution?

Answer 15

• a state can inquire if the rendering state had jurisdiction and refuse to enforce it if it didn’t
• you cannot challenge personal jurisdiction in an enforcement action if you already did it in the original action. If you fully litigate an issue in one action, you cannot re-litigate it in another

Question 16

What is service of process?

Answer 16

This involves giving notice to the defendant of the filing of a suit against him, this tells him he is being sued and that the court intends to proceed, plus it warns him that if he doesn’t respond there will be a judgement by default entered against him.

Question 17

Is service of process a constitutional issue?

Answer 17

No

Question 18

What are the two things that are involved in service of process?

Answer 18

• service of summons
  – service of complaint: tells the defendant to answer or suffer a default judgement against him

There must be both of these in service of process

Question 19

What are the ways you can serve process?

Answer 19

• in hand delivery: handing it to the person
• leaving it in the office with a clerk or someone in charge
  – leaving it at a dwelling in a conspicuous place with someone of suitable age or discretion that resides there
  – mailing it to the last known address: service is complete on mailing
  – leaving it with the court clerk if there is no known address
  – sending it electronically if the person consents in writing: complete on transmission but not effective if serving party learns it didn’t reach the person being served
  – delivery by any other means consented to in writing
• service on an agent
  – substituted service on a spouse or child
  – service by publication

Question 20

What is a summons?

Answer 20

Officially issued court document that is signed by the clerk and commands the defendant to respond to the complaint within a specified time. This is court authority to compel the defendant to respond to a complaint through summons

Question 21

What is a complaint?

Answer 21

The plaintiffs introductory pleading that explains the nature of the case and the relief being requested. This informs of the events that gave rise to the suit

Question 22

If someone is represented by an attorney, how should service of process be made?

Answer 22

On that attorney

Question 23

When does the SOL begin to run regarding service of process according to state service rules and federal service rules?

Answer 23

• state service rules: the action is commenced and the SOL starts when process is served
  – federal service rules: the action is commenced and the SOL starts when a copy of the complaint is filed with the district court

Question 24

What must a summons include?

Answer 24

Two documents: the summons and the complaint

Question 25

What are the contents of a summons?

Answer 25

- identity of the parties or the court – directed to the defendant – name and address of the plaintiff’s lawyer or P’s address if the plaintiff is representing himself - time the defendant has to respond or appear to defend – warning that not appearing will result in a default judgment – Clerk signature – court’s seal

Question 26

Can a dwelling place include vacation cabins so that you can leave service of process on the doorstep of such a place?

Answer 26

No

Question 27

When must service of process happen?

Answer 27

Within 120 days of filing the complaint. Recently this was changed to 90 days.

Question 28

If service of process is not done within the 120 day or 90 day time frame, what happens?

Answer 28

The court dismisses the suit unless the plaintiff can show good cause and then the court may allow re-filing

Question 29

Who must be the server of process?

Answer 29

Anyone that is 18 or older and is not a party or the lawyer of a party to the suit

Question 30

Is it possible to request waiver of service?

Answer 30

Yes, the plaintiff can request that the defendant waive formal service by sending a notice of action to the defendant with the request. The defendant has a duty to avoid unnecessary costs of service, so if he doesn’t have good cause for not waiving this, he incurs the costs of formal service. If the defendant agrees, he gets 60 days, or 90 days if he is out of the United States, instead of 20 days to respond

Question 31

What are the requirements for requesting a waiver of service?

Answer 31

It must be: - in writing - addressed to the defendant or an officer or agent if the defendant is a corporation - give the name of the filing court - include a copy of the complaint and two copies of the waiver form - have a prepaid method of return - state the consequences of waiving and of not waiving - give the date the request was sent - give a reasonable time to return it by - be sent by first class mail or another reliable way

Question 32

If a waiver of service of process is given, what does that mean?

Answer 32

Proof of service is unnecessary and the normal rules apply as if the service happened the day the waiver was filed. Just file the waiver form with the court and service is complete

Question 33

If you get a waiver of service does that mean that personal jurisdiction and venue objections are also waived?

Answer 33

No

Question 34

If a plaintiff requests waiver of service from the defendant and he doesn’t hear back, what must happen?

Answer 34

He must serve the defendant by the normal method

Question 35

If a defendant in the US gets a request for waiver of service and he doesn't waive service and doesn't have good cause, what happens?

Answer 35

The court will impose the expenses for making service on the defendant and for any motion that is needed to collect service expenses

Question 36

When a waiver of service procedure is used, when is service considered to be effective?

Answer 36

On the date of filing the waiver

Question 37

Why is it dangerous to file suit right before the SOL runs and then ask for a waiver of service?

Answer 37

Because it could be 30 days or never before you get back the waiver of service form, and the only consequence to the other side is having to pay alternative service fees, but in that time the SOL may run out for you because sending a waiver for service does not toll the SOL