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University of New Hampshire School of Law
Professor Kirkland’s Civil Procedure Class
Kevin M. O’Shea
November 16, 2011
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Personal Jurisdiction
 The most fun you can have in civil procedure.
 Your opinion counts—as long as you can use the facts
and the law persuasively.
 Frequently tested on Bar Exams
 PJ challenges happen in real life too—can you figure out
one (economic) reason why a plaintiff (or more
accurately, a plaintiff’s attorney) would bring suit in a
forum where PJ is questionable?
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Warning
 If I say anything today that is inconsistent
 With what Professor Kirkland teaches;
 Or a professor from another class teaches;
 Rely on what that professor says, not me;
 Because that is who is grading your exam;
 But your perception that I might have said something
inconsistent might be a good opportunity to speak with your
professor about your understanding of PJ.
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Personal Jurisdiction on the Internet
ALS Scan v. Digital Service Consultants, Inc.,
293 F.3d 707 (4th Cir. 2002)
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ALS Scan v. Digital Service Consultants, Inc.,
293 F.3d 707 (4th Cir. 2002)
Map Out The Case: Parties
 Plaintiff—ALS Scan
 Owner of copyrighted images
 Defendant--Digital Service Consultants
 Images used on sites owned by defendant Alternative
Products and hosted on Digital Service Consultants
 Isn’t Digital Service Consultants really a host not an ISP?
 Isn’t that mistake in nomenclature a clue that the Court may or may
not fully understand the way things work on the internet?
 Then again, this is a 2002 case, right?
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ALS Scan v. Digital Service Consultants, Inc.
Map Out The Case: COA and SJM
 What is the Cause of Action?
 Copyright infringement
 Subject Matter Jurisdiction
 What are the two major kinds of SJM?
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ALS Scan v. Digital Service Consultants, Inc.
Map Out The Case: SMJ
 Subject Matter Jurisdiction
 Federal Question or Diversity?
 28 USC 1331
 The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the
United States
 28 USC 1332
 (a) The district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is
between(1) citizens of different States
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ALS Scan v. Digital Service Consultants, Inc.
Map Out The Case: SJM
 Subject Matter Jurisdiction
 28 USC 1338(a)---Exclusive Jurisdiction
 The district courts shall have original jurisdiction of any
civil action arising under any Act of Congress relating to
patents, plant variety protection, copyrights and
trademarks. Such jurisdiction shall be exclusive of the
courts of the states in patent, plant variety protection and
copyright cases.
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ALS Scan v. Digital Service Consultants, Inc.
Map Out The Case: SMJ
 Subject Matter Jurisdiction
 “Hey, if the plaintiff doesn’t care about SMJ, and the defendant
doesn’t care about SMJ, we’re all set, right?”
 What about Fed. R. Civ. P. 12(h)(3)?
 “If the court determines at any time that it lacks subject-
matter jurisdiction, the court must dismiss the action.”
 Remember SMJ and PJ are two different concepts
 SMJ relates to the authority of a court to decide the dispute
 PJ relates to whether the court has authority over a defendant
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ALS Scan v. Digital Service Consultants, Inc.
Map Out The Case: Jurisdictional facts
 Issue: whether the Court has personal jurisdiction over
 Digital Service Consultants because
 It claims that it lacks contacts with Maryland
 Examples, please…
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ALS Scan v. Digital Service Consultants, Inc.
Map Out The Case: Jurisdictional facts
“No Contact” Facts
 Digital Service Consultants
 No contact with Maryland—other than internet
 Conducts no business in Maryland
 Has no office in Maryland
 Does not advertise in Maryland
 Derives no income from any clients or business in
Maryland
 Owns no property in Maryland
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ALS Scan v. Digital Service Consultants, Inc.
Map Out The Case: Jurisdictional Facts
“Yes Contact” Facts
 Digital Service Consultants
 Contacts with Maryland?
 Citizens of Maryland Accessed Images via Digital Service
Consultants
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ALS Scan v. Digital Service Consultants, Inc.
Personal Jurisdiction—Specific Jurisdiction
 Three part analysis
 (1) Long Arm Statute
 How do we know which long arm statute to use?
 Fed. R. Civ. P. 4(k)(1)(a)
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ALS Scan v. Digital Service Consultants, Inc.
Personal Jurisdictional Analysis
 Fed. R. Civ. P. 4 (k)
 (1) Serving a summons or filing a waiver of service establishes
personal jurisdiction over a defendant:
 (A) who is subject to the jurisdiction of a court of general
jurisdiction in the state where the district court is located
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ALS Scan v. Digital Service Consultants, Inc.
Personal Jurisdictional Analysis
 Md. Code Ann §6-103
 Full extent of Due Process clause of the
14th Amendment
 Common view of a long arm statute
 If, the long arm statute is construed to be less than full
extent of 14th Amendment, you may be limited to what the
statute says
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ALS Scan v. Digital Service Consultants, Inc.
Personal Jurisdiction—Specific Jurisdiction
 Specific Jurisdiction—Three part analysis
 (2) Minimum Contacts Analysis
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ALS Scan v. Digital Service Consultants, Inc.
Personal Jurisdiction—Specific Jurisdiction
 Specific Jurisdiction—Three part analysis
 (2) Minimum Contacts Analysis
 A. Threshold Inquiry-
 Specific or General Jurisdiction
 Ask whether plaintiffs claims arise out of defendant’s activities
directed at State?
 If yes, then undertake specific jurisdiction analysis
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ALS Scan v. Digital Service Consultants, Inc.
Personal Jurisdiction—Specific Jurisdiction
 Specific Jurisdiction—Three part analysis
 (2) Minimum Contacts Analysis
 A. Threshold Inquiry-Specific or General Jurisdiction
 Ask whether plaintiffs claims arise out of defendant’s
activities directed at State?
 If no, then undertake general jurisdiction analysis
• When defendants contacts are not the basis for the suit, look to
contacts that are:
• (i) more general,
• (ii) more persistent, but
• (iii) unrelated contacts.
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Specific Jurisdiction
From
General Jurisdiction
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Graphic Designer Hypothetical
 Enters into a contract;
 With McDonalds’ Corporate Office in Oak Brook, IL;
 To design the flyer for the Concord, NH McDonalds’
holiday party;
 McDonalds refuses to pay;
 Graphic Designer sues in a New Hampshire court;
 Does graphic designer's claims arise out of McDonalds’
activities in New Hampshire?
 Yes, graphic designer's BOK claims for designing a flyer for
the Concord NH store’s holiday party arise out of McDonalds
activities in NH.
 So use the specific jurisdiction analysis framework
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Graphic Designer Hypothetical
 Enters into a contract;
 With McDonalds Corporate Office in Oak Brook, IL;
 To design the flyer for the Great Falls, Montana McDonalds’
holiday party;
 McDonalds refuses to pay;
 There are 1o McDonalds’ stores in New Hampshire, including the
Concord store
 Graphic Designer sues in a New Hampshire court;
 Does graphic designer's claims arise out of McDonalds’ activities
in New Hampshire?
 No, graphic designer's BOK claims for designing a flyer for the Great
Falls, Montana store’s holiday party does not arise out of
McDonalds’ activities in their 10 stores in New Hampshire.
 So use the general jurisdiction analysis framework
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ALS Scan v. Digital Service Consultants, Inc.
Personal Jurisdiction—Specific Jurisdiction
 Specific Jurisdiction—Three part analysis
 (2) Minimum Contacts Analysis
 B. Contacts Analysis
 “purposeful availament”
 privilege of conducting activities in the state
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ALS Scan v. Digital Service Consultants, Inc.
Personal Jurisdiction—Specific Jurisdiction
 Three part analysis
 (3) Reasonableness or Gestalt factors—whether the
exercise of those factors would be constitutionally
reasonable
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ALS Scan v. Digital Service Consultants, Inc.
Personal Jurisdiction—Specific Jurisdiction
 Three part analysis
 (3) Reasonableness or Gestalt factors—whether the
exercise of those factors would be constitutionally
reasonable
 (1) the defendant's burden of appearing,
 (2) the forum state's interest in adjudicating the dispute,
 (3) the plaintiff's interest in obtaining convenient and effective relief,
 (4) the judicial system's interest in obtaining the most effective resolution of
the controversy, and
 (5) the common interests of all sovereigns in promoting substantive social
policies.
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ALS Scan v. Digital Service Consultants, Inc.,
 In this case, Internet is omnipresent
 On the other hand,
 The Internet is a surrogate for a person.
 (Corporations are people too, right?)
 and those surrogates are certainly within those states where
the “signal” is received.
 “I’m not there but you can access “Ones and Zeros” from the comfort of
your home.”
 Enter the “stream of commerce” concept.
 Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102 (1987) (opinion of
O'Connor, J.)
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ALS Scan v. Digital Service Consultants, Inc.
 Purposeful conduct—Zippo Test—Sliding Scale
 Active Websites-Yes PJ—
 At one end of the spectrum are situations where a defendant
clearly does business over the Internet.
 If the defendant enters into contracts with residents of a
foreign jurisdiction that involve the knowing and repeated
transmission of computer files over the Internet, personal
jurisdiction is proper.
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ALS Scan v. Digital Service Consultants, Inc.
 Purposeful conduct—Zippo Test—Sliding Scale
 Passive Websites-No PJ—
 At the opposite end are situations where a defendant has
simply posted information on an Internet Web site which is
accessible to users in foreign jurisdictions.
 A passive Web site that does little more than make
information available to those who are interested in it is not
grounds for the exercise of personal jurisdiction.
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ALS Scan v. Digital Service Consultants, Inc.
 Purposeful conduct—Zippo Test—Sliding Scale
 Interactive—Maybe PJ—
 The middle ground is occupied by interactive Web sites
where a user can exchange information with the host
computer.
 In these cases, the exercise of jurisdiction is determined by
examining
 the level of interactivity and
 commercial nature
 of the exchange of information that occurs on the Web site.
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ALS Scan v. Digital Service Consultants, Inc.
 Purposeful conduct—Zippo Test—Sliding Scale
 Active Websites-Yes PJ
 Passive Websites-No PJ
 Interactive Websites—Maybe PJ
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ALS Scan v. Digital Service Consultants, Inc.
 Rule, PJ if…
 (1) directs electronic activity in to state,
 (2) with manifested intent of engaging in business or other
transactions within that state, and
 (3) activity creates a COA cognizable in that state’s courts;
 There is personal jurisdiction over the website in that state.
 In this case, ISP was passive, so no PJ.
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ALS Scan v. Digital Service Consultants, Inc.
 Example of an “interactive” website
 See Harrahs’s case at Page 694
 Reservations
 Touting proximity to forum state
 Driving directions to hotel from forum state
 “Targeted CA residents”
 Query: Does this case stand for the proposition that any other
court (other than a California court) has PJ over Harrah’s
because of its “interactive” internet site?
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Is the Zippo sliding scale still relevant?
 What about
 Texting?
 Facebook?
 eBay
 Craig’s List
 What about embedded elements?
 YouTube
 Google Docs
 PayPal
 Do these types of activities/elements transform the passive
into the a interactive?
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Career Advice:
New lawyers are on equal footing with all other
lawyers in emerging areas of the law.
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General Jurisdiction
Goodyear Dunlop Tires Operations, SA, et al v.
Brown, et al, 131 S. Ct. 2846 (2011)
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General Jurisdiction: Goodyear v. Brown.
Map it Out: Parties
 Plaintiffs:
 Administrators of the Estates of two 13-year-old boys
from North Carolina
 Defendants:
 Goodyear USA (Parent Company)
 Goodyear Luxembourg
 Goodyear Turkey
 Goodyear France
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General Jurisdiction: Goodyear v. Brown.
Map it Out: COA/Forum/ Procedural Posture
 Wrongful Death Action
 in a North Carolina State Trial Court
 Alleging tire in Paris France bus crash failed when
plies separated as a result of negligence in the design,
construction, testing, and inspection of the tire
resulting in the death of the 2 boys
 North Carolina Court Of Appeals
 US Supreme Court
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General Jurisdiction: Goodyear v. Brown.
Map it Out: Jurisdictional Facts
 Goodyear USA
 Ohio Corporation
 But does not contest the North Carolina court’s
jurisdiction over it
 Why?
 Goodyear Luxembourg, Goodyear Turkey, Goodyear
France (collectively, the Goodyear Subsidiaries)
 Contests assertion of personal jurisdiction over them
in North Carolina.
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General Jurisdiction: Goodyear v. Brown.
Map it Out: Jurisdictional Facts
Goodyear Subsidiaries: “No Contact” Facts
 Not registered to do business in North Carolina
 No place of business, employees, or bank account
North Carolina
 Do not design, manufacture, or advertise their
products in North Carolina
 Do not solicit business in North Carolina or
themselves sell or ship tires to North Carolina
customers
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General Jurisdiction: Goodyear v. Brown.
Map it Out: Jurisdictional Facts
Goodyear Subsidiaries: “Yes Contact” Facts
 A small percentage of Goodyear Subsidiaries’ tires
(tens of thousands out of tens of millions
manufactured between 2004 and 2007) were
distributed within North Carolina by other Goodyear
USA affiliates
 These tires were typically custom ordered for use with
specialized vehicles such as cement mixers, waste
haulers, and boat and horse trailers
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General Jurisdiction: Goodyear v. Brown.
Map it Out: COA/Forum/ Procedural Posture:
North Carolina Court Of Appeals (Incorrectly) Holding
 Even though the Goodyear Subsidiaries did not take any
steps to cause tires which they had manufactured to be
shipped in North Carolina;
 The NC Court Of Appeals Held that the Goodyear
Subsidiaries’ Tires reached North Carolina as a
consequence of a highly organized distribution process;
(“Stream of Commerce”) and
 Goodyear Subsidiaries made no attempt to keep these tires
from reaching the North Carolina market
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General Jurisdiction: Goodyear v. Brown.
 Personal Jurisdictional Analysis
 Step 1: long arm statute
 Fed. R. Civ. P. 4(k)(1)(a)
 N.C. Gen Stat. Ann § 1-75.4(1)(d)
 providing for jurisdiction whether the claim arises within or
without the state when the defendant is engaged in
substantial activity within North Carolina, whether such
activity is wholly interstate, intrastate, or otherwise
 North Carolina Supreme Court has held this provision was
intended to make available to the North Carolina courts the
full jurisdictional power permissible under the federal due
process clause
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General Jurisdiction: Goodyear v. Brown.
 Personal Jurisdictional Analysis
 Step 2: Minimum Contacts Analysis
 A. Threshold Inquiry-
 Specific or General Jurisdiction
 Ask whether plaintiffs claims arise out of defendant’s activities
directed at State?
 Specific: or as Justice Ginsburg, quoting from International Shoe
instructs: ask whether the in-state activity is “continuous and
systematic” and “that activity gave rise to the episode in suit.”
 Or, as Justice Ginsburg, quoting from Helicopteros instructs
“adjudicatory authority is ‘specific’ when the suit ‘arises out of or
relates to the defendants contact with the forum.’”
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General Jurisdiction: Goodyear v. Brown.
 Personal Jurisdictional Analysis
 Step 2: Minimum Contacts Analysis
 A. Threshold Inquiry-
 Specific or General Jurisdiction
 Ask “whether plaintiffs claims arise out of defendant’s
activities directed at State? “
 If yes, then undertake specific jurisdiction analysis
 If no, then undertake general jurisdiction analysis
 When defendants contacts are not the basis for the suit, look to
contacts that are:
• (i) more general,
• (ii) more persistent, but
• (iii) unrelated contacts
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General Jurisdiction:
Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1957).
 When the forum activities of a corporate defendant are sufficiently
continuous, systematic, and substantial, it can be sued there even on
claims unrelated to those activities
 During WWII occupation of Philippines
 President and GM of mine moves to Ohio
 Company files reports in Ohio
 Company holds directors’ meetings in Ohio
 Sends Correspondence from Ohio
 Salary Paid from Ohio Bank Accounts
 The court had personal jurisdiction over the corporation because it “had been
carrying on in Ohio a continuous and systematic, but limited part of its general
business.”
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General Jurisdiction:
HelicopterosNacionales de Colombia, S.A. v. Hall,
466 U.S. 408 (1984).
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 Helicopter owned by Colombian Corporation crashed in Peru;
 Survivors of US citizen who died in crash;
 Could not maintain wrongful death actions against Colombian
Corporation in Texas;
 Because the Colombian corporations helicopter purchases and
purchase-linked (i.e. pilot training) activity in Texas were insufficient
to subject it to court general jurisdiction.
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General Jurisdiction: Goodyear v. Brown.
 Personal Jurisdictional Analysis
 Step 2: Minimum Contacts Analysis
 B. Contacts Analysis: “Stream of Commerce” concept should
not be used in the general jurisdiction analysis.
 Under the “stream of commerce” concept, flow of a
manufactured products into the forum, may bolster an
affiliation germane to specific jurisdiction, but ties serving to
bolster the exercise of specific jurisdiction do not warrant a
determination that, based on those ties, the forum has general
jurisdiction over defendant
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General Jurisdiction: Goodyear v. Brown.
 Personal Jurisdictional Analysis
 Step 2: Minimum Contacts Analysis
 B. Contacts Analysis: Helicopteros
 Applying the principles of Helicopteros, there can be no
jurisdiction over the Goodyear Subsidiaries in North
Carolina based on the sales of the sporadic sales of
Goodyear Subsidiaries tires in North Carolina
 Otherwise, “Any substantial seller or manufacturer of
goods would be amenable to suit, on any claim for relief,
where ever its products are distributed.”
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General Jurisdiction: Goodyear v. Brown.
 Personal Jurisdictional Analysis
 Step 2: Minimum Contacts Analysis
 B. Contacts Analysis: Perkins
 “ Unlike the defendant in Perkins, whose sole wartime
business activity was conducted in Ohio, [the Goodyear
Subsidiaries] are in no sense at home in North Carolina.
Their attenuated connections to the state… fall far short of
the continuous and systematic general business contacts
necessary to empower North Carolina to entertain suit
against them on claims unrelated anything that connects
them to the state.”
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General Jurisdiction: Goodyear v. Brown
Personal Jurisdictional Analysis
 Step 3: Reasonableness or Gestalt factors—whether the
exercise of those factors would be constitutionally
reasonable
 NB: Goodyear does not even mention Step 3 because of
its holding on Step 2.
 Nevertheless, it is not uncommon for courts to do so.
See, e.g. Harlow v. Children's Hosp., 432 F.3d 50, 55 (1st
Cir. 2005).
 Especially if the minimum contacts analysis does not
provide for a clear result
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General Jurisdiction: Goodyear v. Brown
Personal Jurisdictional Analysis
 Step 3: Reasonableness or Gestalt factors
 The reasonableness prong of the due process inquiry invokes
a sliding scale.
 An especially strong showing of reasonableness may serve to fortify
borderline showing of relatedness and purposefulness.
 On the other hand, "the weaker the plaintiff's showing on
continuous and systematic contacts, the less a defendant needs to
show in terms of unreasonableness to defeat jurisdiction."
 Harlow, 432 F. 3d at 66-67.
 In an exam situation, you should walk your analysis through
all the steps, even if the result seems clear on another step.
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Kevin M. O’Shea
Sulloway & Hollis, PLLC
koshea@sulloway.com
603-228-2829
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