Gilbert's Law Summaries - Jurisdiction

Since a lot of people ask about Gilbert’s I decided to put a little info here for all to see.

Here is an except from Gilbert’s on Jurisdiction starting at Section one. This is Section 205. But before this is another chapter 6 at section 35 which is for all traffic jurisdiction and the “official” mentioned to take service in any state is the Secretary of State although they do not mention it. So here it is.

the personal jurisdiction of the local court on all matters related to the subject matter of his complaint (so that D can recover on any counterclaim or cross-complaint). [Adam v. Saenger, 303 U.S. 59]

(3) Consent: [§§35] A party’s actual or “implied” consent establishes a sufficient “contact” to authorize personal jurisdiction over him.

(a) Express consent: [§§36] Examples of express consent to jurisdiction frequently appear in contracts, promissory notes, etc. E.g., "Debtor agrees in the event of default to submit himself to the jurisdiction of the courts of State X." [See 255 N.Y. 348J

1) And note: A contractual provision of this type may also contain a valid waiver of procedural due process (a "cognovit"; see infra, §§ 70).

2) However, such consent and waiver of due process may be invalid in "adhesion contracts" – where there is great disparity between the bargaining power of the debtor and creditor, and the debtor receives nothing in exchange for his consent and waiver. [See Overmyer v. Frick, 405 U.S. 174]

(b) “Implied Consent”: §37 Statutes in a number of states provide that a non resident alien who performs certain acts within the state is thereby deemed to consent "impliedly" to the jurisdiction of local courts in any lawsuits arising out of those acts.

1) the most common examples are non resident motorist statutes – which declare that a nonresident, by driving his car into the state, is deemed to have consented to the personal jurisdiction of local courts in any action arising out of injuries caused by him on local roads, and to have appointed a designated local official as his agent for service of process. [Hess v Pawloski, 274 U.S. 352.

(4) “Minimum contacts”: [§§38] In the landmark case, International Shoe v. Washington, 326 U.S. 310, the Supreme Court replaced all of the foregoing with a much more flexible yardstick. It held that a state could constitutionally empower its courts to assert personal jurisdiction over a nonresident defendant with whom the state had such “minimum contacts” that maintenance of the suit locally would not offend “traditional standards of fair play and substantial justice.”

(a) "Doing business": [§§39] At first, this test was equated with "doing business" in order to uphold personal jurisdiction over foreign corporations "doing business" within the state.

1) In application, courts required proof of continuing economic activities within the state (advertising, sales, shipments, inventories, etc.), even though no business office or permanent personnel were maintained locally.

2) Where such activities were shown, the foreign corporation was deemed "present" within the state to the extent that it could be sued locally on any transitory cause of action. i.e., the plaintiffs claim need not be based on the corporation's local "business" or activities.

Now we go to the Jurisdictional pleading and hope you enjoy.

Big Al

32 – Civil Procedure GILBERT’S LAW SUMMARIES


1. How Raised [§§205]

a. Lack of personal jurisdiction is normally raised by a motion to dismiss (federal practice) or by a motion to quash service (state practice).

(1) Either motion is regarded as a "special appearance" by the defendant ant. i.e., he does not thereby submit himself to jurisdiction of the court by making the motion (see supra, §§33). Any other motion or pleading is usually held to be a "general appearance"; see below.

b. Lack of subject matter jurisdiction (competency) is normally raised by a motion to dismiss (federal and state practice). In some states, it is also ground for a demurrer (infra, §§636).

2. When Raised-Waiver of Defect

a. Lack of personal jurisdiction [§§206] must be timely raised, or the defect is waived.

(1) Rationale: The idea is to compel disclosure and dispose of this issue at the outset of the case.

(2) What constitutes timely objection [§§207].

(a) Under state practice, D is usually required to file his motion to quash service of process before any other Pleading. If he instead files a demurrer or answer (or asks for any other relief — even a continuance), he is deemed to have made a “general appearance” and submitted himself to the court’s jurisdiction — even if he alleges lack of jurisdiction as a defense in his answer. [84 Cal. App.2d 229]

(b) In federal practice, D must raise lack of personal jurisdiction by his initial pleading-in a motion to dismiss, or, if no such motion is filed, in his answer to the complaint. [FRCP 12(h)]

(3) Effect of overruling: [§§208] If a state court overrules D's motion to dismiss, D faces a dilemma: He can withdraw from the case, allow judgment to be taken against him by default, and hope to set aside the judgment on appeal or by collateral attack when P seeks to enforce it against him in another state; or he can stay and defend on the merits. in which case he will generally be held to have waived the jurisdictional objection.

(a) The Federal Rules are more liberal: They permit D to challenge jurisdiction and plead to the merits at the same time. [FRCP 12(b)] Thus, if the trial judge rules against him on the jurisdic tional point, D can defend on the merits and still raise the jurisdictional point on appeal. [139 F.2d 871]

b. Lack of subject matter jurisdiction [§§209] (competency) is never waived. For example, whether a federal court has proper "diversity" jurisdiction is an issue which can be raised at any stage of the proceeding-even for the first time at trial or on appeal. And, it may be raised by any party to the action or by the court on its own motion. [FRCP 12 (h)(3)]

3. Effect of Lack of Jurisdiction-Dismissal vs. Transfer

a. In federal practice, [§§210] if either personal or subject matter jurisdiction is lacking (and the defect has not been "waived," see above), the court must dismiss the action. . . there is no provision for transferring the case to some other court (state or federal).

b. In state practice, [§§211] defects in subject matter jurisdiction usually do not result in dismissal. Rather, the court merely transfers the action to whatever other court in the state has proper subject matter jurisdiction in the case.

(1) Example: P files a lawsuit for $7,500 in a "municipal court" which, under state law, has a maximum jurisdiction of $5,000. That court may generally transfer the case to a court having proper jurisdiction for the $7,500 claim (e.g., a "superior court"). [See Calif. CCP 396]

(2) On the other hand, if the defect related to personal jurisdiction there could be no transfer-since if one state court lacks in personam jurisdiction over D, so do all other courts in that state (supra, §§ 14).

4. Effect of Judgment or Order by Court Lacking Jurisdiction: [§§212] Once a court determines that it lacks jurisdiction, any ruling or order made by it (other than a dismissal or transfer; see above) is void.

a. Orders pending determination of jurisdiction: [§§213] However, unless the claim of jurisdiction is patently frivolous, every court has "jurisdiction to determine its own jurisdiction." i.e., it can properly exercise judicial power long enough to rule on whether it has jurisdiction.

(1) Examples: While the question of its jurisdiction is pending, a court may issue temporary restraining orders (to preserve the status quo), orders with respect to discovery proceedings (usually limited, however, to discovery on jurisdictional factors), or orders for attachment or garnishment.

(2) Such orders are considered preliminary in nature, and hence a proper exercise of judicial power. They will be enforced in the state where rendered and in other states, and by contempt proceedings if necessary . . . and this is true even if the court making such orders ultimately decides that it had no jurisdiction!

b. Judgment: [§§214] If the trial court lacks jurisdiction but erroneously fails to dismiss the action, any judgment rendered by it can be appealed on this ground. However, once the judgment becomes final-i.e., defendant fails to appeal within time allowed by law; or the judgment is erroneously affirmed on appeal notwithstanding lack of jurisdiction-whether defendant may thereafter raise the jurisdictional defect depends on whether he appeared in the proceedings.

(1) Where D has appeared in the proceedings [§§215] and the judgment has become final, it cannot be attacked by D even on jurisdictional grounds. It is conclusive where rendered; and if a state court judgment, it is entitled to "full faith and credit" in every other state. This is true whether or not any issue of jurisdiction was actually litigated in the proceedings. . . the judgment being conclusive on all points which were or could have been litigated. [Chicot County Drainage v. Baxter State Bank, 308 U.S. 371]

(a) Rationale: [§§216] This is an application of the res judicata effect of bar (infra, §§ 1334). The parties having had their day in court, an adjudication of the issue is binding on them in all future litigation.

(b) Applies to general or special appearance: [§§217] The above rule applies even where D appeared only specially to attack the jurisdiction of the court. If he loses on his motion to quash (or other special appearance), he must thereupon defend the action or suffer the consequences of a default judgment. Having raised the jurisdictional issue and lost, he is barred by a final judgment from raising it again later. [Baldwin v. Iowa Traveling Men's Assn., 283 U.S. 522]

(c) Applies to jurisdiction over person or property: [§§218] The doctrine of res judicata applies to adjudication of in rem as well as in personam jurisdiction. [Durfee v. Duke, 375 U.S. 106 Nebraska court with jurisdiction over parties ruled that it also had jurisdiction over certain land; Nebraska judgment became cannot obstruct or change the flow so as to injure others either above of below him (by building a dam and backing up water on the upper owner) or below him (by digging a channel so as to speed the water on) [332 Mich 657]