Civil Procedure I

Long Arm Statute

A "long arm statute" is a statute state legislatures pass granting their state jurisdiction over non-resident defendants. All states have passed these.

If long arm statute grants jurisdiction (which it might not depending on the state), one must check that it satisfies due process via the minimum contacts test:

Minimum Contacts

Minimum contacts rule:

  1. Due process requires that if a defendant is not physically present in a forum state that they have certain "minimum contacts" with the state such that the maintenance of the suit does not offend traditional notions of "fair play and substantial justice." International Shoe.
  2. Contacts must be continuous and systematic, not irregular or casual. International Shoe.
  3. Sliding scale test of relatedness of contacts within the forum state to the action. International Shoe.
  4. "Benefits and Burdens" – If they enjoyed benefits of state, they must accept the burdens. International Shoe.
  5. It is essential that the defendant "purposefully avails" himself of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of the forum state. Denckla.
  6. Is the conduct of the defendant and his connection to state such that the defendant reasonably anticipates being haled into forum court? World-Wide Volkswagen.
  7. Contacts must be be the result of defendant's purposeful availment. Others' like unilateral contacts of the plaintiff do not count as contacts for the defendant. World-Wide Volkswagen.
Purposeful Availment

Some intentional act by a party directed toward the forum state by which the party takes advantage of the benefits and privileges of the laws of the state, which justifies the exercise of personal jurisdiction by the forum state's courts over that party.

Alternatives ways of getting purposeful availment exist:

  1. Purposeful availment can be satisfied by purposefully availing of the stream of commerce:

    Stream of Commerce

    Stream of commerce theory permits jurisdiction when the defendant delivers his product into the stream of commerce through a distributor with the expectation that it will be purchased by consumers in the forum state such that he should reasonably anticipate being haled into court there.

    There are two rules on the sufficiency of stream of commerce:

    1. McIntyre Rule

      In J. McIntyre, Ltd. v. Nicastro, the Supreme Court had a 4/2/3 split on stream of commerce.

      The plurality view was that stream of commerce alone is not enough to constitute purposeful availment.

      Differs from the Asahi Rule, but since McIntyre had no majority, Asahi was not overruled.

    2. Asahi Rule

      In Asahi Metal Industry Co. v. Superior Court, the Supreme Court had a 4/4 split on stream of commerce.

      The plurality view was that stream of commerce alone is enough to constitute purposeful availment as long as the defendant was aware that the final product was being marketed in the forum state.

      McIntyre disagreed with this, but there was also no majority, so Asahi was not overruled.

    Courts will likely begin to lean toward McIntyre rule.

    One must check which rule his jurisdiction is following.

    Fourth Circuit follows McIntyre. However, it accepts that sufficient contacts exist if a defendant "targeted the forum" with it goods.

  2. Websites can also meet the purposeful availment requirement. Music Makers.

    There are three types of Internet activity:

    1. Passive site

      • Only provides information
      • Rarely gives jurisdiction unless the site is specifically directed at another state, i.e. defame person in another state (pretty much the only time it will)

    2. Semi-interactive site

      • Can communicate but not buy or sell
      • Look at the totality of the circumstances to see if there's personal jurisdiction, but if this is the only contact with the forum, it's unlikely to meet due process

    3. Interactive Site

      • Allows two-way communication and order
      • It is a contact that may meet minimum contacts. Repeated sales while knowing location will most likely meet due process

    Music Makers held the standard that it must:

    1. Direct electronic activity into state
    2. Have manifest intent of engaging in business
    3. Be that activity that creates a cause of action

  3. Another alternative to purposeful availment is the effects test:

    Effects Test

    The effects test is an alternative to purposeful availment in some jurisdictions.

    The 4th Circuit (and this class) has three elements to the effects test:

    1. Intentional tort
      • i.e. slander
    2. Plaintiff felt brunt of harm in forum, such that it is the focal point of harm
    3. Defendant expressly aim tortuous conduct at forum such that it is the focal point of tort activity

Minimum contacts rule based on:

  1. Protecting defendant from burden of litigating in distant court
  2. Keeping state from going beyond its limits as a one sovereign in system of sovereigns.

Reference: WWVW

After evaluating minimum contacts, double check that it meets WWVW's factors for fairness:

Fairness Factors

If the minimum contacts test is met, the result is evaluated for fairness by balancing the following factors:

  1. The burden of the defendant
  2. Forum state's interest in adjudicating case
  3. Plaintiff's interest in obtaining convenient and effective relief

These factors do not create personal jurisdiction but can revoke it

Reference: World-Wide Volkswagen

(Two more also exist but not for this class:

  1. Overall (interstate) judicial interest in efficiency
  2. Shared interests of the states

Virginia's long arm statute has a lot (four for this class) conditions to which it applies. Those are causes of action arising from the person's:

  1. Transacting any business in this Commonwealth;
  2. Contracting to supply services or things in this Commonwealth;
  3. Causing tortious injury by an act or omission in this Commonwealth;
  4. Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth;

Also, #9 gives personal jurisdiction over people in divorces who were domiciled in Virginia at the time of separation. Technically can count as in rem too though.