12(b)(2) / Personal Jurisdiction in Practice

Welcome to the Civil Procedure Podcast. I am Thomas Maine. This episode is about personal jurisdiction in practice. I will, in one hour, give you an overview of all bases for establishing personal jurisdiction. This is a framework that focuses on a very practical application for an exam or thinking about personal jurisdiction in practice. It does not get into the history. It does not get into specific cases. I will make sure that this episode is broken into chapters. So if you want to hop ahead to a particular topic that you can do that, but I'm going to try to cover all, I won't try. I will cover all of the bases in 60 minutes. Let's plan on a 30 second break somewhere in the middle. So I hope that helps you plan accordingly to give two 30-minute segments of attention here. And let's get started. Personal jurisdiction. You can anticipate that a personal jurisdiction question on an exam will require you to extract facts that are scattered throughout the fact pattern. Do not expect them to be gathered neatly and presented to you in a few paragraphs. They're going to be scattered throughout. So for example, you might find in one paragraph that otherwise isn't going to be relevant to you for personal jurisdiction, but you'll see that the case was filed in the state of Iowa. And then in some other paragraph, it will make reference to the fact that the case was filed in a state court or a federal court. And then in some other paragraph, you will see what the plaintiff's causes of action are. And then you will see in yet another paragraph that there are two defendants or three defendants, and you'll see the identity of each of those defendants. And in still other paragraphs of the question, you'll see details about where the defendants are incorporated or lived or what contacts they have with various states. And the personal jurisdiction question is going to require you to pull all of that together and to present it in a coherent way. Now, I want to tell you about a dream that I had, which as it turns out, the dream is relevant. And in my dream, I'm driving a minivan. And behind me in the minivan, which I can see in my rear view mirror, are three bench seats. And in the first row, the first bench seat behind me are Siegfried and Roy, the circus performers. They don't have their white tigers with them in my minivan, but they are there Siegfried and Roy in their beautiful sequined jumpsuits. And then in the bench seat behind them is Sir Winston Churchill. And he in my dream is droning on some story about being knighted. And he's wearing a tuxedo. And he's fondling the buttons on his three button dinner jacket. Sir Winston Churchill, emphasizing that sir, because I guess that comes with the title of being knighted. And then as I look through my rear view mirror in the third bench seat, there are a couple of wrestlers. And I don't recognize these wrestlers by name because I don't know wrestling, but they must be Olympic wrestlers, because one of them has a gold medal, and the other one has a silver medal. And those medals are really prominent because they're not really wearing much else. They have these adorable little wrestling singlets on. But that's it. As luck would have it, wink, wink, this mnemonic turns out to be useful because it gives us a framework for tackling every personal jurisdiction question. And it makes sure that we will never overlook anything. And the mnemonic is as aligned with those bench seats, first we have Siegfried and Roy, remember S and R for Siegfried and Roy. And in the second bench seat, remember Sir Winston Churchill and his three button jacket, SWC for Sir Winston Churchill. And then for the third part of our frame for tackling a personal jurisdiction question, we have that gold medal and that silver medal. So three bench seats, S and R, SWC and G and S for Siegfried Roy, Sir Winston Churchill, gold and silver. So let's get started with the first bench seat, Siegfried and Roy, the S and the R of our personal jurisdiction analysis. The S and the R are as rare and exceptional as Siegfried and Roy are themselves rare and exceptional individuals or were exceptional and rare individuals as the case may be. We do not see this frequently in practice or on an exam. These S and R bases for personal jurisdiction, but we want to have a comprehensive framework so that we don't overlook circumstances when they do arise. So we have the S and the R here, which are as exceptional as Siegfried and Roy. The S reminds us that statutes can establish personal jurisdiction. If Congress passes a statute that establishes nationwide or even worldwide service of process, what it is doing is it is creating personal jurisdiction through that statute. For examples of that, look up 28 USC 1697 or 28 USC 2361. There are also some securities claims, antitrust claims, patent claims, civil RICO claims. These are rare, but we want it as part of our checklist, part of our infrastructure for tackling a personal jurisdiction question, because we want to remember that Congress can create personal jurisdiction through that federal statute. So as a test taker on a civil procedure exam, I want to find out what the plaintiff's cause of action is, find out whether that cause of action just might happen to be one of those federal statutes that creates a cause of action and also gives the plaintiff a free pass on establishing personal jurisdiction. Very rare, but possible. Next is the R for Roy, which in our personal jurisdiction framework will prompt us to remember that the R stands for rule, because there is a federal rule of civil procedure that can also serve as the basis for personal jurisdiction, and that is federal rule 4K, and specifically it's 4K1B or 4K2. So let's address each of those two circumstances under which the rule can create personal jurisdiction. The first 4K1B is our 100-mile bulge rule. In that instance, 4K1B gives a federal court jurisdiction, personal jurisdiction, provided that you are using this 100-mile bulge rule to get personal jurisdiction over a rule 14 defendant or a rule 19 defendant. It doesn't work in any other circumstance, but we can get personal jurisdiction over that defendant in the foreign state, provided they are served within 100 miles of the courthouse, and they're served within the United States. You can't reach into another country to serve them. The only fact pattern that would trigger this sort of a circumstance is where somebody lives very close to a state boundary, so that's to make sure that it's within that 100-mile scope, who doesn't have any contact with the foreign state, but lives just outside that foreign state, and the case that would trigger that fact pattern would require that party that we're talking about to be a rule 14 defendant or a rule 19 defendant, not just an ordinary defendant, but one of those special classifications of defendant. That's a rare case, and that's exactly why it shows up in this first row or this first step of analysis with the S and the R. The other way to get personal jurisdiction under the rule is through 4K2, and 4K2 is going to give us personal jurisdiction in federal court over some foreign defendants, but there are three conditions here that need to be satisfied in order for you to get personal jurisdiction over a foreign defendant by invoking 4K2. Number one is that that foreign defendant must not be subject to personal jurisdiction in any state. In theory, this first step here would require us to do a 50-state analysis, where we march through why there wouldn't be jurisdiction in Maine, why there wouldn't be jurisdiction in New Hampshire, nor Vermont, or any other state. This requirement that the defendant not be subject to personal jurisdiction in any state is why we know that 4K2 applies only to some foreign defendants. There is no domestic defendant that could satisfy 4K2, because any domestic defendant would by definition be subject to personal jurisdiction in at least one state. So our first condition here under 4K2 is that this defendant must not be subject to personal jurisdiction in this action in any state. The second step is to establish that the defendant, the foreign defendant, would be subject to personal jurisdiction if you put all of their U.S. contacts into one state. This is often referred to as having minimum contacts with the aggregated United States. So the fact pattern that could satisfy these first two requirements of 4K2 would be a foreign defendant who isn't subject to personal jurisdiction in any of the 50 states when we analyze them separately, but they have a dispersed level of contacts with the United States as a whole, such that if you combine the little contact that they had with the state of Vermont with the little tiny contact that they had with the state of North Carolina, plus the little contact that they had with the state of Montana, and so forth, although there would not be jurisdiction in any of those states because of the de minimis nature of the contact with that state, when you combine them, they have minimum contacts with the United States as a whole. That's the logic of these first two requirements. The third requirement is that the plaintiff also has to have a federal cause of action. This does not work for a state law claim, so this is not going to work for your plain vanilla state law, products liability claim, or your state law negligence, or state law breach of contract. This only works for federal causes of action. Very few fact patterns are going to satisfy this 4K2. It would need to be a foreign defendant, and even then, it's only going to work for some foreign defendants. We'd have to satisfy all three of those conditions to get personal jurisdiction under 4K2. Very rare, and that's what these bases for getting personal jurisdiction under rule or statute have in common. They are rare circumstances. Also, they are only available in federal court. Unlike the other bases for personal jurisdiction that we're going to discuss, which would be applicable whether you are in state or federal court, for this first set, this S and the R for Siegfried and Roy are exceptional bases. Yet another thing that makes them exceptional is that they are only available as establishing personal jurisdiction in federal court. Now we're ready for the second tier, and enter stage right Sir Winston Churchill, fondling the buttons on his three-button jacket SWC. And I like the emphasis on the buttons, because in this tier of our analysis with the S and the W and the C bases, each of these is focusing on a discrete fact, discrete like a button. This isn't going to be a far-flung inquiry in SWC, but rather in each of these bases, we're really just looking for one sentence in the fact pattern, one discrete fact that's going to illuminate something for us as we're trying to figure out whether any of these three can serve as the basis for personal jurisdiction. So let's begin with the S, which is of course Sir Winston Churchill, and for our purposes the S is Service. What we're looking for in the fact pattern to do an analysis of whether or not service can establish personal jurisdiction, we're looking in the fact pattern to find where and how this defendant was served. Where they were served and how they were served, because if they were served in the forum state, that's the where, and if they were served in hand, that's the how, then there can be personal jurisdiction based upon service. Those are the facts that we would need. Served in the forum state, they can't be served somewhere else, it has to be within the forum state, and they have to be served in hand. It can't be by mail, it can't be because it was left at their house, you must be looking for them being served in hand, and the useful reminder of the in hand here is that in looking for hands, we will also remember that corporations don't have hands. Corporations are juridical entities, they're fictional entities, they don't have hands, so you can't use this basis for corporations. You can only use this S, this basis of service, for individuals, and it only works if they are served in the forum state and served in hand. There are three exceptions that we need to build into our framework here, three exceptions that could be tested on an exam or ventilated in practice, exception number one, force. Force could be an exception, even though a defendant was served in hand in the forum state, if they were forced into the forum state, this could be an exception. What would that look like? Well, the extreme example would be you can't capture somebody in, let's say, North Carolina, throw them in the trunk of your car, drive to South Carolina, and once you're in South Carolina, pop the trunk, and as soon as they pop out of the trunk, you serve them in hand. They would be served in hand in the forum state, but the exception of force would be the counter-argument. Second exception, fraud. You can't lure someone into the forum state by saying that their sister or their daughter is dying in a hospital. They would be served in hand in the forum state if they showed up at the hospital and were served in hand in the hospital lobby, but if they were brought there by fraud, fraud can be an exception to our service as a basis for personal jurisdiction. Third, when someone is in the forum state to testify as a witness in an unrelated matter, this one's a little less intuitive. Some courts have developed an exception to service in circumstances where somebody is in the state because they're responding to a subpoena. Well, it would be terrible public policy if someone came into the state in response to a court order or a court request, and while they were present in the forum state, they were served with process in some other matter. Therefore, third exception, witness in an unrelated matter. Wherever there are exceptions like these in the law, we know that law school exams and real world circumstances can test the outer boundaries of those exceptions. So, for example, if force is an exception, what if you're only in the forum state because you were transferred there as part of your service in the military? Or what if you are in an airport because the plane made an unexpected landing in that state? Is that force? We could fight about it. Second exception, fraud. Okay, you can't lie to somebody about their daughter being dying in a hospital. Well, what if you entice them into the jurisdiction with a promise of Super Bowl tickets, and you give them the Super Bowl tickets, but you also serve them at the same time with the summons. They've been served in hand in the forum state. Is that fraud? If you actually give them the prize that you offered them, we'd fight about it. That third category, witness in an unrelated matter. Okay, well, what if I'm in the state of Arizona because I'm testifying in response to a court subpoena, but I stay an extra day to visit my elderly parents? If I'm served on that extra day, does the exception apply? We'd fight about it. Moreover, if this exception for serving as a witness in an unrelated matter is just based on good policy, and surely it is good policy to encourage people to comply with court requests to testify, but aren't there other good policies that could lead someone to come into a state, for example, to participate in a relief effort after a hurricane or tornado or flood, or maybe to be part of a get out the vote campaign. There could be all sorts of reasons why we wouldn't want to discourage people from coming into a state, and should the exception to in hand in state service apply to those circumstances as well. Each state can have slightly different contours for these exceptions. The point on an exam is to spot the issue and to invoke the facts that allow you to explore the arguments for and against seeing the exception to our general rule, but don't lose the forest for the trees here. Our forest is that a defendant can be subject to personal jurisdiction in a state if they are served in hand within that state. So that's the discrete fact that we're looking for in the fact pattern. Where were they served, and how were they served? The next basis for establishing personal jurisdiction is the W, and the W stands for waiver, and the discrete fact that we're looking for in the fact pattern with respect to waiver is to identify what the defendant has filed so far. What have they filed in this action? Because here's the problem. The objection to personal jurisdiction can be waived, and it's waived if it's not asserted in a timely and proper fashion by the defendant. So that's why the discrete fact that we're looking for is to figure out what they have already filed, because maybe they filed something that by virtue of their filing that, it constituted a waiver of their objection to personal jurisdiction. If you answer the complaint without asserting the objection to personal jurisdiction, it is waived. So that would be an example of waiver. If you could discern from the fact pattern that the defendant already filed an answer, and the answer does not include an objection to personal jurisdiction, then there is personal jurisdiction over that defendant, and the basis would be W, waiver. If you want to be sure as a defendant that you don't waive the personal jurisdiction objection, then the only way to be absolutely certain of that would be to include the objection to personal jurisdiction in your first filing with the court. You may include other objections in that first filing, but if you want to make certain that you have not waived the objection to personal jurisdiction, the objection should be among those that are asserted in the first filing. Litigants fight, and courts are divided over the circumstances where, even though it's not in their first filing, defendant includes it as an early filing, and maybe it constitutes waiver, maybe it doesn't. For example, what if defendant removes, and then after removing files of 12(b)(2). Well, now the 12(b)(2) isn't in their first filing, because their first filing was a notice of removal. Most courts say that's okay, that's not a waiver. What if defendant files a 12(b)(1) challenging subject matter jurisdiction, loses, and then files a 12(b)(2). Well, again, we have a 12(b)(2) that was not in the first filing. Is that okay? That's probably okay too. What those two circumstances have in common is that their issues about the jurisdiction of the court, as opposed to challenging the underlying merits of the claim. So, if a defendant files an answer without also including in that answer an objection to the court's personal jurisdiction over it, then that will constitute a waiver. The basis for personal jurisdiction would be the W. So, what do we do here on an exam? We go to the fact pattern, we quote, and we discuss what has been filed. If we don't have those details, well, then those are conspicuously absent facts. The safest course is to put that objection in your first filing. Anything else opens up the door to the possibility of waiver. And when a defendant has waived the personal jurisdiction objection, that means there is personal jurisdiction. Full stop. So, that's our W. Let's go on to C, which stands for consent. The discrete fact that we're looking for in a fact pattern here is a forum selection clause. Do not mistake a forum selection clause or a choice of forum clause for a choice of law clause. A choice of law clause is different. In order for personal jurisdiction to be established through consent, we are looking for a forum selection clause or a choice of forum clause. Although we are about to address exceptions to the forum selection clause, you should appreciate that courts like to enforce forum selection clauses. So, the exception is likely to be read narrowly. So, what is that exception? Our exception is for circumstances where the forum identified in the selection clause is a remote alien forum. You might also use the words fundamentally unfair, but remote and alien are more likely to get you talking about the right kinds of facts. I would encourage you to think of remote and alien as distinctive qualifiers of the word forum. Remote alien forum. Remote captures the notion of accessibility. When a forum is selected in the clause, that forum might be more or less accessible. As in, what is this place? Is it inconvenient to get there? Is it expensive to litigate there? Is it easy for somebody to find a lawyer or have access to courts there? Chicago, for example. The state of Illinois would be accessible in multiple ways. It's a great big city with a lot of direct flights that's centrally located in the United States, and there are plenty of lawyers for clients to choose from. Lawyers that clients might even already have relationships with. Contrast that with requiring litigation to occur in northern Maine, which is a place that's not easily accessible. There isn't even an airport. There are only a few lawyers, and I wonder if the person who wrote this forum selection clause into the contract already has relationships with all of those lawyers. These are the sorts of arguments you might make about the remoteness of the selected forum, but there's also the notion of the forum being alien. Here, the idea of alien is prompting you to go to the fact pattern and find the connection, the relevance of the selected forum to the parties or the transaction. We're less likely to enforce the forum selection clause as the basis for personal jurisdiction if the selected forum is alien to the parties, alien to the transaction, meaning it has no connection to anything. This isn't where the defendant is located. This isn't where the defendant does a lot of business. This isn't where the transaction was entered into, so consider why this forum was selected, why it was embedded into the contract. When the only reason that the forum was selected was to get some tactical litigation advantage, then you've got an argument that it is an alien forum. So that's our C for consent, and our discrete fact there is trying to find that forum selection clause. So pulling that second bench seat of our minivan mnemonic together, like Sir Winston Churchill's three-button jacket, we have these isolated inquiries into these particular discrete facts in the fact pattern. S, where and how the defendant was served. W, what has the defendant filed? C, is there a clause that can establish personal jurisdiction through consent? If you in your civil procedure course are also considering status as a basis for establishing personal jurisdiction, that really belongs here too, because it involves you examining the fact pattern for another discrete fact, and that is whether the plaintiffs demand in their complaint. What is it that they're seeking by the filing of the suit? If the plaintiff is suing only, emphasis on only, for a determination of status. And our example here that we would see in a civil procedure course would be suing for divorce. Not suing for support, not suing for a distribution of property, but only suing for the determination of the dissolution of the marriage. If that's the only thing for which the plaintiff is suing, then status can serve as the basis for personal jurisdiction. And boy, do I have good news for you. Churchill's middle name is Spencer. So we just need to make the jacket a four-button jacket instead of a three-button jacket. We refer to Sir Winston Spencer Churchill if we want to include status as one of our bases for getting personal jurisdiction over a defendant. This is a good spot for us to take our 30-second break, so you can either skip ahead here or just rest your head for 30 seconds and reload before we finish with the final two bases for establishing personal jurisdiction. And so that leaves only our last two categories, which are the two most likely categories to see on an exam. And that is the G and the S for the gold and the silver metal-wearing wrestlers. G stands for general jurisdiction and S for specific jurisdiction. Let's start with general. And in its modern incarnation, general jurisdiction is easy on an exam because the court has narrowed the bases for general jurisdiction to the point that you only have to check a couple of facts in order to either establish general jurisdiction or rule it out. For individuals, defendants are subject to general jurisdiction in the state of their domicile. Domicile is a term of art, and it refers to the same concept that we see in subject matter jurisdiction and diversity, for example, domicile, meaning the last place that someone was both present and intending to remain indefinitely. So whatever that place is, someone's domicile, that person is subject to general jurisdiction in that state of their domicile. For corporations, as opposed to individuals, corporations are subject to general jurisdiction in the state of their principal place of business, which is where their corporate headquarters are located. And they're also subject to general jurisdiction in their state of incorporation. So if you were told on an exam that this is a Delaware corporation or a Nevada corporation, that means that in their state of incorporation, they would be subject to general jurisdiction in that state. You can certainly imagine a fact pattern where a defendant has an enormous presence in the forum state, yet it's not an individual defendant's state of domicile, or it's not a corporate defendant's principal place of business or state of incorporation. Then can there be general jurisdiction on those grounds? Answer, probably not. In years past, if you look at old exams or old supplements, you're likely to find situations where a more expansive understanding of general jurisdiction would reach defendants who had a systematic and continuous presence in the state, the kind of presence that would make McDonald's subject to jurisdiction in all 50 states or Amazon subject to jurisdiction everywhere in the U.S. Not so anymore. General jurisdiction is narrowly interpreted. So anything beyond an individual's domicile or the corporation's principal place of business or state of incorporation should be treated with tremendous skepticism. The reality is general jurisdiction is not going to work for that defendant. Our last basis of establishing personal jurisdiction is through the doctrine of specific jurisdiction. Specific jurisdiction has four components to it, and you need to satisfy all four. This is a conjunctive test. So step one is that the cause of action must arise out of the defendant's conduct in the forum state. That phrasing is important because it has us focusing on the key facts that we're looking for in the fact pattern. The cause of action must arise out of the defendant's conduct in the forum state. The cause of action must arise out of. Well, that means that I need to be conscientious here of exactly what the plaintiff's claim is. Are they saying that this is a fraud claim? Are they saying this is a breach of contract? Is this an antitrust action? The idea here is the cause of action is going to influence what we're looking for here because the cause of action must arise out of, and then we want to emphasize this latter part, the defendant's conduct in the forum state. So whatever the cause of action is, did the defendant do something in the forum state that gave rise to this claim? Does the cause of action arise out of the defendant's conduct in the forum state? We want to be obsessive here because there are plenty of fact patterns where the defendant's doing something in the forum state, but the plaintiff's cause of action, what they are complaining about, that doesn't arise out of what the defendant did in the forum state. So this idea of arise out of as our first inquiry here, we're looking for circumstances that allow us to explore whether the defendant did something in the forum state to this plaintiff, or did something about this transaction or occurrence that gave rise to this claim. If they did, then you can say things like, "Oh, the defendant sold this product in the forum state." They tested this product in the forum state. They marketed the product to this plaintiff in the forum state. And if you can then link that conduct to the cause of action that the plaintiff is asserting, this cause of action arises out of that sale. It arises out of the marketing of that product. That's when we have a nice, clean arise out of that is this first step in establishing specific jurisdiction. If the cause of action doesn't have anything to do with the forum state, then specific jurisdiction is a non-starter. If the cause of action has something to do with the defendant's conduct in the forum state, then we have a fight about how broadly or narrowly this criterion is applied by a court. If and only if the defendant's cause of action arises out of the defendant's conduct with the forum state, we go to the second criterion, which is the longarm statute. Here you have to be given a longarm statute on an exam or have access to one in a rule book. And what we do here is simply apply whatever the statute says. If the longarm statute only talks about businesses and your case involves the mission work of some church, well then you've got an argument that maybe this longarm statute doesn't apply because the proselytizing isn't business within the meaning of the longarm statute. Or maybe the longarm statute only talks about intentional torts and your case isn't an intentional tort. Then you'd argue that the longarm statute doesn't apply. To be honest, very rarely is a personal jurisdiction case decided on a longarm statute. That's true both for exams and practice. In many states, the longarm statute expressly says that it reaches as far as longarm statutes can reach. They reach to the extent of the U.S. Constitution. In those circumstances, this step of the analysis is just one sentence where you quote the statute and say that it doesn't impose any independent constraint on an exercise of personal jurisdiction. Even in states that don't have those longarm statutes that expressly reach to the extent of the U.S. Constitution, many states have interpreted their longarm statutes as reaching to the extent of the Constitution. So we don't want to make too much of the argument here that longarm statutes serve this important constraining role on the exercise of jurisdiction. But it's conceptually here and we don't want to overlook anything. So this second criterion is the longarm statute and we apply the language of the longarm statute, whatever it says. Now we're ready for the third criterion, which is minimum contacts. This is where we get to use all of the facts and the fact pattern that talk about the defendants marketing and advertising in the forum state or their research and development or their sales people or the amount of revenues. Whether things were negotiated, maybe a contract was negotiated in the forum state or performance was to occur in the forum state or maybe the defendant has visited the forum state or they recruit people or items from the forum state. And this is where we get to use those facts. This is also a very opportune moment to emphasize something about personal jurisdiction and that is that we treat each defendant separately. So that shows up here with respect to minimum contacts because this is a place where it would be easy to make the mistake of treating all of the defendants as one collective and referring to the defendants as having some contact with the forum state when in fact what you need to do is do each defendant separately. And that's true even if the defendants are corporate affiliates. That's true even if one is a subsidiary of the other. That's true even if they are individuals who are family members. We treat each defendant separately for purposes of personal jurisdiction and nowhere is that more important to keep straight than in this minimum contact analysis where we need to parse the contacts that are associated with each of the various defendants. Our big picture here with respect to minimum contacts is that we would love to find if we are a plaintiff trying to establish specific jurisdiction in the forum state, intentional targeting of the forum state. That is our center of the bullseye as a plaintiff's lawyer. That's what we are hoping to find or the narrative that we are trying to develop is that the defendant intentionally targeted the forum state for their benefit. Contrast intentionally targeting the forum state with knowledge of benefiting from the forum state or knowledge of consequence in the forum state. That's different than intentional targeting because it lacks the initiation in the forum state or it lacks the intention to do business in the forum state. The way you might see this on an exam would be the difference between defendant one who advertised in the forum state and got a customer in the forum state and earned $100,000 a year by virtue of that customer relationship. Defendant two advertised in some other state, developed a customer relationship in that some other state, but then the customer moved to the forum state and the defendant continued to supply that customer with whatever they were supplying them in the contract and so the defendant continued to benefit from that relationship. It knew that it had a customer in the forum state and benefited from that relationship mightily, but it's less of an intentional targeting. There's a third level if we're moving out from the center of the bullseye with the center of the bullseye being intentional targeting and then the second ring out from the bullseye would be something like this knowledge of benefiting from the forum state yet another ring out the third ring out would be a defendant who didn't even realize that they had a customer in the forum state and they were benefiting from it. Some defendant that supplies their product virtually well they might not even know that their customer happened to be in the forum state. The jurisprudence on specific jurisdiction has been a story where we've moved closer and closer to the center of that bullseye and now in order to establish specific jurisdiction into established minimum contacts and purposeful availment you need to be in the center of that bullseye benefiting from the forum state not necessarily enough knowing that you're benefiting from the forum state not necessarily enough targeting the forum state and benefit that's what the court is looking for here with respect to minimum contacts. When it comes to exams or practice and you are arguing about minimum contacts or purposeful availment what I would encourage you to do is to treat each of the three or the five or the nine cases that you have read about minimum contacts or purposeful availment treat each of them as its own template and what I mean by template is give each case its own let's talk about an index card but it could be a piece of paper or an electronic file but I'm going to refer to it as an index card and on that index card put the case name and then put the cause of action as the first line of that template what was the cause of action in that case and then list the four or the five or the seven or the eight not too many we don't want to just repeat the whole case on this index card I want you to exercise a little bit of judgment and thinking about well what are the three most important facts in this case or what are the seven most important facts in this case and by facts I mean what are the defendants contacts with the forum state the contract was negotiated in the forum state or the defendant had three employees in the forum state whatever the key facts are from that case put it on the template and then the bottom line of that index card is whether the court found that that was or wasn't minimum context or was or wasn't purposeful availment in the constitutional sense on an exam then one of these templates is likely to be your best match and if you have a template that kind of matches the cause of action or the fact pattern that you're given on an exam you can then match the template facts the facts that you listed as the three or the five or the nine most important facts in that case to the facts on the exam and you can run through each of the facts in the template and measure them against the exam facts if the defendant in your template had 12 employees in the forum state well what's the comparable fact in the fact pattern on the exam or if the defendant in the template case sponsored a tennis tournament in the forum state two years prior to the well what's the comparable fact on your exam the idea of the template is twofold one is it makes it more likely that you will use more facts in the fact pattern because you'll be looking for analogies to the fourth and fifth and sixth and seventh facts that are on your template a common mistake that students make is there'll be a bunch of facts in the fact pattern but they'll only use a couple of them the strategy of the template will get you to dig deeper into the exams that are on your fact pattern because you'll be looking for analogies to the facts that are on your template the other purpose of the template is that it really gives you something important to measure the minimum contacts or purposeful availment against one problem on an exam is that if a student is just talking about a lot of contacts that somebody has with a forum state well how many contacts do they need if you can't tether the amount of contact to anything all of your doing is just sort of making arguments that this is a lot of contact but a nice response to that would be well okay you've described a lot of contact but how do I know that that's enough contact the template gives you a way of grounding that argument it gives you something to measure the facts in the exam fact pattern against because if the template case said this is minimum contacts well then what you know when you're doing the matching of the fact pattern to the template is that if if that was enough in the template case and you've got more than what existed in the template case well then you can make that argument we have more here than existed in burger king or we have more than existed here in a bcd case or similarly if you're using a template and there were not minimum contacts in the template case well then if you're using that and you can say well this is even less than there was in necastro this is even less than there was in worldwide volkswagen and you'll be able to make that argument persuasively and it won't sound conclusory if you can say well here are the six eight nine key facts from my template case and notice that I'm even less of a contact with the form state than at least six of these nine and I've got decent arguments how the other three aren't exactly more than existed in the template case that's the virtue of using a template is that it can tether it can ground your argument in an absolute obviously the passage of time if you're using a case from 1980 or 1990 well then a lot of time has passed but you can just incorporate that into your analysis so my advice would be to find one template and then use it at length to make that argument for minimum contacts or purposeful availment against that one template a common mistake is that students will try to talk about all of the minimum contacts or purposeful availment cases but the discussion will be so superficial that it'll be an inch deep better to spend time with fewer templates that are really on point the cases that really do guide the analysis and then you're more likely to get in depth in those particular applications of those key cases and if you have good templates that have the cause of action on them and the facts well then you'll be able to quickly invoke the right template that'll allow you to be much more sophisticated in your analysis of minimum contacts or purposeful availment that leaves just one more step and that is the fair play and substantial justice factors because personal jurisdiction is about the due process clause and because the due process clause is about fairness we have this last step of the journey here where exercises of specific jurisdiction cannot offend traditional notions of fair play and substantial justice what we're looking for here in the fact pattern are facts about the inconvenience or fairness to the defendant what is the burden on the defendant to litigate in this forum state is it going to be hard for them to travel how far do they have to travel is this going to be an unfamiliar court system that is going to be unfair in some sense is there likely to be some sort of bias against them in the forum state on an exam i might make the defendants elderly so travel is tricky i might make the defendant a corporation that is facing severe financial trouble well maybe this lawsuit in this inconvenient forum halfway across the country maybe that this could be the final blow to this poor company cue the violin soundtrack because this is where we can make any argument about fairness inconvenience to the defendant this is the place the other angle for this fairness factor analysis after addressing the inconvenience or burden on the defendant is to analyze how important is this case to the forum formal dispute resolution is a limited shared public resource and so if the court hosts this litigation that means it can't host some other litigation and so is this a case that the court should be hosting how important is this matter to the state at one extreme we might imagine it being very important this is about providing justice to one of our citizens or maybe this is about making our state safer or maybe this is about improving the business climate in our state if the case is of some importance to the state that militates in favor of the exercise of personal jurisdiction it's a good idea for the court to exercise jurisdiction if on the other hand this case doesn't really have anything to do with our state it's not something that's important to us imagine in the extreme example that it's some foreign company suing some other foreign company involving conduct that occurred somewhere else and this court is not even applying its own law to the resolution of this dispute then why are we hosting it and that's the kind of argument you can make here on the fair play and substantial justice the fairness factors that is the final part of specific jurisdiction which is the last of the seven or eight depending on whether we include status bases for establishing personal jurisdiction when you are a plaintiff you only need one of these bases if you can establish let's say waiver it doesn't matter whether the defendant had any contacts in the forum state or if you have a hundred mile bulge rule application you don't need to have any of these other bases any of these seven or eight can establish personal jurisdiction thank you for listening to this episode of the civil procedure podcast we have focused here exclusively on the practice the application of the 12 b2 in practice there are other episodes about personal jurisdiction so consult the podcast feed for other related episodes or civilprocedure.com for that list have a good day