Essay Question from the 2008 CivPro Exam
Multiple Choice Questions from the 2010 CivPro Exam

Essay Question from 2004 CivPro Exam

With an updated answer:

Essay Question 1. 

Oregon has enacted a statute stating that anyone driving in the state appoints the secretary of state of Oregon as his agent for service of process for any cause of action brought in Oregon state courts. According to the statute, service on the Oregon secretary of state will create personal jurisdiction in Oregon state courts over any out-of-state defendant who has driven in Oregon in the past.


D drives in Oregon after the enactment of the statute, on a trip from his home in Sacramento, California to Seattle, Washington. D has never visited or had any contact with the state of Oregon other than this trip.

P, a citizen of Oregon, decides to sue D in the Federal District Court for the District of Oregon, for battery in connection with a barroom brawl that occurred in Sacramento, California. P is asking for $100,000 in compensation for severe back and shoulder pain resulting from the fight. P has D served by having a process server deliver a copy of the summons and complaint in hand to the secretary of state of Oregon in accordance with the Oregon statute. P also has a process server serve D in hand with the summons and complaint in California. D defaults and P is awarded a judgment of $100,000.

P then brings an action on the judgment against D in state court in California. In his answer D collaterally attacks the Oregon default judgment for lack of personal jurisdiction. Will D’s collateral attack succeed and why or why not?  

Answer

This was a much more difficult question than most of you suggested.

Of course, since we are talking about a personal jurisdiction in federal court, the first issue is whether, as a constitutional matter, there is personal jurisdiction over the defendant, which is a question of 5th Amendment due process. The answer is easily yes, since D, as a domiciliary of the United States, has sufficient International Shoe contacts with the United States for a federal court to assert personal jurisdiction over him for any cause of action.

But FRCP 4(k)(1)(A) (with exceptions irrelevant to this case) allows a federal court to assert personal jurisdiction over D only if an Oregon state court would have personal jurisdiction. We know that the Oregon statute allows PJ, since it is precisely the fact that the statute allows PJ that is the issue in this question. Another issue, which should be mentioned only to set aside (since we don’t know anything about it), is the Oregon Constitution, which could forbid PJ over D by an Oregon state court.

The real problem is 14th Amendment due process. Now, examined from the perspective of International Shoe, PJ seems clearly inappropriate. After all, D’s contact with Oregon was two single trips through the state (hardly the substantial continuous contacts necessary for general jurisdiction) and the cause of action – the battery – was completely unrelated to those contacts. So specific jurisdiction seems inappropriate as well.

That is where most of you left things. But why isn’t this case an example of tagging? I was surprised how many of you said that this case did not count as tagging because D was tagged in California. His agent for service of process was tagged in Oregon. So why wasn’t he tagged in Oregon via his agent for service of process? Why doesn't Burnham tell us that PJ is appropriate here? An argument was needed for why that wasn’t the case.

Notice that if PJ were allowed in this case, it would arguably be no worse from an Int’l Shoe perspective than more normal cases of tagging. Imagine that D had been tagged for the battery action while he was driving in Oregon. The same low level of contact and low level of relatedness would exist, and yet, as Burnham tells us (albeit without any coherently articulated rationale), PJ would exist.

We need to distinguish this case from normal tagging. The problem is that that statutes implying the appointment of a permanent official in the state as one’s agent for service of process by virtue of in-state activities have often been allowed. Some states have such statutes on the books in connection with corporations doing business in the state, but they are used for PJ concerning causes of action arising from that in-state business. (Although these statutes still exist, they were of greater importance under the Pennoyer regime, to overcome the problem of the limitations on PJ create by Pennoyer. They are not that important now, because Int'l Shoe would allow for specific PJ for causes of action arising from in-state activities even if there had been not implied creation of an agent for service of process.)

The Oregon statute is unusual because it allows for PJ in Oregon for causes of action unrelated to the activity that impliedly appointed the agent. It is being used to create general PJ over the defendant. It is probably true that such a statute would be constitutional under Pennoyer. But that does not mean it is constitutional now. The focus here should be the two approaches to the constitutionality of tagging discussed in Burnham.

One approach is Brennan's, under which all assertions of PJ must satisfy Int'l Shoe. Using this approach, the statute looks unconstitutional. Of course, under this standard, many cases of tagging will not create PJ either. Another approach is Scalia’s in Burnham. If a method of PJ was accepted at the time of the enactment of the 14th Amendment and is still generally accepted by the states today, then there is PJ. Although the form of PJ in this question might have been accepted under the Pennoyer regime (and that is itself doubtful) it is not generally accepted by the states now. So it is unconstitional.

This is not the only way you could have approached the question, but some discussion of tagging and some attempt to differentiate this case from more classical examples of tagging was necessary in order to have a persuasive answer.

 

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