Hard Multiple Choice from the 2005 CivPro Exam

With updated answers:

3. P (a citizen of New York) is suing D (a citizen of New Jersey) in the Federal District Court for the District of Connecticut under state battery law concerning a brawl that occurred between the two in Alaska. P requests that the court assert personal jurisdiction over D by attaching the proceeds of D’s account with the Connecticut Savings Bank, which is located in Stamford, Connecticut. D makes a motion to dismiss the action for lack of personal jurisdiction. Which of the following is most accurate?

a. By making his motion, D is making a limited, not a special, appearance before the Federal District Court.

b. D’s motion should succeed. To the extent that quasi-in-rem jurisdiction is available at all anymore after Shaffer v. Heitner, it is available only in state, not federal, courts.

c. If Connecticut state courts do not allow limited appearances, if would follow from Fed. R. Civ. P. 4(k)(1)(A) that the federal court should reject D’s motion as well.

d. D’s motion will not succeed. D should have defaulted and waited for P to bring a suit on the judgment. D can challenge personal jurisdiction only through a collateral attack.

e. D will not have waived his right to bring his motion to dismiss the action for lack of personal jurisdiction if he previously brought a motion to disqualify P’s attorney because of a conflict of interest. Although under Fed. R. Civ. P. 12(g) “[i]f a party makes a motion under this rule” and omits the defense of personal jurisdiction the defense is waived, a motion to disqualify an attorney is not a motion under “this rule” (i.e. Fed. R. Civ. P. 12).

ANSWER:

a. By making his motion, D is making a limited, not a special, appearance before the Federal District Court.

Wrong. A limited appearance is one in which a defendant appears in a quasi-in-rem action and litigates the merits, but, if he loses, is bound only up to the value of the property attached. That is not what is going on here. D is appearing, not to litigate the merits, but to argue that there is no personal jurisdiction over him – not even the personal jurisdiction that exists in a limited appearance. 

b. D’s motion should succeed. To the extent that quasi-in-rem jurisdiction is available at all anymore after Shaffer v. Heitner, it is available only in state, not federal, courts.

Wrong. Nothing that was said in class or in the reading suggested that quasi-in-rem actions are available only in state court. Shaffer v. Heitner may put such actions in doubt, but to the extent that they are available, they are available in federal as well as state courts. Indeed FRCP 4(k)(1)(A) suggests this, since it says that a federal court has personal jurisdiction if a state court in the state where the federal court is located has personal jurisdiction. If a state court allows quasi-in-rem actions, a federal court located in that state should too. And, in fact, FRCP 4(n) (which you did not read and were not required to know) explicitly allows federal courts to gain personal jurisdiction through the attachment of the defendant’s assets “under the circumstances and in the manner provided by the law of the state in which the district court is located.” The point is not that you should have know about 4(n), but that you should have know that nothing you read or heard suggested that quasi-in-rem actions could be brought only in state court. 

c. If Connecticut state courts do not allow limited appearances, if would follow from Fed. R. Civ. P. 4(k)(1)(A) that the federal court should reject D’s motion as well.

Wrong. Assume that Connecticut state courts do not allow limited appearances. What that means is that if a defendant appears in a quasi in rem case in a Connecticut state court and defends on the merits, the defendant’s liability will not be limited to the value of the property attached. Let us also assume (which is an interesting issue) that because of 4(k)(1)(A) a federal court in Connecticut cannot allow limited appearances as well. It does not follow from this fact that D’s motion should fail. D is appearing specially to argue that there is no personal jurisdiction over him at all. The federal court can still agree with D about this.

As an analogy consider Shaffer v. Heitner. In that case Delaware state courts did not allow limited appearances. But the defendants were still able to get the action dismissed for lack of personal jurisdiction. Analogously, D’s motion in federal court in Connecticut could succeed if he could show that the property attached simply is unable to give rise to personal jurisdiction over him concerning the cause of action, whether the scope of personal jurisdiction is or is not limited to the value of the property attached. 

d. D’s motion will not succeed. D should have defaulted and waited for P to bring a suit on the judgment. D can challenge personal jurisdiction only through a collateral attack.

Wrong. This is just plain false. Challenges concerning a court’s personal jurisdiction over a defendant do not have to occur in a collateral attack. They can be made (e.g. in a special appearance) before the very court exercising personal jurisdiction. In federal court, such challenges are made in a motion to dismiss for lack of personal jurisdiction, which is precisely what D is taking advantage of here. 

e. D will not have waived his right to bring his motion to dismiss the action for lack of personal jurisdiction if he previously brought a motion to disqualify P’s attorney because of a conflict of interest. Although under Fed. R. Civ. P. 12(g) “[i]f a party makes a motion under this rule” and omits the defense of personal jurisdiction the defense is waived, a motion to disqualify an attorney is not a motion under “this rule” (i.e. Fed. R. Civ. P. 12).

Correct. This brought up an issue that we did not discuss in class. Nevertheless, what is said here is plausible and the other answers are not. Therefore it is the most accurate.

As the argument spelled out in answer e shows, it is not exactly true that one has waived a defense of personal jurisdiction if it is not in one’s “first response.” There is no waiver if one’s first response is a motion not under FRCP 12, such as a motion to disqualify an attorney (or a motion for more time to answer). Waiver would, however, occur if one’s first response were a Rule 12 motion (such as a motion to dismiss for lack of subject matter jurisdiction, inadequate service, or failure to state a claim). [NOTE: This question would be harder for the 2012 CivPro class to answer because you did not look at the details of FRCP 12(g).]