Civil procedure is the law governing civil litigation in the courts. It prescribes the mechanisms by which parties obtain judicial determination of the rights and duties created by civil substantive law, such as contracts, torts, and constitutional law.

Civil procedure has largely been codified. Congress, in Title 28 of the United States Code, has enacted a number of statutes governing various aspects of federal court procedure. One such statute is the Rules Enabling Act of 1934, which authorizes the Supreme Court to adopt rules of civil procedure, subject to congressional approval.1 Pursuant to this act, the Supreme Court has adopted the Federal Rules of Civil Procedure to govern procedure in the federal district courts, as well as several other sets of rules to govern procedure in the specialized trial courts and the appellate courts. A large number of states have adopted modified versions of the Federal Rules of Civil Procedure, and even those states that have not done so have adopted some of the innovations included in those rules.

Among the most important rules governing procedure are those that prescribe the jurisdiction of the courts, that is, the power of the courts to decide cases.2 The power of a court over a case actually comprises two distinct powers, either of which may exist without the other: power over the defendant and power with respect to the type of case. These powers are known, respectively, as personal jurisdiction and subject matter jurisdiction. The balance of this chapter is devoted to discussing some of the rules defining personal and subject matter jurisdiction.


A party can obtain judicial determination of a right only by filing suit in a court with power over the defendant, a power generally referred to as personal jurisdiction. For example, as will be seen shortly, a California court generally has no personal jurisdiction over a citizen of Kentucky who has never had any contact with California. Thus, the California court would have no power to adjudicate whether the Kentuckian owed a duty to someone.

A. Statutory Basis of Personal Jurisdiction

The first element of the rule defining the personal jurisdiction of the courts is the existence of a statute conferring on the courts power over the defendant. Some states, such as California, have authorized their state courts to exercise personal jurisdiction to the full extent permitted by the Constitution. Thus, any constitutional exercise of power is authorized by statute. In other states, however, the legislature has enacted narrower statutes that may provide the courts with less power than the Constitution would permit them to have.

In the case of the federal courts, Congress prescribed the limits of personal jurisdiction in Rule 4 of the Federal Rules of Civil Procedure. Thus, for a federal court to have power over the defendant, the defendant must be subject to service of process under Rule 4.

B. Limitations Imposed by Due Process


The second element, that personal jurisdiction be consistent with the due process clause, was imposed by the Supreme Court in the well-known case of Pennoyer v. Neff.4 For the sake of brevity, only the limitations that the due process clause imposes on personal jurisdiction exercised by state (as opposed to federal) courts are discussed here.

Prior to the decision in Pennoyer, state courts generally exercised power over a defendant in only three situations: when the defendant was a citizen of the state in which the court was located, when the defendant was served with legal process while present in the state’s territory, or when the defendant had consented to the court’s jurisdiction. These traditional limitations were based in part on a concern that a defendant who did not fall into one of those categories as a practical matter might be able to ignore the court’s order, to the great embarrassment of the court.

Pennoyer held, however, that these limitations were not merely voluntary limitations based on policy but were imposed by the due process clause. That is, under Pennoyer, a court’s exercise of jurisdiction would violate the Constitution unless one of the three traditional bases of power just described was present.

The traditional bases of power proved increasingly inadequate under modern circumstances. For example, a nonresident motorist who caused a collision and then left the state seemed beyond the power of the courts as defined in Pennoyer. States responded by enacting statutes that deemed certain conduct, such as driving within the state, to be implied consent to jurisdiction, an approach held to be consistent with the due process clause in Hess v. Pawlowski.5 By adopting the legal fiction6 of implied consent, states were able to expand the power of the courts while staying within the literal terms of the rule in Pennoyer.

Another problem was posed by the existence of corporations engaged in interstate transactions. Assume, for example, that a Massachusetts corporation breached a contract that its sales agent had negotiated with a California customer. Although the Massachusetts corporation may have property and employees in California, the corporation itself is an abstract legal concept and is not physically present in California or anywhere else. Thus, the only possible basis the California courts would have for exercising jurisdiction over the Massachusetts corporation would be consent, which might not be forthcoming. To solve this problem, courts again resorted to various legal fictions, finding that an out-of-state corporation’s conduct of business in state constituted “presence” in the state or an implied consent to suit.


As a result of the growing dissatisfaction with the restrictiveness of the traditional bases of jurisdiction, the Supreme Court created a new basis in International Shoe Co. v. State of Washington.7 In that case, the Court adopted a rule that a state has power over individuals who have “minimum contacts” with the territory such that the exercise of jurisdiction over them would not offend traditional notions of fair play and substantial justice. The minimum contacts rule permitted courts to exercise jurisdiction over out-of-state motorists and corporations without having to resort to the legal fiction of implied consent or presence. Those legal fictions had allowed the courts to assert jurisdiction in cases where jurisdiction seemed unwarranted under the traditional bases of jurisdiction. The adoption of the minimum contacts rule represented an abandonment of the pretense and a concession that the law had in fact changed. In a series of subsequent decisions, the Supreme Court has defined two different types of power that the court may have over the defendant under International Shoe. One type of power, called general jurisdiction, permits the court to assert power over the defendant with respect to any claim that the plaintiff may allege. The other type of power, called specific jurisdiction, permits the court to assert power over the defendant only with respect to a claim related to the contacts that form the basis for the jurisdiction. Each of these two types of power is created by a separate rule.

a. General Jurisdiction

General jurisdiction exists if the defendant’s contacts with the state are systematic and continuous.8 Thus, the factual predicate necessary to establish general jurisdiction has only one element: systematic and continuous contacts.

b. Specific Jurisdiction

Specific jurisdiction exists if (1) the defendant has purposefully availed himself or herself of the benefits and protections of the laws of the state and (2) the exercise of jurisdiction would be reasonable under the circumstances. The factual predicate necessary to establish specific jurisdiction thus has two elements. Additional rules have further defined and limited each of these two elements.
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