§ 3.3 Jurisdiction in Rem—orcp 5

• Library: Oregon Civil Pleading and Litigation (OSBar) (2020 Ed.)

§ 3.3 JURISDICTION IN REM—ORCP 5

Jurisdiction in rem refers to a court's jurisdictional power to enter a judgment affecting the interests of all persons in designated property.

"Proceedings are in rem when they are directly against the property and terminate in an adjudication against all mankind equally binding upon everyone." Linn Cty. v. Rozelle, 177 Or 245, 258, 162 P2d 150 (1945). This is to be distinguished from proceedings quasi in rem, which, "although they deal with specific property, they adjudicate a controversy between the particular parties to the proceeding." Linn Cty., 177 Or at 258.

Jurisdiction in rem is governed by ORCP 5. Unlike the concept of personal jurisdiction addressed in ORCP 4, when jurisdiction is based on the court's power over property within its territory, as in ORCP 5, the effect of a judgment is "limited to the property that supports jurisdiction and [the judgment] does not impose a personal [obligation] on the property owner." Shaffer v. Heitner, 433 US 186, 199, 97 S Ct 2569, 53 L Ed 2d 683 (1977); see Weller v. Weller, 164 Or App 25, 35, 988 P2d 921 (1999) (after parties divorced in Idaho, an Oregon trial court had authority under ORCP 5 A to divide and award to wife the parties' personal property found in Oregon).

NOTE: Weller was a quasi-in-rem case, even though the court referred to it as "in rem."
CAVEAT: The attorney should not confuse jurisdiction in rem under ORCP 5 with jurisdiction in personam under ORCP 4 F. See § 3.2-5(e) (local property).

Jurisdiction in rem may be exercised in Oregon and a judgment in rem entered when five requirements are met. First, the court must have subject-matter jurisdiction of the action. Second, service must be made in accordance with ORCP 7 or another applicable rule. Third, the nature of the action must fall into one of the two broad situations described in ORCP 5 A and 5 B. Fourth, the property in question must be in the state at the time jurisdiction in rem is invoked. Cf. In re Marriage of Henry, 81 Or App 426, 429, 725 P2d 943 (1986) (jurisdiction to determine child custody under ORS chapters 107 and 109). Finally, the exercise of jurisdiction must meet the requirements of due process. Shaffer, 433 US at 204; Rescue Tech., Inc. v. Claw, Inc., 153 Or App 190, 196, 956 P2d 1010 (1998).

The comment to ORCP 5 notes that with the extension of personal jurisdiction provided in the comprehensive scheme of ORCP 4, jurisdiction under ORCP 5 will probably not be needed in most cases...