Personal Jurisdiction

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 279-346

Chapter 7

PersonaL jurisdiCTion

QUICK VIEW

Definition: Jurisdiction over the parties is called personal or in personam. If a court has in personam jurisdic-

tion over the defendant, it has the power to affect the defendant’s interest in any property, wherever located.

Jurisdiction over property is called in rem or quasi in rem.

Scope of Chapter: Jurisdiction based on presence in New York; jurisdiction based on consent and waiver; long-

arm jurisdiction; federal due process requirements.

Strategies and Tactics: In most cases whether personal jurisdiction exists is clear (e.g., when an individual

defendant is domiciled in New York, or served with process in New York, or when defendant is a New York

corporation or a foreign corporation authorized to do business in New York). But the outcome can be difficult to

predict in close cases involving non-domiciliaries or foreign corporations not authorized to do business in New

York as each case turns on its facts.

Statutes and Rules: CPLR §§301, 302, 303, 314, 315.

Related Topics: Subject Matter Jurisdiction, Ch 6; Venue, Ch 8; Service of Process, Ch 9; Motions to Dismiss,

Ch 36.

TABLE OF CONTENTS

I. General Points

§7:01 Necessary for Adjudication

§7:02 Core Requirements

§7:03 Role of Federal Due Process

§7:04 Constitutional Test: Minimum Contacts & Fairness

§7:05 Two Types: General & Specific

§7:06 Separate Basis for Each Defendant

§7:07 Forum non Conveniens

§7:08 Challenging Jurisdiction

§7:09 Discovery in Aid of Jurisdiction

II. General (Unlimited) Jurisdiction [CPLR 301]

A. General Points

§7:20 Authority

New York Civil PraCtiCe Before trial 7-2

§7:21 Most Common Law Bases Provide General Jurisdiction

§7:22 Federal Due Process

§7:23 General Jurisdiction Depends on Presence

§7:24 Test of “Presence”

B. Individuals

1. NEW YORK DOMICILE

§7:30 Authority

§7:31 “Domicile” Defined

§7:32 Timing of Domicile

§7:33 Consistent Residency Sufficient?

2. NONRESIDENT ‘TAGGED’ WITH SERVICE IN NY

a. General Points

§7:40 Authority

§7:41 Service Must Be Personal

b. When Tagging Is Unavailable

§7:50 Presence in State Enticed by Trickery

§7:51 Participants in Judicial Proceedings

§7:52 Raising Enticement or Immunity

§7:53 Dismissal When Tagging Is Only Basis for Jurisdiction

3. DOING BUSINESS IN NEW YORK

§7:59 WARNING: Everything Lawyers Thought the Law Was May Have Been Undone by the Supreme Court

§7:60 Nature of Basis

§7:61 Application to Individuals

§7:62 Conflicting Authority

C. Corporations—Domestic or ‘Authorized’ in NY

1. DOMESTIC CORPORATIONS

§7:70 “Domestic” Defined

§7:71 Always Deemed “Present”

2. FOREIGN CORPORATIONS ‘AUTHORIZED’ IN NY

§7:80 “Foreign” and “Authorized” Defined

§7:81 Always Deemed “Present”

D. ‘Unauthorized’ Foreign Corporations

1. GENERAL POINTS

§7:90 “Unauthorized” Defined

§7:91 Authority for Unlimited Jurisdiction

§7:92 No Tagging Service

§7:93 The Long-Arm Option

2. DOING BUSINESS IN NEW YORK

a. General Points

§7:100 “Presence” Depends on Doing Business

§7:101 Doing Business Test

§7:102 Case-by-Case Analysis Required

§7:103 Relevant Time: When Suit Commenced

b. Federal Due Process

§7:110 Test Comports with Federal Due-Process: Systematic and Continuous

§7:111 Mere Purchasing Does Not Satisfy Due Process

7-3 PersoNal jurisdiCtioN

c. New York Office and Staff

§7:120 Seminal Case: Tauza

§7:121 Bryant: Less Required Than in Tauza

d. Soliciting in New York

§7:130 More Than Soliciting Required

§7:131 “Solicitation-Plus”—a Two-Prong Test

§7:132 “Plus” Activities Must Be Substantial

§7:133 If Defendant’s Business Is Soliciting

e. Maintaining Web Sites

§7:140 Jurisdiction Depends on Interactivity on Web Site

§7:141 Case Examples

f. Banking in New York

§7:150 New York Bank Account Insufficient

§7:151 Sufficient when Used for All Income and Expenses

g. 3rd-Party Doing New York Business for Defendant

§7:160 Activities of Independent Agent

§7:161 If Third-Party Is Defendant’s Parent or Subsidiary

§7:162 If Third-Party Is Controlled by Defendant

3. PARENT, OR SUBSIDIARY PRESENT IN NY

§7:170 If Parent or Subsidiary Is Present

§7:171 “Mere Department” Standard

§7:172 Factors Weighed by Court

E. Partnerships and Individual Partners

1. PARTNERSHIPS

§7:180 Depends on Jurisdiction Over Partner

§7:181 Partner Domiciled in New York

§7:182 Partner ‘Tagged’ with Service in NY

§7:183 Doing Business in New York

§7:184 Limited Partnerships Analogous to Corporations

2. INDIVIDUAL PARTNERS

§7:190 Partner ‘Tagged’ or Domiciled in NY

§7:191 Jurisdiction Over One Partner Not Jurisdiction Over Any Others

III. Long-Arm Jurisdiction [CPLR 302]

A. General Points

§7:200 Authority and Purpose

§7:201 Types of Long-Arm Provisions

§7:202 Long-Arm Jurisdiction Is Specific

§7:203 Claim Need Not Arise in New York

§7:204 Separate Basis Required for Each Claim

§7:205 Single New York Act Sufficient

§7:206 Jurisdiction Based on Acts by Defendant’s Agent

§7:207 If Defendant Moves from New York Before Plaintiff Files Suit

B. Issues Regarding Specific Types of Defendants

§7:220 All Types of People and Entities Covered

§7:221 Corporate Employees