Rule 54.06 Service Outside the State on Persons, Firms, or Corporations Who Do Certain Acts in This State

• Library: Civil Procedure (2007 Ed. + 2013 Supp)

VI. Rule 54.06 Service Outside the State on Persons, Firms, or Corporations Who Do Certain Acts in This State

A. Text of Rule

(a) Service outside the state sufficient to authorize a general judgment in personam may be obtained upon any person, executor, administrator or other legal representative, firm or corporation, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts enumerated in this Rule 54.06 :

(1) Transacts any business within this state;

(2) Makes any contract within this state;

(3) Commits a tortious act within this state;

(4) Owns, uses or possesses any real estate situated in this state;

(5) Contracts to insure any person, property or risk located within this state at the time of contracting;

(6) Engages in an act of sexual intercourse within this state with the mother of a child within or near the probable period of conception of that child.

(b) Service sufficient to authorize a general judgment in personam may be obtained on any person, any person's personal representative, or other legal representative, whether or not a citizen or resident of the state, who has lived in lawful marriage within this state, as to all civil actions for dissolution of marriage or for legal separation and all obligations arising for maintenance of a spouse, support of any child of the marriage, attorney fees, suit money or disposition of marital property, if the other party to the lawful marriage lives in this state or if a third party has provided support to the spouse or to the children of the marriage and is a resident of this state.

(c) Only causes of action arising from acts or conduct enumerated in Rule 54.06( a) or Rule 54.06( b) may be asserted against a defendant in an action in which jurisdiction is based on this Rule 54.06 .

(d) Service of process may be made as provided in Rule 54.14 or Rule 54.16.

B. Historical Note

Rule 54.06 was adopted January 19, 1973, effective September 1, 1973. It has been amended several times, most recently on February 27, 2002, effective January 1, 2003.

C. Cross-References

See §§ 506.500 and 506.510, RSMo 2000.

D. Time Constraints

None.

E. Comment

1. Introduction

Section 506.500, RSMo 2000, is commonly referred to as the Missouri "long-arm statute." Rule 54.06 is substantially similar to § 506.500 and provides for service of process outside the State of Missouri on persons, firms, or corporations who perform certain acts within the state. Rule 54.06(a) authorizes service of process outside the State of Missouri sufficient to obtain a general judgment based on personal jurisdiction on any person, firm, or corporation that:

· transacts any business within the state;

· makes a contract within the state;

· commits a tort within the state;

· owns, uses, or possesses real estate within the state;

· contracts to insure within the state; or

· fathers a child within the state.

The service of process is valid only if the cause of action arose from one of those enumerated acts.

Rule 54.06(b) authorizes service of process outside the State of Missouri sufficient to obtain a general judgment based on personal jurisdiction on a person—or a personal or legal representative—who has "lived in lawful marriage within this state" in actions for dissolution of marriage or legal separation and allows a personal judgment for maintenance, child support, attorney fees, costs, and the disposition of marital property, provided that (1) the other party to the marriage lives in the state or (2) a third party has provided support to the spouse or child of the marriage and is a resident of the state.

Rule 54.06(d) provides that service of process under Rule 54.06 may be made according to Rule 54.14, which establishes guidelines for personal service outside the state, or by Rule 54.16, which authorizes service by mail outside the state.

2. Discussion

This analysis of Missouri's long-arm statute, § 506.500, RSMo 2000, and Rule 54.06 begins with a brief review of the due process provisions of the Fourteenth Amendment of the United States Constitution as interpreted by the Supreme Court of the United States and the Supreme Court of Missouri. It discusses the differences between personal, in rem, and quasi in rem jurisdiction and the difference between what has been described as general versus specific personal jurisdiction. The analysis includes a discussion of the "five factors" and "double five factors" tests for determining whether the due process requirements have been met in specific circumstances. The proper method for challenging the assertion of personal jurisdiction based on service of process under the long-arm statute or Rule 54.06 is briefly addressed.

Examples of cases in which Missouri courts have confronted challenges to service of process under the long-arm statute and Rule 54.06 are covered. This discussion is not intended to be an exhaustive review of all appellate decisions in this area. Instead, it briefly describes certain cases under each section of the Rule to illustrate how courts have addressed these challenges. Each case is fact dependent, and independent analysis of the issues of each case is necessary to determine whether the service of process is sufficient to satisfy the requirements of the long-arm statute and Rule as well as the due process requirement of the United States Constitution. Prods. Plus, Inc. v. Clean Green, Inc., 112 S.W.3d 120, 123 (Mo. App. S.D. 2003) (citing Dillaplain v. Lite Indus., Inc., 788 S.W.2d 530, 534 (Mo. App. W.D. 1990)).

a. Constitutional Due Process Requirement

The United States Supreme Court recognized in Pennoyer v. Neff, 95 U.S. 714 (1877), that the Fourteenth Amendment to the Constitution provided that judgments in state courts could be challenged on the ground of failure to provide due process of law. The Court held that states have the power to exercise jurisdiction, in rem, over property located within their borders without personal service of process on the out-of-state owners of the property. Id. at 733. But state courts violate the due process clause of the Fourteenth Amendment if they attempt to exercise in personam jurisdiction against nonresidents unless the nonresidents voluntarily appear in court or are served with process within the state.

In International Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945), the Supreme Court held that for a state court to exercise personal jurisdiction over a nonresident defendant, the due process clause requires that the defendant must have "certain minimum contacts with [the state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" The Court noted that the criteria that justify the imposition of personal jurisdiction are not mechanical or quantitative. Instead, the determination of whether due process is satisfied depends on "the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure." Id. at 319.

In Kulko v. Superior Court of California in and for City of San Francisco, 436 U.S. 84 (1978), the Supreme Court examined the issue of personal jurisdiction over a New York resident in a California action to establish a Haitian divorce decree as a judgment in that state. The petitioner had sought to establish the judgment to allow a California court to amend the judgment to change child custody provisions of the underlying decree. The Supreme Court noted that the due process clause of the Fourteenth Amendment acted as a limitation on the jurisdiction of state courts. It held that the exercise of personal jurisdiction depended on a "sufficient connection between the defendant and the forum State to make it fair to require defense of the action in the forum." Id. at 91. The Court stated that there were few instances when the issue was "black and white." Even though the State of California had substantial interests in protecting resident children and in providing for their support, the Court held that the flexible standard of International Shoe, 326 U.S. 310, "does not 'heral[d] the eventual demise of all restrictions on the personal jurisdiction of state courts.'" Kulko, 436 U.S. at 101. Accordingly, the Supreme Court held that the California court did not obtain personal jurisdiction over the New York resident because of a lack of minimum contacts with that state.

In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), the Supreme Court revisited the minimum contacts requirements that are necessary to establish personal jurisdiction over a nonresident. The underlying action was a product liability lawsuit arising from a motor vehicle accident in Oklahoma. Defendant World-Wide Volkswagen sold an automobile to the plaintiff in New York. The defendant had no contacts with Oklahoma other than "the fortuitous circumstance that a single Audi automobile, sold in New York to New...