Concept
Three Property-Based Actions
In rem and quasi in rem jurisdiction
Three Property-Based Actions
Property-based jurisdiction comes in three forms, and one question sorts them: how does the plaintiff’s claim relate to the property the court controls? The answer also tells you whom the judgment binds. Two questions therefore open every property-based problem: what does the plaintiff claim, and who is bound by the outcome?
Classification matters because Shaffer v. Heitner imposed the minimum contacts requirement of International Shoe on quasi in rem jurisdiction. A money claim can no longer be sustained against a defendant who lacks appropriate contacts with the forum merely because the defendant happens to own property there.1 The rule bears hardest on one of the three forms, and you cannot see which until you can tell them apart.
In the first form, the plaintiff claims the thing against every person who might hold an interest in it, and the judgment settles those interests for all of them. In the second, the plaintiff asserts a preexisting claim to the thing against particular named defendants, and the judgment settles only those parties’ competing claims. In the third, the plaintiff asserts a personal claim, in tort or contract for example, that has nothing to do with the property, and the property matters only because the court has seized it.2
The variable matters because of what the property contributes to the forum’s connection with the dispute. When the dispute is about the thing, the thing’s location in the forum links the state to the controversy. When the dispute is about something else, the asset is a piece of the defendant’s wealth that happens to lie within the court’s reach, and it supplies no tie between the state and the claim. That missing tie is the want of forum relationship on which Shaffer fastens.3
Sources label these forms inconsistently, so follow the substance rather than the name. This chapter calls the second form quasi in rem type I and the third quasi in rem type II, and the third is also called attachment jurisdiction.4 The Restatement uses the single label quasi in rem for both of the last two, so a source that says “quasi in rem” without more may mean either.5 When you meet a label on an exam or in a case, ask whether the plaintiff claims the property against everyone, claims it against named parties, or claims something unrelated to it. The next three subsections take the forms in that order.
True In Rem Actions
In a true in rem action, the court determines the interests of everyone in one particular thing, the res (Latin for “thing”), whether or not they are named in the case. The action runs, in effect, “against all the world,” and the judgment binds everyone as to the thing.6 The court’s power rests on the res’s presence in the forum, which places it in the court’s actual or constructive custody, and courts have usually used the form only when personal jurisdiction over every interested person was unavailable.7 How much of the form survives Shaffer is a question for the later section on claims tied to property.
Probate and eminent domain show why the form exists. A probate court cannot close an estate if an heir or creditor living elsewhere, or one who has not yet come forward, can later insist that the decree does not bind. A government taking land by eminent domain needs the same assurance that no unknown holder of an interest will surface afterward. Tying the court’s power to the res removes the obstacle: the thing sits in one place, the court can hold it, and everyone with an interest in it is bound by what the court decides.
Because the proceeding is about the thing, its caption often names the thing and no parties at all. A contested will is captioned In re Cheater’s Estate, not Wife v. Mistress, and an eminent domain action is typically In re Blackacre rather than State v. Owner.8
The res must lie in the forum, because its location is the only source of the court’s power over it. Hanson v. Denckla shows the consequence. A Florida court’s judgment rested in part on jurisdiction over trust assets outside Florida, and the Supreme Court held that it could not be sustained on that basis. A state forbidden to bind a person over whom it has no jurisdiction has even less right to extinguish that person’s interest in property over which it has no jurisdiction.9
A res with no physical place needs one assigned. A federal statute allowing cancelation of Internet domain names that infringe trademarks gives each name a “location” where it is registered, because the registrants are often unknown and impossible to locate. Courts have upheld in rem jurisdiction over such names, apparently in part because no realistic alternative exists, and the Fourth Circuit did so in Harrods Ltd. v. Sixty Internet Domain Names.10
The judgment also binds the world only as to the thing, never as to personal obligations. A court exercising property-based power can establish or end an interest in the res, or order it sold and the proceeds paid over, but it cannot enter a general money judgment or grant equitable relief against the defendant.11 Finding the defendant’s property in the forum creates no personal jurisdiction that is otherwise absent.12 Custody of the res gives the court authority over the res and over nothing else.
Combs shows one judgment splitting into a valid part and an ineffective part. A debtor owed money to a Kentucky creditor, and the debt was a lien on the debtor’s Arkansas land. The debtor sued the creditor in Arkansas to clear the land. The Arkansas court, with the creditor served only by publication, entered a judgment extinguishing the lien and also purporting to fix how much the debtor still owed. The lien ruling stood on the court’s power over land in Arkansas. The amount of the debt was a personal question that required personal jurisdiction over the creditor, which the court lacked. When the creditor later sued on the debt in Kentucky, the Kentucky court was free to adjudicate it anew.13
A judgment confined to the res also gives only partial relief whenever the claim is worth more than the property, and that is why plaintiffs prefer to have personal jurisdiction.14
Three questions screen a problem for this form. Does the plaintiff seek a decree about a thing that binds all claimants, rather than a money judgment against a person? Does the thing lie in the forum? Does the decree purport to decide any personal liability, which no property-based decree can do? If the plaintiff’s real claim is a debt or a tort and the property was seized only to reach a nonresident, the action belongs to the third form, and Shaffer governs it.15
Quasi In Rem Type I
In a quasi in rem type I action, the plaintiff asserts a preexisting claim to a particular thing against certain named individuals, and the judgment affects only the interests of those parties, not those of “all the world.” The standard example is a suit to remove a cloud on title. The plaintiff seeks to establish her right to the land against one person’s rival claim, such as a claimed easement, and the land is the subject of the suit.17
Shaffer treats true in rem actions and “the first type of quasi in rem proceedings” as one category.18 Both involve a plaintiff who is after the particular thing: possession of it, a declaration of ownership, a lien or other interest in it, or the exclusion of the defendant from some interest in it.19 The lien-clearing suit in Combs has this structure. One debtor sued one named creditor to free particular land of a lien, so the Arkansas court’s power over the land supported its ruling on the lien and left the personal debt to be decided elsewhere.20
A court that takes up such a dispute can have the property attached, and the attachment gives it power to determine who owns that property. The power stops there. Unlike personal jurisdiction, which supports a personal judgment reaching any asset the defendant has, quasi in rem power does not extend to the defendant’s other property, in the forum or elsewhere.21
The difference from a true in rem action lies in whom the judgment reaches. A true in rem decree binds the whole world as to the thing, which is why probate and eminent domain need that form. A type I plaintiff has no such need. The quarrel is with one named person, and the plaintiff asks only which of the two has the better right to the thing. The judgment accordingly fixes the interests of the named parties, and a third person with a separate claim to the same land, never named in the suit, is unaffected.22
The relief is narrow as well. The court can establish the plaintiff’s title or order the property sold and the proceeds paid to her, but it cannot enter a general money judgment against the defendant.23 Foreclosure of a mortgage or other lien, specific performance, and actions to recover land or chattels share this structure. As long as the property is in the state and the plaintiff seeks only to affect interests in it, property-based jurisdiction does the whole job.24
Here the property itself links the state to the claim, and the next form has no such link. Two versions of one story show how a single change in the complaint moves the action from one form to the other.
The furniture and the forum are identical in both scenes, and only the plaintiff’s claim has changed. In the second scene, the furniture’s presence in State B does not by itself connect the forum to a dispute over a loan, and the sister would have to show contacts between her brother and the forum of the kind International Shoe requires.25 The next subsection takes up that form.
Quasi In Rem Type II
The third form is the one Shaffer v. Heitner reshaped. In a quasi in rem type II action, the plaintiff asserts a personal claim against the defendant, in tort or contract for example, and the property the court seizes has no connection to that claim. The form is also called attachment jurisdiction.27 In a true in rem action and in type I, the plaintiff claims the thing and the court adjudicates that claim. Here the plaintiff claims nothing in the property, and the seizure serves only as a device for obtaining jurisdiction. The attached property is basically a hostage.28
Under the traditional theory, the court’s power in this form came from the property. If a nondomiciliary defendant over whom personal jurisdiction was lacking happened to own property in the forum, the state could seize it through appropriate process.29 The defendant’s next move then determined the result. A defendant who appeared to defend submitted to the court’s personal jurisdiction, so a plaintiff who won could obtain a binding judgment for the full amount claimed. A defendant who defaulted faced a judgment limited to the value of the attached property, because that value marked the limit of the state’s sovereign power, and no full faith and credit was owed to the judgment beyond that amount. The plaintiff had to begin an entirely new action to obtain more.30 The defendant received credit in the second suit for whatever the first one produced.31
In this regime the property did two jobs: it started the case, and it capped the exposure of a defendant who stayed away. A defendant who came in to fight lost the cap, because the personal claim could then be tried against the person.32 The cap on a default judgment followed from the territorial theory, since the court’s power extended no further than the thing it held.
The price of the device was that the only link between the forum and the dispute became the chance of where the defendant kept an asset. The form required no relationship between the property and the claim, between the claim and the forum, or between the defendant and the forum, and any property the state could seize would do.33 Shaffer supplied the missing relationship by imposing on quasi in rem jurisdiction a minimum contacts requirement like the one International Shoe devised for longarm personal jurisdiction. A money claim can no longer be sustained against a defendant who lacks appropriate contacts with the state merely because the defendant owns property there. A thread must hold the claim, the defendant, and the state together.34
The same reasoning explains why the other two forms stand differently. When the dispute is about the thing, the thing’s location in the forum is itself a link between the state and the controversy. In a type II action the property contributes nothing to the dispute, so its presence cannot supply the connection the contacts standard demands. A defendant with real forum contacts can be sued directly, and a defendant whose only contact is an unrelated asset can no longer be reached through it. The closing sections of this chapter take up what remains of attachment.