Civ Pro Schwartz FA 2012

7/26/2019 Civ Pro Schwartz FA 2012

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Personal Jurisdiction

Long Arm General JMinimum Contacts (Stream of commerce?)5 Fair play+ sub. justice factors

Pennoyerv. Neff: Power, notice and consent. Rule: PJ if personally serve D in forum state (Burnham)

Long Arm Statutes: Some states have same PJ as constitutional max (CA), others narrow reach (FL)

Gibbons: Negligent driving, negligent directions cases. Ds prior filing of a lawsuit in FL was not

substantial and not isolated activity required by the FL long arm statute to establish PJ

Pro= Judicial economy, Con= Pockets of immunity (valid claim), Con= State interest (wronged in state)

General Jurisdiction: D may be sued for any claim in a state where Ds activities are continuous and

systematic. (ex. domicile for individuals, Hertzstate of incorporation ornerve center for corporations)

Goodyear: General jurisdiction over corporation with multiple plants in NC, no general jurisdiction over

foreign subsidiaries in NC. General stream of commerce does not create general jurisdiction.

Perkins: General jurisdiction over Philipines mining company that based operations in OH during the war

Helicopteros: No general jurisdiction for Peruvian helicopter company in TX, contracts with TX company,

trips to TX not enough for continuous, systematic contacts

Burnham: Plurality holding suggests personal service is always enough for general jurisdiction. Brennan

dissent suggests court must assess D.P. in each case, but D.P. generally satisfied b/c D benefited from

states roads, emergency services, and economy. Not settled law whether 15 minutes in state enough.

Specific Jurisdiction (Intl Shoe)= Sufficient minimum contacts in the state related to the claim so as not

to offend traditional notions of fair play and substantial justice

Hansonsays that minimum contacts requires some purposeful availment by the defendant. In McGee,

the defendant purposeful availed itself in California by mailing an insurance offer to a California

customer. In Hanson, there was no personal jurisdiction because the defendant insurance company had

not solicited the plaintiff in Florida or availed itself to the Florida market in any other way.

WWVW showed that minimum contacts with a state requires a direct effort to the serve the market

(such as advertising in the state or having dealerships or salespeople in the state) or an expectation that

products would end up in that state through the stream of commerce

Brennan and Ginsburg plurality opinions inAsahiand Nicastrosuggest foreseeability test so that PJ

could be established by putting item in stream of commerce with knowledge that item will end up in

forum state (possible given Alito and Breyers concurrence in Nicastro)

In Remsometimes enough for specific jurisdiction:Sufficient contacts for PJ over claims arising from Ds

property in forum state (Ex. PJ in CO if P(NY) is injured on Ds (CA) property in CO)


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Shaffer v. Heitner: Owning stock in DE business is not sufficient contacts for jurisdiction over trustees of

DE corporation. Rule: No quasi in rem jurisdiction for claims not arising from interest in property.

Contracts Cases

McGee: TX life insurance co. purposefully avails itself in CA by soliciting contract in CA with Ps husband.

Hanson: DE trust did not purposefully avail itself in FL by signing contract with PA woman who moved to

FL. Unilateral conduct with FL is not enough, D must invoke benefits and protections of FL laws.

Burger King: MI franchisee purposefully availed himself in FL by soliciting franchise contract with FL

corporation. D knew he would have to deal with BK in FL, though most of contact w/ MI regional office.

Rule: Purposeful availmentin Chattels Cases:

Evidence that D directly trying to serve the market; or maybe

Delivers products into stream of commerce w/ expectation they will be purchased in state

Intl Shoe: Sufficient minimum contacts for MO corporation employing salesmen in WA and directly

marketing their product there. Employed salesperson is valid agent for service.

Worldwide Volkswagen: NY distributor sold P car in NY, car crashes in OK. D did not purposefully avail

itself in OK, no direct marketing in OK. Audi and VW America do not challenge PJ because they advertise

to OK market. Rule: Foreseeable to be haled into court if D places items in stream of commerce.

Calder: Natl Enquirer profited from article designed to harm Shirley Jones in CA, so PJ in CA. Rule: PA if

D knows conduct harms P in state= exception to Pavlovich for intentional torts

Zippo Sliding Scale for Internet Case:

PJ: D enters into contracts with consumers

Maybe: Users exchange info with host computer (weigh level of interactivity, commercial nature

of exchanged info)

No PJ: Passive activitysimply posting online

Pavlovich: D (TX) posted link to DVD-burning software not knowing that technology was licensed to P in

CA. No PJ because D did not know P was in CA. Rule: Knowledge of passive harm to industry in state is

not itself enough for PA.

Nicastro: England manufacturer targeted US market in general, but did not purposefully avail itself in NJ.

Concurring opinion only makes it clear that a single isolated sale is not enough purposeful availment.

Fair play and substantial justice factors (WWVW says weigh these factors after establishing sufficient

minimum contacts): 1) Inconvenience to D; 2) Convenience to P; 3) Forum states interest in

adjudicating claim; 4) Judicial systems interest in efficient resolution; 5) Shared interest of states in

furthering social policies


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Consent

Carnival: P slipped on ship, PJ in FL b/c forum selection clause constitutional; clause on ticket and D in FL

Goals: 1) Limit litigation to a single forum (cruise ship carries passengers from around the country), 2)

limit confusion about where a case can be brought (reduces expense and judicial resources litigating

jurisdiction), and 3) reduced litigation results in lower prices for consumers

Maybe not enforceable if: 1) Forum particularly inconvenient (clause meant to discourage claims); 2)

party did not have notice of the clause; or 3) agreement was obtained through fraud or overreaching

Notice: Required with either Power or Consent to enforce PJ

Mullane: Ps had interest in common trust fund, had K right to object to management of fund. Ds notice

in newspaper insufficient, notice must be reasonably calculated under all the circumstances to notify

and give opportunity to object. Can mail to members of group with common interest, OK if notice fails

to reach everyone b/c represented by those that were notified. Must use at least means that a person

who wanted to reach the party would use. Publication OK if 1) missing/unknown, 2) future interest

Note: no distinction between in rem and in personam for notice.

Object to service (Rule 12)

Rule 12(b)(4) insufficient process (ex. service did not have date to appear)

Rule 12(b)(5) insufficient service of process (ex. served to 6 yr old, not proper age/discretion)

Resolution Without Trial


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Claim and Issue Preclusion (consider stare decisis as alternative)

Res Judicata: 1) same claim, 2) same party, 3) FJOM (not all FJOM actuallydecided, ex. involuntary dis.)

Restatement View (Dominant): Claim precluded if it arose from same occurrence or transaction

Matters related in time, space, originclaims involve the same events in the real world

Frier v. City of Vandalia: D.P. claims precluded because same claimarose from same transaction of city

taking Ps cars. Dissent argued IL standard is same cause of action, different facts needed to prove

D.P. claims (proper service of notice vs. issue of who owned car) so claim should have been precluded

In Privity= same interests (exists when 2nd

party is so closely related to 1st

partytreated as same party)

Substantive legal relationships (ex. Successive owners of property, beneficiary and trustee)

Agreement to be bound by decision

Procedural representation (guardian and child)

Underlying belief that interests are the same, so 2nd

party should be barred b/c another party

with the same interests already litigated the case

Searle Brothers v. Searle

1stcase: Divorce proceeding awarded home to wife, despite fact that home owned 50% by

partnership of husbands sons


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2ndcase: Sons sue mother for interest in home. Rule: In privity if mutualor successive

relationship to rights in property. Not precluded b/c not same party, sons partnership

independent of father and existed before the 1stcase began.

Taylor v. Sturgell

1st

case: Airplane enthusiast fails in FOIA suit against FAA for airplane plans

2ndcase: Same suit by president of first Ps airplane club. Claim not precluded because not same

party, not in privity because 1st

court did not take care to protect Ps interests in 1st

case.

Rule: In privity if adequately represented in 1stcase: 1) same interests and 2) 1stP knew he was

representing 2ndP, or ct took care to protect nonpartys interests (not shown)

Gargallo v. Merrill Lynch:

1st

case: State court ruled on federal securities issue with exclusive federal jurisdiction.

2ndcase: Federal court, claim not precluded b/c no FJOM in 1stcase because state court lacked

subject matter jurisdiction

Collateral Estoppel: Issue precluded if 1) same issue, 2) actually litigated and determined by 3) valid

and final judgment, and 4) issue essential to the judgment (+ fairness factors for OCE

Parklane)

1) Issue requires same underlying facts decided under the same standard

3) Final Judgment= 12(b)(6) after chance to amend, failure to comply with discovery, voluntary dismissal

after answer, default judgment(not actually on merits), summary judgment, trial judgment, JML or JNOV

Illinois Central v. Parks:

1st

case: Wife recovers for injuries, railroad wins for husbands loss of consortium claim

2ndcase: Husband sues for injuries. No DCE because husbands damages not actually litigated

and determinedno FJOM on injury claim b/c LoC claim in 1stcase could have been decided b/c

of husbands contributory negligence rather than no injury (not essential to the judgment)

Offensive nonmututal collateral estoppel: Later Ps can preclude D from re-litigating same issue

1st

case: W v RR, RR negligent

2ndcase: H v RR, H can estop RR from re-litigating negligence

Parklane v. Shore (Fairness Factors):

1st

case: Stockholder class v. Parklane on whether proxy statement false and misleading

2nd

case: S.E.C. judgment against Parklane on same issue resolves while 1st

case in progress

Rule: For offensive nonmetal collateral estoppel, consider 1) whether P could have joined

prior action, 2) whether D had incentive to fully litigate the prior case, 3) whether there were

several inconsistent prior judgments, and 4) whether D would have procedural opportunities

in the subsequent action


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P allowed to collaterally estop Parklane from re-litigating issue, could not have joined S.E.C. and

not unfair to D (Court could disallow estoppel if Ps strategically waiting or D at disadvantage)

Defensive mutual collateral estoppel: D can preclude further claims by same P (or P in privity if due

process satisfied by having interest heard in ct) against other facets of Ds organization for same issue

1st

case: W v RR, W loses

2ndcase: W v. train conductor: train conductor canestop W from litigating same issue again

Defensive nonmutual collateral estoppel: D cannot preclude same issue against different parties

1st

case: B v RR, B loses

2ndcase: J v RR, RR cannot estop J from litigating same issue b/c different party= own day in ct

State Farm Exception: Warehouse fire case, D cannot estop separate Ps. 2 decisions for P, 1 decision for

D, then 13 Ps file complaint identical to winning PRule: No OCE if inconsistent judgments.

Jurisdiction

Personal Jurisdiction

Limits: Due Process (5th and 14th amendment); Full Faith and Credit clause; state law

How do you dismiss if its missing? => Do it EARLY. Dont want to consent.

Dont show up. Super risky strategy. Fight juris when P tries to collect.

Special appearance (in some states)

Rule 12b2: Lack of personal jurisdiction => Very beginning

o Rule 12g2: Must join a 12b2 motion.

In the answer

Rule 12c: Judgment on the pleadings => After pleadings, before delaying trial

Appeal?

o Fed: Have to wait until after trial (1291)

o Some states: Appeal right away

Due Process

Pennoyer elements:(case for unpaid lawyer fees; published notice in newspaper)

1.

Power

2.

Consent

3.

Notice


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Types of suits:

In personam => Lawsuit against a person

Quasi in rem=> Lawsuit against a person w/ property in juris

In rem=> Lawsuit against a thing (asset forfeiture/unpaid property)

Power

Sue first. P has all the power in forum selection.

Sufficient Minimum Contacts (International Shoe) => Establishes presence

WA employment fund. Agents in WA, business in MO. Agents only set up exhibitions and refer. Min

contacts.

Test: Does these contacts give rise to the suit?

Consider quality and nature of contacts

Contacts No Contacts Casual or

Isolated Contacts

Single Act Systematic and

continuous but

limited

Substan

Perva

Jurisdiction No Jurisdiction No Jurisdiction Specific

Jurisdiction if of

right quality &

nature

Specific

Jurisdiction

Gene

Jurisd

Cases Hanson

(unilateral choice

to be in FL)

McGee

(Biz soliciting &

benefitting)

Intl Shoe Perk

(Mining c

for w

Test: Purposeful availment=> Did you enjoy the benefits and protection of the laws of that state?

(Shoe)

(Hanson: Will created in DE w/ DE company. Move to FL, try to litigate there.)

Purposefully avails itself of the privilege of conducting activities within the forum State.

(WWVW) Need to have idea that youll be sued in that place. Doesnt consider P.

Products

o World-Wide Volkswagen (P buys car in NY. Driving to AZ. Crash in OK. No juris)

Serving market

Advertising (not calculated to make it to state)

Sales

Services


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Wholesale in that state

Expectation that theyll be bought in that market

Not mere likelihood product will make it into state

DISSENT: (Brennan) More focus on states interest in litigating. Evidence there.

Dealer intends for drivers to go places

o Is placing in the stream of commerce, knowing it would end up in state, enough?

Open question

Nicastro: Sends metal shearing overseas to OH. 4 in NJ. D injured.

o

Plurality: Need actions, not expectations

o

Dissent: Stream is enough. D is trying to make sales ANYWHERE.

o Concurrence: One sale isnt enough. Consider:

Forum state customers who attend trade sales

Extent of same type of business in forum state

Asahi: Malfunctioning tire.

o

OConners 4: Look at Ds conduct. Stream isnt enough.

o

Brennans 4: Benefitted from stream. Foreseeable suits.

Commercial Activity

o

Burger King (D has BK in MI. HW in FL. Worked with MI BK, but signed K with FL. Juris.)

Knowledge that youre negotiating with someone in forum state

o Jones (Natl Inquirer article about Jones. Know that it will have impact on him. Juris)

If know it will cause harm of KNOWN third party in forum, juris.

MUST BE SPECIFIC. General not enough (Pavlovich: DVD copying)

o Hanson (will in FL)

NOT unilateral

o McGee (Insurance in California)

Solicitation

Modern transportation and communication has made it much lessburdensome for a party sued to defend himself in a state where he engages in

commercial activity.

Caveated by fair play and substantial justice

Internet

o

Pavlovich (releases code of DVD copying protection while in IN. Moves to TX. Sued in

CA)

File transfer to another state intentionally => Jurisdiction.

Just posting information that just happens to be accessible => No jurisdiction

(PAV)

Interactive website where user can exchange information with host computer

=> ???

International Shoe: Min contacts for corporate in personam.

Shaffer: Min contacts for quasi in rem (suit of corporate execs in DE because stock issued there. No juris)

Forces P to file a lot of different lawsuits in a lot of different jurisdictions


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General Jurisdiction: Contacts SO continuous and systematic, subject to juris even if unrelated suit.

Must, in essence, become corp in that state (Perkins: During war, comp moves to OH. Juris)

Contractual agreements and frequent trips not enough (Helicopteros: visiting TX)

Stream of commerce of tires not enough (Goodyear: Crash in France. Suing Euro subsidiaries. No

juris)

Continuous activity of some sorts isnt enough (Goodyear)

Is individual presence enough? Open. (Burnham: Lives in NJ. CA to visit kids. Serves him. Juris)

Scalias 4: Presence has always been enough

Brennans 4: Where do you draw line for presence?

o In this case, availed self to benefits of state by being there. Made trips there before, etc.

Will it offend traditional notions of fair play and substantial justice?(Intl Shoe)

AFTER finding minimum contacts, consider this. (Burger King)

Apply all. Dont worry about delineating.

Interests to consider: (Shafer) => EVEN IF ALL OF THESE, still need min contacts. Federalism (WWVW)

The inconvenience to the defendant

State's interest in applying its law to controversy

Convenience of litigation (records and witnesses will be in the state)

BK Interests to Consider: Allows fewer minimum contacts (Maj: Brennan => WWVW dissent.)

(D has BK in MI. HW in FL. Worked with MI BK, but signed K with FL. Juris.)

The burden on D

Forum states interest in adjudicating

Efficiency of resolution

Furthering fundamental substantive social policies

Consent

Gives jurisdiction when lacking minimum contacts. Usually set by K.

Elements to allow K of adhesion:(Carnival: Cruise ticket said suit in FL. Sues in WA. Upheld)

1.

Needs notice


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Carnival upholds ticket saying subject to K, then K including it

2.

Cant be unfair / bad faith

Does NOT mean it cant make suit unfeasible. Just need good intentions.

Rationale:

Dispels confusion

Cheaper tickets

Makes suits for manageable for company

Notice

If improper, Rule 12b5

Due Process

1. Personal notice inside state=> Always adequate

2. Outside state=> "Notice, reasonably calculated, under all circumstances, to appraise parties

and afford opportunity to present their objections." (Mullane: Trust fund. Merges. Post notice in

newspaper.)

Token gestures are not enough

Mail is enough

i.

Dont have to make sure everyone receives it

ii.

Have to make sure most people are reached => Those people protect all

interests.

When is publication enough?

When no address/location known. No alternative.

When supplemented with attachment (MAYBE) => If whereabouts known, may need personal

service.

When interests are conjectural or future

Long-Arm Statutes

What state can D be sued in? (Not Constitutional. State statutes)

Some states provide LESS jurisdiction than Due Process allows; cant grant MORE

Considerations

How clogged up are courts?

How much control does state want?

How concerned is state about convenience for residents?


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Order(Gibbons: Car crash. P sues Mr. Later, Mrs. sues P. Says P availed self to state. P wins)

1.

Make sure youre within long-arm

2.

Make sure there are sufficient minimum contacts

PERSONAL JURISDICTION

Basic Constitutional Framework: Pennoyer

*Personal jurisdiction concerns where D can be sued whereas subject matter

concerns what court can hear a certain case

*matter of due process and what is fair to D in terms of power, notice, and consent

Pennoyer(ideas behind it)

power*no state can issue jurisdiction over people or property not w/in its

boundaries/territories

*exception for contracts made in one state (can be enforceable in another state)

notice-dependent upon type of jurisdiction being asserted

*in personam jurisdiction

-jurisdiction over a person rather than property

-there must be notice through personal service of that person in the state

publications are not enough

*quasi in rem jurisdiction

-based on property rights of a person absent from the jurisdiction

-publication sufficient

-seizure of the property to attach to the law

*in rem jurisdiction (focuses only on the property rather than the person but no

longer important)

consent

*parties can consent to jurisdiction in places where they wouldnt have it normally

*contract out of due process personal jurisdiction requirements

Modernizing the Framework-International Shoe, McGee, and Hanson

12b2 motion challenges personal jurisdiction but may also be presented as a defense

International Shoe v. Washington(ideas behind it)

specific jurisdiction

*D must have such minimum contacts with the state so that exercising jurisdiction

would not offend traditional notions of fair play and substantial justice

*must be a sufficient connection between the contacts w/ the state and the


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underlying action in the case; mere presence no longer enough

general jurisdiction

*when D continuously operates w/in a state (continuous and systematic presence)

*conduct that is basis of suit need not be connected to the state at all, does not have to do with their

behavior in that state

*D was benefiting from state protection

-able to resort to state court for enforcement of rights

-the underlying action comes from the statute from this protection

*not just casual presence or isolated activities

McGee v. International Life Insurance Co.(ideas behind it)

Minimum contacts

*A state courts personal jurisdiction qualifies under minimum contacts when it is

based on a contract with a substantial connection with that state (especially with

insurance companies

*no presence at all but minimum contacts still found

*P (CA) purchases life insurance from D (office in TX) and dies

*Ps beneficiary sues D for failure to pay

*there is personal jurisdiction for D in CA b/c low burden for them to defend claims

in a state they are corresponding with/conducting business with

Hanson v. Denckla

Minimum contacts

*Does not qualify when P only has unilateral activity with a non-resident

*there needs to be some act by which D purposely avails itself of the forum states privileges(somehow

benefits from states protection/laws as in Shoe)

*P had trust in Delaware and moved to FL where she died

*If jurisdiction in FL, one daughter received all; if jurisdiction elsewhere, all three

would share equally

*deceased was only sending money to Delaware and not receiving anything back;

thus, the bank (D) had no office and did not transact any business in FL

Modernizing the Framework-Shaffer

Shaffer v. Heitner

Property and Minimum Contacts

*When the only contact with the state is property, minimum contacts analysis

must be applied (International Shoe)

-must be connection to the suit

-property can be used as evidence of sufficient contacts

*property alone is enough if it is the source of the underlying controversy


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*P owns 1 stock, files shareholder suit in Delaware; none of D lives in Delaware

*attaches stock in Delaware to assert personal jurisdiction

*lawsuit was over improper conduct rather than about the stocks

themselvesminimum contacts not satisfied

Applying the Framework-World Wide Volkswagen

World Wide Volkswagen v. Woodson

*do not look at foreseeability but rather reasonability given Ds ties and relations to

the state

*focus on Ds conduct and connection with the forum state (minimum contacts)

*did D avail itself of the states privileges?

1) advertising in forum state

2) expectation of product being in state through stream of commerce

*only if minimum contacts are almost clearly established should other interests be taken into account

-states interest in the adjudication

-Ps interest in obtaining convenient/effective relief

-interstates interest in obtaining most efficient resolution

-shared interest of the several sates in furthering social politics

*car bought in NY, driving from NY to AZ and car accident in OK

*claim brought in OK

*protecting D from burdensome litigation top priority

*no advertising in OK

Applying the Framework-Burger King and Pavlovich

Burger King Corp. v. Rudezwick

*unless there is evidence of grave hardship to D, if D has business relationship with

a corporation who has substantial connection w/ that forum state, jurisdiction may

apply

*sliding scale

-if minimum contacts are established, look at issues of fair play and substantial

justice

-Volkswagenrejected sliding scale analysis, wording made it appear that minimum

contacts are absolutely necessary and should not be compromised

*D signed contract with P to open a franchise in MI; Ps principal office in FL

*contract said that FL law would govern so D was benefitting from the forum state

*dispute had to be resolved with FL office, not MI

*problem: issues of fair play and substantial justice b/c contract of adhesion and P

had a lot of bargaining power


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Pavlovich v. Superior Court(Internet)

*Personal jurisdiction if D is entering into contracts/transferring files from one side

to you

*No personal jurisdiction if you are simply posting information

*Possible personal jurisdiction if there is an exchanging of information (level of

interactivity and commercial nature of the exchange)

*D (TX) made website that would defeat copyright technology and knew that it

would affect a company, but had no idea where that companys principle place of

business was (CA)

*based on nature of his website, CA does not have personal jurisdiction; however, if

he had knowledge that his conduct would harm industries in the state, this could be

relevant in determining personal jurisdiction

McIntyre Machinery v. Nicastro

*4 judges say that purposeful availment is key-look at Ds actions to determine

*3 judges say that foreseeability is enough-looking at purposeful availment could

shield foreign Ds from jurisdiction by dealing with third party distributors

*2 judges say that one sale is not sufficient contacts

General Jurisdiction

*Ds connections/presence is continuous and systematicestablishing minimum

contacts unnecessary

*if you are a citizen of the state

*principle place of business, place of incorporation

*split among internet sites and stream of commerce cases

Goodyear Dunlop Tires v. Brown

*kids die in France, P sue USA company and 3 foreign companies in NC

*Holding-stream of commerce insufficient unless there are signs of continuous and

systematic presence

Burnham v. Superior Court

*P (NJ) visited CA on business and then visited kids who were with his wife

*wife filed for divorce in CA

*Holding

-all that is necessary is that D be in the state when he is given service

-Pennoyersays that presence is enough and other analyses (International Shoe)

necessary only when D is not presence

-concurrence: using minimum contact analysis, there is personal jurisdiction b/c D

availed himself of the states privileges by coming to the state


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Consent

Parties can consent to litigation in a forum state through a contract (Pennoyer)

If contract is not one of adhesion/not in bad faith

Carnival Cruise Lines v. Shute

*P purchased cruise tickets in WA for ship owned by D

*terms and conditions-litigation concerning travel agreement to be in FL

*Holding

-wanted to limit the fora; also, P benefitted from reduced rates that were result of

the limited fora

-traditional notions of fair play and substantial justice

-no evidence of bad faith

-notice of forum provision

-makes sense for it to be FL (ships depart there)

Notice

What is the amount of notice that is constitutionally owed to D?

Pennoyer

-personal notice if person in state

-notice in newspaper w/o attachment not enough for property

Further Protections for Defendant (beyond power, consent, notice)

Long Arm Statutes

*whether or not a state can assert jurisdiction over D from another state

*cannot reach further than personal jurisdiction requirements allow

*reasons

-economic: states want fewer defendants who could have personal jurisdiction

-protection: states want to protect its citizens but also have interest in being able to

adjudicate things that happen within in

Gibbons v. Brown

*D (TX) sued P (FL) in FL for car accident (general jurisdiction); 2 years later P sues

D in FL (case in question)

*Holding

-long arm statute said that D must be engaged in substantial activity w/in the state

(doesnt matter if the claim arises from that activity)

-suing someone in a state not substantial activity and so D has not engaged in

substantial activity

Documents

Civ Pro Schwartz FA 2012