Civ Pro Final Outline

CIV PRO FINAL OUTLINE

BERMAN, FALL 2012

PERSONAL JURISDICTION

BLURB: “The traditional bases for personal jurisdiction have been domicile, consent and service of process upon the defendant when he was physically present in the forum (Pennoyer v. Neff). The supreme court reaffirmed that principle in Burnham where it held that the mere presence of a nonresident in the forum state is sufficient for the forum state to assert personal jurisdiction over him as long as the service is made on the person while he is in the forum state.”

Does the forum state traditionally hold personal jurisdiction over the defendant?
Is D a Domiciliary/Citizen
Individual (permanent home = only one)
Physical Prescience & Intent to Remain
Corporation (can have 1 or 2)
State of incorp. & Principal place of business
Consent to PJ
Forum selection clause in contract
Presence at hearing to defend
Exception: Special Appearance to contest PJ
Legal Fictions (Implied Consent): precedent (Pennoyer) doesn’t work well, so we will do anything to preserve the structure
Pawloski: Statute designating agent of state for purpose of service of proses for out of state non-residents constitutes implied consent to jurisdiction under 14th amendment
P sues D who hit her in car while driving through Massachusetts, P is mass resident and D isn’t. D says no PJ b/c not served in the state, but court holds PJ anyway b/c of implied consent
If you choose to waive your due process right, you have consent
Driving into state under statue waives due process right
Was D Physically Present in the state while served?
Pennoyer: Service of process while physically present in forum is basis for PJ
Mitchell wants to collect lawyer fees from Neff in Oregon State Court; Neff somewhere in CA; Mitchell publishes notice of case in church newspaper; Neff doesn’t show up; Court issues default judgment in favor of Mitchell and Mitchell gets Neff’s property; Sells property for money Neff owed him; Richard buys it and then transfers title to Pennoyer; Neff shows up and says he’ll sue Pennoyer for his land back saying Mitchell didn’t have right to sue in the first place because he didn’t know about the suit
Burnham: Served w/ Transient presence in state= PJ
Man served in CA while on visit, held PJ in CA
Even under Int’l shoe min. contacts destroying Pennoyer majority view, transient = PJ
Does the state’s long arm statute authorize personal jurisdiction under the circumstances of the case? And if they offer some jurisdiction, must discuss how courts would act if they took it by word or if they extended it to the full extend of the constitution meaning it could be held to be much broader scope.

BLURB: “The Georgia long arm statute allows for…”

GEORGIA LONG ARM STATUTE

Grounds for exercise of personal jurisdiction over nonresident.

A court of this state may exercise personal jurisdiction over any

nonresident or his executor or administrator, as to a cause of action

arising from any of the acts, omissions, ownership, use, or possession

enumerated in this Code section, in the same manner as if he were a

resident of the state, if in person or through an agent, he:

(1) Transacts any business within the state;

(2) Commits a tortious act or omission within this state, except as to a

cause of action for defamation ofcharacterarising from the act;

(3) Commits a tortious injury in this state caused by an act or omission

outside this state if the tortfeasor derives revenue from goods used or

consumed or services rendered in this state;

(4) Owns, uses, or possesses any real property situated within this state;or

(5) With respect to proceedings for alimony, child support, or division of

property in connection with an action for divorce, maintains a matrimonial

domicile in this state at the time of commencement of this action or, if

the defendant resided in this state preceding the commencement of the

action, whether cohabiting during that time or not.

If yes, would it be constitutional under the due process clause of the 14th amendment to do so?

BLURB: “To establish personal jurisdiction over D, the P will have to satisfy the minimum contacts test by showing that D had purposeful contacts with state and that P’s claim arises out of those contacts. If P makes such a showing, then the burden will shift to D to demonstrate that the exercise of jurisdiction would none the less be unreasonable.”

Use International Shoe Minimum Contacts Analysis to place the issue on sliding scale from general jurisdiction on one hand (lawsuit totally unrelated to your contacts in the state) and very specific jurisdiction on the other hand (one contact in the state that’s very related to the lawsuit)
To analyze purposeful contacts
Relatedness of contacts to what the lawsuit is about
How much D benefitted from the contacts
Foreseeability of those contacts
Were contactscreated by acts of consumer versus happening through a stream of commerce?
Effects of the defendant’s action (Calder)
Whether the D in any way targeted actions to the state (Kennedy in McIntyre)
If you can’t get PJ, you may then try to get In Rem jurisdiction over the thing, whatever the thing in the state may be
Under Shaffer, Quasi in Rem (jurisdiction over the thing when the suit is not about the thing) but now has to satisfy Int’l shoe so not generally useful unless long-arm statute blocks you from getting PJ
Minimum Contacts Test (Int’l Shoe v. Washington)
Int’l Show manufactures shoes and wants to sell them all over country but doesn’t want to have jurisdiction over them in every state they sell shoes in. Don’t want to pay unemployment compensation fund in every state they do business in, so they want jurisdiction in as few states as possible. When state of Washington says they owe money into the Washington compensation fund, Int’l shoe claims it has no presence in the state. To bypass presence, they set up no offices in the state and have sales people move around. In Pennoyer world, would have to show corporate presence or try to show implied consent (agents). Comes up with minimum contact test. Replaces, “is it there?” with “is it fair?”. Activities of Int’l Shoe in Washington were systematic and continuousthroughout the years in question (resulted in large volume of interstate business where Intl Shoe received benefits and protection of the laws of the state including right to resort to courts for enforcement of its rights. The obligation, which is sued for here, arose out of those activities.
To satisfy this test, P must demonstrate that if D is not physically present in the state, D has sufficient minimum contacts with the forum state and that exercise of PJ over D would be reasonable in keeping with traditional notions of “fair play and substantial justice”
In order to satisfy General Jurisdiction, P must demonstrate that D had continuous and systematic contacts with the forum state to make D subject to PJ for any action arising in that state
Rarely permissible outside of place of citizenship
Claim need not arise out of contacts; don’t worry about fairness
Are contacts so much so that the defendant is essentially at home in forum state?
Int’l Shoe: continuous solicitation of orders in the state by salesmen and continuous flow of Shoe’s product into state satisfy general jurisdiction
Goodyear: GJ cant be applied in stream of commerce on claim unrelated to contacts in forum
Foreign subsidiaries not amenable to suit in NC on claims unrelated to any activity by them in that state (few factories in NC not continuous and systematic)
Two 13 year old boys from NC died as result of bus accident outside of Paris. Parents believe accident due to defective tire manufactured by foreignsubsidiaries of Goodyear in Turkey, France & Luxembourg and sued for damages in NC state court. Court finds foreign subsidiaries lacked a significant connection to NC to warrant jurisdiction.
Helicopteros: purchase of helicopters and training in Texas by Colombian corporation, while considered business-related activities, did not rise to level of continuous and systematic for GJ
Helicopters, a Colombian corporation, purchased a majority of its helicopters and training for said helicopters in Texas. They provide helicopter transport for oil and construction companies in South America. The incident in question happened on Jan 26, 1976 when a helicopter crashed killing 4 Americans. In the contract, which was negotiated in Houston, that the plaintiffs had with the defendants there was a choice of location clause which stated that all controversies would be submitted to Peruvian courts.
Only three cases ever allowed GJ, only with Domicile satisfied

BLURB: “In the absence of general jurisdiction over defendant, plaintiff might argue that defendant is subject to specific jurisdiction, for which only contacts related to the lawsuit are relevant.”

In order to satisfy Specific Jurisdiction, P must demonstrate that D had purposeful contacts with the forum state and that D’s cause of action arose out of those contacts (Int’l Shoe)
Question: Did D seek to do business in or with forum state?
Question: Did D purposefully avail himself of the benefits or privileges of the forum state?
Question: Was D’s act reasonably foreseeable to occur in the forum state?
Conducting Transactions within state make it foreseeable to have to litigate there (Shoe)
Contracting with a party from another state and forming ongoing contractual relationship make it foreseeable to litigate there (BK)
Question: Is placement into stream of commerce where product ended up in forum state sufficient for PJ?
Question: How related are the contacts to the suit?
Action must arise out of contacts otherwise not sufficient for specific jurisdiction
When we talk about relatedness, we say it’s really related if the suit arises out of the contacts; somewhat related if the suit is simply somewhat connected to the contacts (degrees of relatedness)
Question: How significant are the contacts?
ie. 50 web hits seems not very significant, 20,000 shearing machines seems pretty significant
Fair Play & Substantial Justice Analysis
What are the contacts or D’s activities in the forum state?
None
WWVW: unilateral activity of third party insufficient for PJ
Robinsons v. Audi + VW + WWVW + Seaway
Audi is manufacturer in Germany
VW is national distributor in USA
WWVW is regional distributor in NY area
Seaway is dealer in Messina, NY
NY family buys car in Messina, crashes in OK, sues in OK state court b/c notoriously plaintiff friendly by making sure two NY companies are in there too so that there was no complete diversity
Seaway & WWVW challenge jurisdiction b/c other two sell tons of cars all over the US
Not subject to OK jurisdiction b/c no contacts or ties with state due to fact that “mere unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of a contract with the forum state.”
Difference btwn this and Stream of Commerce: in SoC, company sells to company who brings it into a state; here company sells to consumer who brings it into the state
One Way Unilateral Act of 3rd Party
Denckla: no PJ b/c one way unilateral contact means D did not purposefully avail itself of the forum state
Trust beneficiary moves to FL post contracting while trustee at DE bank didn’t know and had no reach to FL
Single Act/Contact
McGee: Only one volitional contact w/ state = PJ allowed
TX ins. co. sends letter to beneficiary in CA, CA resident sends payments monthly to TX, purposefully availing themselves.
Allows jurisdiction with one contact but VERY high relatedness to suit
Continuous but Not Systematic/Substantial
Burger King: contractual relations sufficient to create contacts even based on boilerplate language where D purposefully availed itself of benefits and privileges of forum stateby partaking in forum activates and agreeing to protection of state’s law’s in forum selection clause.
Sent fees to FL corp, FL training, agreed to FL law
Fair Play & Substantial Justice Factors can lead to fewer contacts being necessary OR defeat reasonableness of jurisdiction even if D has purposefully engaged in forum activites.
Burden on the defendant for litigating in state
Plaintiff’s interest in obtaining convenient and effective relief
Interstate’s judicial system’s interest in obtaining most efficient resolution of controversies
Shared interest of several state in furthering fundamentals ofsubstantive social policies
Targeting
Keeton: D does not need purposeful contacts with an individual state to have PJ over them if by targeting the entire country their activitiesend up in the state and the suit is related to those activities.
Hustler sells magazines all across nation. P is NY citizen but wants to sue for libel in NH b/c Hustler is sold there. Targeted NH by means of targeting the entire country (make money off people in NH) and suit is directly related to those contacts in that the libel is in the magazine and the magazine is in New Hampshire!
Calder: PJ over D appropriate where effects are felt if D intentionally acted, targeted a person or something in a particular state and knew the effects would occur in the forum state.
D writes article in FL about P actress in CA. Article published in National Enquirer which is distributed everywhere. P claims article is libelous. Article was about someone in CA whereas in Keaton person who was libeled wasn’t even in NH. D knew article would be distributed in CA through national outreach, so PJ upheld in CA.
CALDER TEST:
Committed an intentional act
Act was expressly aimed at forum state
Act caused harm and D knew it would in forum state
Internet Targeting
Do people “travel to” websites or do websites “invade” jurisdictions?
Revell: No PJ where internet message board had no intent to target that state or readers, just posted on site viewable in that state
D published demaftory article about P in NY
P domiciled in TX, D had no knowledge of this and no intent to target TX
Different from Calder because publisher had no awareness of where person lived whereas in Calder knew the location of the actress and knew targeted at CA
Ubid: Unilateral act of third party on internet = no PJ
uBid not customer of GoDaddy. uBid upset that some of GoDaddy’s customers have registered Domain names that allegedlyinfringed on their trademark. There were afair amount of contacts with Illinois (Godaddy had 3.19% revenue from Ill.; sometimes communicated with customers; advertisements at sporting venues there as part of national ad campaign).
Unilateral act of a third party travelling to AZ virtually to buy domain and then back to Ill over web, not initiated by GoDaddy and they did not purposefully avail themselves to benefits of Ill.
Court worried Internet companies could be sued EVERYWHERE if this were not the case!
New Haven Advocate: local character of site = no PJ
CT paper defamed VA man based on treatment of CT prisoners in completely local newspaper
This is not purely about effects of contacts, it’s not about the character of the website (are you seeming to access a market in Virginia)
Stream of Commerce
Gray: PJ where manufacturer expected products would end up in IL in ordinary course of business. If a corporation elects to sell its products for ultimate use in another state, it is not unjust to hold it answerable there for any damage caused by defects in those products.
P sues Titan Valve Co alleging it negligently constructed safety valve and as result of that, a water heater exploded. P sues in Illinois and Titan, Ohio Company, challenged PJ. Titan manufactured valve in Ohio then sold it to PA Company which incorporated it into the heater. The heater in the course of commerce was sold to the Ill consumer. No evidence that Titan had done any business in Ill directly or indirectly.
Asahi (Superceded by McIntyre!): Argued what satisfies purposeful availment in stream of commerce
Asahi (Japanese company) sells component part to company called Cheng Shen (Taiwanese) and they put it in tires, tires on motorcycle shipped to CA and guy in Ca gets injured. Guy settles with Cheng Shen and Cheng Shen brings this suit to recover for what they paid him in CA. State has no interest in this suit anymore b/c two foreigners suing in CA (all believed no jurisdiction)
4 Justices: Purposeful Availment means Directing At
4 Justices: Purposeful Availment means Awareness
McIntyre: UK manufacturer sells shearing machines to national distributor owned as subsidiary; US subsidiary sells product and this specific onces end up in NJ where it harms someone. P wants to sue UK entity.Didn’t specifically target NJ where P injure and no contacts there PJ not appropriate based on failure to target state (Need two of three to be persuasive!)
Kennedy +3 (Majority): Targeting
Must target the state purposefully with advertisements, distribution, etc.
Without contacts a sovereign entity cannot impost jurisdiction
D’s volitional actions reveal consent to state’s jurisdiction
Breyer + 1 (Controlling): Flow
Rejects Kennedy’s targeting analysis
Regular flow sufficient to establish contact; one item not enough
Ginsburg +2 (Dissent): Knowledge+Flow
Knowing product is national should avail for suit in any state + Flow

BLURB: “Even if the court finds that there are minimum contacts over the defendant, it is (plausible/implausible) that the court could find that subjecting the defendant to suit in (state) would violate “traditional notions of fair play and substantial justice”

Once minimum contacts are established, would exercise of PJ over D would be reasonable in keeping with traditional notions of “fair play and substantial justice” as per Burger King?
Burden on Defendant (Main Issue)
D has very high criteria to show; mere inconvenience not enough, must be unconstitutionally burdensome
Forum state’s interest in dispute
Plaintiff’s interest in obtaining convenient and effective relief
Interstate judicial system’s interest in obtaining most efficient resolution of controversies
Would not be fulfilled if other forum that would be more efficient handling
Shared interest of several states in furthering fundamental substantive social policies
In Keeton, Ct. recognized NH shared interest b/c every state deals w/ defamation
In Rem/Quasi In Rem
Shaffer requires that in rem and quasi-in-rem cases be assessed under Int’l Shoe
Heitner has one share of greyhound stock and wants to sue: shareholder derivative suit (bought share to bring the suit). Sues Directors of company in DE because there incorporated there. Not suing the company, suing the directors for doing a bad job. Court grabs the property (shares/stocks of greyhound from directors) and says sufficient for jurisdiction in DE. Supreme Court says D’s contacts with state must satisfy SHOE!
In rem: fact that defendant owns property in forum almost always means defendant has minimum contacts with the forum
Quasi In Rem: no longer useful except when jurisdiction satisfies Int’l shoe but long arm statute precludes personal jrusidcition
Where property seized as jurisdictional hook didn’t cause injuries, would not satisfy Shoe  attaching property as collateral not sufficient b/c no relation to claim

NOTICE