Agenda for 24th Class (FJ)

1
Agenda for 24th Class (FJ)

• Slide handout
• Personal Jurisdiction
• Review of McIntyre and Burger King
• Internet
• Shaffer
• Burnham
• Consent
• Challenging jurisdiction
• Introduction to Venue

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Assignment

• 28 USC 1391, 1404, 1406
• Yeazell 174-89
• 5 Blackboard Questions on Venue
• Questions to think about / Writing Assignment
• Briefly summarize Dee-K Enterprises
• P. 176 Q5 pp. 178ff Q1a, 2
• Briefly summarize Piper Aircraft
• In your summary, please incorporate answers to
  pp. 186ff Qs1, 4,
• Suppose a chemical plant in India owned by an
  American company leaks gas into the surrounding
  neighborhood and kills 16,000 people and injures
  half a million. The victims sue in US court.
  Defendants move for dismissal on the basis of
  forum non conveniens. The plaintiffs argue that
  dismissal is inappropriate, because Indian courts
  require a filing fee equal to 5 of damages
  claimed, which in this case could be billions of
  dollars. There are long delays in Indian courts.
  Indian courts have very few tort precedents and
  none relevant to mass torts. Discovery is
  usually very narrow, if allowed at all. Should
  the court grant the forum non conveniens motion?
  If it does, are there any conditions it should
  attach?
• Optional Glannon Chapter 8 (Venue), 1 (Personal
  Jurisdiction),

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Review of McIntyre

• Court continues to be divided on Stream of
  Commerce
• Kennedy 3.
• Defendant must target the jurisdiction
• Putting product in stream of commerce not enough
  to show purposeful availment
• Ginsburg 2
• Establishing distribution network to serve whole
  US sufficient to show purposeful availment of
  particular U.S. states
• Breyer
• This case is anomalous.
• No jurisdiction, because only a few of McIntyres
  machines were sold to NJ
• Seems also to endorse narrow view of OConnors
  Stream of Commerce Plus approach
• But mostly defers real analysis of
  stream-of-commerce decision for the next case
• No majority opinion

4
Review of Burger King

• Suppose A is from AL and C is from CA and suppose
  A and C enter into a contract with each other
• Broad interpretation of Burger King
• If A sues C or C sues A, then both AL and CA
  always have jurisdiction over the case
• Narrow interpretation of Burger King
• If A sues C, then AL has jurisdiction over the
  case only if
• the contract was part of a continuing commercial
  relationship between A and C, and/or
• the defendant was sophisticated
• Similar analysis if C sues A in CA

5
Jurisdiction Internet

• Revell
• No jurisdiction in state X simply because
  website defamed victim residing in state X
• Must also show events discussed and/or readership
  were in victims state
• Tries to narrow Calder effects test
• Zippo
• Jurisdiction depends on how active the website
  was
• Note that Zippo was only district court decision
• Unclear theoretical basis
• Why should defamation be less likely to establish
  jurisdiction where viewed if posting was by
  website owner on passive website than if posting
  was by 3rd party on interactive website?
• Handout Problems 2-18 2-19

6
Schaffer

• Briefly summarize Shaffer
• P. 100ff Q3, 4
• Is jurisdiction proper in the following
  situation?
• Car accident in West Dakota
• Defendant is citizen resident of California
• Defendant owns real property in West Dakota
• Plaintiff is citizen of West Dakota
• Suit in West Dakota state court
• West Dakota has the following long-arm statute
• West Dakota trial courts may exercise
  jurisdiction over an individual only if that
  individual is a resident or citizen of West
  Dakota or if the individual owns real property in
  West Dakota.
• Remember to consider both whether there is
  statutory authorization for jurisdiction and
  whether jurisdiction is constitutional

7
Burnham

• Briefly summarize Burham
• Do you think jurisdiction based on presence makes
  sense? Should it be constitutional?
• How far would you extend jurisdiction based on
  presence? In answering that question, consider
• Pp. 145ff Q 3
• Grace v. MacArthur, summarized on slide 5 of
  Class 17 handout
• Given that Burnham is now established law, how do
  you think courts should resolve the cases
  described in
• Pp. 145ff Q 3 Grace v. MacArthur, summarized on
  slide 5 of Class 17 handout

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Consent to Jurisdiction

• Consent was basis for in personam jurisdiction
  before Intl Shoe
• Consent continues to be basis for jurisdiction
• 3 kinds of consent
• Consent after sued in particular forum
• Failure to object / waiver
• Forum selection clause in contract
• Note difference from choice of law clause
• Carnival Cruise Lines
• Choice of law clauses generally enforceable
• Forum must be reasonable
• Cant be chosen just to inconvenience plaintiff
• Ok if some relationship to dispute
• E.g. defendant's headquarters state
• Even if inconvenient to plaintiffs
• Strategy
• Almost always advantageous to include choice of
  forum and choice of law clauses in contracts
• Mutually advantageous to reduce uncertainty
• Especially beneficial if your client has
  bargaining power to choose advantageous law and
  forum

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2 Ways to Challenge Jurisdiction

• In court where sued
• Make 12(b)(2) motion or state equivalent
• Special appearance means defendant appears in
  court solely to challenge jurisdiction
• Otherwise, appearance in court could be construed
  as consent to jurisdiction
• Collateral attack
• Only possible where defendant does not have
  assets in forum
• So plaintiff would have to enforce judgment in
  state where defendant has assets
• Enforcing judgment in another state requires
  separate suit in that state
• But Full Faith Credit Clause of US Constitution
  requires state to respect judgment of another
  state, IF THE STATE WHICH RENDERED THE JUDGMENT
  HAD JURISDICTION
• Defendant does not appear in court where sued
• Default judgment is entered against defendant
• When plaintiff goes to enforce judgment in state
  where defendant has assets, defendant raises lack
  of personal jurisdiction as defense
• Very risky, because if enforcing court decides
  the original court had jurisdiction, defendant
  cannot then challenge judgment on merits

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10
2011 Exam

• 2011 Exam question II.4
• Note typo. delivery should be delivering

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Introduction to Venue

• What court within a state?
• State court LA Superior Court or San Francisco
  Superior Court
• Federal court. If state has more than one
  district, which district
• S.D.N.Y or E.D.N.Y.
• Purely statutory
• No constitutional constraint
• States have own statutes
• Federal statute is 1391
• Transfers
• Can transfer case between federal districts for
  convenience
• Cannot transfer case between court systems
• E.g. from MA court to CA court
• E.g. from US court to UK court
• But sometimes court will dismiss case over which
  jurisdiction and venue are proper, but when a
  court in another court system would be more
  appropriate
• Forum non conveniens