Agenda for 16th Class
• Admin
– Handouts
– Name plates
– Lunch Friday, noon-1
• Glassed in side, as far from TV as possible
• Pomegranates?
– Office hours next week
• W 3:30-4:30. Please email for appointment
– Court visit Tuesday, November 19
• Roughly 1:30-4PM, but keep all afternoon clear
– A Civil Action panel
• Probably Th 11/21 at 7 or 7:30 in WCC 2004
– Review class
• December 9, 1:10-3:10, WCC 2004
• Review of federal question jurisdiction & diversity jurisdiction
• Supplemental jurisdiction
• Introduction to Personal Jurisdiction
1
Assignment for M 11/11
– International Shoe & early cases
• FRCP 4(k), especially 4(k)(1)(A)
• Yeazell, 79-91
• Briefly summarize International Shoe
• If the Supreme Court had not decided to change the rules in International Shoe,
would jurisdiction have been proper under the prior rules? If your answer is
“yes,” why do you think the Supreme Court changed the rules? If you answer is
“no,” why was the outcome under the new rules better?
• Yeazell pp. 86ff. Qs 1b, 3
– McIntyre
– Yeazell pp. 124-31
– Questions on the next 2 slides
– Optional:
• Glannon Chapters 1 & 2
2
McIntyre Questions I
• Briefly summarize McIntyre v Nicastro
• Yeazell pp. 131ff Qs 1- 4
• How would McIntyre have been decided under White’s view of the “stream
of commerce” theory as expressed in his opinion in World-Wide
Volkswagen
• How would McIntyre have been decided under O’Connor’s “stream of
commerce” plus theory
• How is Kennedy’s view of jurisdiction based on the “stream of commerce”
different from White’s and O’Connor’s? In what cases would they reach the
same result? In what cases different results?
• Suppose the California courts and juries are relatively generous to product
liability plaintiffs, but Nevada courts and juries are relatively stingy. A
Chinese company which is breaking into the US market is considering two
distributors, one based in California and another based in Nevada. The two
distributors seem roughly equal in quality and price. Which distributor 3
would you advise the Chinese company to select. Why?
McIntyre Questions II
• Suppose Washington state is suffering from high unemployment. Its
legislators would like to find a way to expand employment by
encouraging Chinese manufacturers to choose distributors based in
Washington state. You are an adviser to a Washington state legislator.
What changes would you suggest that Washington state make to its
laws?
• If you were on the Supreme Court, in what situations would you
allow those injured by products to sue the manufacturer? Would you
adopt White’s Stream of Commerce theory? O’Connor’s Stream of
Commerce plus? Kennedy’s theory in McIntyre? Some other rule?
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Assignment for T 11/12
• Person jurisdiction and contracts
– Yeazell 112- 118 (Burger King)
– Briefly summarize Burger King
– Yeazell pp. 117ff. Q1, 2
• Personal Jurisdiction and the internet
– “Jurisdiction & the Internet” (handout)
– Briefly summarize Revell
– Suppose you buy Duck Boots mail order from LLBean and pay with a
check. They send you the boots, but your check bounces. LLBean sues
you in Maine, where it is headquartered. Does the Maine court have
jurisdiction over you?
– Handout Problems 2-18 to 2-20
– Optional:
• Glannon Chapters 3, 6
5
Review of Federal Question Jurisdiction
– Case “arises under” federal law for purposes of 1331
• If plaintiff’s cause of action is based on federal statute or U.S.
Constitution
• Well pleaded complaint rule
– No federal question jurisdiction if federal question related only
to defense
– Case “arises under” federal law for puposes of Art. III
• If there is an federal issue which could change the outcome of the
case
• That’s why U.S. Supreme Court eventually had jurisdiction when
Mottley was appealed from state supreme court to U.S. Supreme
Court
– Note that state courts can decide constitutionality of federal statutes
• And, indeed, are required to do so, because the U.S. Constitution
is the Supreme Law of the Land
6
Review of Diversity Jurisdiction
– “State” in Article III and 1332 means “U.S. state”
• Unless explicitly says “foreign state”
– 2 forms of Diversity jurisdiction
• Citizen of U.S. state and citizen of other U.S. State
• Citizen of U.S. state and citizen or subject of foreign state
– Alienage jurisdiction
– Difference between old and new alienage jurisdiction statute
• Old statute.
– Alien admitted to permanent residence in U.S. deemed to be citizen of U.S.
state in which domiciled
– Could be construed to give diversity jurisdiction when Turkish citizen
domiciled in California sues Jordanian citizen domiciled in Jordan
– Constitutitionally problematic, because really suit between two aliens
• New statute
– No jurisdiction in suit between U.S. citizen of state X and alien, if alien is
permanent resident domiciled in X
– No constitutional problem, because constricts diversity jurisdiction rather
than enlarges it
» Clearly no diversity jurisdiction in case mentioned above
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Supplemental Jurisdiction
• Note that
– Need to serve process on each defendant separately following FRCP 4
– Each defendant must serve an answer
• See problems on handout
8
Introduction to Personal Jurisdiction
• Personal jurisdiction is about which court can hear a case
– If case is in state court, personal jurisdiction answers question
“which state court?”
• California state court? Massachusetts state court?
– If case is in federal court, personal jurisdiction answer question
“federal court in which state?”
• Federal court in California? Federal court in Massachusetts?
– Contrasts
• Subject matter jurisdiction. Federal or state court?
• Venue. Which court within a state
– Los Angeles superior court or San Francisco superior court
– C.D. of California (federal court in LA) or N.D. California
(federal court in San Francisco)
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Long-Arm Statutes
•
Court must have statutory or rule authority AND statute or rule must be constitutional
– Structure is similar to
• Service of Process. Need statutory/rule authority AND statute/rule must be
constitutional
• Subject matter jurisdiction. Need statutory authority AND statute must be
constitutional
– State statutes are generally called “Long Arm Statutes”
• Enumerated Act statutes
– E.g. statute says, State court has jurisdiction over defendant if it is a citizen
of the state, if it committed a tort in the state, if it was a party to a contract
to be performed in the state…
• To the Limit of the Constitution statutes (CA)
– Federal rule is FRCP 4(k)(1)(A)
• Federal courts generally apply state long-arm statute applicable to court of
“general jurisdiction
– “Court of general jurisdiction” means non-specialized court with power to
hear big cases (e.g. superior court), not family court, small claims court or
other specialized court
– Course will focus on constitutional limitations
• Due Process clause
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Rules before International Shoe (1945)
• Pennoyer v Neff (1877)
• 3 bases for personal jurisdiction
– In personam. If defendant is citizen or resident of state, or present in state, or
consented to jurisdiction
• For individuals, extreme case was service of process in airplane over
Arkansas. Grace v. MacArthur (1959)
• Corporations are citizens in state where incorporated (e.g. Delaware)
• Difficult to determine where corporation is “present”
– Where headquartered. Clearly yes
– Where has plant or office and lots of employees. Clearly yes
– What if only has a few employees? Not clear
– Where does business? Unclear what means to “do business”
– In rem. In dispute about property, personal jurisdiction is proper where
property is located
– Quasi in rem. If suit is NOT about property, but defendant has property in
state, plaintiff can sue in that state for whatever cause of action, but recovery is
limited to value of property in state
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Key Personal Jurisdiction Cases
• International Shoe
– Jurisdiction if
• Defendant has “minimum contacts” with forum, and
• Jurisdiction would be consistent with “fair play and substantial justice”
• Hanson v Denkla
– Jurisdiction if defendant’s contacts show “purposeful availment”
– Contacts cannot arise from unilateral actions of plaintiff
• Trust set up in Delaware. Trustor moved to Florida. Trustee has contacts
with Florida, because trustor and beneficiaries there, but trustee did not
choose to do business with people in Florida, so no jurisdiction over trust
dispute in Florida.
• World-Wide Volkswagen
– Foreseeability is not enough
– Defendant sold car in New York. Plaintiffs drove car to Oklahoma where had
accident. No jurisdiction in over defendant in Oklahoma
• Even though foreseeable that car might be driven to Oklahoma
– Plaintiff did not “purposefully avail” itself of Oklahoma, because car made its
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way to Oklahoma solely as the result of plaintiff’s actions
Stream of Commerce I
• Mfg in A sells to consumer in B
– If mfg sold to B through showroom owned by mfg in B, then very clear that
jurisdiction in B
– If mfg ships product to consumer in B, then probable that jurisdiction in B
(McGee)
• Mfg in A sells to retailer in B. Consumer buys from retailer in B
– Clear that consumer can sue retailer in B
– Probable that consumer can sue mfg in B
• Mfg in A sells to distributor in B. Distributor in B sells to retailer in C. Consumer in C
buys from retailer
– Clear that consumer can sue retailer in C
– Pretty clear that consumer can sue distributor in C
– Probable that consumer can sue manufacturer or distributor in B
• But Ginsburg in McIntyre seems to assume “no”
– Clear that consumer can sue mfg in A
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– Stream of commerce issue: When can consumer sue mfg in C?
Stream of Commerce II
•
•
White dicta in World-Wide Volkswagen (stream of commerce)
– Jurisdiction over mfg in C, if mfg’s products sold in C and sale is “not simply an
isolated occurrence, but arises from the efforts of the mfg or distributor to serve,
directly or indirectly the market for its products” in C
• Relatively easy to satisfy
O’Connor plurality opinion in Asahi (stream of commerce plus)
– Jurisdiction over mfg in C if White’s criteria satisfied AND “additional conduct of the
defendant [indicates] an intent or purpose to serve the market” in C, e.g.
• Designing the product for C
• Advertising in C
• Establishing channels for providing regular advice to consumers in C
• Marketing product through distributor who has agreed to serve as the sales
agent in the forum state
– Probably means that mfg has direct contractual relationship with retailer
based in state C
– No majority opinion on stream of commerce
• But majority agreed that no jurisdiction in California over indemnity suit
between foreign manufacturer and foreign part supplier, when California
plaintiff had settled with foreign manufacturer
• Jurisdiction would be inconsistent with “fair play and substantial justice,” 14
even
if purposeful availment could be satisfied.
General and Specific Jurisdiction
• General jurisdiction
– Court which has general jurisdiction over a defendant can hear any case against
the defendant
• Even if case has nothing to do with forum
– Bases for general jurisdiction
• Continuous and systematic contacts (International Shoe)
• Individuals. Citizenship, residence, presence, quasi-in-rem (but no longer
constitutional)
• Corporations:
– Where “at home”. Goodyear v Dunlop (2011)
– Clearly yes: where incorporated, where headquartered
– Maybe. where have (large) factory or office and/or (lots of) employees
and/or where conduct lots of business
• Do not confuse with “court of general jurisdiction” 4(k)(1)(A)
• Do not confuse with citizenship for purposes of diversity jurisdiction
• Specific jurisdiction
– Jurisdiction only over cases related to contacts (International Shoe)
– Most cases we will read for class
– In rem can be thought of as specific jurisdiction
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– Consent can also be thought of as specific jurisdiction
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,
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defendant cannot then challenge judgment on merits