Agenda for 17th Class
• Admin
– Handouts
– Name plates
– Office hours next week
• W 3:30-4:30. Please email for appointment
– Court visit,
• Tuesday, November 19, ~1:30-4PM, but keep all afternoon clear
– A Civil Action panel
• November 21 at 7 or 7:30 in WCC 2004
– Review class
• December 9, 1:10-3:10, WCC 2004
• Review of Supplemental Jurisdiction
• International Shoe
• Stream of Commerce & McIntyre
• Next class: Contracts & internet (no introduction necessary)
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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
2
Supplemental Jurisdiction
• Subject matter jurisdiction over claims where neither diversity nor federal question
– If same transaction or occurrence as claim for which there is diversity or a
federal question
• 1367(a)
– If doing so would not allow plaintiff to circumvent the complete diversity rule
• 1367(b)
• Must still show personal jurisdiction for each claim
• Must still show joinder proper
• Must still show venue proper
3
Personal Jurisdiction
• Answers question: Court in which state?
• Need statutory or rule authority & statute or rule must be constitutional
– Federal rule: FRCP 4(k)(1)(A)
– State long-arm statutes
• Constitutional constraint: Due Process Clause of 14th Amendment
– Unfair to have to litigate in courts of state with no legitimate authority over
defendant or dispute
– Odd mixture of sovereignty, federalism, and fairness concerns
• Before International Shoe
– In personam:
• Defendant was citizen or resident of forum state
• Defendant was present in forum state
• Defendant consented to jurisdiction
– In rem: Disputes about property, jurisdiction where property is
– Quasi in rem: Dispute not about property, jurisdiction where defendant owns
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property, but only up to value of that property
International Shoe Questions
– 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
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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 way to
Oklahoma solely as the result of plaintiff’s actions
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– Not stream of commerce case, b/c car was driven to Oklahoma, not sold there
Cons v Manuf.
In CA
Yes
Probably
Cons v Retailer
in CA
Cons v Manuf.
In OR
No
Yes
Probably
Stream of Commerce
Question
Yes
Yes
Yes
Yes
Cons v Distrib.
In NV
Probably
Cons v Distrib.
Probably
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,” even
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if purposeful availment could be satisfied.
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 9
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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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