• Admin
– Handouts
– Name plates
– Office hours this week
• W 3:30-4:30. Please email for appointment
– Lunch
• Friday. Noon-1. Glassed-in side, as far from TV as possible
– Court visit,
• Tuesday, November 19, ~1:30-4PM, but keep all afternoon clear
– A Civil Action panel
• November 21 at 7 in WCC 2004
– Review class
• December 9, 1:10-3:10, WCC 2004
• Review of International Shoe & McIntyre
• McIntyre continued
• Burger King
• Jurisdiction & internet
• Introduction to Venue and Erie
1

• Venue
– 28 USC 1391, 1404, 1406
– Yeazell 174-89
– Yeazell Pp. 175ff. Qs 1,2,4a,b,d (ignore the reference to 28 USC 1392)
– Briefly Summarize Dee-K Enterprises
– Yeazell 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), Chapter 9 (jurisdiction & venue)
• Erie
– 28 USC 1652, 2072
– Yeazell 241-50,
– Briefly summarize Erie
– Yeazell p. 248. Q1b
– Optional. Glannon Ch. 10
2

• T. 11/19 (court visit)
– Optional -- Read papers in US v Noe & Baker (on class website)
• Th 11/21 (A Civil Action panel)
– By Wednesday midnight, email dklerman@law.usc.edu
at least one question that you would like to ask Cheeseman, Facher, Nesson and/or Schlichtmann
• Question should be about case and/or book
– Not about movie
• M 11/25 (regular class)
– Court visit
• In what way was court different than you expected?
• Do you have any questions about what you saw or heard?
– Other assignments to be posted later
• Optional
– Professor Klerman’s articles on personal jurisdiction (on class website)
• Read only if you are curious
• Unlikely to be helpful on exam
3

• No cell phones or laptops
• Dress
– Marsha Zierk (Career Law Clerk): “Judge Stearns expects formality in the courtroom -- so jackets are not necessary, but jeans don't work either. I think a shirt and tie is great -- especially if they plan on filing clerkship applications! -- but otherwise, business casual.”
4

• 12:40. I will leave my office, Griswold 206
– If you want to take the T together, please meet me at my office
• 1:30 or earlier. Arrive at courthouse, go through security
– Courthouse Way, Boston MA
– 12 minute walk from South Station stop on Red Line
• 1:40. Meet with Marsha Zierk, Career Law Clerk
– Courtroom 21 on 7 th Floor
– Runs civil side of courtroom; manages docket. Manages law clerk and intern assignments; involved in hiring interns & law clerks
• 2:00. Pigniaro v Standard Insurance
– Claim for long-term disability benefits under an employee welfare benefit plan governed by ERISA
– Papers sealed, so cannot distribute
• 3:00. US v Noe & Baker
– Request for return of property seized as part of arrest
– Pro se litigant
– Papers on website
• Discussion with Judge Stearns and law clerks between 2PM & 3PM hearings or after 3PM hearing
5

– International Shoe
• Focused personal jurisdiction on “minimum contacts”
• General & specific jurisdiction
– Hanson v. Denkla
• Contacts only count if they show “purposeful availment”
– Contact with forum state cannot come solely through unilateral action of plaintiff
– Contact must reflect defendant’s actions
• Forseeability not enough (World-Wide Volkswagen)
– McIntyre
• Kennedy + 3.
– Putting product in stream of commerce not enough to show purposeful availment
– Defendant must “target” the jurisdiction
• Ginsburg + 2
– Establishing distribution network to serve whole US sufficient to show purposeful availment of particular U.S. states
6

• 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 if purposeful availment could be satisfied.

• 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 would you advise the Chinese company to select. Why?
8

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?
9

• Person jurisdiction and contracts
– Briefly summarize Burger King
– Yeazell pp. 117ff. Q1, 2
• Personal Jurisdiction and the internet
– “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
10

• 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 ares proper, but when a court in another court system would be more appropriate
– Forum non conveniens
11

• In diversity cases, federal court applies state substantive law
– State statutes
– State court interpretations of common law
– BUT federal court applies FRCP and other aspects of federal procedure
• Note that situation was completely different before 1930s
– Federal courts applied state procedure
• FRCP did not exist
– Federal courts applied their own interpretations of the common law
• “general common law” (Swift v Tyson)
• Only applied state substantive law if embodied in statute
12

• 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 13