Forum Non Conveniens

Agenda for 35th Class
• Slide handout
• Friday. Rescheduled class.
– 1:20-2:35, Rm. 101
• Review Class
– 10-11:15, Rm. 7
• Review of Internet J
• Review of Personal Jurisdiction
• Review of Venue
• Forum non conveniens
• Res Judicata
Assignment for Next Class
• Yeazell 749-67
• Questions to think about / Optional Writing Assignment
– No mandatory writing assignment
– Yeazell p. 750 Qs 1-3
– Yeazell p. 753 Q 2
– Yeazell p. 756 Qs 1-4
– Briefly summarize Parklane
– Yeazell pp. 764ff Qs 1c, 2a&b, 5a&b
• Optional. Glannon Chapters 28 and 29
Review Jurisdiction & Internet
• 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?
• Torts – defamation, trademark infringement (Revell, etc.)
– Factors that support jurisdiction
• Defendant knew that injured person resided in forum state
• Posting involved events in forum state
• Posting targeted to forum state or had wide viewership there
• Defendant had other related contacts with the forum state
(e.g. mailed letter there)
• No special jurisdictional doctrines for internet
– “Purposeful availment,” like other jurisdictional contexts
– Concern that posting material to web should not trigger worldwide jurisdiction
Review of Personal Jurisdiction
• Modern Supreme Court has focused on “purposeful availment”
– 4 categories of purposeful availment (Ides. Internet handout p. 7 n.1)
• Defendant or its employees entered the forum and conducted activity
– International Shoe
• Defendant entered into contractual relationships with forum residents
– Burger King, McGee
• Defendant’s products entered the forum through the "stream of
– McIntyre
• Defendant’s out-of-state conduct caused an injurious "effect" in the forum
– Revell
• General or specific jurisdiction
– All cases we have read deal with specific jurisdiction
• Contacts related to dispute
– General jurisdiction
• Individuals – residence, domicile, consent, presence
• Corporations
– Definitely. Incorporation, principal place of business
– Maybe. (large) factory/office, (many) employees, lots of business 4
Venue -- 28 USC 1391
• (b)(1). If all defendants reside in the same state, venue is proper in any judicial
district in which at least one defendant resides
– For individuals residing in US, residence = domicile. (c)(1)
• Confusing, because domicile is usually defined as residence + intent to
remain indefinitely
– If you currently reside where you intent to remain, then your current
residence is your domicile
– If you currently reside where in a place you do NOT intend to remain,
then your domicile is the last place you resided with intent to remain
– Corporations are resident in any district in which they would be subject to
personal jurisdiction, if district were considered a state. (d)
• If reside in district, then reside in state in which district located
• (b)(2). Venue is proper in judicial district where event or omission giving rise to
claim occurred
• (b)(3). If no district satisfies (b)(1) or (b)(2), then venue is proper in any district in
which in which any defendant is subject to personal jurisdiction.
• IMPORTANT. Even if venue is proper, court still needs to have personal jurisdiction
over EACH AND EVERY defendant.
Dee-K Enterprises
• Plaintiffs sued Malaysian, Indonesian, Thai, and US corporations in the ED of VA
alleging conspiracy to fix rubber thread prices.
– Defendants challenged venue.
– 1391(d) (now 1391(c)(3)) says that non-residents may be sued in any district.
– The US defendants reside in different states and the relevant actions and
omissions took place outside the US, so venue was proper “in a judicial district
in which any defendant may be found.” (This is no longer in 1391).
– It isn’t clear whether any defendant can be “found” in ED of VA, so the court
ordered the plaintiff to show that at least one has a connection to EDVA in
order for venue to be proper.
• As a result of recent revisions, one no longer need to ask where a defendant can
“be found” (which was completely unhelpful),
– But now one must ask where one of the US defendants “is subject to the
court’s personal jurisdiction.” 1391(b)(3)
– Foreign defendants are ignored in determining venue, if there is at least one US
defendant. 1391(c)(3)
Moving Cases Around
• From one federal court to another
– 28 USC 1404 says cases may be transferred “to any other district .. Where it
might have been brought” “for the convenience of the parties and witnesses, in
the interest of justice.” Even if venue was proper in the first place
• BUT transferee court follows choice of law rules of transferor court
– 28 USC 1406 says that court can transfer case if venue was improper in the first
• Without statute, one might think that the court didn’t have power to do
• No comparable ability to transfer case between judicial systems
– E.g. from one state court to a court in a different state or foreign country
– E.g. from federal court to court in foreign country
– If judge thinks that her court has jurisdiction, but that a court in a different
state or country would be better, the judge must dismiss the case
• Forum non conveniens
• No transfer or forum non-conveniens to move case from federal to state court or
vice versa
– State to federal court. Removal; Federal to state. Abstention.
Forum Non Conveniens Questions
• 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?
Introduction to Former Adjudication
• 2 concepts
– Res judicata / claim preclusion
– Collateral estoppel / issue preclusion
• Res judicata
– Cannot litigate same claim several times
– Sometimes bars related claim, even if not litigated before
• Collateral estoppel
– If issue resolved in one case, cannot relitigate that issue in
subsequent case
• Both doctrines motivated by similar policies
– Finality
– Save litigation costs
– Avoid inconsistent judgments or verdicts
4 Requirements for Res Judicata
• Same claim
– Federal court. Claim arising out of the same transaction or occurrence
• Even if claim in second suit not actually raised or litigated in first suit
– Some state courts may apply narrower rules
• E.g. claim in second suit arises out of “same evidence”
• Judgment on the Merits
– Trial, summary judgment, default judgment
– 12(b)(6), but not equivalent dismissals in some states courts
– NOT dismissal for lack of jurisdiction or venue
• Final judgment
– Judgment entered on all claims
– In federal court, still final if appeal pending; not in some state courts
• Same parties
– Except judgment against former real property owner bars subsequent owner
– Perhaps other exceptions when interests of parties are very closely aligned
• But exception narrowed by Taylor v. Sturgell
• Res judicata and choice of law
– Apply res judicata rules of court which rendered judgment
• Fed ct applies IL res judicata rules when deciding whether IL judgment bars
federal litigation. Frier
Frier v. City of Vindalia
• City towed Frier’s cars
• Frier sued city in in state court seeking replevin to get cars back
– City won
• Frier sued city in federal court alleging Due Process violation, because
city did not give him a hearing before or after it took his cars
– District court found for city on merits
– 7th Circuit found for city on res judicata
• Note that city defended appeal on grounds that raised, but lost
in district court
• Since 1st judgment was rendered by IL court, need to apply IL
rules for res judicata, even though 2nd case in federal court
– IL rules are narrower than federal rules
– “same evidence” rather than “same transaction or
– Majority and concurrence differ in application
• Yeazell p. 727 Q1
Collateral Estoppel Requirements
• 1. Same issue
• 2. Actually litigated. No C.E. if party admitted issue in first suit
• 3. Actually decided. No C.E. if court resolved case without deciding issue
– Can be hard to tell if jury verdict
• 4. Necessarily decided / Essential to judgment
– If changing result on issue would not change outcome of case, then no C.E.
– If court decides negligence case by finding duty, but no negligence
• No C.E. on duty
• CE would not be fair to defendant, because could not have appealed finding
of duty
– If court decides contract case by deciding that there was no contract and that,
even if there was a contract, there was no breach
• Some courts follow Restatement 2nd
– C.E. applies neither to “no contract” nor to “no breach”
» Court may not have thought carefully about
» Plaintiff may have thought appeal futile
– Unless issue squarely decided on appeal
• Other courts follow 1st Restatement and apply C.E. to both
• Like res judicata, apply collateral estoppel rules of court which rendered first
Nonmutual Collateral Estoppel I
• Traditionally, collateral estoppel applied only when parties were the same in first
and second suit (like res judicata)
• Some court allow person not a party to the first suit to assert collateral estoppel, as
long as person against whom c.e. asserted was in the first suit (and 4 other
requirements satisfied)
– Called nonmutual collateral estoppel
• 2 kinds of nonmutual colleral estoppel
– Defensive
– Offensive
• Defensive nonmutual collateral estoppel
– Plaintiff sues defendant1 for patent infringement
– Court decides that patent is invalid
– Plaintiff sues defendant2 for patent infringement
– Defendant2 can assert collateral estoppel against plaintiff
• Because plaintiff already litigated and lost on issue of patent validity
– Now accepted in nearly all jurisdictions
– “defensive” means asserted by defendant
Nonmutual Collateral Estoppel II
• Offensive nonmutual collateral estoppel
– Plaintiff1 sues defendant for poisoning water
– Court decides that defendant poisoned the water
– Plaintiff2 sues defendant for poisoning the water
– Defendant may be estopped from arguing that did not poison the water
– Very controversial
• If defendant loses one case (1st or 2nd or 99th case), would mean that
defendant loses all subsequent related cases
– But if one plaintiff loses case, then later plaintiffs not bound by c.e
• Discourages joinder
• Defendant may not have had incentive to litigate hard in first case
– Federal courts have discretion to apply c.e. offensively. Factors:
• Has there been inconsistent litigation outcomes?
• Did plaintiff strategically wait (not join) so as to take advantage of offensive
non-mutual collateral estoppel
• Did defendant have sufficient incentive to litigate issue aggressively in first
– “Offensive” means by plaintiff