CIVIL PROCEDURE CLASS 37
Professor Fischer
Columbus School of Law
The Catholic University of America
November 16, 2005
WRAP UP
Burnham: despite Shaffer’s broad
statement “all assertions of state court
jurisdiction” must be assessed under
International Shoe, 4-4 split in Burnham
as to whether presence in a jurisdiction
is a basis for jurisdiction independent of
International Shoe
RESIDENCE, CONSENT
Supreme Court has never held that
residence and consent are not sufficient
in themselves for jurisdiction (without
considering International Shoe).
GENERAL JURISDICTION
What is the difference between general
and specific jurisdiction?
Supreme Court General
Jurisdiction Jurisprudence
S. Ct has only decided two cases based
on general jurisdiction: Helicopteros
(rejected it) and Perkins v. Benguet
Consolidated Mining Co. (1952) (upheld
it)
Helicopteros Nacionales de
Colombia v. Hall
Facts and procedural
history?
Helicopteros Nacionales de
Colombia v. Hall
Wrongful death action resulting from
helicopter crash in Peru that killed US citizens.
Respondents brought suit in TX against,
among others, Helicol, Columbian operator of
helicopter, on the basis of pilot error
Helicol moves to dismiss for lack of personal
jurisdiction.
Trial court denies motion: and respondents
win jury award of over $1,000,000
Texas Supreme Court finds there was
jurisdiction over Helicol.
U.S. Supreme Court
Must determine whether the Texas state
court had personal jurisdiction over
Helicol
Helicol’s Contacts With Texas
Describe Helicol’s contacts with Texas
Were these enough for specific
jurisdiction, according to the Supreme
Court?
Helicol’s Contacts With Texas
Sent representative to contract with TX
company for transportation contract in Peru.
Purchased most of its helicopters from TX
company
Sent pilots, management, and maintenance
personnel to TX for training
Received payments from TX bank accounts
for transportation contract
Supreme Court Only Rules on
General Jurisdiction
According to majority, specific
jurisdiction was not argued by P
How does it rule on general jurisdiction?
Supreme Court Only Rules on
General Jurisdiction
Helicol lacked “the kind of continuous
and systematic general business
contacts with TX necessary to satisfy
due process”
This seems to indicate a very high
standard for general jurisdiction to be
found.
Leaves a lot unsettled on general
jurisdiction
Brennan’s Dissent
What is the basis for the dissent?
The Shutes?
What is Continuous and Systematic
Contact with a Forum?
Service of process on a defendant in a
forum Burnham
Domicile in a forum
Corporate incorporation in a forum
Principal place of business in a forum
(Perkins)
Not clear whether other regional or
smaller offices will justify the exercise of
general jurisdiction
Quantitative and qualitative assessment
Mrs. Shute Goes to Court
Why did Mrs. Eulala
Shute (and her
husband sue
Carnival Cruise
Lines?
Where did she and
her husband bring
suit?
Procedural History
Describe the procedural history of this action
before the Supreme Court’s opinion.
Procedural History
Describe the procedural history of this action
before the Supreme Court’s opinion.
Shutes file suit in W.D. WA
CCL moves for summary judgment on basis
of forum selection clause/no p.j. (no
minimum contacts)
District Court grants this motion, Court of
Appeals for the Ninth Circuit reverses
(minimum contacts with Washington due to
solicitation of business in Washington)
U.S. Supreme Court grants certiorari.
Supreme Court Must Consider
1. Argument that forum selection clause
bars jurisdiction over Carnival in
Washington state.
2. Constitutional argument that CCL’s
contacts with Washington are not
enough to support jurisdiction.
Arguments that the Forum
Selection Clause Unenforceable
What are the arguments in support of
their contention that the forum
selection clause is unenforceable that
convinced the Ninth Circuit?
Did any of them convince Justice
Blackmun, who wrote the Supreme
Court’s majority opinion? If so, which
arguments?
Justice Blackmun’s Reasoning
Blackkmun: some nonnegotiated forumselection clauses can be enforceable
Cruise ships have special interest in limiting
for a where they can be sued
Such a clause spares expense of pretrial
motions to determine correct forum and
conserving judicial resources
Passengers benefit in light of reduced fares
that reflect savings cruise line enjoys by
limiting forum where it can be sued.
Do you buy any of these?
More of Blackmun’s Reasoning
Shutes have not satisfied the heavy burden of
proof required to set aside the clause on
grounds of inconvenience (they had notice
and Florida is not a remote alien forum
especially given where accident took place)
NO evidence of bad faith or overreaching
Since Shutes had notice of contract, they
could have rejected it.
Dissent
Who wrote the dissent?
Who joined in it?
Describe the reasoning in the dissent.
Do you agree with it? Why or why not?
Dissent
Inadequate notice
Carnival Cruise Lines: Narrow
Sense
Congress overturned this case in a
narrow sense by amending a federal
admiralty statute (See Section 3006 of
the Oceans Act of 1992, P.L. 102-587).
Forum Selection Clauses:
Jurisdiction By Express Consent
Remember that it is possible to consent
to jurisdiction
Consequently, lack of personal
jurisdiction is one of the waivable
defenses under Rules 12(g) and
12(h)(1)
Contrast this with lack of subject matter
jurisdiction, which can never be waived.
Forum Selection Clauses After
Carnival
Prior to Carnival, some courts refused to
enforce forum selection clauses that barred
jurisdiction in other courts. Now, forumselection clauses generally have a strong
presumption of enforceability, especially
where there is equal bargaining power
between the parties and they are represented
by counsel.
The burden is on the person challenging the
enforcement of the clause to show it was
unreasonable or unfair in the circumstances.
This is a difficult burden, even where the
clause is in a standard-form contract.
Due Process Requirements
Due Process requires that D has
some relationship to the forum
state that makes it fair to sue
her there.
Does the due process clause
require anything else for this D?
Notice and the Opportunity to
Be Heard
It also requires that D be given
prior notice and an opportunity
to be heard.
MULLANE AND NOTICE
Mullane is the leading Supreme
Court case that sets the modern
standard for notice that satisfies
due process.
Mullane Facts
Mullane involved a judicial settlement in the
NY Surrogates Court of a common trust fund
established by a NY bank under a NY banking
statute.
Who was the common trustee of this fund?
What is the purpose of a common trust fund?
Who were the beneficiaries?
Judicial Settlement of Trust
Account
Why would the common fund trustee
want to have an accounting approved?
Parties
Who is Mullane?
General Notice Requirement
“An elementary and fundamental
requirement of due process in any
proceeding which is to be accorded
finality is notice reasonably calculated,
under all the circumstances, to apprise
interested parties of the pendency of
the action and afford them an
opportunity to present their
objections…”
Standard for Notice in Mullane
“…The notice must be of such nature as
reasonably to convey the required
information . . . And it must afford a
reasonable time for those interested to make
their appearance . . .But if with due regard to
the practicalities and peculiarities of the case
these conditions are reasonably met, the
constitutional requirements are satisfied.”
Published Notice
Can published notice ever be adequate
under the Mullane standard?
3 categories of beneficiary:
was notice acceptable?
Some could not be identified/located
with reasonable effort
Some could be identified/located but
had conjectural or future interests so it
would cost a lot to identify/locate them
Some were known present beneficiaries
Mullane Changes Historical
Notice Requirement
Notice by publication in in personam
cases is greatly cut back
Publication will not be sufficient notice if
it would be reasonably practicable to
provide individual notice
But Mullane makes clear that official
notice does not always have to be
personal service – could be, e.g., mail
After Mullane
Court decisions after Mullane have
found that notice by mail is the
constitutional minimum for D who can
be found by reasonably diligent efforts.
Mullane paves the way for reforms to
service in R. 4
Don’t Forget R. 4: Service
Rule
R. 4(e)
R.4(h)
Jurisdiction for Internet
Contacts
Zippo v. Zippo.com
Influential case on how to determine
whether a court has personal
jurisdiction where D’s contacts with the
forum state occurred over the Internet
Zippo Sliding Scale
Scale
Doing business over the Internet
Passive web site
Middle ground
Is this a good test? Can you think of a
better test?