Agenda for 25th Class
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Name plates out
Venue
Mock mediation. Friday Nov 2, 11-12:30
Court visit either Monday October 29 or Nov 5. 9:30-12:30
– LLV conflict
• Assignment for next class
– US Constitution Article III; 28 USC 1331, 1338, 1441(a)-(b)
– FRCP 8(a)(1), 12(b)(1), 12(h)(3)
– Yeazell pp. 191-206
– Questions to think about / Writing Assignment
• Summarize Louisville.
– Your summary should include the answer to Yeazell. P. 199 Q1
• Questions on the next slide
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Next Class – Federal Q Jurisdiction
• Under the FRCP as it exists today
– If plaintiff had drafted a “well pleaded complaint,” what would have been
the key allegations of that complaint?
– If plaintiff had drafted a well-pleaded complaint, what paper would
defendant have filed in response? What would have been the key
elements of that paper?
– How would plaintiff have raised the unconstitutionality the Act of
Congress which the defendant alleges prohibited giving the passes that
the railroad gave the Mottleys?
– If defendant’s answer had admitted that it had given passes to the
Mottleys, but argued that they were invalid, what motion would the
plaintiff have had to make in order to get the Court to grant the Mottleys
the relief they requested without discovery or trial?
• Yeazell pp. 199ff Qs 2, 3, 4b,
• Under 28 USC 1441(a) & (b), if plaintiff had brought the two cases at issue in
Yeazell p. 199 Q2 in state court, which of the two cases could defendant
remove to federal district court?
• Optional -- Glannon Chapter 4 (Federal question subject matter jurisdiction),
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Chapter 1 (Personal Jurisdiction), 2(statutes and the constitution), 8 (Venue)
Burger King
• Suppose A is from AL and C is from CA and suppose A and C enter into a
contract with each other
• Broad interpretation of Burger King:
– If A sues C or C sues A, then both AL and CA always have jurisdiction
over the case
• Narrow interpretation of Burger King
– If A sues C, then AL has jurisdiction over the case only if:
• the contract was part of a continuing commercial relationship
between A and C, and/or
• the defendant was sophisticated, and/or
• defendant knew that she was dealing with someone from AL, and/or
• Defendant traveled at least once to AL as part of the commercial
relationship, and/or
• The contract had a choice of law clause stating the AL law governs
all disputes relating to the contract
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– Similar analysis if C sues A in CA
Internet and Consent
• Internet
– Handout Problems 2-19 & 2-20
• Consent
– Consent was basis for jurisdiction before
International Shoe and remains a valid basis
– 2 kinds of consent
• Ex post. Consent at time of litigation. Not controversial
• Ex ante. Choice of forum clause.
– Carnival Cruise (1991). Yeazell p. 149
» Clause will almost always be valid
» Possible exceptions for “fundamental fairness”
» E.g. clause which had purpose of discouraging litigation or
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which was procured by fraud or overreaching.
Venue
• Venue means what court within a state
– Federal court: CD of Cal (LA) or SD of Cal (San Diego)
– State court: LA Superior Court of San Diego Superior Court
• Purely statutory matter. Not constitutional
• Each state has its own statute
• Federal statute is 28 USC 1391
• Map of federal districts
– http://www.uscourts.gov/uscourts/images/CircuitMap.pdf
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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
– Individuals. Residence is lower threshold than domicile. Does not
require intent to remain.
– Corporations are resident in any district in which they would be subject to
personal jurisdiction, if district were considered a state. (c)
• Implicit that corporation is resident of any state in which it is subject
to personal jurisdiction
• (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.
• NOTE. Even if venue is proper, still need court with personal
jurisdiction over ALL defendants.
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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
– 28 USC 1406 says that court can transfer case if venue was improper in
the first place.
• Without statute, one might think that the court didn’t have power to do
anything
• 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 state court or to court in foreign country
– E.g. from from state court to federal court
• Removal is different from transfer, because transfer is ordered by
judge in original venue, whereas removal does not require consent of
state court judge
• If judge thinks that her court has jurisdiction, but that a court in a different
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state or country would be better, the judge must dismiss the case
– Forum non conveniens
Venue Questions
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Pp. 175ff. Qs 1,2,4a,b,d (ignore the reference to 28 USC 1392)
Briefly Summarize Dee-K Enterprises
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?
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