Agenda for 25th Class (A-E)
• Handouts
– Slides
– 2012 Exam (for Friday 12/5 review class)
• Class schedule
– Monday 11/24 will be last regular class
– No class Monday 12/1
– Review class Friday 12/5 noon-1:50 in Rm 3
• Office hours
• Exam info (to be discussed on Monday)
• Personal Jurisdiction
– Review of McIntyre and Burger King
– Internet
– Shaffer
– Burnham
– Consent
– Challenging jurisdiction
• Introduction to Venue
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Office Hours
• M. 11/24. May arrive late, because of F-J court visit
• T. 11/25. 10-11 (F-J) and 2-3 (A-E)
• M 12/1.
– 10-11. Open (A-E)
– 11-12. By appointment (A-E)
• Email me if you want to go over your answer to an old exam
– 2-3. Open (F-J)
– 3-4. By appointment (F-J)
• Email me if you want to go over your answer to an old exam
– 4-5. By appointment (A-E & F-J)
• Email me if you want to go over your answer to an old exam
• F 12/5
– 10-11. Open (A-E)
– 11-12. By appointment (A-E)
• Email me if you want to go over your answer to an old exam
– 2-3. Open (F-J)
– 3-4. By appointment (F-J)
• Email me if you want to go over your answer to an old exam
• Cannot answer questions after Friday 4PM
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Assignment
28 USC 1391, 1404, 1406
Yeazell 174-89
5 Blackboard Questions on Venue
Questions to think about / Writing Assignment
– 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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• Optional – Glannon Chapter 8 (Venue), 1 (Personal Jurisdiction),
Exam
• In class
– Tuesday, December 9, 9-12 (won’t need 3 hours)
– Multiple choice
– Can use calculator
– Open book
• Take home
– Essay or essays
– Any continuous 8-hour period during exam period (9AM 12/6- 5PM
12/19)
– Probably advisable to take Tuesday afternoon, December 9
– Open book, calculator
• Integrity
– You must do the exam alone
– You cannot share or discuss exam questions with those who take exam
later
– Cheating has not been a problem at USC Law
– If you cheat or help others to cheat, you can be expelled.
4
Exam Studying Advice
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Study for exam as though it were an in-class, timed exam
– Don’t assume you can learn material during exam
Outlining
– Do your own
– Benefit is making outline, not having one
– Compare outline to others’ outlines, after you are done
– Create one page mini-outline / list of topics & issues
Do practice problems
– Glannon
• Don’t’ look at answers until you have tried to figure it out yourself
– Blackboard questions (if haven’t already done)
Do old exams
– Write out full answers BEFORE looking at model or discussing with others
– Don’t worry about time
– Compare your answer to others’ answers
– Compare your answer to model answer
• Be very critical – sentence by sentence
• Make sure you understand what you missed
• Even best exam misses 50%
– Make appointment to discuss exam with me AFTER you have looked at model
answer and made it the best you can make it
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Exam Advice
• Read question carefully
• Outline answer before starting to write, so well structured
• Pay attention to genre
– Memo to partner different is different from appellate opinion
– Compare 1995 Question 2 model answer to 2013 model answer
• Include one or two-paragraph executive summary at the beginning
– Summarize key conclusions and reasons for those conclusions
– NOT just road map
• Use headings to separate issues
• Consider putting most important issues first
• Make sure you justify your conclusions with reference to facts in the question
• Take a break after completing your first draft
• Go over one page outline/list of topics & issues to make sure you didn’t miss
issues
• Re-read the question and go over one-page outline again
• Proofread and revise
• Take a break
• Reread question again, go over one-page outline again, revise again,
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proofread
Study Tools
• Old exams
– 1995-2002 on MyLaw Portal under “Exam Archives”
– Did not teach Civ Pro 2013-2010
– 2013 & 2014 on MyLaw Portal under “Secure Documents”
– 2011. Just handed out
– QII.4 is assignment for Monday (F-J) or Friday (A-E)
– You can do Qs II.1 & II.2 now
– You’ve already done II.3
– 2012. Assignment for Friday 12/5
– Particularly useful exams
• Recent exams: 2011, and 2013, 2014 (spring)
• Multiple choice: 2000 & 2013
• Other study tools
– Glannon
– Model answers. MyLaw Portal, “Secure Documents”
– Class recordings. MyLaw Portal, “Recorded Classes”
– Class slides, www.klerman.com
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Review of McIntyre
– Court continues to be divided on Stream of Commerce
– Kennedy + 3.
• Defendant must “target” the jurisdiction
• Putting product in stream of commerce not enough to show
purposeful availment
– Ginsburg + 2
• Establishing distribution network to serve whole US sufficient to
show purposeful availment of particular U.S. states
– Breyer
• This case is anomalous.
• No jurisdiction, because only a few of McIntyre’s machines
were sold to NJ
• Seems also to endorse narrow view of O’Connor’s Stream of
Commerce Plus approach
• But mostly defers real analysis of stream-of-commerce decision
for the next case
– No majority opinion
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Review of 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
– Similar analysis if C sues A in CA
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Jurisdiction & Internet
• Revell
– No jurisdiction in state X simply because website defamed
victim residing in state X
– Must also show events discussed and/or readership were in
victim’s state
• Tries to narrow Calder “effects test”
• 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?
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• Handout Problems 2-18 & 2-19
Schaffer
• Briefly summarize Shaffer
• P. 100ff Q3, 4
• Is jurisdiction proper in the following situation?
– Car accident in West Dakota
– Defendant is citizen & resident of California
– Defendant owns real property in West Dakota
– Plaintiff is citizen of West Dakota
– Suit in West Dakota state court
– West Dakota has the following long-arm statute:
• “West Dakota trial courts may exercise jurisdiction over
an individual only if that individual is a resident or citizen
of West Dakota or if the individual owns real property in
West Dakota.”
– Remember to consider both whether there is statutory
authorization for jurisdiction and whether jurisdiction is
constitutional
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Burnham
• Briefly summarize Burham
• Do you think jurisdiction based on presence makes sense? Should it be
constitutional?
– How far would you extend jurisdiction based on presence? In answering
that question, consider:
• Pp. 145ff Q 3
• Grace v. MacArthur, summarized on slide 5 of Class 17 handout
• Given that Burnham is now established law, how do you think courts should
resolve the cases described in
– Pp. 145ff Q 3 Grace v. MacArthur, summarized on slide 5 of Class 17
handout
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Consent to Jurisdiction
• Consent was basis for in personam jurisdiction before Intl Shoe
• Consent continues to be basis for jurisdiction
• 3 kinds of consent
– Consent after sued in particular forum
– Failure to object / waiver
– Forum selection clause in contract
• Note difference from choice of law clause
• Carnival Cruise Lines
– Choice of law clauses generally enforceable
– Forum must be reasonable
– Can‘t be chosen just to inconvenience plaintiff
– Ok if some relationship to dispute
• E.g. defendant's headquarters state
• Even if inconvenient to plaintiffs
• Strategy
– Almost always advantageous to include choice of forum and choice of
law clauses in contracts
– Mutually advantageous to reduce uncertainty
– Especially beneficial if your client has bargaining power to choose 13
advantageous law and forum
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 14
jurisdiction, defendant cannot then challenge judgment on merits
2011 Exam
• 2011 Exam question II.4
– Note typo. “delivery” should be “delivering
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Introduction to Venue
• 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 are proper, but when a court in another court system would be
more appropriate
– Forum non conveniens
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