Agenda for 25th Class
• Admin
– Name plates
– Handouts
• Slides
– No more TA office hours
– Prof. Klerman office hours for rest of semester
• M 11/30. 3:30-4:30PM
• W 12/2. 3:30-4:30PM
• Th 12/3. 3:30-4:30PM
• Th 12/10. noon-5PM
– Review class
• Th 12/10 10-noon. Rm 1
• Personal Jurisdiction
– Misc. PJ topics
– Review of Personal Jurisdiction
• Venue
• Forum non-conveniens
• Intro to RJ & CE
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Assignment for Next Class
• Res Judicata
– US Constitution Article IV (Supplement p. 1)
– 28 USC 1738
– Yeazell pp. 715-27
– Questions to think about / Writing Assignment (optional)
• Briefly Summarize Frier
• Yeazell p. 727 Q1
– Optional: Glannon Chapters 26 & 27
• Collateral Estoppel
– Yeazell 749-67
– BlackBoard Questions on Collateral Estoppel Q1-5
– Questions to think about / Writing Assignment (optional)
• 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
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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 world-wide
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jurisdiction
Other Traditional Bases for PJ
• What about other bases for personal jurisdiction from Pennoyer v. Neff
– Is minimum contacts just substitute for “presence” for corporations?
– Or is minimum contacts analysis the framework for analyzing all personal
jurisdiction issues
• Shaffer v Heitner (1977)
– Minimum contacts is framework for everything
• Quasi-in-rem jurisdiction is invalid, b/c it is general jurisdiction without
extensive contacts
– Q-i-R is jurisdiction in state over any dispute based on ownership
of property in state (with judgment up to value of property)
• In-rem jurisdiction is valid, because it is specific jurisdiction
– Jurisdiction over property dispute based on assertion of
ownership over that property
• Burnham (1990)
– Scalia+3. Tag jurisdiction (general jurisdiction based on presence) is ok
because traditional
• Minimum contacts analysis is irrelevant
– Brennan+3. Tag jurisdiction is ok because consistent with minimum
contacts
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– Stevens. Tag jurisdiction ok b/c traditional and consistent with minimum
contacts
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 forum clauses generally enforceable
– Forum must be reasonable
– Forum can‘t be chosen just to inconvenience plaintiff
– Forum must have 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 5
advantageous law and forum
Long-Arm Statutes I
• So far have been discussing constitutional limits of personal jurisdiction
• Personal Jurisdiction also requires statutory authority
• 2 types of statutes
– To-the-limits-of-the constitution Statute
• Cal. Code of Civil Procedure 410.10. A court of this state may
exercise jurisdiction on any basis not inconsistent with the
Constitution of this state or of the United States.
• Means statutory analysis = constitutional analysis
– Enumerated Act Statute
• IIlinois Code of Civil Procedure 2-209. Any person … who …does
any of the acts hereinafter enumerated, thereby submits such person,
… to the jurisdiction of the courts of this State as to any cause of
action arising from the doing of any of such acts: (1) The transaction
of any business within this State; (2) The commission of a tortious act
within this State; (3) The ownership, use, or possession of any real
estate situated in this State….
• Means statutory authority might be narrower than allowed by
constitution
• Of course, if statutory authority is broader than allowed by
constitution, it is void
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• Most enumerated act statutes interpreted to allow any assertion of
jurisdiction allowed by US Constitution
Long-Arm Statutes II
• No federal long-arm statute
– Instead, federal courts use long-arm statute of state in which located
– 4(k)(1)(A). Serving a summons or filing a waiver of service establishes
personal jurisdiction over a defendant … (A) who is subject to the
jurisdiction of a court of general jurisdiction in the state where the district
court is located
• Congress could authorize broader jurisdiction
– Federal courts not bound by same constitutional constraints as state
courts
– State courts. Due Process Clause of 14th Amendment
– Federal Courts. Due Process of 5th Amendment
– Same words, but mean different things
– 5th Amendment requires only minimum contacts and purposeful
availment with U.S.
• So contact with MA would be sufficient to allow PJ in district court in
CA
• Allowed by some statutes for particular areas of law, e.g. antitrust
– “nation-wide service of process” statutes
• Glannon Chapter 2
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• BlackBoard Personal Jurisdiction Questions Q6-7
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 8
jurisdiction, defendant cannot then challenge judgment on merits
Review of Personal Jurisdiction
• “Purposeful availment” is key concept
• 5 categories
– 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
commerce“
• McIntyre
– Defendant’s out-of-state conduct caused an injurious "effect" in the forum
state
• Revell
– General jurisdiction
• Individuals – residence, domicile, consent, presence
• Corporations
– Definitely. Incorporation, principal place of business
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– Maybe. (large) factory/office, (many) employees, lots of business
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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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
– 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.
• (c)(3). Defendant not residing in US can be sued in any district
– Joinder of person not residing in US disregarded in determining venue
when multiple defendants
• IMPORTANT. Even if venue is proper, court still needs to have personal
jurisdiction over EACH AND EVERY defendant.
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Venue Questions
• Briefly Summarize Dee-K Enterprises
• P. 176 Q5; pp. 178ff Q1a, 2
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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
• 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 place.
• Without statute, one might think that the court didn’t have power to do
anything
• Transferee court applies choice of law rules of place where located
• 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 state13
court or vice versa
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?
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Introduction to Former Adjudication
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•
•
2 concepts
– Res judicata / claim preclusion
– Collateral estoppel / issue preclusion
Res judicata
– Cannot litigate same claim several times
• Finality
– If two claims are closely related to each other (e.g. same transaction or
occurrence)
• Then must bring them together. Compulsory joinder
• If litigate one claim and then try to litigate the other
– Second claim will be barred by res judicata
Collateral estoppel
– If issue resolved in one case, cannot relitigate that issue in subsequent case
– Suppose long-term contacts
• Litigation I. breach in 1990. Court: contract is valid
• Litigation II. Breach in 2000. cannot relitigate contact validity
– Key issue is “non-mutual” collateral estoppel
• Case I. A sues B for patent infringement. Court: patent invalid
• Case II. A sues C for patent infringement. Can relitigate validity?
– No estoppel if person against whom estoppel asserted was not a party in
first case
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