Civil Procedure II Outline

Introductory Notes

In Spring 2010, Prof. Marcus taught this stand-alone Civ Pro II course for the first time. We used his casebook for everything but the choice of law materials. For choice of law, he provided us with a handout from another colleague’s casebook.

You may have noticed that Prof. Marcus wrote a Gilbert outline for procedure. It can be helpful for concepts, but do not include Gilbert tidbits in your exam analysis unless he specifically covered them in class.

PERSONAL JURISDICTION

I. Specific Jx

i. Long-arm statute

i. Full power: federal constitution as backdrop. Ex: Cal Civ Proc Code 410.10 – authorizing any exercise of jx that does not violate the Constitution. Here, only analysis is whether or not statute violates Constitution.

ii. Specific acts

1. Examples: transaction of any business, commission of tort, ownership of real prop, Ks

2. Analytical approach:

a. Do D’s activities fall w/I the statute?

i. Apply basic statutory principles

ii. Note that some specific statutes are essentially full-power long-arm statutes. See World-Wide VW

iii. claims based on acts that fall within the statute but involve a legal theory not covered still fall within statute. Mack Trucks, Inc. v. Arrow Aluminum Castings Co.

iv. tortious act requirement in statute satisfied if P alleges it that D’s act was tortious. Nelson v. Miller. (if actual tortious act were required, and D won on merits, then Ct. never had jx to begin with).

b. Is the jx conferred constitutional?

3. Note that under FRCP 4, a fed ct will exercise jx wherever a state ct will exercise jx (in personam).

4. Most specific act statutes read by court to extend to const. limit.

ii. Federal court jx.- fed. courts also need personal jx over D for its judgment to binding on him.

i. Fed. Ct subject to long arm statute of state that it sits in.

ii. if D could be subject to jx of a state court (via service of process) of the state that the Fed. ct sits in , then Fed. ct can also get jx.

iii. Rule 14 and 19 joinder: if local law does not permit service, party still subject to fed ct. jx if served with process within judicial district and within 100 miles of place from place where summons was issued is subject to jx if joined under 14 (impleader) or 19 (necessary parties). “bulge jx.’ F. Rule 4(k)(1)(B). This situation is when D lives outside of state that Fed. court sits in.

iv. Congress can create national jx. If so, fed. cts can exercise jx even if the state court could not. e.g. interpleader, or securities fraud actions, if it would be consistent with U.S. constitution.

v. min. contacts with United States -F. Rule 4(k)(2): if claim arises under federal law, court can exercise jx even if no state court would be able to. e.g. D does not have sufficient contacts with any one state, but does with U.S. as whole, or when state long arm statute does not allow jx even though jx would be constitutionally permissible. If D objects, he can name a state where jx is suitable and suit will proceed there. This usually arises when D is foreigner. F. Rule 4(k)(2)

ii. Due Process

i. Purposeful Availment (Minimum Contacts std of Int’l Shoe)- “purposely availed himself of the privilege of conducting activities in the forum. . . .”

1. Definition -> some voluntary/conscious action by D to establish relationship with forum, to benefit from the forum

2. Policy/Goal as set forth in WWVW: determine if D purposefully acted in or toward the forum state, in a way that should have put D on notice that it may be sued there. May also give D oppty to change behavior. Any examination of PA must include foreseeability (though it isn’t the sole criterion). “[T]he foreseeability that is critical is to due process analysis . . . is that the D’s conduct and connection with forum state are such that he should reasonably anticipate being haled into court there.” Purposeful availment more easily found for commercial activity.

a. Note Brennan’s dissent in WWVW: a challenge to the structure of society on which Int’l Show was based

3. Four tests to see if contacts enough for foreseeability

a. Seek to serve. WWVW, Asashi

i. WWVW: OK contacts would have been sufficient to support jx if it were shown that D “regularly sell cars at wholesale or retail to OK customers or residents or that they indirectly, through others, serve or seek to serve the OK market.”

· A single act seeking to serve can be sufficient to support jx. McGee v. International life insurance

· Look for presence of commerce

b. Targeted conduct. Calder v. Jones. Limited to wrongful activity that causes harm in forum, or commercial activity affecting forum residents. Kulko v. Superior Court

i. Calder also introduced targeted conduct expressed as effects test: defamatory article “concerned CA activities of a CA resident,” and “brunt of harm” felt in CA. Here, the Ct said “California is the focal point, both of the [defamatory] story and of the harm suffered.”

ii. Use this case for employers/employees

iii. Examine the orientation of this “targeted conduct” – doesn’t always measure up on whether tort is intentional, but rather the conscious behavior of the D at the time of the tortious action, to be able to foresee that the main/major impact will be in that forum state- was the harm felt in the forum?

iv. Companion case, Keeton v. Hustler

v. Should apply this at least with intentional torts, although might not apply to business torts might be a stretch. For business torts, brunt of harm should be felt in forum.

· In IMO Industries, Inc. v. Kieker AG, the district ct says that for Calder to apply, P must show (1) D committed intentional tort, (2) P must have felt brunt of harm of tort in that forum, “focal point of harm,” and (3) D must have expressly aimed his tortious conduct at forum, such that forum is “focal point of tortious activity”

vi. Need to apply this to wrongful or commercial activity. In Kulko v. Superior Ct, SCt did not uphold jx when an NY-CA divorced family arranged visitation rights. Buying a plane ticket for a child did not constitute “targeted conduct.”

c. Long term relationship with forum Resident can satisfy purposeful availment. Burger King

i. Burger King upheld jx. Basis for the holding: D established a (1) substantial and continuing relationship w/ P HQ in FL, (2) received fair notice from K docs and course of dealing that he may be subject to suit in FL, and (3) failed to demonstrate how jx in forum is fundamentally unfair. Ct noted that D was a commercial actor – commercial actors more likely to have sufficient relationship for jx purposes.

· Entering into a K w/ someone who resides in forum is a K, but purposeful availment determination depends upon preceding negotiations and the ensuing intended arrangements – did D reach out to create a relationship w/ forum?

d. Stream of Commerce. WWVW, Asahi

i. WWVW – forum state may assert personal jx over a corporation that “delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state.” Stream of commerce ends w/ retail sale of product if there is a retail seller involved.

ii. But NIcastro: D must also have purposeful contacts with forum state; conduct purposely directed at forum state, that show that D intended to purposely avail himself of the privilege of conducting activities in forum state, of deriving a benefit. Of purposely seeking to serve that market.

iii. Contacts with U.S.,but not with any individual state, insufficient absent Congressional statute. Nicastro

iv. D may still be subject to gen. jx in a state with which he has sufficient contacts.

4. Claim must arise from contacts that satisfy purposeful availment, so look to the type of contacts and see if the claim arises from that. e.g. D sought to serve; did claim technically arise from his seeking to serve? “Relationship” between contacts w/ forum and claim asserted.

. WWVW: P’s Audi had design defects (Audi as German manufacturer, VW of America as American importer). Bought in NY, driven to OK, accident and harm in OK. P’s claim not clearly related to VW and Audi contacts w/ OK (seek to serve) – Audi was sold in NY, so how it could arise from seeking to sell cars in OK?

a. more easily found when activity is commercial.

b. foreseeability may be key to reconciling this issue. Was the type of claim, although not technically connected to contacts, of the type that D should have foreseen in forum?

5. Online Policy – Applying Old Tests to New Media

a. Look to effects test/targeted conduct of Calder

b. But the best fit may be seek to serve principle of WWVW

c. Specific Issues

i. Ability of forum residents to access website – usually not sufficient

ii. Level of interaction – passive (merely providing info) websites may not always meet purposeful availment requirement

· Criticism: “BombTheBridge.org” argument

iii. Relaxation of “reasonableness requirements” (if PA met)

d. Application: Pavlovich. CA SCt used the Cald