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Civil Procedure II
University of California, Hastings School of Law
Wagstaffe, James M.

CIVIL PROCEDURE II
WAGSTAFFE
SPRING 2013
 
I.                  Jurisdiction
II.               PersonalJdx
A.                3 Kinds Of Exercise Power
1.                  In Rem = jdx over property in state that is object of suit
a)                  Ex. Eminent domain, forfeiture of prop to state (ie u sell drugs on it), settling decedent’s estate, quiet title
2.                  Quasi in Rem = jdx over property in state but NOT object of suit  ex. Garnish wages
a)                  Establishing rights to property via people→ Seeking property to enforce another obligation
3.                  In Personam= jdx over ppl
a)                  Jdgmt sought is personal obligation like pay $$damages, injuction to refrain from activity
B.                 Baseball (MAKE SIDE CHART)
1.                  Long Arm
a)                  Fed courts borrow long arm of state it sits in à CA goes the full extent of the constitution (outer boundary)
2.                  Traditional bases
a)                  Consent
b)                  Domicile
c)                  presence
3.                  General
a)                  Continuous & systematic contacts
b)                  Personal jdx as to activities distinct from forum state
4.                  Minimum Contacts
a)                  Purposeful Availment
b)                  Contacts Arising from or Connected to Forum State
c)                  Jdx not unreasonable
(1)               Reasonableness factors (only found for Δ in asahi)
(a)               Extent of Δs purposeful interjection
(b)               Burden on Δ
(c)                Forum states interest in adjudication
(d)               Most efficient judicial resolution
(e)                Πs interest in inefficient resolution
(f)                 Existence of alternative forum
(g)               Share interests in several states
C.                ValidPjx = BASIS + PROCESSto meet Due Process
D.                Basis
1.                  Long Arm
a)                  Fed courts borrow long arm of state it sits in à CA goes the full extent of the constitution (outer boundary—as long as have min ctcs can sue there)
2.                  Traditional Bases (mention all)
a)                  Domicile
(1)               Residence + intent to remain
(2)               Only one at a time→ stays same until get intent to stay in new place indefinitely (if u don’t know where ur gonna stay indef, then ur domicile is the previous one even if u don’t plan to go back there anymore)
(3)               Corp domicile= all states of incorp + PPB (Goodyear)
b)                  Consent
(1)               Appearance w/o raising pjx issue
(2)               By k or agent (jdx clause- Carnival Cruises)
(a)               Fair k + notice = consent
(3)               Implied by statute (waiver) (state has interest in regulating nonres instate activities, like driving) (Hess)
c)                  Physical presence
(1)               Δ served while feet actually on state soil (Burnham)
(a)               Exceptions:
(i)                 Ephemeral: layover not same as 3days
(ii)               Involuntary: fraud, judicial proceeding
(iii)             Entity agent: corps (burnham for indvds)
(2)               **min contacts not required**shoe is for outstate Δs only (burnham plurality—issue still fuzzy)
3.                  #2 check Çonstitutional Requirements met
a)                  Traditional Physical Power
(1)               Pennoyer: states have power over shit in their territory→f+Δ
(2)               **Domicile~physicalpresence~consent⇒ when 1 of these tradition bases is est jdx is valid even if coa arose outside forum
b)                  Minimum Contacts – CHECK FOR ALL Δs!!
(1)               Shoe expanded pennoyer→forum+ Δ + coa
c)                  Is COA about Forum-Related activities?
(1)               NOÆÆGeneral Jdx
(a)               þContacts substantial, continuous &systematic such that its not unfair to sue Δhere for any claim arising anywhere (ctcs render Δ @home in forum-Goodyr)
(i)                 Consider: longevity, continuity, volume, benefits, economic impact, physical presence, and integration into state’s reg or econ markets
(ii)               Insufficient (by itself): product regularly sold in state, local ads, local sales thru indep agent, local purchases (even if regular)
(a)                 Mfr places goods in SOC does not by itself cause gen jdxwherever its products r sold or cause injury **(Goodyr→sub corp of gdyr operating in europ not subjected to gen jdx in NC for personal injury to NC resident occurring in France, even tho some of tires mfr abroad sold in forum stateNC)
(i)                  Bigger company means needa show bigger ctcs (gdyr sales were lots of money, but only small% of their overall biz)
(b)                 Compare: local sales force—nonres bus has own sales force (ees) in CA, may be deriving econ bene on a “continuous and systematic” basis→ if substantial, such activities cud create gen jdx
(c)                 Compare Hypo: TX corp does $500biz in ca→ may not be cont& sys
(b)               þRsblness→ must still be met (so not denial of “fair play & sub just”)
(i)                 *note: rarely a prob for gen jdx, matters more for spec
(2)               YESÆÆSpecific Jdx
(a)               þΔpurposefullyand voluntarily directs its activities toward forum state+ foreseeability of being hauled into ct as a result of such activities
(i)                 **As opposed to random, fortuitous, attenuated which would violate DP (cuz couldn’t see self bein hauled into ct there)
(a)                 Foreseeability of causing injury in forum ALONE, is insufficient for [meeting purpav] jdx there (WWV→Δ didn’t sell/adv cars in forum, car was just driven there)
(i)                  McIntyre→ UK co sold machinery thru US distributor, attended US trade shows outside forum, but 4machines ended up in NJ and Πinjured→Δ did not purposefully direct at NJ, even tho Δ might have foreseen that a machine might be sold and used in NJ (seek to serve national market≠purpav of Fstate)
(b)                 Fioreà knowing effect cuz injured someone on way to NV
(i)                  Cf. WWV – car coulda ended up in any state
(ii)               Unilateral acts by Π insufficient
(a)                 Kulko→ wife moves w/ daughter and sues for child sup in new state-dad has no contacts there; WWV→Π drove car to OK not Δ; Hanson→settlor moved to away from, trustee had no ctcs
(b)                 Doesn’t apply to intentional torts cases
(b)               þCOA arises out ofΔs forum-related activities
(i)                 Claim bears “substantial cxn” to Δs forum contacts→ only count rocks related to Δs forum ctcs (Shady lane→ but for is not enough, want
(a)                 Cf. but for test (Π not suffered injury but for Δsactivites) – doesn’t look at impact of the activity on Fstate
(b)                 Cf. random, fortuitous, attenuated ctcs
(c)                þExercise of pjx rbs

vertised there, (3) cultivated OK customers, (4) or deliberately focused on OK markets = no direct benefit from OK
(iv)               Mcintyre→ seek to serve national market≠purpav of Fstate
(b)               Wat extent is the sig of the expectation that the product will be purchased byFstate consumers?
(i)                 Stream of commerce[pretty much dead after mcintyre] → likely (after asahi/mcintyre) that more than mere awareness/untargeted/insubstantial sales is required → fuzzy part is quantum of acts targeted directly at forum state that r required (esp in like of e-commerce, online distributors etc)
(a)                 “more” = component parts mfrs advertising  in forum state (ex. Intel chips-still advertises cuz want to encourage mfrs to use their chips), est channels for follow up advice inforum, design product for market, marketing product thru distributor who has agreed to serve as sales agent in market
(b)                 Mcyintyre Plurality (component parts mfr)  
(i)                   Kennedy= Δ specifically targeted frum state, stream of com not
(ii)                    Breyer=single, isolated sale not-cf. contemporary commerce(internet age)
(c)                 Key to mfr: check if they targeted the frm!
(4)               Contracts “realistic approach”
(a)               Rationale: k is just an “intermediate step” its really all about the consequences of the k
(i)                 (mcgeeà scouts prob wouldn’t follow today- very isolatedà consumer issue- states have more reg in areas)
(b)               Must weigh factors→ signing of a k doesn’t automatically confer jdx (BK)
(i)                 Contemplated future consequences
(a)                 Create ongoing relationship?
(ii)               Prior negotiations
(a)                 Boilerplate or lots of negos?
(b)                 Unequal bargaining power
(iii)             Terms of k
(a)                 Choice of law provision¹ consent, but gives info about foreseeability/fairness
(b)                 Forum selection¹ consent, just consenting to venue (jdx is power, venue is location of ct)
(i)                  Very powerful factor but alone not enough
(ii)                Carnival Cruise→enforcable b/c it was reasonable.  Ct assumed the litigation cost savings would be reflected in lower ticket prices and was not in bad faith since ∆ had good reason to centralize litigation at place of business
(iii)              If adhesion k could get thrown out
(c)                 Consent to jdx = CONSENT if valid cause (often happens when u click “iagree” online)
(iv)              Course of dealing
(a)                 Franchisees may be primarily intrastate in character or involve different decision-making structures such that a franchisee should not reasonably anticipate out-of-state litigation