Outline
Tuesday, November 29, 2005
10:27 PM
Tpc?
Due Process
Statute of limitations
Begins running when the claimant has discovered, or in the exercise of reasonable diligence, should have discovered, the act constituting the alleged malpractice
Have to be hurt
Know (or should know) you are hurt
Know (or should know) who did it to you
Statute or repose – manufacturers security blanket
Statute that bars a suit a fixed number of years after the D acts in someway (such as designing or manufacturing a product), even if this period ends before the P suffered an injury
Writ of replevin – action for repossession of personal property wrongfully taken or detained by D
P usually gives security for it and holds property until court decides who owns it
Right to be heard
Fuentes
Individuals have the right to be heard before action can be taken against their property, barring extraordinary circumstances
D had a property interest; denying them this intent is a deprivation of property, violates 14th amendment
D can reclaim property by posting double amount of bond
P gets their bond back
CT v. Doeher
Prejudgment remedies without a hearing violates due process
P must show exigent circumstances
In this case, no reason to attach house
Weigh the risk of erroneous deprivation of property using the procedure in place against alternative safeguards (a hearing, or bond)
No evidence that D was going to hide property; pretty ease for government to provide hearing
PRJ
Court balances interest affected by PJR, risk of erroneous deprivation with the procedure in place against alternative safeguards
To get:
Apply with affidavit
Show probable cause that P will prevail
Notice required unless exigent circumstances, in which case ex parte is okay
Attachment
Traditional provisional remedies include seizure of property (attachment), temporary and preliminary injunctions and analogous remedies
Risk of error is higher at this stage, so party who seeks provisional remedy is required to post a bond to compensate D if the injunction was wrongly issues
Designed to stabilize situation; provide security for P, preserve status quo
Garnishment – not an injunction; tells third party not to give party involved, for example, money; can garnish wages, accounts
Temporary restraining order can be granted ex parte if immediately necessary
Ex parte hearing
Need affiant showing a statement of facts sufficient to show that has a probable cause of success
Need to show reasonable likelihood of need
Chance individual will leave state, remove property from state, dispose of property, or hide assets
Elements of a Fair Hearing
Van Harken
Parking ticket changed from criminal to “civil action penalty”
Deprived of rights by changing it from criminal to civil
Fourth – search and seizure
Right to a jury
Right to counsel
Right to cross examine
Court balances hearing these cases with the severity of penalty
Posner – economic efficiency analysis
Cost/benefit analysis
Benefit of giving people hearings for these tiny tickets is grossly out weighed by the incredible cost it would entail
Goldberg v. Kelly
Welfare recipients entitled to a hearing prior to termination of payments
Opportunity to be heard must be tailed to the capacities and circumstances of those who are to be heard
Right to a Council in Civil Cases
Lassiter v. Dept. of Social Services
Represented self; appealed; due process?
Consistent with due process here
Case by case analysis
Choosing the Proper Court
Territorial Jurisdiction
Definitions
In rem – a court’s power to adjudicate the rights to a given piece of property versus world; including power to seize and hold it
eeability rejected as a benchmark for person jurisdiction. While it may have been foreseeable that WWV would have one of their products brought into this forum, it doesn’t matter.
iv. New part of test: did the corporation PURPOSEFULLY AVAIL ITSELF of the privilege of conducting activities in the forum?
1. Not in this case; the Joneses drove the car there
v. Purposeful a ailment
1. Emphasizes the benefits a would be D has obtained from its business activities conducted within the forum state, often involving contractual relations with forum residents
1. As opposed to purposeful direction which emphasizes D’s activities outside the forum state that have consequents inside the forum state
vi. No purposeful availment, no minimum contacts; Joneses unilaterally brought car there
1. No business activity in the state
2. No sales or services
3. No privilege taken under state law
4. No marking or solicitation of business
5. No contact with customers
vii. A D has to reasonably anticipate being haled into court there
1. Can take precaution, insurance (thereby passing on costs to consumers)
viii. Dissent:
1. Stream of commerce argument; by putting a product in the stream of commerce implies that D is really doing business in every state
j. Helicopteros
i. D may have had minimum contacts with the forum, but it was unrelated to the accident
ii. P trying to assert general jurisdiction; P didn’t argue for specific jurisdiction (jurisdiction arising from D’s contact with the forum)
k. Burger King
i. Contract had a choice of law clause (FL)
1. Most important part of the contract
ii. D purposely availed himself of FL law
1. Court says that BK’s behavior was “purposefully directed at the forum”
iii. Knew about choice of law (business man)
iv. Had a substantial and continuous relationship with BK
l. Calder v. Jones
i. Intentional conduct directed at someone can be enough to get specific jurisdiction (defamation)
m. Asahi – current law
i. We were left with two foreign parties left in the suit; Asahi D, all they did was ship parts from Japan to Taiwan where they were incorporated into a product which they knew would be sent to the US
1. CA’s interest in litigating this was slight
2. Burden to parties severe
3. This case doesn’t bless or kill stream of commerce
1. You need stream of commerce AND to avail yourself of the benefits of the forum
2. Also, because the interest in litigating a dispute between two foreign D’s was so slight, the question is not really answered
ii. Court says that you need action on the part of the D purposely directed at the forum state in addition to stream of commerce
1. Designing the product for the market in the form state
2. Advertising in the forum state
3. Establishing channels for providing regular advice to customers in the forum state
4. Marketing the product through a distributor who has agreed to serve as the sales agent in the forum state
iii. Comporting with traditional notions of fair play and substantial justice
1. Burden to D
1. Severe in this case
2. Interest of the forum state
1. P is not a CA resident, no real interest
3. P’s interest in obtaining relief
4. Judicial system’s interest in obtaining the most efficient resolution of controversies
