I. PERSONAL JURISDICTION, NOTICE, AND VENUE.. 4
a. Pennoyer (612)4
b. Hess (623) – Moves away from territorial model of PJ closer to transactional model. Driving in MA implies consent to appointment of Registrar of Motor Vehicles as your agent. If you get into an accident, any lawsuit arising out of your use of the highway enables service to be made to DMV.4
c. Harris (620) – Personal service within a forum state is sufficient to obtain PJ over a nonresident.4
d. International Shoe (625)4
e. Long Arm Statutes (632-41)4
f. Specific v. General Jurisdiction (632-41)4
g. PJ in Federal Courts (632-41)4
h. Minimum Contacts – Foreseeability, Intentional Torts. 5
i. Hanson v. Denckla (639)5
ii. McGee v. International Life Insurance (634)5
iii. World-Wide Volkswagen (641)5
iv. Calder v. Jones (654)5
v. Keeton v. Hustler (656)5
i. Minimum Contacts – Stream of Commerce, Foreign Defendants. 5
i. Asahi (660)5
4. Fair Play & Substantial Justice Factors. 6
j. Minimum Contacts – Contractual Relationships, Ruling on a 12(b)(2)6
i. Burger King (672) (this case has a good summary of prior cases)6
k. PJ in Internet Age. 6
i. ALS Scan (686)– Question: Whether a person electronically transmitting or enabling transmission of information via the Internet, causing injury in a state, subjected a person to its jurisdiction.6
ii. Jurisdiction can be supported if your website sets up an opportunity for other party to conduct business with you. Zippo.6
l. Jurisdiction Based on Presence of D’s Property. 6
i. Shaffer v. Heitner (695)6
m. Jurisdiction Based on Personal Service. 7
i. Burnham (710) – Burnham was in California briefly but was served with process. Tried to quash on grounds that California did not have PJ over him because of insufficient contacts.7
n. General Jurisdiction (725)7
i. As described in Shoe, when the forum activities of a corporate D are sufficiently continuous, systematic, and substantial, it may be sued there even on claims unrelated to those activities. Perkins (really only SCOTUS case describing this)7
ii. Helicopteros (726) – General jurisdiction almost established.7
o. PJ by Consent (735)7
i. Always one of the traditional bases of jurisdiction.7
ii. Forum selection clauses. 8
iii. Carnival Cruise Lines (736)8
p. PJ Analysis Formula. 8
i. General jurisdiction – systematic and continuous and substantial contacts? Or domicile?. 8
ii. Or specific, as three part test below explains.8
1. Inventory D’s contacts. 8
q. Notice (742)8
i. Service. 8
ii. Constitutional Parameters of Adequate Notice – Mullane v. Central Hanover Bank & Trust9
r. Venue and Forum Non Conveniens (750-61)9
ii. 28 USC 1391 (3 ways to get venue)9
iv. Piper Aircraft.(751)10
v. Transfer10
vi. Forum Non Conveniens (Piper)10
II. SUBJECT MATTER JURISDICTION AND REMOVAL.. 10
a. Federal Question (763-72)10
b. Diversity (28 USC 1332) (772-78)11
i. Complete Diversity. 11
ii. Citizenship. 11
iii. Amount in Controversy. 11
c. Supplemental Jurisdiction (28 USC 1367) (793-802)12
d. Removal (809-13)12
III. CHOICE OF STATE OR FEDERAL LAW: ERIE PROBLEM… 13
a. Erie (818) (pro state law)13
b. Guaranty Trust (827) (pro state law)13
c. Byrd (831) (pro federal law)14
d. Two part test in determining substantive v. procedural14
e. Hanna (836) (pro federal law)14
4. HANNA TWO PART TEST.. 15
f. Walker (846)15
v. Direct v. Indirect Conflicts. 15
g. Choice of Law Analysis. 16
i. First, identify the conflict with precision. 16
ii. Second, for federal rule, what is the source?. 16
1. FRCP, judicial code, or FRE? (ONE BRANCH OF DECISION TREE)16
a. If so, look at direct / indirect nature of conflict16
i. Hanna (apply federal rule if valid under REA)16
ii. Walker (situation outside scope of federal rule)16
1. Apply state rule if you can articulate a way to avoid conflict (i.e. make it indirect)16
2. Other (SECOND BRANCH)16
a. Straight up Erie question. Look at whether state practice is “bound up” with state-created right; and whether application of federal practice would create significant risk of forum shopping.16
i. Bound up – is it part of the definition of the right that the state is giving you?. 16
IV. FINALITY AND PRECLUSION… 16
a. Claim Preclusion (Res Judicata) (867)16
b. Issue Preclusion (Collateral Estoppel)17
v. Hoult v. Hoult (890)17
vi. Jarosz v. Palmer (894)18
vii. Parklane Hosiery v. Shore (897)18
viii. Non Mutual Issue Preclusion. 19
V. WAVIVER OF DEFENSES. 19
a. SMJ can never be waived. Parties can’t consent to it, and court is free to raise it on its own motion.19
b. PJ, Notice, Process, venue must be raised by a pre-answer motion, or asserted in the answer or they are waived.19
i. ALSO must fail to amend within the period allowed under rule 12.19
VI. CHECKLIST ON ATTACKING COMPLAINT.. 19
a. 12(b)(1) – lack of subject-matter jurisdiction; 12(b)(2) – lack of personal jurisdiction. 19
b. 12(b)(3) – improper venue; 12(b)(4) – insufficient process. 19
c. 12(b)(5) – insufficient service of process; 12(b)(6) – failure to state a claim upon which relief can be granted. 19
d. 12(b)(7) – failure to join a party under Rule 19. 19
I. PERSONAL JURISDICTION, NOTICE, AND VENUE
a. Pennoyer (612)
i. In personam – jurisdiction extends to your person. Your assets can be seized, even if it’s more money than you have.
ii. In rem – jurisdiction limited to land you own in a state. Your personal assets can’t be seized, as the suit is limited to the land and its value.
iii. Quasi In rem – Based on property you own somewhere, but lawsuit can be based on anything. Maximum recoverable amount though is the value of your land in that state. Personal assets can’t be touched.
iv. Says if you don’t have service / don’t own property, then there must be consent to PJ.
v. Traditional bases of jurisdiction (list these even if not at issue)
1. Territoriality
2. Domicile
3. Agency
4. Consent (Express, Implied, Failure to assert jurisdictional defense)
5. Doing business (corporate presence) – a form of territoriality
b. Hess (623) – Moves away from territorial model of PJ closer to transactional model. Driving in MA implies consent to appointment of Registrar of Motor Vehicles as your agent. If you get into an accident, any lawsuit arising out of your use of the highway enables service to be made to DMV.
i. A legal fiction that later led to birth of minimum contacts.
c. Harris (620) – Personal service within a forum state is sufficient to obtain PJ over a nonresident.
d. International Shoe (625)
i. State can assert jurisdiction over a non-resident, if the non-resident has minimum contacts with the forum and if requiring the non-resident to stand in the forum comports with fair play and substantial justice.
ii. Shoe Analysis Questions
1. What is the extent of D’s contacts?
2. What is the connection between D’s activities in the state and the litigation?
e. Long Arm Statutes (632-41)
i. Does the statute apply to the particular case? (statutory question)
1. Apply the provisions to the facts of the problems.
ii. If so, does it nonetheless reach beyond the constitutional constraints of Shoe’s minimum contacts test?
f. Specific v. General Jurisdiction (632-41)
i. Specific – Jurisdiction authorized by a particular long arm statute
ii. General – Per Shoe, a nonresident’s conduct of continuous, systematic, and substantial business in the forum would subject D to general jurisdiction over any claim, regardless of where it arose.
g. PJ in Federal Courts (632-41)
i. 4(k)(1)(A) – incorporates local state long-arm statute as constraint on federal court jurisdiction
1. Exceptions
a. 4(k)(1)(B) – 100 mile bulge rule, jurisdiction authorized over an impleaded party not otherwise within the district court’s reach if service was effected within 100 miles of the court
b. 4(k)(2) – extends federal power to its outermost constitutional limits in federal claims cases
h. Minimum Contacts – Foreseeability, Intentional Torts
i. Hanson v. Denckla (639)
1. Woman from PA establishes a Delaware trust. She then moves to FL and dies in FL. FL claimed jurisdiction. They had many contacts with deceased, her heirs, and her estate.
2. Court held Delaware trust had no minimum contacts with Florida.
3. Key: Delawaare trust did not voluntarily do business or get involved with Florida. They were simply trying to maintain their responsibility as a trustee.
4. Minimum contacts must be volitional. Must be cognitive. Must be beneficial. Here there was no purposeful availment by D of P in P’s forum state.
ii. McGee v. International Life Insurance (634)
1. One contact can be enough for specific PJ. One policy sold in California was enough when they purposefully solicited CA and knew that the customer lived there.
iii. World-Wide Volkswagen (641)
1. Robinsons buy a car in NY. They decide to move to AZ. Accident occurs in OK. They sue Volkswagen, Worldwide Volkswagen (distributor), retailer in OK state court, invoking OK long arm statute. OK Supreme Ct finds jurisdiction.
2. SCOTUS reverses. Third-party moved the product from NY to OK. WWV’s operation was confined to NE, so no purposeful availment.
3. Takeaways
a. Extremely low level of contacts won’t allow PJ.
b. Rejects explicit adoption of foreseeability, as P argued that it’s foreseeable that a car might create harm in another locale as it’s a mobile creation.
c. Reasonableness still plays a big part of court’s decision.
d. When will in-state effects of out of state actions allow for PJ?
Crash, though, was in South America so can’t use TX long arm statute.
3. Dissent argues that Helicos purposefully availed themselves of TX and that they received benefits from TX, and should have been on notice of being sued there.
o. PJ by Consent (735)
i. Always one of the traditional bases of jurisdiction.
1. Can be voluntary.
2. Can be involuntary if you appear but fail to assert a timely objection to PJ. You could then be waiving that objection. FRCP 12(h)(1).
3. Can be mandatory, as in Hess, where a state requires your consent in return for some privilege offered by state.
ii. Forum selection clauses
1. Relevant to PJ and venue comes into play when you have multiple permissible forms.
2. Your agreement to forum selection clause waives your objection to PJ.
3. Until recently, these were routinely invalidated.
iii. Carnival Cruise Lines (736)
1. Shute suffered injury on cruise. From WA and wants to sue there. Carnival put a forum selection clause in the K that stipulated all lawsuits would be settled in FL.
2. Held: Forum selection K valid. Shoe analysis unnecessary because forum parties contracted to the forum.
a. Look at fundamental fairness of the clause and whether or not it could have been rejected to determine validity.
b. From this holding, a forum selection clause is valid and enforceable if you had the opportunity to reject it. Also unenforceable if fundamentally unfair.
p. PJ Analysis Formula
i. General jurisdiction – systematic and continuous and substantial contacts? Or domicile?
ii. Or specific, as three part test below explains.
iii. Does D have minimum contacts?
1. Inventory D’s contacts
a. Think about significance of them as it relates to legal claim.
b. McGee and Hess exemplify where clear contacts by D with forum make PJ okay.
c. Hanson, Worldwide Volkswagen are cases where it’s questionable what contacts D had.
d. Forseeable injury in forum state may count as a contact in some way. Calder.
i. Is it foreseeable to the D based on D’s specific activities based on this case that D would have to go defend himself in the forum state?
e. Totality of small contacts may be enough for “minimum” standard too.
f. Volkswagen, Asahi — stream of commerce. Does putting your goods in stream of commerce count as contacts? count as purposeful availment of doing business with forum state?
g. And that D made some effort to get their stuff to the forum.
h. Contract stuff — Burger King. Where was K negotiated? Who initiated negotiations? Where was it supposed to be performed? What obligations were imposed?
2. Is P’s claim related to the contacts?
a. Is the claim being asserted here related to D’s contacts with the forum state?
3. If the first two are satisfied, do “fairness factors” Asahi nonetheless bar PJ?
4. Is there specific jurisdiction over every claim, as it’s possible to have it over one claim due to related contacts but NOT with another.
q. Notice (742)
i. Service
1. Hand delivery; registered or certified mail; increasingly, by ordinary mail; service on a person D is living with; service on an agent who we believe will transmit summons to D – ALL satisfy principles due process and notice.
2. If someone is in a jurisdiction and hiding, you can flush them out.
a. Yell “fire” outside his apartment, and when he comes out, hand him the process.
3. You can’t entice someone who is outside a state into a state in order to serve process. You can’t lie and defraud, or cheat.
4. Can’t service on Sunday in many states. Can’t serve witnesses or those conducting judicial business.
ii. Constitutional Parameters of Adequate Notice – Mullane v. Central Hanover Bank & Trust
