CIVIL PROCEDURE CLASS 37

1. CIVIL PROCEDURE CLASS 37 Professor Fischer Columbus School of Law The Catholic University of America November 16, 2005

2. WRAP UP • Burnham: despite Shaffer’s broad statement “all assertions of state court jurisdiction” must be assessed under International Shoe, 4-4 split in Burnham as to whether presence in a jurisdiction is a basis for jurisdiction independent of International Shoe

3. RESIDENCE, CONSENT • Supreme Court has never held that residence and consent are not sufficient in themselves for jurisdiction (without considering International Shoe).

4. GENERAL JURISDICTION • What is the difference between general and specific jurisdiction?

5. Supreme Court General Jurisdiction Jurisprudence • S. Ct has only decided two cases based on general jurisdiction: Helicopteros (rejected it) and Perkins v. Benguet Consolidated Mining Co. (1952) (upheld it)

6. Helicopteros Nacionales de Colombia v. Hall • Facts and procedural history?

7. Helicopteros Nacionales de Colombia v. Hall • Wrongful death action resulting from helicopter crash in Peru that killed US citizens. Respondents brought suit in TX against, among others, Helicol, Columbian operator of helicopter, on the basis of pilot error • Helicol moves to dismiss for lack of personal jurisdiction. • Trial court denies motion: and respondents win jury award of over $1,000,000 • Texas Supreme Court finds there was jurisdiction over Helicol.

8. U.S. Supreme Court • Must determine whether the Texas state court had personal jurisdiction over Helicol

9. Helicol’s Contacts With Texas • Describe Helicol’s contacts with Texas • Were these enough for specific jurisdiction, according to the Supreme Court?

10. Helicol’s Contacts With Texas • Sent representative to contract with TX company for transportation contract in Peru. • Purchased most of its helicopters from TX company • Sent pilots, management, and maintenance personnel to TX for training • Received payments from TX bank accounts for transportation contract

11. Supreme Court Only Rules on General Jurisdiction • According to majority, specific jurisdiction was not argued by P • How does it rule on general jurisdiction?

12. Supreme Court Only Rules on General Jurisdiction • Helicol lacked “the kind of continuous and systematic general business contacts with TX necessary to satisfy due process” • This seems to indicate a very high standard for general jurisdiction to be found. • Leaves a lot unsettled on general jurisdiction

13. Brennan’s Dissent • What is the basis for the dissent?

14. The Shutes?

15. What is Continuous and Systematic Contact with a Forum? • Service of process on a defendant in a forum Burnham • Domicile in a forum • Corporate incorporation in a forum • Principal place of business in a forum (Perkins) • Not clear whether other regional or smaller offices will justify the exercise of general jurisdiction • Quantitative and qualitative assessment

16. Mrs. Shute Goes to Court • Why did Mrs. Eulala Shute (and her husband sue Carnival Cruise Lines? • Where did she and her husband bring suit?

17. Procedural History • Describe the procedural history of this action before the Supreme Court’s opinion.

18. Procedural History • Describe the procedural history of this action before the Supreme Court’s opinion. • Shutes file suit in W.D. WA • CCL moves for summary judgment on basis of forum selection clause/no p.j. (no minimum contacts) • District Court grants this motion, Court of Appeals for the Ninth Circuit reverses (minimum contacts with Washington due to solicitation of business in Washington) • U.S. Supreme Court grants certiorari.

19. Supreme Court Must Consider • 1. Argument that forum selection clause bars jurisdiction over Carnival in Washington state. • 2. Constitutional argument that CCL’s contacts with Washington are not enough to support jurisdiction.

20. Arguments that the Forum Selection Clause Unenforceable • What are the arguments in support of their contention that the forum selection clause is unenforceable that convinced the Ninth Circuit? • Did any of them convince Justice Blackmun, who wrote the Supreme Court’s majority opinion? If so, which arguments?

21. Justice Blackmun’s Reasoning • Blackkmun: some nonnegotiated forum-selection clauses can be enforceable • Cruise ships have special interest in limiting for a where they can be sued • Such a clause spares expense of pretrial motions to determine correct forum and conserving judicial resources • Passengers benefit in light of reduced fares that reflect savings cruise line enjoys by limiting forum where it can be sued. • Do you buy any of these?

22. More of Blackmun’s Reasoning • Shutes have not satisfied the heavy burden of proof required to set aside the clause on grounds of inconvenience (they had notice and Florida is not a remote alien forum especially given where accident took place) • NO evidence of bad faith or overreaching • Since Shutes had notice of contract, they could have rejected it.

23. Dissent • Who wrote the dissent? • Who joined in it? • Describe the reasoning in the dissent. Do you agree with it? Why or why not?

24. Dissent • Inadequate notice

25. Carnival Cruise Lines: Narrow Sense • Congress overturned this case in a narrow sense by amending a federal admiralty statute (See Section 3006 of the Oceans Act of 1992, P.L. 102-587).

26. Forum Selection Clauses: Jurisdiction By Express Consent • Remember that it is possible to consent to jurisdiction • Consequently, lack of personal jurisdiction is one of the waivable defenses under Rules 12(g) and 12(h)(1) • Contrast this with lack of subject matter jurisdiction, which can never be waived.

27. Forum Selection Clauses After Carnival • Prior to Carnival, some courts refused to enforce forum selection clauses that barred jurisdiction in other courts. Now, forum-selection clauses generally have a strong presumption of enforceability, especially where there is equal bargaining power between the parties and they are represented by counsel. • The burden is on the person challenging the enforcement of the clause to show it was unreasonable or unfair in the circumstances. This is a difficult burden, even where the clause is in a standard-form contract.

28. Due Process Requirements • Due Process requires that D has some relationship to the forum state that makes it fair to sue her there. • Does the due process clause require anything else for this D?

29. Notice and the Opportunity to Be Heard • It also requires that D be given prior notice and an opportunity to be heard.

30. MULLANE AND NOTICE • Mullane is the leading Supreme Court case that sets the modern standard for notice that satisfies due process.

31. Mullane Facts • Mullane involved a judicial settlement in the NY Surrogates Court of a common trust fund established by a NY bank under a NY banking statute. • Who was the common trustee of this fund? • What is the purpose of a common trust fund? • Who were the beneficiaries?

32. Judicial Settlement of Trust Account • Why would the common fund trustee want to have an accounting approved?

33. Parties • Who is Mullane?

34. General Notice Requirement • “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections…”

35. Standard for Notice in Mullane • “…The notice must be of such nature as reasonably to convey the required information . . . And it must afford a reasonable time for those interested to make their appearance . . .But if with due regard to the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied.”

36. Published Notice • Can published notice ever be adequate under the Mullane standard?

37. 3 categories of beneficiary: was notice acceptable? • Some could not be identified/located with reasonable effort • Some could be identified/located but had conjectural or future interests so it would cost a lot to identify/locate them • Some were known present beneficiaries

38. Mullane Changes Historical Notice Requirement • Notice by publication in in personam cases is greatly cut back • Publication will not be sufficient notice if it would be reasonably practicable to provide individual notice • But Mullane makes clear that official notice does not always have to be personal service – could be, e.g., mail

39. After Mullane • Court decisions after Mullane have found that notice by mail is the constitutional minimum for D who can be found by reasonably diligent efforts. • Mullane paves the way for reforms to service in R. 4

40. Don’t Forget R. 4: Service Rule • R. 4(e) • R.4(h)

41. Jurisdiction for Internet Contacts • Zippo v. Zippo.com • Influential case on how to determine whether a court has personal jurisdiction where D’s contacts with the forum state occurred over the Internet

42. Zippo Sliding Scale

43. Scale • Doing business over the Internet • Passive web site • Middle ground • Is this a good test? Can you think of a better test?