Agenda for 17th Class

1. Agenda for 17th Class • Admin • Handouts • Name plates • Office hours next week • W 3:30-4:30. Please email for appointment • Court visit, • Tuesday, November 19, ~1:30-4PM, but keep all afternoon clear • A Civil Action panel • November 21 at 7 or 7:30 in WCC 2004 • Review class • December 9, 1:10-3:10, WCC 2004 • Review of Supplemental Jurisdiction • International Shoe • Stream of Commerce & McIntyre • Next class: Contracts & internet (no introduction necessary)

2. Assignment for T 11/12 • Person jurisdiction and contracts • Yeazell112- 118 (Burger King) • Briefly summarize Burger King • Yeazell pp. 117ff. Q1, 2 • Personal Jurisdiction and the internet • “Jurisdiction & the Internet” (handout) • Briefly summarize Revell • Suppose you buy Duck Boots mail order from LLBean and pay with a check. They send you the boots, but your check bounces. LLBean sues you in Maine, where it is headquartered. Does the Maine court have jurisdiction over you? • Handout Problems 2-18 to 2-20 • Optional: • GlannonChapters 3, 6

3. Supplemental Jurisdiction • Subject matter jurisdiction over claims where neither diversity nor federal question • If same transaction or occurrence as claim for which there is diversity or a federal question • 1367(a) • If doing so would not allow plaintiff to circumvent the complete diversity rule • 1367(b) • Must still show personal jurisdiction for each claim • Must still show joinder proper • Must still show venue proper

4. Personal Jurisdiction • Answers question: Court in which state? • Need statutory or rule authority & statute or rule must be constitutional • Federal rule: FRCP 4(k)(1)(A) • State long-arm statutes • Constitutional constraint: Due Process Clause of 14th Amendment • Unfair to have to litigate in courts of state with no legitimate authority over defendant or dispute • Odd mixture of sovereignty, federalism, and fairness concerns • Before International Shoe • In personam: • Defendant was citizen or resident of forum state • Defendant was present in forum state • Defendant consented to jurisdiction • In rem: Disputes about property, jurisdiction where property is • Quasi in rem: Dispute not about property, jurisdiction where defendant owns property, but only up to value of that property

5. International Shoe Questions • Briefly summarize International Shoe • If the Supreme Court had not decided to change the rules in International Shoe, would jurisdiction have been proper under the prior rules? If your answer is “yes,” why do you think the Supreme Court changed the rules? If you answer is “no,” why was the outcome under the new rules better? • Yeazell pp. 86ff. Qs 1b, 3

6. Key Personal Jurisdiction Cases International Shoe Jurisdiction if Defendant has “minimum contacts” with forum, and Jurisdiction would be consistent with “fair play and substantial justice” Hanson v Denkla Jurisdiction if defendant’s contacts show “purposeful availment” Contacts cannot arise from unilateral actions of plaintiff Trust set up in Delaware. Trustor moved to Florida. Trustee has contacts with Florida, because trustor and beneficiaries there, but trustee did not choose to do business with people in Florida, so no jurisdiction over trust dispute in Florida. World-Wide Volkswagen Foreseeability is not enough Defendant sold car in New York. Plaintiffs drove car to Oklahoma where had accident. No jurisdiction in over defendant in Oklahoma Even though foreseeable that car might be driven to Oklahoma Plaintiff did not “purposefully avail” itself of Oklahoma, because car made its way to Oklahoma solely as the result of plaintiff’s actions Not stream of commerce case, b/c car was driven to Oklahoma, not sold there 6

8. Stream of Commerce II White dicta in World-Wide Volkswagen (stream of commerce) Jurisdiction over mfg in C, if mfg’s products sold in C and sale is “not simply an isolated occurrence, but arises from the efforts of the mfgor distributor to serve, directly or indirectly the market for its products” in C Relatively easy to satisfy O’Connor plurality opinion in Asahi (stream of commerce plus) Jurisdiction over mfg in C if White’s criteria satisfied AND “additional conduct of the defendant [indicates] an intent or purpose to serve the market” in C, e.g. Designing the product for C Advertising in C Establishing channels for providing regular advice to consumers in C Marketing product through distributor who has agreed to serve as the sales agent in the forum state Probably means that mfg has direct contractual relationship with retailer based in state C No majority opinion on stream of commerce But majority agreed that no jurisdiction in California over indemnity suit between foreign manufacturer and foreign part supplier, when California plaintiff had settled with foreign manufacturer Jurisdiction would be inconsistent with “fair play and substantial justice,” even if purposeful availment could be satisfied. 8

9. McIntyre Questions I Briefly summarize McIntyre v Nicastro Yeazellpp. 131ff Qs 1- 4 How would McIntyre have been decided under White’s view of the “stream of commerce” theory as expressed in his opinion in World-Wide Volkswagen How would McIntyre have been decided under O’Connor’s “stream of commerce” plus theory How is Kennedy’s view of jurisdiction based on the “stream of commerce” different from White’s and O’Connor’s? In what cases would they reach the same result? In what cases different results? Suppose the California courts and juries are relatively generous to product liability plaintiffs, but Nevada courts and juries are relatively stingy. A Chinese company which is breaking into the US market is considering two distributors, one based in California and another based in Nevada. The two distributors seem roughly equal in quality and price. Which distributor would you advise the Chinese company to select. Why? 9

10. McIntyre Questions II Suppose Washington state is suffering from high unemployment. Its legislators would like to find a way to expand employment by encouraging Chinese manufacturers to choose distributors based in Washington state. You are an adviser to a Washington state legislator. What changes would you suggest that Washington state make to its laws? If you were on the Supreme Court, in what situations would you allow those injured by products to sue the manufacturer? Would you adopt White’s Stream of Commerce theory? O’Connor’s Stream of Commerce plus? Kennedy’s theory in McIntyre? Some other rule? 10

11. General and Specific Jurisdiction General jurisdiction Court which has general jurisdiction over a defendant can hear any case against the defendant Even if case has nothing to do with forum Bases for general jurisdiction Continuous and systematic contacts (International Shoe) Individuals. Citizenship, residence, presence, quasi-in-rem (but no longer constitutional) Corporations: Where “at home”. Goodyear v Dunlop (2011) Clearly yes: where incorporated, where headquartered Maybe. where have (large) factory or office and/or (lots of) employees and/or where conduct lots of business Do not confuse with “court of general jurisdiction” 4(k)(1)(A) Do not confuse with citizenship for purposes of diversity jurisdiction Specific jurisdiction Jurisdiction only over cases related to contacts (International Shoe) Most cases we will read for class In rem can be thought of as specific jurisdiction Consent can also be thought of as specific jurisdiction 11

12. 2 Ways to Challenge Jurisdiction In court where sued Make 12(b)(2) motion or state equivalent “Special appearance” means defendant appears in court solely to challenge jurisdiction Otherwise, appearance in court could be construed as consent to jurisdiction Collateral attack Only possible where defendant does not have assets in forum So plaintiff would have to enforce judgment in state where defendant has assets Enforcing judgment in another state requires separate suit in that state But Full Faith & Credit Clause of US Constitution requires state to respect judgment of another state, IF THE STATE WHICH RENDERED THE JUDGMENT HAD JURISDICTION Defendant does not appear in court where sued Default judgment is entered against defendant When plaintiff goes to enforce judgment in state where defendant has assets, defendant raises lack of personal jurisdiction as defense Very risky, because if enforcing court decides the original court had jurisdiction, defendant cannot then challenge judgment on merits 12