Agenda for 23rd Class

1. Agenda for 23rd Class • Admin • Name plates • Slide handout • Review class • Contracts exam. T 12/10 8:30-? • Civ Pro Exam. Thursday 12/13 • Possible review session + office hours • T 12/10. 2-4 review class + office hours 4-6 • W 12/11 10-noon review class + office hours all afternoon • M 12/9 10-noon review class + office hours noon-1 • Th 12/12, 9-11 review class + office hours 11-12:45 • Personal Jurisdiction • Internet jurisdiction • Review of Personal Jurisdiction • Venue, Forum non-conveniens • 2012 Exam • Intro to RJ & CE

2. Assignment for Tuesday 12/3 • Res Judicata • US Constitution Article IV (Supplement p. 1) • 28 USC 1738 • Yeazell pp. 704-12 • Be ready to briefly summarize Frier (no WG) • (WG1) In what court could Frier have brought both his replevin and his due process claims? • (WG2) Did the city raise res judicata as a defense in the district court? How? Why was that improper? How should the city have raised that defense? • (WG3) Why was it proper for the Court of Appeals to consider the res judicata defense, given that the district court did not address it and the city did not cross appeal? • Optional: Glannon Chapters 26 & 27

3. Assignment for T 12/3 II • Collateral Estoppel • Yeazell 738-55 • BlackBoard Questions on Collateral Estoppel Q1-5 • Be ready to briefly summarize Illinois Central (no WG) • (WG4) The suit in the first paragraph was actually heard in state court. If the suit in the first paragraph of the opinion had been brought in federal court, would the second suit be barred by res judicata? • (WG5) If the suit in the first paragraph of the opinion had been brought in state court, but the main suit described in the case was brought in federal court, would the second suit be barred by res judicata. • Yeazell p. 742-3 Qs 3 & 4 (WG6) (Note you will want to do the Blackboard Questions first, because they give you the answers to Qs 1 & 2) • Be prepared to briefly summarize Parklane(no WG) • Yeazell pp. 750ff 5a (WG7) • Optional. Glannon Chapters 28 and 29

4. Review of Burger King • Suppose A is from AL and C is from CA and suppose A and C enter into a contract with each other • Broad interpretation of Burger King: • If A sues C or C sues A, then both AL and CA always have jurisdiction over the case • Narrow interpretation of Burger King • If A sues C, then AL has jurisdiction over the case only if: • the contract was part of a continuing commercial relationship between A and C, and/or • the defendant was sophisticated • Similar analysis if C sues A in CA

5. Internet Questions • For each of the following situations, would there be subject matter jurisdiction? If the suit was in state court, could the defendant remove it to federal court? Is there personal jurisdiction? What substantive law would apply? • In the early days of the internet, Toppin registered the domain name unitedairlines.com. Toppin then sent a letter to the general counsel of United Airlines at United’s Houston headquarters. In that letter, Toppin offered to sell the domain name to United Airlines for $50,000. United Airlines sued Toppin in a Texas state court alleging violation of its trademark. • Suppose Beatrice Potter makes beautiful ceramics and markets them through her website. Cal, a California citizen, placed an order for a $1000 bowl on Beatrice’s website. Beatrice shipped the bowl to Cal’s home in Beverly Hills, but when it arrived, Cal claimed it was broken and sued Beatrice in Los Angeles superior court.

6. Other Traditional Bases for PJ What about other bases for personal jurisdiction from Pennoyerv. Neff Is minimum contacts just substitute for “presence” for corporations? Or is minimum contacts analysis the framework for analyzing all personal jurisdiction issues Shaffer v Heitner (1977) Minimum contacts is framework for everything Quasi-in-rem jurisdiction is invalid, b/c it is general jurisdiction without extensive contacts Q-i-R is jurisdiction in state over any dispute based on ownership of property in state (with judgment up to value of property) In-rem jurisdiction is valid, because it is specific jurisdiction Jurisdiction over property dispute based on assertion of ownership over that property Burnham (1990) Scalia+3. Tag jurisdiction (general jurisdiction based on presence) is ok because traditional Minimum contacts analysis is irrelevant Brennan+3. Tag jurisdiction is ok because consistent with minimum contacts Stevens. Tag jurisdiction ok b/c traditional and consistent with minimum contacts 6

7. Consent to Jurisdiction • Consent was basis for in personam jurisdiction before Intl Shoe • Consent continues to be basis for jurisdiction • 3 kinds of consent • Consent after sued in particular forum • Failure to object / waiver • Forum selection clause in contract • Note difference from choice of law clause • Carnival Cruise Lines • Choice of forum clauses generally enforceable • Forum must be reasonable • Forum can‘t be chosen just to inconvenience plaintiff • Forum must have some relationship to dispute • E.g. defendant's headquarters state • Even if inconvenient to plaintiffs • Strategy • Almost always advantageous to include choice of forum and choice of law clauses in contracts • Mutually advantageous to reduce uncertainty • Especially beneficial if your client has bargaining power to choose advantageous law and forum

8. Summary of Pennoyer Categories • In personam: • Defendant was citizen or resident of forum state • Still valid as bases for general jurisdiction • Defendant was present in forum state • Still valid as basis for general jurisdiction • Only for individuals • Defendant consented to jurisdiction • Still valid as basis for jurisdiction • Consent is specific to dispute for which consented • In rem: Disputes about property, jurisdiction where property is • Still valid • Kind of specific jurisdiction • Quasi in rem: Dispute not about property, jurisdiction where defendant owns property, but only up to value of that property • Not valid, because would be form of general jurisdiction and ownership of property is not substantial enough to justify general jurisdiction

9. Long-Arm Statutes I • So far have been discussing constitutional limits of personal jurisdiction • Personal Jurisdiction also requires statutory authority • 2 types of statutes • To-the-limits-of-the constitution Statute • Cal. Code of Civil Procedure 410.10. A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States. • Means statutory analysis = constitutional analysis • Enumerated Act Statute • NY Civil Practice Law & Rules 302. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary… who … 1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or 2. commits a tortious act within the state…. • Means statutory authority might be narrower than allowed by constitution • Of course, if statutory authority is broader than allowed by constitution, it is void • Most enumerated act statutes interpreted to allow any assertion of jurisdiction allowed by US Constitution

10. Long-Arm Statutes II • No federal long-arm statute • Instead, federal courts use long-arm statute of state in which located • 4(k)(1)(A). Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant … (A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located • Congress could authorize broader jurisdiction • Federal courts not bound by same constitutional constraints as state courts • State courts. Due Process Clause of 14th Amendment • Federal Courts. Due Process of 5th Amendment • Same words, but mean different things • 5th Amendment requires only minimum contacts and purposeful availment with U.S. • So contact with MA would be sufficient to allow PJ in district court in CA • Allowed by some statutes for particular areas of law, e.g. antitrust • “nation-wide service of process” statutes • Glannon Chapter 2 • BlackBoard Personal Jurisdiction Questions Q6-7

11. Review of Personal Jurisdiction “Purposeful availment” is key concept 5 categories Defendant or its employees entered the forum and conducted activity International Shoe Defendant entered into contractual relationships with forum residents Burger King, McGee Defendant’s products entered the forum through the "stream of commerce“ McIntyre Defendant’s out-of-state conduct caused an injurious "effect" in the forum state Purposeful direction Abdouch, Calder, Walden General jurisdiction Individuals – residence, domicile, consent, presence Corporations- Incorporation, principal place of business 11

12. Venue • Venue means what court within a state • Federal court: CD of Cal (LA) or SD of Cal (San Diego) • State court: LA Superior Court of San Diego Superior Court • Purely statutory matter. Not constitutional • Each state has its own statute • Federal statute is 28 USC 1391 • Map of federal districts • http://www.uscourts.gov/uscourts/images/CircuitMap.pdf

13. Venue: 28 USC 1391 • (b)(1). If all defendants reside in the same state, venue is proper in any judicial district in which at least one defendant resides • For individuals residing in US, residence = domicile. (c)(1) • Confusing, because domicile is usually defined as residence + intent to remain indefinitely • Corporations are resident in any district in which they would be subject to personal jurisdiction, if district were considered a state. (d) • If subject to personal jurisdiction in state, then resides in that state • (b)(2). Venue is proper in judicial district where event or omission giving rise to claim occurred • (b)(3). If no district satisfies (b)(1) or (b)(2), then venue is proper in any district in which in which any defendant is subject to personal jurisdiction. • (c)(3). Defendant not residing in US can be sued in any district • Joinder of person not residing in US disregarded in determining venue when multiple defendants • IMPORTANT. Even if venue is proper, court still needs to have personal jurisdiction over EACH AND EVERY defendant.

14. Moving Cases Around • From one federal court to another • 28 USC 1404. cases may be transferred “to any other district …where it might have been brought .. for the convenience of the parties and witnesses, in the interest of justice.” • Even if venue and jurisdiction was proper in the first place • 28 USC 1406 says that court can transfer case if venue or personal jurisdiction was improper in the first place. • Without statute, one might think that the court didn’t have power to do anything • No comparable ability to transfer case between judicial systems • E.g. from one state court to a court in a different state or foreign country • E.g. from federal court to court in foreign country • If judge thinks that her court has jurisdiction, but that a court in a different state or country would be better, the judge must dismiss the case • Forum non conveniens • No transfer or forum non-conveniens to move case from federal to state court or vice versa • State to federal court. Removal; Federal to state. Abstention.

15. Transfer and Choice of Law • 28 USC 1404 transfer • Transferee court applies choice of law of transferor court • So, if C.D.Cal. transfers case to M.D.Pa. • M.D.Pa. applies choice of law of C.D.Cal • Which means, under Klaxon, M.D.Pa. applies California choice of law • Makes sense, because 1404 transfers are usually requested by the defendant for the defendant’s convenience. No reason that such transfers should change applicable law. • 28 USC 1406 transfer • Transferee court applies its own choice of law • So if C.D.Cal. transfers case to M.D.Pa. • M.D.Pa applies M.D.Pa choice of law • Which, under Klaxon, means M.D.Pa applies Pennsylvania choice of law • Make sense, because if applied transferor choice of law, plaintiff would initially file suit in place with most favorable choice-of-law, even if plaintiff know that jurisdiction or venue was inappropriate, so as to gain favorable choice of law

16. Forum Non Conveniens Questions • Briefly summarize Thompson v Greyhound • Briefly summarize Piper Aircraft • For each court which ruled in this case, explain why subject matter jurisdiction, personal jurisdiction, and venue was or was not proper • For each court, analyze what law would apply. For this purpose, assume that California and Pennsylvania apply the Restatement 2nd, and that Scotland applies the traditional rule. • Suppose a chemical plant in India owned by an American company leaks gas into the surrounding neighborhood and kills 16,000 people and injures half a million. The victims sue in US court. Defendants move for dismissal on the basis of forum non conveniens. The plaintiffs argue that dismissal is inappropriate, because Indian courts require a filing fee equal to 5% of damages claimed, which in this case could be billions of dollars. There are long delays in Indian courts. Indian courts have very few tort precedents and none relevant to mass torts. Discovery is usually very narrow, if allowed at all. Should the court grant the forum non conveniens motion? If it does, are there any conditions it should attach?

17. 2012 Exam

18. Assignment III – Suggested Chart for Q. 2a on 2012 Exam

19. Assignment IV – Suggested Chart for Q. 2a on 2012 Exam

20. Introduction to Former Adjudication • 2 concepts • Res judicata / claim preclusion • Collateral estoppel / issue preclusion • Res judicata • Cannot litigate same claim several times • Finality • If two claims are closely related to each other (e.g. same transaction or occurrence) • Then must bring them together. Compulsory joinder • If litigate one claim and then try to litigate the other • Second claim will be barred by res judicata • Collateral estoppel • If issue resolved in one case, cannot relitigate that issue in subsequent case • Suppose long-term contacts • Litigation I. breach in 1990. Court: contract is valid • Litigation II. Breach in 2000. cannot relitigate contact validity • Key issue is “non-mutual” collateral estoppel • Case I. A sues B for patent infringement. Court: patent invalid • Case II. A sues C for patent infringement. Can relitigate validity? • No estoppel if person against whom estoppel asserted was not a party in first case • 2nd court applies CE and RJ rules of court which decided first case