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Is the Foreign Supplier “All In”?

A comprehensive guide to personal jurisdiction in a global economy, covering key concepts, landmark cases, and practical considerations in just 30 minutes.

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Is the Foreign Supplier “All In”?

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  1. Is the Foreign Supplier “All In”? Service and Personal Jurisdiction in a Global Economy Mark D. Katz Coronado Katz LLC 14 W. Third Street, Suite 200 Kansas City, MO 64113 (816) 410-6524 Mark@CoronadoKatz.com www.CoronadoKatz.com

  2. Is the Foreign Supplier “All In”? • Personal Jurisdiction in 30 Minutes • Kansas Personal Jurisdiction • Practical Personal Jurisdiction

  3. Everything you learned in law school and more in just 30 minutes PERSONAL JURISDICTION

  4. Personal Jurisdiction in 30 Minutes Words, Phrases and Concepts • Territorial limits • Traditional notions of fair play and substantial justice • Minimum contacts • Estimate of the inconveniences • Purposeful availment • General v. Specific • Stream of commerce plus (whatever that means)

  5. Personal Jurisdiction in 30 Minutes 14th Amendment (1868) Pennoyer (1877) Pennoyer v. Neff, 95 U.S. 714 (1877) “The authority of every tribunal is necessarily restricted by the territorial limits of the State …” Personal jurisdiction requires personal service within the territorial limits of the state of the tribunal. • “… nor shall any State deprive any person of life, liberty, or property without due process of law.”

  6. Personal Jurisdiction in 30 Minutes International Shoe (1945) • Internat’l Shoe Co. v. Washington, 326 U.S. 310 (1945) • Minimum contacts that do not offend traditional notions of fair play and substantial justice • Relevance of “an estimate of the inconveniences” • Contrasting general and specific jurisdiction • General • continuous corporate operations sufficiently substantial • permit jurisdiction unrelated to the in-State activities • Specific • minimum contacts with forum • continuous and systematic • give rise to the liabilities sued upon

  7. Personal Jurisdiction in 30 Minutes Hanson v. Denkla(1958) • Hanson v. Denkla, 357 U.S. 235 (1958) • Restrictions on jurisdiction are “a consequence of territorial limitations on the power of the … States” • “[A]n act by which the defendant purposefully avails itself of the privilege of conducting activities …” • Rejects “center of gravity” argument

  8. Personal Jurisdiction in 30 Minutes World-Wide Volkswagen (1980) • World-Wide Volkswagen Corp v. Woodson, 444 U.S. 286 (1980) • Factors to be considered • Burden on the defendant • Forum’s interest in adjudicating the case • Plaintiff’s interest in convenient and efficient relief • Interstate judicial system’s interest • States’ shared interest in furthering social policies • Foreseeability related to defendant’s conduct and connection to the forum state, not related to a product fortuitously ending up in the forum state.

  9. Personal Jurisdiction in 30 Minutes Ins.Corp.ofIreland(1982) Burger King (1985) Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) Minimum contacts in the context of federal cases Importance of purposeful availment Downplays defendant’s inconvenience Suggests accommodations Choice of law Change of venue for defendants with “lesser minimum contacts” • Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) • Downplays the importance of federalism in personal jurisdiction jurisprudence • Procedural Issues • Discovery on personal jurisdiction • Discovery sanctions—just and related to the claim at issue

  10. Personal Jurisdiction in 30 Minutes Asahi Metal Industry (1987) • Asahi Metal Ind. Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102 (1987) • Unanimous that the exercise of personal jurisdiction “would offend the traditional notions of fair play and substantial justice.” • 4-4 split on the “stream of commerce theory” • Justice O’Connor: Purposeful availmentrequires more than just putting a product in the stream of commerce • Justice Brennan: Putting a product in the stream of commerce plus knowledge that the product is marketed in the forum state is sufficient.

  11. Personal Jurisdiction in 30 MinutesPost-Asahi Metal Goodyear (2011) J. McIntyre Mach. (2011) J. McIntyre Machinery v. Nicastro, 564 U.S. 873 (2011) Hand injury in New Jersey Machine manufactured in England Sold to independent US distributor No input on later distribution Four machines in New Jersey “Opportunity for greater clarity” 3-2-3 Decision • Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) • Bus accident in France • Tires manufactured and sold in Europe • American citizens killed • Suit filed in North Carolina • European subsidiaries of American parent corporation

  12. State and Federal KANSAS PERSONAL JURISDICTION

  13. Personal Jurisdiction in Kansas State • Long arm statute K.S.A. 60-308(b) • Merriman v. Crompton Corp., 282 Kan. 433 (2006) • Price-fixing, conspiracy case • Falls within long arm jurisdiction • Application for authority to do business is consent • Written consent to jurisdiction is consistent with DP • Conspiracy outside the state with effects reasonably expected to reach Kansas consumers supports exercise of personal jurisdiction

  14. Personal Jurisdiction in Kansas Federal • OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086 (1998) • Insurance case • Long arm statute satisfied • Due Process analysis • Minimum contacts—purposeful availment/arising out of • Reasonableness • Burden on the defendant • Forum state’s interest • Plaintiff’s interest • Interstate judicial system’s interest • States interest in furthering fundamental social policies

  15. Personal Jurisdiction in Kansas Federal • Monge v. RG Petro-Machinery (Group) Co., 701 F.3d 598 (10th Cir. 2012) • Injury on a rig used to repair oil wells • Manufactured in China • Possession taken in China • Shipping label to Liberal, Kansas • Injury and suit in Oklahoma • Analysis • Specific jurisdiction • General jurisdiction

  16. Before and during litigation Practical PERSONAL JURISDICTION

  17. Practical Personal Jurisdiction Serving the foreign party abroad • The Hague Convention • Must go through foreign country’s central authority • Central authority can deny the request for service • Central authority can require translation • Allows for delivery to addressee who voluntarily accepts it

  18. Practical Personal Jurisdiction Planning for Problems—the Domestic Entity • Who are you going to deal with? • Where are the negotiations going to be held? • What’s in your contract? • Voluntary acceptance of service • Designated agents for service • Choice of forum clauses • Choice of law requirements • Insurance requirements • Defense and indemnity agreements

  19. Practical Personal Jurisdiction Questions for your foreign litigation client • Did plaintiff get service right? • Are the contacts sufficient to sustain general jurisdiction? • Are the contacts connected to the cause of action? • Which type of stream of commerce state are you in? • File your motion to dismiss early • Make sure your motion to dismiss is complete • Affidavit or statement made under penalty of perjury? • Expect discovery on jurisdiction • Argue discovery should be limited while motion is pending

  20. Questions? Mark D. Katz Coronado Katz LLC 14 W. Third Street, Suite 200 Kansas City, MO 64113 (816) 410-6524 Mark@CoronadoKatz.com www.CoronadoKatz.com

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