Agenda for 22nd Class

1. Agenda for 22nd Class • Name plates • Office hours change for rest of semester • Mondays 4-5PM starting in 101 and then in my office (Today 4-4:45) • Primarily for Property, but Civ Pro students welcome • Fridays 12-1PM starting in 101 and then in my office • Primarily for Civ Pro students, but Property students welcome • Lunch this Friday • M 11/19 Court Visit starting at 7:45 AM • Review class -- • Th 12/6 (day before exam) 10AM? Or M 12/3 10AM? • TA led review class – F 11/30 at 2PM? • Handouts -- Slides, 2012 exam, Court Visit • Today’s class – Personal Jurisdiction • McIntyre (continued) • Burger King • Internet • Current status of Pennoyer v Neff categories • Introduction to Venue & Forum non-conveniens

2. Assignment for Next Class I • 28 USC 1391, 1404, 1406 • Yeazell 180-94 • Blackboard Questions on Venue 1 and 2 • (WG1) Briefly summarize Thompson v Greyhound • (WG2) 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 (WG3) • 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. (WG4 & 5) • Hypothetical question on next slide (WG6&7) • 2012 Exam (Highly recommended for all WGs) • See suggested charts on “Assignment III” and “Assignment IV” slides • Optional – Glannon Chapter 8 (Venue), 1 (Personal Jurisdiction)

3. Assignment for Next Class II • 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?

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

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

6. Assignment for Monday (Court Visit) • Read motions and supporting documents • Links near top of class webpage • How do you think the judge will rule and why? • (WG1&2) Global AIG v FIB Treasury Trust. Default J • (WG1&2) Grijalva v Lompoc. Motion to Dismiss • (WG3&4) Zhang v BMW. Attorney Fees • (WG3&4) Hubbs v Big Lots. Reconsideration of SJ • (WG5, 6 & 7) Guerrero-Hernandez . Approval of Class Action Settlement • (WG5, 6 & 7) Sepulveda v Whittier. Motion for SJ

7. Review of World-Wide Volkswagen • Forseeability is not enough; Purposeful availment requires more • Jurisdiction cannot be established by plaintiff’s actions (driving car to Oklahoma) • Minimum contacts focus on defendant’s actions (not plaintiff’s) • World-Wide Volkswagen was NOT stream-of-commerce case • Car got to the forum (Oklahoma) because the plaintiffs drove it there • NOT because it was sold by a distributor or retailer there • But dicta in WWVW discusses the stream-of-commerce • A strict view of specific jurisdiction would say that there would NOT be jurisdiction over Audi or Volkswagen of America • They have contacts with Oklahoma, because they sell cars there • But might not be sufficient under McIntyre • But those contacts are not (strictly) related to the Robinsons’ suit, because the car that caused the accident was purchased in NY • A less strict view of specific jurisdiction might say that the contacts were sufficiently related, because they sold the same kind of car in Oklahoma

8. Review of McIntyre • Court continues to be divided on Stream of Commerce • Kennedy + 3. • Defendant must “target” the jurisdiction • Putting product in stream of commerce not enough to show purposeful availment • Ginsburg + 2 • Establishing distribution network to serve whole US sufficient to show purposeful availment of particular U.S. states • Breyer + 1 • This case is anomalous. • No jurisdiction, because only a few of McIntyre’s machines were sold to NJ • Seems also to endorse narrow view of O’Connor’s Stream of Commerce Plus approach • But mostly defers real analysis of stream-of-commerce decision for the next case • No majority opinion • Need to “count to 5”

9. McIntyre II 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? 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? 9

10. Questions on Burger King & Internet • Briefly summarize Burger King • Handout pp. 117ff. Q1, 2 • 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? • Briefly summarize Abdouch • Questions on next slide

11. 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? • The New York Times posted an article to nytimes.com about Dustin Hoffman that Dustin Hoffman, who lives in California, alleges defames him. Dustin Hoffman sued the New York Times in federal court in California. • 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.

12. 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 12

13. 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 law clauses generally enforceable • Forum must be reasonable • Can‘t be chosen just to inconvenience plaintiff • Ok if 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

14. 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

15. 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 15

16. Introduction to Venue • What court within a state? • State court: LA Superior Court or San Francisco Superior Court • Federal court. If state has more than one district, which district • S.D.N.Y or E.D.N.Y. • Purely statutory • No constitutional constraint • States have own statutes • Federal statute is 1391 • Glannon is very helpful • Transfers • Can transfer case between federal districts for convenience. 1404, 1406 • Cannot transfer case between court systems • E.g. from MA court to CA court • E.g. from US court to UK court • But sometimes court will dismiss case over which jurisdiction and venue are proper, but when a court in another court system would be more appropriate • Forum non conveniens

17. 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