SEPTEMBER NOTES – Civil Procedure
September 2, 1998
Specific v general jurisdiction
Cornelison v. Chaney
California forum. Nebraska D. D drives trucks back and forth between CA and Nebraska. On one trip he met with a CA resident going in the opposite direction. CA resident sued. This pattern of conduct is enough to establish minimum contacts. D says the cause of action arose in Nevada, and therefore cannot be sued in CA. D said contacts in this case are not enough to find jurisdiction. P said the cause of action directly related to P’s business in CA. CA court concluded it had jurisdiction. Court found that litigating in CA was not that unfair anyway to D. He had to go to Nevada anyway and CA was not much farther.
Burger King case
Title 28 Section 1404 A PAGE 312 – deals with change of venue
Section 1391 A – Venue generally
Section 1391 B – kj
Change of venue
September 4, 1998
Review of burger king case
What did we learn from this case?
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When preparing for exam don’t summarize statute in studying. Use actual statute. Use the actual federal rules book when taking the exam.
BRING BLUE BOOK!
See rule 82 of title 28:
1331: The district court shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States.
1332: federal court can hear disputes arising between citizens of different states.
Federal rules of civil procedure: page 9
Asahi Case:
Indemnification – reimbursement, insurance
Rule 14 (a) third party practice
Cheng Shin known as 3rd party D. Asahi is also known as 3rd party D.
Contingent claim.
Stream of commerce is a basis for jurisdiction in personam.
Zurcher sues Asahi, is the rule still the same? See Rule 14A.
Through problem D beginning on page 80.
Is this a case which could have originally been filed in federal court?
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September 9, 1998
Could Zurcher name Asahi as co-defendant?
See rule 14a - Plaintiff may assert any claim against the third party D arising out of the transaction or occurrence that is the subject matter f the plaintiff's claim against the third party plaintiff.
Rule 12b2.
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September 11, 1998
Minimum contacts will almost certainly be on exam
If it is a foreign resident don't have to have minimum contacts….
Calder v Jones discussion (pg80)
Keeton v. Hustler Magazine (page 80)
Okay to sue in any state in which the magazine is distributed.
Is this fair to New Hampshire? - court said it is up to the NH court to decide this. NH said they would apply statute of limitation of the state in which the tort arose.
Issue: if statute of limitations has run on the cause of action how do you raise this?
Jurisdiction over debt
Harris v. Balk
When talking about property usually talk about jurisdiction in rem. Talking about a law suit in which the subject matter is property.
Is property in this case that is attached in this case the property that is at the heart of the dispute in Harris v balk? No different. Therefore the property is not the subject matter of the lawsuit. The subject matter is the debt. KNOWN as quasi in rem jurisiction. When property attached is not the subject matter of the lawsuit.
Therefore, the issue is "what is property" we can say that debt is property. So then we need to figure out where is the debt??? Hard to put a place on the debt. Court held that everywhere person goes, the debt also goes.
The presence of Harris was enough to establish jurisdiction over Balk and his debt. Therefore in this type of a case, similarly to Pennoyer, that physical presence is the basis for jurisdiction. The physical presence of the property (debt) is the basis for jurisdiction.
Seider v. Roth
Could not sue in NY without Harris v. Balk. So instead went through the insurance company which had dealings in NY. Is D's interest in insurance company property? Judgement can never exceed value of property which is attached (in in rem and quasi in rem jurisdiction cases).
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September 14, 1998
Shaffer v Heitner
rule 20A lets 2 or more defendants sue
reasons to file in federal court:
Can this court acquire jurisdiction over the person of Greyhound? Yes Greyhound is a resident of Delaware because they are incorporated there. Therefore Delaware has jurisdiction over Greyhound.
In rem jurisdiction: jurisdiction over people, places, or things. When property is attached or subject matter of law suit
Quasi in rem jurisdiction: refers to cases in which property is taken but is not the subject matter of suit, only being used to establish jurisdiction. Ex: try to take someone’s property in the case in order to satisfy a monetary debt that is owed.
Is there precedent for taking of jurisdiction by this court?
No state shall deprive any person of life liberty of property without the due process of law.
Fundamental principles behind in rem and in personam seems to be the same. Therefore there needs to be more distinguishing features of quasi in rem jurisdiction
Needs to be more direct ties:
All assertions need to be tested against International Shoe (minimum contacts). This just about wiped out all need for quasi in rem jurisdiction.
Read gonzales v gonzales
Carnival cruise lines
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September 16, 1998
Review of Shaffer v. Hietner
EXAMPLE:
P sues D in tort situation. Cause of action is negligence
rule 8c – affirmative defenses
rule 13a – compulsory counterclaims
quasi in rem – use property only to get person to go to state in order to gain jurisdiction. Because there is property there is jurisdiction. Property is not the subject matter of the law suit.
Can quasi in rem jurisdiction still be used after Shaffer?????
Shaffer:
All assertions of state court jurisdiction shall be determined in accordance with minimum contacts from International Shoe.
Banco Ambrosiano c. Artoc Bank
How was quasi in rem jurisdiction tried to be used here?
Quasi in rem is the requirement that you must show the D contact is sufficient to satisfy International Shoe and not the long arm statute of the state. So you can still have quasi in rem jurisdiction by interpreting it through International Shoe, instead of interpreting it through the State’s long arm statute.
Two types of long arm statutes:
Shaffer – only exercise quasi in rem if International Shoe (minimum contacts) is satisfied.
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September 18, 1998
Quasi in rem can still be applicable because jurisdiction should be looked at in terms of International Shoe which is minimum contacts
BURNHAM discussion
Is physical presence in a state enough to establish jurisdiction?
In Burnham as long as you are physically present in the state, that is sufficient for service of process.
special appearance in the California Superior Court, moving to quash – during these special appearances, person is not admitting to jurisdiction
Superior court denied motion because "we gotcha" he happened to be in the state, and therefore he can be served
Prescriptive jurisdiction – describes conduct for which jurisdiction may be attained
Person flew frequently from SFO to Tokyo. There as a Florida person involved that was unsatisfied with person. The airplane used to stop in Alaska for refueling. Person was served by Florida man during the refueling in Alaska. Is this fair?
Scalia would say yes. But there is also the doctrine of convenience. Need to look and see if the forum is very inconvenient. Other safegards which the D can be afforded some degree of fairness. Must consider the venue.
Implied consent – person’s actions can imply consent
Prior consent
Consent by conduct –
Filing a motion to dismiss for cause of jurisdiction is a catch 22 type situation. By filing motion, the D is agreeing that the court has jurisdiction over that issue, so must have jurisdiction over disputed case
If person refuses to submit discovery, they are in effect submitting to jurisdiction. By invoking federal rules to decide whether the court had jurisdiction there is jurisdiction.
Zapata Off-Shore
Problem:
Supreme court held that the choice of law clause should be upheld. Litigation was to take place in London. As far as the contractual choice of forum is reasonable, it is enforceble.
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September 21, 1998
Choice of forum clause – consent to a given forum is another way of providing for jurisdiction. Choice of forum if reasonable is enforceable
Need to be careful when dealing with cases between corporations and individuals as far as fairness of forum goes.
Carnival Cruise Lines discussion
What is real basis for courts decision in this case?
If you sign a contract that says where the forum in case of litigation is located, have to abide by that.
Soler v Mitsubishi – anti trust law lawsuit – Mitsubishi said that the parties had agreed to international arbitration and therefore the jurisdiction in the USA was bad.
USSC very serious about enforcing choice of forum clause as show in above cases.
Admiralty in maritime law: law governing high seas
NATIONAL RENTAL v. SZUKHENT, 375 U.S. 311 (1964)
MULLANE v. CENTRAL HANOVER TR. CO., 339 U.S. 306
Such notice by publication is not sufficient under the Fourteenth Amendment as a basis for adjudication depriving of substantial property rights known persons whose whereabouts are also known, since it is not impracticable to make serious efforts to notify them at least by ordinary mail to their addresses on record with the trust company.
Registered mail is best way to give notice for those you know about. Must employ means best calculated to give actual notice.
Case of jurisdiction by necessity.
Look at OMNI CAPITAL INT'L v. RUDOLF WOLFF & CO., 484 U.S. 97
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September 23, 1998
Situation: a sues b, b gives notice of service in forum 1. B does not make an appearance because he says there is no jurisdiction over him in forum 1. A takes judgement to forum 2 in order to get it from him in forum.
If make a motion under rule 12b and fail to include it, then it is waived. Must bring all motions up together.
Review rule 12. There will be about 10 multiple choice questions on the final exam in May about operation of rule 12 B, G, H.
For FRIDAY: review Piper Aircraft, problem C page 114, 118-119, appendix ch 2 page 125.
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September 25, 1998
Review of Piper Aircraft
Case filed in state court, P are Scottish, D from California
Assume the P were Californian and D Scottish – makes no difference for jurisdiction
How do we know it is diversity in this case?
Have diversity because we want to make sure non-residents are not subject to biased resident judges.
What might have been the basis for D’s argument that this is a case for a federal question? So why could have it been removed to federal court?
- P alleged that original jurisdiction existed and therefore could have been removed to federal court originally.
According to 1441b this case should not have been removed. If 1441 was the only statute to be considered.
Moving on….
Case is now in federal court what is next defensive move? What did D do now?
D moved for dismissal on the ground of forum non conveniens. District court upheld it.
Transfer must have come before the motion for forum non convenience.
How does a transfer take place? 1404(a) can transfer in the interest of justice, or for convenience of parties and witnesses.
Look to 1391 to figure out
Look at Piper in more detail.!!! Look at notes after it. NOTE 2 page 117, 3, 4 on page 118.
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September 28, 1998
Basis for subject matter jurisdiction in Piper
- Diversity action under 1332
How would the result in Piper have been influenced if the decedents had been American citizens rather than Scots?
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Should choice of law be a factor in granting forum non convenience?
note 2 page 117.
Basic principle is that the transfer of the case to a new venue should bring about only a change of courtrooms and not a change in the governing law.
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September 30, 1998
Review of federal rules: specifically venue.
VanDussen v. Barret