UT Law Exam Site

2002-12-04T16:51:00.000-08:00

Civil Procedure: Nov. 27

Two cases: Hannah. How fed courts go about deciding whether part matter gov. by fed or state law. see evolution from erie to guarantee trust. then byrd. Hannah v. Plummer: once understand will make life easier next semester when confronted with apparent conflict btw fed rule and state practice. facts: basic dispute whether or not service of process on d effective. diff fed. rule civ pro 4 and state law in Mass. rule 4 said when instituted suit didn’t have to hand complaint to d. exec. named as d. what p did is ot have process, what fed allowed to do, is to leave copy at d’s usual abode with anybody of “suitable age and discretion.” did n’t havet o give personally to d. copy given to wife of d. under mass. law in essence had to hand copy of summons and complaint personally to exec. within one year period. fed rule said handing to d’s spouse was sufficient, and mass. req. serve in hand to named d. after summons left with spouse, sends ans. bc. not sent to d. one year statute of limitations has now run. statute of limits has run so if p must serve again would be untimely. if service of proc. was adequate can proceed. if not, then d can dismiss action. sc has to decide whether fed courts can apply fed. rule 4 despite contrary mass rule. most sig. is sc says have to draw fund. distinction btw two types of cases give rise to choice of fed law on one hand and state law on other. sc says every other case up to this pt. gov. by rules of decision act court saying all cases dealt with thus far have dealt with rules of dec. act and then erire. most important part of hannah, when court says this case is diff. bc relevant underlying statute is not rules of dec. act but rules enabling act. rea is a delegation to sc power to fashion (28 USC pg. 358), basic provision says sc shall have poewer to proscribe rules of practice and procedure for us district courts and courts of appeals. cong. gives sc power to fashion rules of practice and procedure. only limit in paragraph b, says rules shall not abridge, etc. any substantive right. only limit is that can’t abridge enlarge or modify any substantive right. how sc in fact ex. this authority given it in rea. what sc has done si it has det. way it wants to fig. out these rules is by seeking advice of judicial conference of U.S. - meeting of fed. judges takes place once a year. chief justice of sc presides. bring together fed. judges. talk about among other things what these fed rules etc ought to be. judicial conference ahs created advisory and standing committees. judicial conference has created standing committee on rules, standing comitte has created whole bunch of advisory comittee. consists not only of judges. in order for rule to get in fed rules. action begins in advisory committe. typically will hold hearings thru country. send rec. to standing comittee; standing comittee in charge of all rules. standing comitte acts on recs of advisory comitte if think good send to judicial conf. jc thinks make sense, that rule sent to the whole sc of US which then decides if it wants to adopt the rule, and if does then sends to cong, and unless cong affirmatively refueses to adopt, the rule takes effect after 90 days.

why all that sig. sig. bc in hannah sc says when dealing with rea case mode of analysis is strikingly diff from rules of dec. act case. when are dealing with rea case analysis is radically diff. pg. 288. there is more fund. flaw in respondent’s syllogism; erie rule has never been invoked to void a fed. rule. court says this is firstr time we’ve faced a direct conflict btw fed rules and state practice. court says when sit. gov. by one of fed rules. court has been instructed to apply fed rule and can refuse to do so, only if advisory comittee, this court, and cong. .. what are saying. you a fed court can refuse to apply a fed rule only if the advisory comittee lost their minds, standing comittee lost mind, sc lost its mind, nad cong lost its wshen adopted rule. what are odd that that will ever be case. no fed rule of civ pro has ever been held to exceed scope of const or rea. if you find rule gov matter, you are going to apply it. just go ahead and apply. don’t have to worry about erie. hannah says if fed rule of civ pro is on pt, i’m supposed to apply rule unless come to conc. all lost minds.

const power: erie said fed courts when promulgating judge made rules, this court exceeding power to fashion those rules but in hannah says cong does have power fashion reg. rules and proc. for fed courts. what do you do if so says conflict btw something contained in fed rule of civ pro and state rule:

was fed rule of civ pro on pt. if rule drafted to deal with this sit court confronted then under hannah fed court obligated to apply that rule as long as its within the const power of cong to reg procedure and is wihtin scope of enabling act. how broad is that power of cong. and how broad is rea, as long as rational person could think of this as procedural rule, namely rule dealing with fair efficient reliable conduct of lit, then by definition rule is iwhtin scope of const power and enabling act. before rule enacted all those things from standing committe to cong. came to conc. was. same holds true for fed. statute enacted by cong. dealing with proc.

initial fight have is is fed rule or statute that’s on pt. if ans in affirmative, will follow fed rule, and won’t care if inconsistent state practice. what if we don’t have fed rule of civ pro on pt. are obligated to follow state practice in all those cases? key fact here is byrd v. blue ridge case. whatr do you do if no rule of fed proc. or statute anylse those questions by following three step approach initially formulated in byrd

1. are there fed procedural interests at stake. is there somethng dealing with fair efficent reliable conduct of lititagion. if there isn’t, probably means end of it. if is, then:

2. are there sig state substantive interests at stake. sc said in byrd well why did carolina do that, didn’t see any sub. state policy at stake. are sig state interesets would be frustrated if fed court followed diff rule. if say no, then:

3.if fed court went ahead and fashioned diff rule, how sig diff would there be btw fed and state rule, would that diff encourage litigants to engage in forum shopping and inequitable admin. of laws. sc said in hannah even if didn’t have fed rule of civ pro said could serve complaint this way, even if not in rule book, it is doubtful the erie rule would have obligated. in next paragraph of opinion, look at question of forum shopping from pov of p at time thinking of instituting suit, and look at it from pov of whether we would get a diff outcome if both rules followed, not if rule violated. court says obviously if violatge rule and sanction, then can be outcome det. question whether or not if you followed the rules, will produce diff outcome. measure outcome det. test, not based on sanction but on what happens if followed. this inquiry not likely to produce as a certain a result as to whether follow fed or state law, as if fed rule that’s on pt. biggest fight people have at outset is if fed rule or statute of civ pro gov issue on pt. if like fed rule or statute, will say of course on pt. if other side convinces court is not on pt. go thru those three questions named above.

Sinta case, in supplement. issue before court is how det. claim preclusion effect. p brought suit, brought orig in calif state court, d removed case in fed court, d then moved to dismiss case that calif law statute of limits had expired at time p filed suit. district court dismisses case with prejudice. case goes to court of appeals for 9th circuit which affirms. in meantime p instituted law suit in Maryland where timely. arguement is fed court invol. dismissal with pred. means second suit brought in maryland must be dismissed based on cp. sc ahs to decide does rule 41 explicitely define cp effect of judgement. sc says not on pt. not intended to define cp effect of rule in other courts. whether or not state or fed judgemade law det. cp effect of fed judgement. on that issue sc says fed judgemade law det effect of fed judgemnt. first fed rule not on pt. have to fig. out. sc says since dealing wiht fed rule. now court has to say what is that fed rule, says in gen. fed courts should take state law and make it fed law, therefore in this case should det. effectof fed dsimisal should decide that issue of same way state woudl decide that question. saying embracing state law as fed common law means can take as much or as little of that state law as want. last paragraph of

2002-12-04T16:49:00.000-08:00

Civil Procedure: Nov 25

Impact of Erie decision on whether matter to be lit. controled by fed. or state law. Erie one way nothing other than interpret. of rules of decision act. swift v. tyson: interp. said that only applied to state statutes and const. not judge made law- some exceptions for immovables, or titles to land, etc. decisions of state courts not binding on fed. court. fed courts not obligated to show defference to state judgemade law. erie tells however that that interp. was wrong. fed courts obligated not only to follow state written law but also must adhere to law as created by decidions of state courts. still know there is const. dimension in erie as well. if solely matter of statutory interp might not have overruled. sc says fed courts makeing law in areas in whihc was no law making authority conferred upon fed. gov. while erie tells us there is no fed gen. common law, erie not been interp to say can never be fed common law. specialized, courts look at const and see within fed const. , but today before fed court create common law, want to make sure that area where courts have compentence to make law. cleraly is authority in fed gov to make law and wheer courts can make law. very diff from old common law in swift v. tyson, fed common law created today is binding on state courts, bc of supremacy clause of hte const. once they do, that fed judge made law is binding. cong. can overrule it.

two other things about erie decision: sometimes people say erie relevant only when case gets into fed court bc of diversity. that is not true, however. question whether fed or state law governs decided issue by issue, not on how claim got into court. think back on some of cases already covered. gibbs case; guy worked for coal co. union put up picket line, brought suit, his suit got into fed court bc he claimed fed law gave him right of action against union; also claimed under tn state law. gibbs case got into fed court bc fed law claim. his second claim however was just under state law. even though got into court bc claim based on fed law, erie still relevant bc second claim under state law. have to base on stgate law even though got into court based on fed question. even in diversity cases can raise issue on fed. law. motleys: railroad’s defense based of fed law. stgate created claim based on state law, but defense based on fed claim. thaqt case got into fed court based on diversity pt event hough, you might have defense based on fed law. is claim based on state, fed law, is defense based on fed law or state law.

not only decide these questions issue by issue. if we decide state law is source of claim or defense, sometimes question raised which state’s law is source of claim or dispute. even in erie had parties from diff. states. whenever either people or events touch more than one state, is possibiltiy might have opp. to choose which state’s law will apply. choose one state’s law as opposed to other. if are dealing with diversity case in fed court know this dispute does touch more than one state, bc involves people from diff states. question arises why did sc in erie say remanding case so fed district court could decide; why didn’t sc remand so court could decide what ny law was. why remand under penn. law. sc may have simply decided as matter of fed common law that penn law gov. or sc may have come to that concluseion bc ny state choice of law rules would have selected penn. law. for while debate over whether choice which state’s law, was controlled by ind. fed choice of law rules, or state. claxton v. standard... sc held that if stgee law does control, which state’s law gov. is gov by state choice of law rules of stae in which fed court sitting. claxton tells fed court in ny, what yhou need to do dot det. which state’s law gov. look to ny’s law telling ny state courts which law and you do same thing. at time case deciding, prevailing law was you apply law of state of injury. under choice of law principles really no question penn. law apply in erie. now bit more complicated. if this suit had been brought in penn. what that court would have done is to apply penn choice of law rules. each fed district when dealing with state created claim or defense have to apply state choice of law rules of state where they sit. means fed court and state court in that state will apply same choice of law rules. if state choice of law rules are diff from those another state, incentive for forum shopping.

some major areas in whihc sc called upon to define bit more clearly exactly what erie commands in application of state law and when fed courts have abiltiy...

justice reed; said didn’t like unconst. argument. said should simply say misinterpr. rules of decision act. pg. 270 bottom. says no one doubts fed power over procedure. even though may be compelled to apply state sub. but can have diff fed procedural law, that implicit assumption first confronted by sc in guarrantee trust v. york. everybody knew claim ps in york against d were gov by state law. said under state law ds violated fiduciary duties owed to ps. ds in turn sought dismissal of case that gov state statute of limitations had already expired. defense based on state statute of limitations. every state has own choice of law rules. one of choice of law rules, forum always applies its own procedural law. and that’s even case if under choice of law rules applying substantive law of another state. when tompkins sues in ny even if assume brought in state court even if conclude under ny choice of law rules duty gov. by penn law, well accepted cl rule is that ny could follow own procedural rules. bc they are the forum lit. case. law of the forum, controls even if substatntive issues willl be gov. by law of state. hist statute of limits. considered procedural issue, gov by law of forum. what ps said when ds said state law gov timliness of action, ps said procedural issue, and bc procedural state law is not controling and you the fed courts are free to det. timliness of action as you see fit. fed courts had adopted princlibple called latches: whether p unreasonably delayed bringing suit, or delay prejudiced d. argument is this is procedural issue, and therefore fed courts not bound by ny state statute of limits. sc in york decision that timliness of state claim will be det. by state statute of limits. when dealing with procedural question, sc says in response, when det. whether issue procedural, ans. question according to outcome det. test. if follow state law, would get diff outcome, and if we would then in those cases should be regarded as substanttive not procedural. question “does it sig. affect result of lit.” in essense intent of erie “to insure......the outcome of lit. in fed. court should be substgantially same as if tried in state court. accident of diversity should not lead to sub. diff result.” obviously if apply state principles, suit not timely. following fed law might produce diff outcome, for erie purposes statutes of limits substantive. way make decisions is by applying outcome determitive test. would affect outcome.

what’s prob. prob fed courts then encountered is real one is that any procedural rule can affect outcome of case, esp. if violated. fed court normally gives you 20 days to file an ans. if don’t file an ans. fed court could enter default judgement. could d stand up and say under state law i had 30 days. therefore fed court you can’t apply your rule, bc its outcome det. if you enforce fed rule, then might have diff outcome then if followed stae law bc under state law my ans. was timely. sc invariably said state law controling. serious debate over whether fed rules of civ. procedure could ever apply to fed cases involving state law. reagan: in state law statute of limits apply only when served on d, under state law action untimely, under fed law was timely. here had what appeared tgo be applicable fed rule of civ. pro, sc said state law controls. cohen: sc said state law controlled. pt those decisions in cases not only like york, in all those cases when confronted by conflict of stae and fed law, court choose state lwa. seriious debate over whether fed rules of civ pro could ever be applied to claims/ defenses arising out of state law. in byrd sc allowed fed court to fashion own fed rule diff from state one. injured worker brings suit. d tties make argument he can’t be sued in tort, only claim p has is one under worker’s comp. d not actually employer. d tries to say under workers comp. law of south carolina, should be treated as employee. issue: whether that defense that p really employee of d, question before sc was whether that shoudl be decided by a judge or jury. under state law that defense decided by judge. sc tells gen fed practive was to remitt to jury. issue whether could be given to jury. in ans. that question if first part of opinion sc said why does sc give to judge, what’s the policy, and when looks at sc law, says they don’t give any reasons which leads court to say, that req. appears to not be bound with rights and obligations of parties. looks like state procedural rule, reflects no state substantive policies. second thing says; 282; we interpret. decisions following erie to say even on procedural matters; so sc says whether decided by judge or jury may produce procedural outcome, but court then says in this case there aer affimative fed considerations justify departing from state law. says fed system ind system. under influence if not command of 7th amend. assigns to jury. state rule didn’t have substantive purpose, have countervailing fed interst, and where no state interst but is fed interest, fed interst prevailing. in last paragraph said not outcome det. if really believed that could have. said no state policy, is countervailing fed issue, not likely to be outcome det. anyway. hist byrd first case allowed fed courts. can interpret byrd extremely narrowly if 7th amend commands then that’s the end of it. in that sense could interpret to say whenever const. gov. should gov. but byrd says influence if not command of 7 amend. said even if 7 amend does not apply, fed courts still ind. system.

hannah.

2002-12-04T16:48:00.000-08:00

Civil Procedure Nov. 20

Fed. courts must apply const. and or fed. statute, if conflict btw fed. and state law, bc supremcy clause of const says fed law is supreme. if is no fed. const. provision and no statute governs issue, then apply state law. statute says wherer no fed const. or statutory provision on pt. fed courts should go ahead and apply some states law. in swift v. tyson however, sc confronted wiht question whether statute compelled fed. courts to apply ny state law as formulated by the ny courts. whether the rules of decison act compell a fed court in adjudicating case to apply law as had been formulated by ny state courts. when sc interpreted rules of decision act concluded fed. courts are not compelled to follow laws of states as interpreted by state courts. laws referred only to state const. provisions, and state statutory decsions, but did not extend to decisions handed down by state courts. why would sc conclude decisions of state courts not laws of part. states. stems from approach to law prevelant at time of decisions. most people had idea law immutable, there. courts tried to discover that law. we don’t make law. law has existence out there doesn’t depend on you or me or anything else. given that attitude, swift said fed courts as free too find that law as state courts. their thinking was there are these universal principles that’s the law it governs. pratical effect was simply was one translated into idea that decisions of courts not binding on fed. courts. state const. and statutes are positive law, fed. courts would follow. absent fed const or statute, under swift only state law binding on fed court, were state const, statutes, and decisions dealing wiht title of land. fed. courts free to discovery even if discovery diff from discovery of states.
other side, way back when when fed gov started to get togeither. did not have fed. rules of civ pro. cong. enacted the conformity acts, which told fed trial courts to follow procedural law of state in whihc was sitting. fed court ought to follow same procedures as in state court. was authority early on allowed fed to formulate procedures for equitiable actions. but in actions at law fed courts told to conform to procedures of state courts. mimic porcedures of courts in state. procedural matters gov. by state law. when it came to substantive matters not controled by statute or const. fed courts could find law as would. in fed courts followed state procedure but followed fed substantitve judgemade law. even under swift fed courts were obligated to follow state const, statutes, and immovables. those were called matters of local law. in what was called matters of general law, which was every thing created by state judges, fed courts free to formulate their own rules.
then erie. erie very unremarkable case. involves cit. of penn who brought suit against erie corp. a ny corp. tompkins walking along train tracks, train severs his right arm. sues erire. brings suit in fed district in state of ny. erie railroad ny corp. according to the railroad under judgemade law of state of penn, tompkins tresspassor. basic law of torts was that if you’re a tresspassor, the only duty landlord owes you is to avoid intentional misconduct, willful and wanton. on other hadn, fed courts when creating their fed common law, simply said in circs like this railroad owed tompkins duty to avoid neg. behavior. tompkins argue when left door open, railroad neg. therefore liable. only issue that the parties to suit formulated when case reached sc was rahter duty of care was matter of general law, or local law, and therefore gov. by law of state of penn. one of areas gov by local law was immovables. railroad trying to say if title to land local law, then duty also matter of local law. tompkins said matter of tort law, whihc is gen. law. pt. is no one argued swift should be overruled. can imagine what happened when read first sent of erie opinion. no one asked sc to disapprove swift. kind of tells you how anxious were to address that quest. should be no surprise sc holds swift is being overruled and henceforth fed courts are obligated to follow state judge made law. why? if look at decision of court, court basing decisions on fund perceptions on its part. bottom 265. sc said under interpretation of statute embraced in swift, fed courts assumed in broad field of gen law, fed courts formulating law even cong. lacked authority to formulate. part of problem wiht swift is that it resulted in inequitable admin of laws. fed courts saying could create fed judge made law, but other sid is this that fed judge law was not binding on the states. we’re all seeking to find the law. as a result of that if i’m a p bringing suit and my case turns on judgemade law and state and fed courts have formulated diff rules, if have choice of forum, i will bring suit in forum most favorable to my case. can see on 266-7, one of thoughts was states might follow fed judge made law. swift produce discrimitation btw citizens and non citizens. doctrine rendered impossible equal protection of the laws. what’s most remarkable about erie, is brandeis’s saying, if only ? of statutory construction involved we would not be ready to abandon doctrine, but unconst. of course pursued compells us to do so. swift unconst. decision. except in matters gov by fed const or acts of cong, law to be applied is law of state. there is no fed gen common law. this is remarkable bc for 100 years was fed gen common law. cong has no powere to declre substantive matters of common law in a state. top 269. that’s about only time sc has admitted acted unconstitutionally. saying congress got it right, but sc violated the const when handed down decsions in swift. now say except in matters gov by const or act of cong, state law governs. what is gov. state law. without explicitly saying why, sc says penn law applies but since litigants did not litigate what penn law was, had to remand. on remand fed courts concluded railroad right.

erie is a const. land mark. one effect, hence forth state law applied to litigation in fed court. other thing happened in 1938, that was year fed rules of civ pro adopted. if put two things together can see ho. prior to 1938 under conformity acts fed courts applied state procedurals and fed judgemade law. now in 1938 erie comes along at same time adopt fed rules of civ pro, say fed procedure gov by fed procedurer. in 1938 whole way fed courts did things turned head over heels. erie has totally revolutionized way fed courts make choice of law decisions. erie has undergone some evolution and elaboration. erie based on idea that as const. matter fed courts were obligated to follow state law, and could not follow own principles of fed judge made law. alot has changed in terms of interpretation of const. under sc more contemporary interp of what const means, cong could say what duty interstate railroad does owe to person walking along tracks. powers of cong has expanded. what erie says about powers of cong probably not valid.

other issue in erie is question of separation of powers btw cong and fed courts, even if cong could pass such a statute fed courts ought not create that law bc under doctrine of separation of powers for cong to det what law is. people talk about const issues in erie as 1. whether power in fed gov to fashion fed law, and 2) even if is power in fed gov whether that power conferred exclusively on cong. to that extent should realize that even though are areas where cong. has authority to fashion law, doesn’t mean fed courts have that power. there is fed common law today but only exists in areas do fall in fed law making authority and this common law is binding on states and can be changed by congress. must be area can be fed law and where fed law can be created bby courts.

2002-12-04T16:47:00.000-08:00

Civ Pro. Nov. 18

Mutallity of estoppel. ill. fund. principles when want to det. whetehr lit. will be precluded from later action. start with presumption that person who never had day in court will not be precluded. that reflects a lit. is entitled ot own day in court. have to either be parties or somehow in privity with parties to action. you’re entitled to make your case, etc. sit in whihc for first time when courts began to depart from strict mutality of estoppel. p institutes lawsuit agianst one of several potentially liagble ds. p choose where to bring to suit and which d to sue in that first action. when p brings first action has initiative. have right to choose when and where suit will be brought. if p loses first suit and sues second d, juris. will allow ip against p if p’s claim contians already decided issue. p had that day in court. here where d invokes ip, it is invoking it defensively. that’s the kind of case that most courts concluded mutality made no sense. even in states like tn, you can use the ip defensively. passenger sues bus company and wins. can oter passengers rely on fact first passenger succeded. ip would in trhis case be invoked offesively. oether obviousl diff. is that bus co. didn’t have initiative. this sit. passenger had inititive. allow ip to be ussed offensively against so who lacked the initiative. this is most controversial ip. these ps have not litiaged. have not assumed any burden. if p1 wins and are able to invoke non mutual offensive ip, have incentive to sit back and see if they will be made automatic winner. no incentive not to just sit back and wait since you are entitled to your day in court. incentive to stay out of first suit. when non mutual offensive ip (nmoip) and still today first use of it was very controversly. baby maimed in accident. take most sympathetic p, bring law suit with that p, in hopes that sympathy for p will over come any doubt as to d’s guilt. then can invoke to nmoip to win subsequent suits. so first verdict may not really be indicative of guilt. passengers 1, 2, 3, lose, and passenger 4 wins. can 1, 2, 3, take advantage of ip. maybe its unfair to d to bind by first fav. decison for p. each juris. decides ip issues. in tn will not allow the nmoip use of ip. concerned in some incidents will be unfair to d to bind them. sc in parklane case in respect to fed. laaw, said sometimes will permit nmoip. parklane case very appealing for sc to recog. nmoip. sec argued parklane’s proxy statement was false and misleading. so sec brings suit agianst parklane nad says proxy statement false and misleading. d knows its being sued by other shareholders at same time being sued by sec. lit. for four days, aware of other actions, and sec wins. parklane takes an appeal.court appeals affirms district court. now other shareholders now maintain their action against parklane and they want nmoip of proxy statement. sc now has to decide whether will allow nmoip when dealing with fed. law. in earlier case had allowed dip in pattent litgation - walter tongue case. sc in this case says not going to say always ok, but won’t say never ok. sc comes to conclusion will give descretion to lower courts to use nmoip. on part. facts of parklane case sc comes to conclusion that entirely appropriate against parklane. p vigourously defended suit, aawre of consequences. other issue came up in that case, when sec tried action was tried before a judge. court concludes is that only time have right to jury trial is when have disputed issue of fact. in shareholder deritive action would normaly be tried before jury. shareholders can’t join sec actions. in some other decison sc has been pretty firm in saying otehr passengers not required to intervene in earlier actions. sc said other ps don’t have to intervene.

if p 4 wins and p 5 and p 6 wins will be to advatage of co. to settle. may be pt. in time in which other successful litigants who remain to go ahead and settle. pg. 861 restatement. what doing is very sim. to sc in parklane case; party precluded from i wiht opposing party, is also precluded from doing in subsequent, unless. no longer req. mutality. iwll allow nonparty to invoke ip in sub. case against so was a party. not absolute. resttment says unless party lacked full and fialr opportunity to lit. issue or other circs. justify giving htem opportunity to relitiagate. soemtimes when people sue on certain kinds of statutes, cong. has decided this matter should not be precluded in sub. lawsuit.

restatement: pg. 861

3. not big issue. but is where p fails to join d. p has incentive to join all ds. 4. case in our materials. court will be reluctant to allow benifit of one favorable decison. 5. famous case where passengers in crash; jury awarded 35k, although p seeking damgages. court concluded compromised verdict. bc compromised verdict, that no incentive on part of d to take apeal, won’t hold airline liable. 6. really don’t need ip when talking about law because have stari decisis. normally if not party to earlier case can always ask to look at precedent. if use ip then both litigants and court precluded from raising / changing that issue of law.

is such thing as nmoip, but can’t be used in all instances. qualtifications courts have articulated. cp and ip are judge made doctrines. courts have indicated soem circs where may depart from rules of cp and ip. one ex. involcinv cp involve sits. where partries have expresely or implicitly agreed to allow claim spliting. p sues d for prop damage in one court. and for injury in another court. until go to court d can’t claim cp. cp only applies when have valid and final judgement. what can do as d is invoke doctrine called other action pending in whihc say this action being lit. in other forum. ask judge to stay or dismiss htat case to. expect d to inform court this p suiing me on same underlying accident in antoher forum .ask court to either dismiss or not proceed compelling p to consolidate. if d doe s not object in ieiher court to maintance of suits have implicitiely allowed; can’t invoke cp when goes to judgement. d had mechanizem to alert to the coruts that p had split the claim.

if court in first case dismisses wihtout prejudice that will be honor.

p unable to rely upon certain tehory of case bc of smj. basic concetp says only be precluded with respect to those matters in smj of court where suit brough. as gen rule if is some court in that system of courts the normal expectation is that you’;ll maintain your action in that court.

choice of law. ch. 4, first 2 cases, erie, and guarantee trust v. york.

2002-12-04T16:46:00.000-08:00

Civil Procedure: Nov. 15

principles of ip. none more fund. than ip can only apply to those issues actually lit. unlike cp where can preclude things never lit. the most fund. postulate of ip is that issue be actually litigated. second principle: if we lit more than one issue but cannot det. which issues in fact were basisi of decision in earlier action. typically happens when get a gen. verdict; don’t know which reason basis of det. in eralier decision. if cant decide which issues were det. then none are precluded. other principle: if in fact multiple issues are actually lit. and prevailing party has to win on all of them in order to recover, then all those issues are precluded. other thing: only issues essential to judgement will be precluded in later action. sit. where jury returns special verdict saying that both parties neg. practicle effect is p will lose suit, bc operating in system where contributory neg. complete defense to neg. action. that’s the only basis upon whihc p lost this case. means det. d was neg. was non-essential. normally if prove d was neg, will win. only reason lost was that p also neg. that’s the only essential finding. non-essential findings may not have been carefully considered by tryer of fact. other issue may not have been carefully considered since nothing turned on it. just not sure received attention and care should have therefore reluctant to preclude it. if think trier of fact is wrong, normal remedy is to appeal; this defen. however whom jury has said was neg. he can’t appeal. only people who can take an appeal are those who lost judgement below. so finding d was neg. was not only not essential, but even if jury wrong in that, d can’t get it set aside bc he won, and can’t take appeal. for both those reasons: not carefully considered, and if error often times not able to appeal, so these issues not precluded.

p sues d in neg. again d pleads fact p was contributorily neg. assume jury comes back with special verdict. say p you neg. says d not neg. know p will lose. now former d sues orig. p. issue prec. effect to earlier action: which findings are essential to judgement: if both issues are essential to judgement can’t be split, so either both must be precluded or both not precluded. where you and i lit. more than one issue and both are essential to judgement then both are precluded. so both of these. in former hypo d’s neg. not essential. will lit whether former d was neg. won’t litigate whehter former was neg. in next hypo: how do you det. whether p’s neg or d’s non-neg. was essential. what if jurors really carefully considered that the p was neg. therefore p can’t recover, and just go ahead and say too that d not neg. just like non-essential findings not given issue p. when have alternate basis don’t have ip effect bc don’t know both these issues carefully considered. once juror concluded p was neg. may not have carefully considered d’s neg. when look at generally verdict we don’t know if they carefully considered one or both of them. bc don’t know which issue really carefully considered, say both these issues should be precluded. trad. rule is boht issues should be precluded. restatement 2nd of judgements say both issues should be precluded, bc don’t know which issues carefully considered, bc once trier of fact decided the one, nothing turned on the other. got law suit where p sues d in part court. court says no smj and court also says lack tj. case brought in fed court in state x. what happens when suit brought again this time in state court of state x. d would like to say no tj, bc actually litigated that in earlier suit, and essential in sense supported judgmenet handed down. the fed. court had another equally valid reason for kicking it out when came to tj court might not have considered it as carefully as should. if you’re p and know court right on smj issue, then why bother filing appeal if know will lose then why take appeal. restatement says if is appeal det. ip effect should look at appeal to det ip. affirm on both groun both precluded, affirm on only one ground then only that issue preclude. traditinal rule still most followed. some follow restatemtn says if both essential then both precluded, unless appealed in which case follow the appeal. sc has said that when both smj and tj, up to them to decide which will go first. policy question restatement second asks should we force losing parties to appeal, in order to block a non-essential issue, although know primary issue valid. So if p agrees p was neg. under trad. would still have to take an appeal in order to set aside finding d was not. otherwise under trad. rule both issues would be precluded. so restatemtn argument shouldn’t force appeals, and perhaps increase litigation. all this applies to sits. where either of the issues could be det. but not where all of them must be.

mutuality of estoppel:

when got mulitple persons involved in underlying event or transaction. generally speaking each of those people will have their own separate claim. buss collides with tree. multiple passengers. passenger 1 brings unsuccessful action. now sub. suit brought by passenger 2 agianst bus co. are going to allow bus co. to say we can’t be held liable bc when we were sued in earlier action we demonstrated we didn’t do anything wrong. that’s true. non of passengers are contrib. neg. will there be claim preclusion? no. no ip either. passenger 2 is entitled to passenger 2s day in court. only parties can be affected by prior adjudicatin. first lawsuit first brought by passneger 1 who sues the driver. if i’m the passenger and i’ve been hurt and more than one person may be liable to me, i have claims against all them. in this instance passenger losses. same passenger sues the bus company. no cp effect. this passenger has separate claim agianst each person or legal entitiy. can the bus co. seek to obtain any ip effect. trad. common law rule was no. bc both person invoking preclusion and person against whom being revoked both of those people must have been parties to the first case. prob. the bus co. seeking to invoke ip not party to earlier action and under principle of mutuality both parties must have been parites to first suit. it’s that qustion that courts have been more recently willing to examine. in earlier hypo. where passenger 1 sues bus co. and loses, don’t allow ip against passenger 2 bc passenger didn’t have opportunity to litigate the issue. what if only theory passenger 1 presenting in second case is that you’re liable bc your driver was neg. bus driver was not neg. in first case. this would be different from earlier hypo bc passenger one did have day in court. passenger 1 decided who to sue, where to sue, when to sue, and lost. and now passenger 1 having lost first case is attempting to bring second suit. argue issue of bus driver’s neg. should be precluded even though bus co. not party ot first action. using ip against so who did have a day in court. what allowing is so who wasn’t party to first case to invoke ip against so who was a party to first case. this is called the non-mutual defensive ip. why defensive: bc person using it is usually to defeat a claim. this case ex of when courts first started to abandon mutuality of estoppel. today virtualy ever juris. will say bus co. can invoke ip against passenger. doesn’t mean passenger can’t proceed on another claim, like the bus co. didn’t maintain the bus properly.

passenger 1 sues bus co. passenger 1 wins. passenger 2 now sues the bus co. says ip. did bus co. have day in court? yes. established liabilty of bus co. in earlier suit. now using ip offensively to est. liabilty. unlike passenger in earlier hypo, who chose when and where to bring suit. bus co. didn’t have the initiative to decide when and where to bring suit. 2 issues: who could chose forum, and whether ip used offensively or defensively. question whehter should make diff.

2002-12-04T16:45:00.000-08:00

Civil Procedure: Nov. 13

when dealing wiht judgements in favor of d party. two sits. one easy sit. in which lit. merits of p’s claim, and court concludes p’s claim no merit. if p then brought again, d could invoke doctrine of bar. on other hand, d party prevailed but reason nothing to do with merit. p sues d, d says court no tj to adjudicate, so d makes motion to dismiss, court concludes does lack tj and as result p’s claim dismissed. if now p institutes in another court does have tj, d won’t be able to stop on grounds of cp. bar ony if first judgement on the merits. that scheme fine, ex. other sits might conclude eventhoguh judgement not on merits, don’t want p to bring sub. action on same claim. those sits. where p has failed to play by the rules. p injured. court orders physical exam. p refuses to comply. court says if don’t comply will dismiss. p doesn’t submit. court dismisses claim. haven’t adjudicated the merits. on other hand want court’s orders to be obeyed, only way that kind of an order has any teeth is that do prohibit p from instituting sub. suit on cliam. why effect of judgemnte on party, regulated by rules. rule 41 of fed. rules: many state rules patterned on this. rule 41: when court does dismiss; one reson may dismiss is bc party asserting c has decided dojn’t want to proceed ewhne person asserting claim wants to dismiss called voluntary dissmissal; sometimes can vol. dismiss (vd) can give notice, agree wiht d to dismiss, or ask court for order. all those sits described by 41 (a) 1 and 2. in each instance, 41 a1,2 the dismissal wihtout prejudice, unless otherwise specified in order. wihtout prejudice to right of party to maintain subsequent action on basisi of same claim. if in fact parties agree to vd but only wiht prejudice, or court allows only vd with prejudice, both can do that. basic rule of thumb vds generally are without prejudice. on other hand, hwen deal with involuntary dissmissals (id) sit just opposite. basic rule is that id do operate as adjudication on merits, that true in fact even if not lit. merits. for failure of p to proscecute, or to comply with these rules, or with any order of the court, in those instances d may move for dissmissal of action or claim. unless court otherwise speciff, the dismissal operates as an adjudicatation on the merits. can see exceptions. id for lack of jurisdiction, lack of venue, or failure to join party under rule 19, in those instances are excepted from rule; do not operate as adjudication on the merits. other than those cats, the effect of rule 41b is to treat every id as adjudication on merits. just like in 41a cout can specify otherwise. court could even thouhg id case court could say without prejudice. so power still there, but absent that indication, presumption is will operate as adjud. on merits. when dealing jud. in fav. of d, look at terms of rule. basic dichotmy btw vds and ids. that’s true even though do not actually adjud. mertis; how enforce orders. 41a1, a notice of dismissal operates as adjudicate on merits. p sued d on claim in action 1 and that case vd. that’s normally without pred. now action 2 p sues d on same claim vd in earlier action, and at this pt. p says i’m going to give notice of vd (which can do any time before answer or motion for summary jud.) if at this pt. p files action 3, this part of the rules that 2nd notice of vd operates as adjudicate on the merits, when filed by p has once dismissed on any court in the us. 2nd dismissal operates as preclusion. tn says only after 2nd vd. if 2nd dismissal is in fed. court, and is a notice (not stipulation or court orders) tehn will operate as adjud. on merits. final thing: we’re defining effect of jud. assuming the jud. valid, final, and personal judgement. apply only when dealing with valid, final, and personal judgement. if matter still in lit. other courts will not give it any preclusion effect. must be valid final and personal judgemnt. ability to give notice limited: if already served with ans. or motion for summary judgement, then can’t give notice.

issue preclusion (ip)

whether prior lit will result in issue being precluded in sub. lawsuit. if have valid and final personal judgement: issue must have been actionaly litigated, decided, and essential to the jud. handed down. pg. 834. most of time ip invoked when 2nd lawsuit based on diff claim, bc of cp. ip is bc 2nd suit diff claim. basic principles of ip. hypos. assumptions: contributory neg. is complete defense, and there’s no compulsory counter claim rule, in juris. handed down first judgement. p brings action against d for personal injury and prop. damage sustained in auto accident. further assuem in part. hypo that d doesn’t show up. makes no appearance at all in first suit. enter default jud. against d. after that jud. our orig. d brings action against orig. p for personal injuries and prop orig d suffered in same auto accident. no cp. ip effect: if same p tried to sue same d for same auto accident after entry of default judgement d could say cp. why doesn’t default judment have ip effect. the first req. is issue must ahave been actually litigated. d never showed up so issue never litigated. that’s very diff from cp, fund. prin. is that even if matter not actually litigated in first action, will be precluded if part of same claim. cp has effect of preventing us from lit. things never lit. before. not true of ip; fund. postulate is that can only preclude issues actually lit. bc in dj don’t litigate anything, no ip.

ex. 2 p sues d, and d does make appearnace. says in ans. that i d was not neg. and you the p were contributorily neg. contrib. neg. is d and no comp. countrer claim rule. jury returns a general verdict (means just say who wins) in fav. of d. orig. d now brings sub. action against orig. p for injuries that orig. d sustained in same action. no cp effect, if have multiple parties injured in same accident each have own claim. no comp. counter claim rule. orig. d can maintain 2nd action. our issue is can we get ip. this case was contested. with d say i wasn’t neg. and you were contrib. neg. d won in first case. issues litagated were neg. of d, and p’s neg. p’s neg. and d’s neg. d won. why did d win? we don’t know. d could have won bc jury said not neg, or bc p was contributorily neg, or bc p contrib. neg, and d not neg. no issues are precluded. if more than one issue is actually lit. but what issues were det. cannot be asscertained none of the issues is precluded in sub. suit. if lit more than one issue but don’t know which det. then none will be precluded in 2nd suit.

change one fact: this time p wins and d loses. now orig d again brings 2nd action against orig. p. ip bc only way p could have won was if p proved that p neither contrib. neg., and that d was neg. p had to prevail on both those issues. both are precluded in 2nd suit. effect is p wins second suit too. if more than one issue actually lit. and judgement cannot be rendered in fav. of prevailing party unless all those issues are det. in that person’s favor, then all those issues are precluded in sub. action. bc p had to prove both that p not neg and d was neg both those issues precluded in second case; means will be dismissed.

again p sues d only this time instead of rendering general verdict, jury renders special verdict (actually asks jury how resolved part. issues) jury says p was neg. and jury says d was neg. d will win that case. orig. d brings action against orig. p, seeking to recover etc. ip effect: p’s neg. is precluded. issue must have been actually lit. acutally decided and essential to jud. before it will be precluded. only reason p lost was bc he was neg. d’s neg. was not det. to jud. so therefore not precluded. only essential det. that jury made in order to support jud. was p’s neg. once decided that doesn’t matter that d was neg. or not. why don’t give ip to non essential issues: what worried about; will consider issues really matter to jud. the most carefully. one that really mattered here was p’s neg. worried about what matters worried if dosn’t matter might not have been carefully considered. kin of like dictum, why don’t give dictum binding effect in sub. matter. issue must have been essential to judgemnt.

talk about material begins 843-862

2002-12-04T16:44:00.001-08:00

Civil Procedure: Nov. 11

one of things obviously seen is that if court hands down valid judgement under full faith and crediti: enttitled to recognition and enforcemetn. recog. means give judgement same claim and issue preclusion as had in state where handed down. when comes to enforcement not only req. to recog. judgemnet but must make available to enforecement judgement of state 1 same mechanisms i have in state 2 to enforce. at that pt. if valid and final judgement, enforcing state can apply own laws to enforcement. recog. look to state rendered.

principles of pc: whether 2nd case does involve the same claim as in first. nothing precludes successive actions on diff. claims. have to fig. out whether claim in 2nd case same as in first. state free to distinguish claims any way see fit. up to state to define which will be extinguished. some states look to acts, rights, evidence req. to prove claim in first same as to prove second. most sattes adopted 2nd restatmetn: claim extinguished incluses all rights of d with regard to all parts of transaction. pc has most biting effect are seeking in 2nd on new theory or rememdy. as long as 2nd case based on same claim, doesn’t matter p has new evideence or remedgy. with pc trying ot give d opp. to rely on earlier judgement. also avoid inefficiencies of repaeated litiagations. also consistency in outcome.

final outcomes of cp. talk about d preclusion. first law suit p sues d for breach of contract. d defends on ground no consideration. court comes to conclusion was consideration, enter judgement for p. if successful seeks to enforcement judgemtn, if p sues d to enforce the judgemetn, can d defend on ground fraud in earlier transaction. no. if you’re a d and omit a defense goes to merits, can’t assert the defense in a later action. one principle of d preclusion omited defenses cannot be aserted in action on earlier judgement.

p and d are involved in collision. action 1: driver brings action against other driver. d asserts counter cliam for personal injury and property damage. court enters judgement in favor of p, and against d on d’s counter claim. what would happen if despite first lawsuit our orig. d brings action against orig. p for same personal injury and property damage. the d(former p) will assert bar. if you assert a claim and lose the doctrine of bar comes into play. if p lost and d won, and p sues d again, cp would again apply, but this time doctrine of merger. people who assert claims and win are as bound as people who asert claims and lose. these rules of cp still apply.

two drivers: auto accident p sues d for prop. damage. no counter claim by d. p loses d wins. orig. d again becomes the p and at this pt. seeks to recover for personal injury and prop. damage. what if first jurisdiction did not have a compulsory counter claim, then no problem. why? when p and d collided each had separate claim. so if no cc rule, d can then bring suit against p. eahc biologically distict person or legal entitity has claim agains each of potentially responsible ds. whey do we have cc rules bc think not a good use of judicial resources. price cc rule extracts from d: normall person who has the claim asserts when and where will assert the claim. deprives of opp. to choose when and wehre i’ll assert my claim. lets assume our p and d involved in accident. p suffers modest prop. damagae. p brings action against d seeking 500 dollars damage. bc damage so insig. have to be brought in small claims court that can grant at most 5k. now assume there is comp. cc rule, and d’s claims are for 100k. d asserts cc against p. value of d’s counter claim is 100k. what’s practicle prob have to deal with. that if he wins on counter claim most court can give him is 5k. what will legal system do? d will see if can get case out of small claims court into court of gen. juris. if i have counter claim that exceeds limits of juris. where sued, be req. to remove from the small claims court. what if i can’t do anything to get case out of small claims court. can d now maintain a second action based on the same claim? yes. claim is not precluded if court could not grant relief sought bc of limits on smj. if there is a court where you can take teh case and get full recovery, and if you fail to do that will be precluded. if no such option seek wheatever relief can get from that court. if win on counter claim and ruled in favor of me, claim issue preclusion, just show up and aks for other 95k. issue cp, turn me into automatic winner.

bus going down highway, goes off the road and collides with the tree. don’t know why. 20 passangers, all 20 injured. passenger 1 brings acion agianst the bus co. and loses. trier of fact coming to conclusion bus co. not liable. 2nd lawssuit brought by passenger 2 against the bus co. can the bus co. say claim preclusion? no. each one of these passengers has their own separate claim. passenger 2 can go ahead and sue the bus co. why does law say passenger 2 can bring this law suit event hough other passenger prev. sued bus co. and lost. what couldn’t passenger number 2 do in first case? could do anything, couldn’t present proof there. when passanger 1 lost passenger 2 coulden’t appeal. fund. principle is htat each person entitled to their own day in court. passenger 2 entitled to choose own lawyer, present their own case. basic princip. is only people affected by cp are those parties to orig. claim.

Searle Bros. case:

parents getting divorce and in action, husband claimed half of piece of prop. actually owned by sons. mother and father involved in divorce action, one of things court does when grants divorce is to divide marital prop. court will say: you get this and other gets the other. one piece of prop. called slaugh house: father says i only half of it, the other half owned by partnership wiht my sons. court says father owns it all, give mom the slaugh house. now sons bring action against mother to get prop. say half the slaugh house is ours. owned by the partnership we are entitled to half interest. mom says to kids you’re precluded in this second case based on earlier action. do the sons have a diff. claim from the claim their father asserted in earlier action? yes. way to illustrate that is go back to hypo started with. assume wehn passenger number 1 sued the bus co. and prevails. ame passneger now brings second action against the bus driver. has passenger 1 impermissably split claim. 2nd lawsuit is diff. bc diff d. i have separate claim against each individual or entity who may be legally responsible d. cna passenger 1 say to driver you can’t litigate whetehr you’re liable bc i already sued the bus co. and won therefore you are liable for my injury. issue prob. same but driver never had his day in court. bus driver enttitled to his day in court. therefore p1 has separate claims against driver and co. have separate claim against each liable entity. drvier entitled to present his case with hsi lawyer and if nec. take an appela. court saying sons were not parties to orig. action. couldn’t put on their own evidence. sons did participate in earlier actions. were witness. but didn’t control the proof, couldn’t take an appeal, etc. what if the sons win in 2nd case. court says sons entitled to half. what’s prob. mom’s got if sons win second case. she’s missing half what seh got in divorce settlement. court prob gave husband something half. dividing marital prop. husband did get the mercedes and yacht, based on assumption she would get this asset. if she can she’ll go back to the divorce court, which probably has continuing juris., say court you thought husband owned all of it, turned out only owned half. tells you why father should not preclude sons case, if he only owns half. all to fahters advantage court would incorrectly conclude bc he ends up ahead if court says he owns all, if he really just owns half.

exception: concept called privity. ex. have 2 people own land next to eachother and one claims easment, and lit. case and rules for easement, if i buy that prop. i get that easement too, and i’m bound by it. trustees rep benificiesrs, judgemnt on trustee binding on beneficieres. although some exceptions, but gen. rule is that parties not ot orig. action, will be bound by earlier action.

talk about sits. in which person asserting claim loses but wants to go ahead and bring action on same claim again. diver 1 sues driver 2 for personal injury, and loses know normally driver 1 can’t sue based on same accident again. say you asserted a claim 2nd suit arises out of same claim, you lost, therefore you’re barred for second suit. driver 1 sues driver 2, court dissmisses for lack of territorial juris over d. can p sue d for personal injury in first action, in diff forum that does have tj. yes. bc typically say judgement for d precludes subsequent action only if it is on the merits. didn’t lit. merits of claim for personal injury. not denial of claim, but of the forum. a judgemnet in favor of d preclues sub. action on same c, only if judgeent is on the merits. prob. lets assume p sues d, engaging in discovery, assume court says to p, hey p you’ve claimed personal injury, we order you to submit to physical exam. p refuses to submit to the exam. can’t enforce this order by contemt. p says wont’ submit. court dismisses. p sues d on same claim again. haven’t adjudicated the merits, but won’t let litigate claim. only way can give effect to order is to treat it as if judgemnt on merits.

read 834-843

2002-12-04T16:44:00.000-08:00

Civil Procedure: Nov. 8

Sometimes prior cases bc of stari decisis - like cases decided alike. up to each juris. to decide how it will decide a claim. typically stari decisis comes into play when lititgant are totlal strangers to earlier actions. under doctrine of precedent you are affected by earlier decision bc will be binding on you. on other hand, bc weren’t parties to other case, can ask court to overrule or distinguish prior principle. on other hand, when earlier and current case involve same parties, instead talk about rules of preclusion - claim or issues. thoeretically rules of preclusion much more binding than precedent. when dealing wiht precedent can always object. prec. says can’t talk about it. some rules of claim preclusion: pc only says i can’t bring sub. law suit based on same claim as other lawsuit. only thing pc says can’t bring sucessive actions on same claim. great importance how define a claim. if come to conclusion lawsuit based on same claim. that’s true eventhough never actually litiagated something in prior case. rush’s personal injury never been litigatged. bc court came to con. that personal and prop. injuries were same claim, can’t lit. personal injury. that’s why people say pc precludes not only matters were litigated but should have been litigated. has devastating effect.

rush:

earlier defcision (vasu) saying that p had two distinct rights. right to be free from neg. personal injury and right to be free from neg. property damages. this court says how many wrongful acts did the d commit. say only one wrongful act. failure to fill the pot hole court says only one act. when diff. people involved in an event; each of them has a separate claim against eahc entity which might be liable to them.

Fier:

have to fig. out what ill. law says. 1738 compells them to say what ill. law says the effect of claim preclusion. restatement: set forth every theory; measure with whether dealing with same underlying event. defined that way frier has one claim.

read to 834.

2002-12-04T16:43:00.000-08:00

Civil Procedure: Nov. 6

5. change one thing p also has a claim that d violated her fed. civil rights. now its a fed. question. 1441 (c). why don’t have same prob. in 4? in htis instance claim comes 1441 (a). why doesn’t 1441 b prevent removal; if civil action one where districts courts have juris. arising under const. then removable regardless of juris.

6. no. bc none of parties joined as ds can be cit. of state in whihc p orig. commenced suit. then non-removable. if are multiple ds in case alll must seek removal. fewer than all want remove, can’t remove.

second principle: if the basis of removal diversity of cit. that diversity must exist time case filed in state court and when removal was sought. diversity both at time p orig. commenced case in state court and at time d seeks removal. basic rule have to have complete diversity at both those times. did so ds couldn’t create diversity by moving to other states and thereby getting in fed. court. when do you noramlly have to seek removal: normal principle is you have 30 days, measured from typically 30 of 1446 (b) filed 30 days of service of d. normally i get copy of complaint have 30 days. if case by intial pleading not removalable, but thereafter bc removable then have 30 days from that moment to remove it. p brings state court action. p from state x, d from state y, d from state x. dx dropps out of case. what happens when more than 75k. then dy has 30 days to remove. diversity btw px and dy at time filed, and still at time removal will be sought. one other limitation, if dx removed year after p filed. 1446 (b) cant’ be removed more than 1 year after commencement of the action.

Catepillar:

p injured operating bulldozer. filed suit against CAT, and Whayne. Lewis KY, Whayne KY. CAT (DEL, ILL.). not complete diversity. this case prop. brought in state court. liberty mutual intervenes in case. intervention - process by which someone not in case gets in. Liberty Mutual filing suit against CAT, and Whayne for recov ery of workers comp. paid to lewis. LM cit. of mass. case not removable at this pt. lewis sttles with whayne. now what happens. cat. files for removal. removes case. way remove is file notice of removal to fed. court. have to serve other parties to law suit. then lewis claims divesity doesn’t exist bc lm still has claim being asserted against whayne. if whayne still in case still don’t have complete diversity. when case not removable make motion to remand. district court should have granted motion to remand. judge made a mistake. what happens next? now lm settles its claim against whanye. this is before case is tried. whane now completely out. cat succeeds. now case on appeal. argument is that never shoudl have been removed in first place, bc not complete diversity. court of appeals says for case to be removable must have complete div. and didn’t exist, so must remand. cat. would like to preserve that judgement, take case to sc. sc says that district court was wrong. was court of appeals was right in saying normally have to have complete diveerity. did lewis do everything could to remand case? yes. when district court said not remandable; his prob. was not final judgement, had to wait until case tried. raised below, telling appellate court shoudl not have been removed. sc said right. but then said now litigated matter, having case finally resolved combined with fact when cse was tried was no impediment since was complete diversity, since already trieed notions of finality lead sc to conclude decdiion of district court to stand. inerestityng case. shows our notions have to get things finally resolved, sometimes willing to tolerate mistakes.

Effect of a prior judgement on subsequent legal dispute:

this area must be careful bc terminology can be very confusing, in part bc changed over time. once got final judgemnt handed down in pieceo of lit. and ask what effect will have on sub. proceeding: 2 concepts;

1. claim preclusion (cp)
2. issue preclusion (ip)

basic princip. of cp says i can sue on a claim once. ide a being tryint to prevent repeated lit. on same claim. have policy of cp give sense of finality. parties can rely on the judgement. basic idea behind cp that can only sue on claim once. true regardless of who wins or loses in same case. even if p wins and is disspappointed in amount, can’t sue again. and if p loses, can’t sue again. if real purist cp can be subdivided into: merger (m) and bar (b). m refers to when person wins. if i assert claim and i win my claim no longer exist bc as practcle matter no longer exist bc merged into judgement. i can enforce the judgement but can’t bring sub. action on claim. all i can do is enforce judgement. can i sue on my judgement ot get my 100k. can’t bring suit based on orig. claim. law will say orig. claim is m into judgement. merger deals with sit. where party asserting claim wins. b applies when person asserting claim loses. if party then brought action for same claim d would say you’re barred. can’t bring 2nd action based on same claim.

only issue fight about is whether 2nd lawsuit based on same claim asserted in earlier action.

ip: deals with phenom. have lit. based on diff claims, but issue decided in earlier lit. also relevant to these claims. can issue relevant to first suit, can be lit. aain. if lit. issue in earlier proceeding, if trhat issue decided in first case, and esential to judgement , then same issue can’t be in 2nd suit. 3. cond. issue lit, issue decided, and essential to judgement. whenever party claims first suit has preclusiion effect ask whether cp, only if conclude 2nd suit based on diff claim, but issue lit. in first case equally important in 2nd then can exclude.

ip and cp, older cases use latin. res judicata: courts used in 2 diff ways. sometimes used as synonmyn for cp. but also used res judicata to refer to both cp and ip together.

other term: collateral esstoppel: essentially synomyn for ip. idea being once lit issue, been decided, and essential, party wants to lit. that issue again will be esstopped. however, issue decided in first case must be decided in same way in second case. can’t litigate again

797-810; read, 817-827.

2002-12-04T16:42:00.000-08:00

Civil Procedure Nov. 4

Supplemental jurisdiction: can’t get into fed. court when same state and statelaw, then only way can get into fed. court is sj. or if have diversity but total claims less than 75k, have question over whether court can assert sj.

types of cases. if have p from state x v. defendant from state y, only way sj arise in this circ is if d asserts coun ter claim against p. what if counter claim for less than juris. amount. will fed court be able to adjudicate that counter claim. what’s first thing should ask. compulsory or permissive counter claim. compulsory counter claim - arises out of same transaction or occurroance as d’s claim against d. why important for sj, can assert sj only if arise out of common nucleaus of operative facts. compulsory does that. if permissive, has to meet juris. on own merits, not part of common nucleus of oeprsative facts. 1367 doesn’t help us. if permissive and for less than 75k, then can’t be heard in fed. court. when p sues d, could give rise to claims by d, against people not in the law suit. p sues retailer in state y. retailer wants to indemdify manufacturer. it will be third party d. if i’m a d in case and have claim against person not yet in lawsuit, invoke provision of rule 14, allows bring in 3rd party d, say if i have to pay then you have to indemdify me. cna court adjudicate orig. d’s claim against third party d. i don’t care about 1367, why not. is there complete diversity with respect to every claim in case. if look at claims actually being asserted all claims are diverse. bc diverse don’t have to resort to sj. make 3rd party d from same state as d. now have to worry about sj, statute says fine, this is d, bringing in parties under rule 14. kroger wife of deceased brought law suit agianst single d. husband killed electrocuted when crane came too close to power line. widow brought action against power co. iowa p. suing nebraska d for more than 75 k. omaha brought into law suit the crane operators, contending they would be at least jointly liable. at time broght into law suit, 3rd party ds everyone thought owen cit. of nebraska, didn’t matter, bec. claim by d against 3rd party d. after owen brought in, kroger amended her complaint, and asserted claim against owen. rule 14 once 3rd party d has been brought in, p can ammend to assert claim agianst, as long as arises from same circs. no probs. on third day of trial owen stands up and says we forgot to tell you we’re not cit. of nebraska we’re cit. of iowa. how did they forget. reason is that course of river divides iowa in neb. bc river only changed course slowly, keep as cit. state orig. had. they said we forgot. they make motion to dismiss krogers claim against them on ground of no diversity of cit. keep in case. jury returns multi mil verdict for kroger. owen takes all the way to sc which says she couldn’t have named them as orig. partry bc their from iowa, would have violated complete diversity of cit. sc said this is no diff. than if named orig. in complaint. why hugely diff fromif had named them orig. d made decision to bring owen in. is this p trying to get around complete diversity or one responding to event. she didn’t do anything wrong bc sued divese party. no evidence of collusion btw her and omaha. she got nothing. does sj stattue change outcome in kroger. could assert sj under statute as exists today. 1367 (b) applies when diversity. is this divesity case, 1367 says can she do this? claims by ps under persons brough in under rule 14. can she do it? no. 1367 (b) preserves rule in kroger. tells us at least in diversity cases won’t allow assertion of claims by ps over persons makde parites under rule 14. what if after owen got in case, it had asserted claim against kroger. could they assert claim against p. rule 14 allows p to assert claim gainst d. even though d is asserting claim against p, still a d. can they do this. anything in 1367 prohibits. can do it. once you’re brought into court invol. can assert claim as long as arises out of snof. kroger must assert any claim she has against owen, must assert any claim has arises out of asam transation or occurance. she is obligated as d. party to assert any claim she has against ownen under comp. counter claim rule. now rule tells her she has to assert it bc been made d party. what’s penalty for not asserting comp. counter claim, you can’t sue on it in sub. action. what sit kroger in once owen sues her. if she doenst assert loses it, will court allow. p’s can become ds once claims asserted against them. d never loses status as d. not many cases deal with this. as soon as put in defensive position, either carve out exception to comp. counter claim rule, or say can assert sj. why she can assert sj. if d does assert counter claim against p, p can bring in third party d, even if 3rd party d from same state. ps against whom claims are asserted will be treated as d. if i’m a d party then statute says as long as claim arises out of cnof, then can assert claim, involve same transaction or occurance, will be sj, regardless. statute says once been put in defensive position then any claim arising out of cnof is ok. 1367 (b) purpose to hamper p, not been put in defensive position.

removal:

two key terms one is removal and other remand.

removal: p perfectly happy to adjudicate claim in state court. when talk about removal talk about power of d to take case out of state court and remove to fed. court. removal statute has builtin venue provision. you remove case to fed. district court that embraces geo area of state court. if sued in memphis remove to west. district of tn. if law suit in nashville middle district of tn. removal has own special venue rule, don’t worry about gen. one. once remove can seek transfer. in terms of where take just take to fed. district embraces geo area where action brought. as soon file notice of removal, file in both fed. and state corut, court automatically vests in fed. district court. if you’re p and think wrongfully removed, must file motion to remand to state court, file in fed. court. if law suit orig. filed in fed. court, can’t remand. the only alternative to seek dissmissal. only way can remand is if case has been removed. when can remove: 1441 could this p have orig. brought this case in fed. court. usually fed. and state court juris. concurrent, if p could bring in fed. court, does have to. if p could have brought in fed. court, then d can file notice of removal.

Problems 250

1. fed. defense to state created claim. louisville railroad v. motley. cannot get into fed. district court on basis of state law claim and fed. law defense. well pleaded claim rule.
2. until recently could not remove this case. copyright cases must be brought in fed. court. unfortunately, put frankfurter on sc, wrote opinion that said bc p could never have brought claim in state court, can’t remove it, since couldn’t have been brought in state court first place. cong. changed statute to say could remove.
3. p’s claim based on fed. law. removable.
4. Anything in removal statue prevent from doing. 1441 (b) if fed. claim case can remove doesn’t matter where d is from. this refers to diversity, says only if none of ds cit. of state where law suit brought. can’t do it bc 1441 (b) says if i’m sued in my own home state court then can’t remove. have diversity to protect the out of stater, we’re afraid people from tn may not like people from ny. si throw into fed. court.

flip back to pg. 56 -63, also go to chp. 12, 797-810

2002-12-04T16:38:00.000-08:00

Civil Procedure Nov. 1

Supplemental jurisdiction: old cases used two terms: pendant and ancilliary juris. pendant juris; claims and parties joined in p’s complaint; if looked at p’s complaint saw trying to exert state law claim against non diverse party; does fed. court have pendeant juris. lower fed. courts dev. doctrine before statute. once a law suit has been brought, d’s have lot of flexibility to assert claims, and bring others in. d’s can assert conter claims. if two or more ds then can assert cross claims aagainst each other. if d thinks somebody else should be brought it, can assert indemnity; joineder of additional claims and parties after orig. complaint, that’s ancilliary juris. both dealt with same phenomenon that sometimes case does involve assertion of state law claims against non-diverse parties; als sometimes when less for mandated min. some.

Gibbs.

state law claim asserted btw non-diverse parties. also have fed. claim court can adjudicate. when can you assert pendant claim juris. fed question must be substantial: means if walked into fed. court and claim asserting claim was wholly implausible, and then tried to attach; but if substantial fed. claim ok to also have state law claim if arise from a common nucleus of fact. then court can adjudicate both. can only do it if factual relat. btw fed. and state law claim. this case all claims all stem from same underlying set of circs. based on those circs have state and fed. claim. if gibbs suing united mine workers under fed. law but also sued on unrelated matter, tehn say no fed juris over that claim. pendsant juris. gen. helps promote judicial economy; saves time in the court and money. if have power to adjudicate state law, is an option. court talks about power and discretion. say have power to adjudicate, ultimately a matter of discretion, can be reasons why court would refuse to adjudicate state law claim. convenience and fairness to litigants. when does it have power to adjud. state law claim, decide before the trial starts. det. at begining of case, consistent that det. smj by looking at complaint. when can court ex. descretion: can happen late. that matter can be resolved at any time, longer you wait the less judicial economy ex. less liekly you’re going to dismiss. also bc prob. can arise, if dismiss state law claim, p may have a statute of limitations prob. these doctrines were something courts dev. tehn congress stepped in with supplemental jurisidiction (sj) statute. 1367

case similar to gibbs arises today, issue whether fed. court can ex. sj over state law claim.

basic rule in 1367: gibbs comes up today issue is wheter can assert sj over state law claim. says we can do it as long as state law claim so related to fed. claim that form part of the case or controversy. what that rule says is read gibbs. says can adjudicate only if forms part of same case or controversy, gibbs tells us when we know if is part of same case or controversy. gibbs defines those terms. practicle matter sc’s holding in gibbs and formulation of common nucleus test, still controls when try to decide wheteh court can adjud.

rules of joinder of parties: said when joining partis can do as long as people joining, as long as arise out of same occurance and presents common question of fact. passenger x injured, sues driver 1 from state y, and driver 2 from state x. p asserting claim against both of drivers for more than 75k. part of this case clearly have right to be in fed. court. px can sue dy. 1367 (a) it says you can have sj over additional claims and additional parties as long as those addit. claims or parties form part of same case or controversy; based on 1367 (a) can say p can assert sj over p v. dx. arises under common nucleus over operative facts. yes, bc joinder of additonal party and part of same case or controversy, bc stems from same underlying accident. will i be able to. 1367 (b), if i look only at 1367 (a) can do this, no doubt i can do this; congress then enacts 1367 (b), would this be inconsistent with juris. req. of 1332; 1367 (b) is designed to preserve complete diversity. go back to case more like gibbs. p v. d1 (fed. law), d2 (based on state law). no divesity of cit. btw p and ds. p sues d1 on caim of fed. law. p sues d2 on stte law. what are we worried about; worried about state law claim; bc being asserted btw non diverse parties. ordinarily can’t get into fed. corut bc no smj. can fed have sj to adjud. state law claim. 1367 (a) says sj over cliams arises from same common facts. can file suit against 2ds if can join them under rule 20 of fed. rules, what’s the test: when claim against arises out of same facts an d prsent common question of law or fact. rule 20 fits hand in glove with gibbs. under 1367 (a) can I assert sj with respect to state law claim against 2nd d. yes. 1367 (b) prohibit? yes. statute claim must be founded solely on 1332. part of this case founded on 1331. I can do this, bc 1367 (b) comes into play when p’s only basis for getting into fed. court is diversity of cit. if basis 1331 can assert sj. even in this case limited can assert sj - rule 18 once have common claim, rule 18 joinder of claims rule, once have one claim against both of them stems from same facts, then I can join any oher claim in same case. if i’ve got a 2nd claim against 1 or other claim against 1 d based on state law and not arising out of same facts, then can fed. court have sj. 2nd state law claim that does not arise out of the same transaction or occurance as fed. claim. does rule 18 allow me to assert this unrelated state law claim against the d. yes. rule 18 says unlimited joinder of claims. prob. with 1367 (a) can sj only if claims form part of same case or controversy, and forms part of same case only if arises from comon nucleus of operative facts. as a result can’t get non-related state claim under 1367. 1367 (c) if you do have power under 1367 (a), juris. not just power but discretion, (c) says if have power to adjudicate state law claim, retain power in certain issues to not adjudicate. tenor of that is normally if have sj you will adjudicate the claim. last part makes pretty clear “other exceptional circs.” says in ecept. circs compelling reasosns for declining juris. in overwhelming maj. of cases if fed. court has. if claim dissmissed can file in state court as long as do within 30 days of dissmissal, even if statute of limitations had run.

back to our diversity case: assume our p suing drivers 1, and 2. in this case both the d’s are from diff. state. p from state x, both ds from state y. might have prob. in one respect assume my claim against d1 for 100k, but claim against d2 for 50k. based upon what learned on wed. do i have a problem, yes, bc not ecceeding 75k for d2. have to satisfy amount in controversy req. for each d. does sj now say i can do this. state law claims being asserted btw non-diverse parties, or when claim doesn’t meet amount in controvery req. only time sj statute comes into play. does sj statute alter those trad. rules. 1367 (a)? satifies it. can only join these people if arise out of common occurance and present comon ? of law or fact. 1367 (b) now say? does apply. yes. bc diversity of cit. is this inconsist. with juris. req. of 1332: can add onohter claims to satisfy 75k, if claims are against same d. 1332: jurisdiction req. for more than 75k. therefore no sj, bc doesn’t fit jurisdictional req. of 1332. what if p2 xsuing dy for 50k. claim got into court soley on divesity of cit. look at 1367 (b); says fed. courts no juris. over claims by ps over persons made parties... does lang apply, no bc didn’t join any one as d. parties = multiple ds. from which some fed. courts have concluded that no do have sj over claims by addition ps for less than juris. amount as long as talking about same amount. pg. 243 subdivision e, “sevearl lower courts that the 1990 enact...” saying as long as any one p has claim exceeds juris. amount other ps can get in as long as claim against same d. fed. court could say, if I have multiple ds and no one has claim against d for more than 75k, then can’t do that. but if muliple ps one of which has claim in excess then maybe. what if d1 wants to assert against p, a counter claim for 50k for injuries sustained. d says it was your faul, p sas it was your fault. p suing for 100. can d sue p for 50k. look at rule 13, is cumpulsory countre claim, compusory counter claim rule; if I’m a defending party must assert claims arising from same transaction or occurance. have to look at 1367 (b) to see if it presents a prob. doesn’t present a prob. bc 1367 worried about the p. the person they’re worried about is ps. 1367 (b) applies to claims by ps. here d is asserting claim, therefore 1367 (a) controls, and no prob. what if on compulsory counter claim, i seek to join another pary from state y, where I’m from. look at rule 13 (h); if my claim from this additional party stems from same facts as counter claim, yes satisfies 1367 (a, and b). cna do. yes. once you put me in defending position any claim I have arising out of same transaction or currance court will have sj.

removal

2002-12-04T16:37:00.000-08:00

Civil Procedure: Oct. 29

Fed. question juris. of fed. district courts. 1 substantiallity req. 1 how fig out if case arises out of fed. law wher both fed. and state law contribute to p’s cause of action. cong. enacts statute to doea l w consumer saftey, deals with kind of material manufacturer to put in robe, was common for old person to wear robe and catch on fire. response to that fed. gove began to describe what kind of fiber content in robes. lets assume - hypo. - cong. does enact statute specifying kindo of fiber content, and is manufacturer who despite statute manufactures robe in violation of statute, assume have senior citizen, robe catches on fire, causes injury. one of things consumer might do is to instittute law suit against manufacturer. let’s assume p institutes law suit in fed. court. when read statute, even though does say, this is req. fiber content, statute doesn’t specify what remedy is if manufacturer violates the law. no indication of what remedy exists. when consumer brings law suit in fed. district court, consumer argue that should. p was injured in ways staute designed to preclude. p said i got burned because robe manufactured in violation of statute. d will say where does the statute give you the p the right to sue me. nothing in statute iteself that confers on p right to sue for damages. consumer will say maybe cong. didn’t specify, but want to court to infer right to sue. who cong. trying to protect - consumer. asking fed. courts to construe statutte in such a way as to imply action on p’s behalf. should that case be decided by fed. district court? seems like it. fund question in case, assume clearly violation of statute, court struggling with intent, cong. question of fed law. want to fig out whether fed law does give consumer right of action when terms of statute violated. court might hold fed law does not give consumer right of action. either way trying fig. out what fed law is. if fed law concludes s does not confer a private right of action on the consumer is fed court req. to dismiss case on right of subject matter jurisdiction. seem like yes. they have no juris. to decide. every time go into fed. court argue about fed. law. all substantiality req. means is that i raise good question about the meaning of fed. law. courts then empowred to answer. makes sense for fed. court to answer. if fed. court rules against consumer doesn’t mean court lacks smj to ans. the question, not question we would say is frivioulous. is one where fed have to fig out waht fed law is. let’s assume goes to sc and sc holds no private right of action, only remedy is consumer protection agency can fine manufacturer or remove articles. what if day after sc hands down decision another consumer sues the manufacture, injured her in same way. is district course have smj to adjudicate that case? no, bc issue of fed. law been settled. question substantial debatable open. say about p’s attempt is friviolous, insubstantial. know no right action based on fed. law. no arguement fed law gives p right of action. means sometimes fed courts will adjudicate cases whre p can’t say whether fed law gives rememdy. as long as that issue is one would say is plausible that’s all that’s req. just that be substantial fed question. is plausible, is unresolved, as long as has some plausibility of merit.

variation, take same case this time know sc has said consumer no right of action. let’s assume this consumer injured in state has principle of law says if consumer injured bc of violationof a fed. statute, we will give the consumer an action for money damages. consumer sues manufacturer. brings law suit in fed. court. no diversity of citizenship btw p and d. what p must prove to get damages from manufacturer. consumer must prove manufacturer breached the fed. statute when manufactured this particular robe. haaving proved breach of statute cause of injury. consumer then wants money damages, who gives right to seek? state law. can get this case decided by fed. court. one thing now know is that sc has said have no action based on fed. law for money damages. do i have to prove proposition of fed law in order to recover. yes. have to show this d breaced this statute. have to show this fed. law violated. this is what’s called satte incorp of fed. law. this is very common. when look at case analytically know p must est. certain prop. of fed. law. suit arises under law creates the cause of action. state said i could have this remedy. state made cause of action. can’t bring in fed. district. bc sc by in large ans. question by asking whether fed law provides coercive remedy p seeking. in this case fed law does not provide rememdy. our p will have to prove prop of fed law before can recover. bc state law allows p to seek damages, courts will say cannot get into fed under 28 USC. critical question is what law says i can get the remedy i want. if fed law gives me right to coercive relief; and if good debate, then substantial question and can bring it in fed court until resolve. once we know definitive ans. then if s.o. else tried to get in fed. court. can be trickey; what if precedent fifty years old, and lot of other law has changed. can be that bc of time or change, that question resolved a hundred years ago should be redecided. as long as have good argument go for it.

diversity statute:

couple of cases talk about first one.

Mass v. perry

2 ps both married, vs. defendant leased apartment from while students in LA. one of ps was det. to be citizen of france. v. d is cit. of LA. can that be lit. in fed. court. under sec 1332 added sec an alien admitted to US for permanent residence should be considered cit. of state in which domiciled - added after this case. have to check immigration statutus. let’s assume he’s got a student visa; he can bring this suit bc he’s not a resident of LA. statutes allow suits between citizens of US and aliens. who says whether french citizen is citizen of france or not. how decide. he has burden of proof. what have to show. wha has right to say who’s a cit. of france? france. have to look to french law to decide whether french law treats this person as a citizen. france can define its citizens any way it wants to. assuming this guy is treated by france as citizen. this part ok.
issue comes with wife; she’s a student at LSU; was citizen of mississippi before came to college. prob. say she looks like cit. of state of miss. but by time defciding this case know she’s been at LSU quite a while, married, no intention of moving back to miss. gordon v. steele. who looks like soemone more independant of parents than this. this is married woman living wiht husband in LA. did eventually move to illinois. why fighting about whether she’s a cit. of LA, if cit. of LA then not complete diversity. statute says can adjudicate case, do we have cit. of diff states on both sides of law suits. where does rule of complete diversity comes from. const. this case could be decided in fed. court. sc said all const. req. is minimal diversity, one person on one side of case of diverse cit. from perosn on other side. sc in interpreting the statute, Strawbridge v. curtis (1806), rule of complete diversity, that precedient now 200 years old still informs how decide whether it can be decided. what if decided she was from LA. could have dropped her from suit. court can simply say to p of same cit. as d, you need to get out. can proceed with husband’s suit. if husband and wife, say want to be in law suit together, then both go into state court.
mentioned moved around. what’s critical moment in time for ascertaining whether diversity exists. when claim was submitted, when put into action, when filed. crit. moment in time is when suit commenced; take to fed court house, stamp it, and filed. does it matter if one of parties changes domicile. if got at beginning of case keep it regardless. makes sense, bc it would change. what if have accident in tn, we’re both tennesseans. could change your domicile, even if motivated by desire to get into fed. court, if can show that have a home there, that’s ok no matter what the motive is. have to lok at facts and circs surrounding move to det.

have to be domiciled in state of uS, have to be citizens of US. is possible for cit. of us not to be able to invoke diversity juris. if have domicile in foreign country, then have no diversity. althoug cit. of us, not cit. of any state of us. where corp considered to be cit. whre its incorp and where have principle place of business. incorp. usually easy to fig. out. principle place of business. argument made that corp should be cit whereever shareholders are. cong stepped in. partnership and unions are considered cit of any states where any of their members reside. except for corps if dealing with most other entities tend to take on cit. of consitute members.

amount in controversy; united mine workers v. gibbs.

2002-12-04T16:36:00.000-08:00

Civil Procedure: Oct 25

rules of civil procedure

1404 F ok
1406 F venue wrong
1631 ... t.j. over d
A-1 F-1404

Transfer can look like a ping pong game. rare that case could get bounced around. no limit on number of transfers can occur. talk about last typicla ingrediant det. validy of judgement. classically when talking about validity of judgement courts said: have to have tj, sj, and noticde. can states add to that list; yes. courts reluctant to do that. more things have to do to make valid, open more dooors to challenge. when look laws of most state say those three things are only three things. if you default, that in turn says there are only 3 things can raise. can’t litigate the merits, only validty. as fed district courts viewd as courts of limited sj. can only adjudicate those cases expressly authorized to adjudicate. article 3 (2) defineds outer limits of sj of fed. courts; congress not compelled to confer all the sj const. allows. diversity ex. no limit in terms of amount in controversy in fed. court. cong. imposed that limit. can’t lit. in fed court unless sum exceeds 75k. have to be satified that falls in article 3(2) but also that cong. conferred sj on district court. talk about those that involve fed. question and diversity cases. both those affirmative grants to fed. courts to adjud. those cases. now talk about rules and rational for confering that jurisdiction.

Fed. question

Motley

couple traveling by railroad; they were injured; worked out agreement, for free travel on the railroad for life. back then it was big deal. settle claim otherwise might have against railroad. then later congress thought railroads using free passes to bribe fed. officials, then cong. passed law banning free passes. bc of passage of leg. railroad refused to honor passes, and the motelys sue for specific performance - wanted their passes honored, they wanted that whichthey bargained for. at trial the court grants motleys relief. appeal to sc (no intermediate appellate courts when this case decided). railroad argues that the act of cong. prohibits them from honoring. sc says not even nec. to look at that. sc raises matter of sj on its own motion. raised for first time when on appeal to sc. if matter of tj would be too late bc if you’re going object to tj must be done at outset. sj can be raised whenever during course of orig. proceddings. issue of sj has life extends thruout entire life of proceedings, can be raised by party who orig said court had sj. sc said fed. district court lacked sj bc well pleaded complaint rule - classic ill.of it. if trying to get fed. district court to take couirt, look at the complaint. does mean fed court lacks sj over case, in which fed. stuff comes into case as defense to escape. defense doesnt’ matter. does that mean that case may be decided on matter of fed. law, and court still lacks sj. know will be decided on fed. law. motelys would refile in state court. railroad would say as defense that couldn’t give pass bc fed law prohibited. motleys willl say statute doesn’t apply to this case and if does violates 5th amendment and is unconst. only issue is whether railroad continue to give pass. litigate in state court system, go all the way up, can sc review? yes, bc sc can adjudicate questions of fed. law. can’t tell states what laws to have. sc can’t do that. sc can only review qustions of fed. law, and only then if issue was dispositive. sc court has broader authority. is there any difference in statute itselft hat allows sc. really fair to say that sc does have fed. question jurisdiction over state law. fed. trial courts have something different. they have jurisdiction if p’s claimarises under fed. law. can fed. district adjudicate any case turns on question of fed law. no can only adjudicate if p’s claim based on fed. law. all motley’s really saying is railroad breached contract. fed. question arises as a defense. motleys knew the railroad going to do that, so stuck in their complaint in the hope that they can somehow get case adjudicated by fed. district court, anticipated the defense and said why should be rejected. motleys say in their complaint that fed statute doesn’t apply to us, and if so unconst. fed. law in the complaint. theoreticaly all motleys need to say in order to state claim, any fed. claim arise only if railroad raised it. that is the well pleaded complaint rule. why has sc limited fed district court limitation; why focus on the complaint. don’t have to. statute does say have to. why do we allow fed courts to hear fed. question cases. wouldn’t have to. cong. first conferred fed. question jurisdiction on fed. courts is fed. question jurisdiction. would think fed. questions should be decided in the fed. courts. fed. courts can dev. expertise iin regard to fed law hard for state courts to emulate bc fq only small part of state court’s docet. only binding authority is higher state courts ruling, and sc court’s ruling on fed. law. as state court judge are higher state appellate courts and sc of us in respect to fed law. but if have disagreement as to what fed law by sc, not bound by those decisions interpreting it. how decide fq before cong. conferred fed. q jurisdiction. had to litigate fed. claim in state courts. only place can go is sc of us; so prior to time cong enacted 1331. started in state trial courts, then take to state appellate courts, only after taken case as far as can in state court system only then can ask sc to review. why wouldn’t cong think that’s fine? looking for uniformity. disuniformity in fed law more likely if decided by states. if force to go thru state courts, sc would be really overloaded trying to resolve all the incorrect decisions. sc cannot review state law decision, if basis of state law is enough to decide the case, even if state also resolved question of fed. law wrongly. some times fed. law tells states what? lot of fed. law restricts state power. where would you want to litigate where tension btw what state wants to do, and what fed law says must do. want to litigate in fed. court. makes huge diff. where litigated. sometimes outcome depends on facts. fed. judge may interpret facts in way fed law. reality when they created system wanted powerful fed. gov that could prevent states from doing things imperilednational interest.

2002-12-04T16:35:00.000-08:00

Civil Procedure: Oct 23

Venue rules: get to v question only after territorial or subject matter juris. venue rules tell which county (state) or district (fed.).

Problem 1 pg. 198

Structure of Sec. 1391. have to det. whether your juris. is on diversity jurisdiction, or other basis. 1391 (a) diversity of citizenship, or 1391 b other reason for fed.lit. now know provision is 1391 (a): first venue opion is where the d resides. have one d here. so southern district ny. sub section 2: place where events leading to the claim occur. if law suit claiming breach of contract deals with design problems then can go to new mexico. on other hand if prob.with part. what’s interesting is in order to det. venue need to look at the facts. sometimes venue can lie in more than one judicial district. must make sure that not only venue, but also tj.

2. 2 ds. breach of contract claim. delievery of machine from japan. 1391 (a) is the section. gets into fed court under diverswity of citizenship. 1391 (a)1 really comes into play only if all ds reside in same state. can’t use in this instance. 1391(a)2: what if wheer substantial number of events occurs. want to know where this contract entered into. let’s assume all negs. occured outside the us. if that’s true can use a2? no. doesn’t give us any venue in us to bring suit. left with a3. only use a3 if is no proper venue ided. in a1 and a2. venue a3, nj and ny. req. any d subject to pj in district. resident of southern district of ny. alll statute req. is that any d subject to pj in that district. whetehr or not person resides in ny subject to tj of nj. one most likley is s. district of ny: have one who resides ther and one does business there.

4. canadian citizen wants to sue calif. resident for injuries in nevada. venue either in calif. or nevada.
a). resident of calif. wants to sue canadian cit. 1391 d, alien may be sued in any district. so if brought it in alaska, venue would be fine, but have prob. with tj. thus, willl bring suit in nevada. when dealing with corps. makes venue and tj the same thing. as long as we know corp subject to pj in a given state venue will be ok. if corp did something injured p in part. district, then prob. use that district.

1391 b get into fed. court other than diversity jurisdiction.

1391 a3 any d subject to pj of district
1391 b3 any district in which d may be found

if burnum still good law, if i can find d in a particular district and can serve than have juris.

DeeK enterprises:

only technical legal question court had to ask was whether law suit could be brought in any district bc aliens could be sued in any district. court says that have to take am. ds into account and decide venue on that basis.

burnum: court can ex. tj over any d serve process over that d in the state. if the state wants to can assert tj, but not obligated to. most states and fed. have embraced forum non convenience. means even though have tj, and sj, and v, p has followed the rules, brought in appropriate place, but nonetheless d appears and says that although this permissable forum there is one much better than this one. must be aleternative forum. the remedy is dissimal of the law suit. seeking dissmissal on grounds that one much better. only d can make motion to dismiss on fnc. fnc dissmissals are not sig. if the aleternative forum is another fed. court. fed. courts can transfer cases from one district to another. courts won’t dismiss the case typical rememdy will be transfer. when law suit brought in state court, no porvision allowing state to transfer a case to another state. only thing state can do is dismiss. what that means is that fnc dismissals tend to be utilized only when forum is a foreign country. as practical matter is that fnc dismissals in fed. tend to be where d says would be better to bring in foreign country.

Piper Aircraft

plane crash in scottland. all aboard scottish. air craft was manufutered in penn. propellers of plane mfg in ohio. aircraft owned and maintained by Air Navigation. Operated by McDonald. both of these scottish or british. these are foreign. p is administratrix. have to appoint s.o. to rep. the deceased and their estates, and their interest. appointed her to do that. lawyer bring suit is californian asked court to appoint his sec. to rep. interest of ps. filed lawsuit in superior court of CA. ds first move. want to remove to fed. court of ca. if p has filed suit in state court that could have been brought in fed. district court, d can remove the case to fed. court. removal allows d to take case out of state court system, and bring in fed. court. why did ca bc involved? bc of teh favorable law. US refered to as magnate jurisdiction; we will sometimes hold ds strictly liable, not that d did something wrong; also our standard of living is incredibly high; for us 100k chump change; we give a lot bigger rewards. some foreign countrys restrict what you can sue for. ds removed the case; want to get out of state courts bc cold turkey there. then made motion to transfer case to penn. piper would rather fight in own backyard than ca. then say want to dissmiss on grounds of fnc. think will be more sympathetic. they win. in process sc reaffirms namely that fnc is available in fed. courts. typical pattern of fnc, is out of state p, suing out of state d, for an out of state claim. obviously in this case; piper trying to argue out of state p, and claim. foot note: fnc factors: relative ease of access to proof, availability of witness, possibility of view of premises (means take jury to scene, so can see for themselves; other public factors, docet of courts, interest in having at home... one of most important factors is convenience of witnesses. don’t want to inconvenience people who saw event. don’t usually succeed. really have to show this is an awful place to lit. the case. in this case court says you don’t deny fnc just bc law would be less favorable to p; or more to d. except where remedies in alternative forum no remedies at all. also fnc easier where ps are foreigners; and where strikes court that these ps trying to take advantage of more favorable am. law. one common condition of fnc dissmissals is that d can’t object on tj, or on timeliness. sometimes courts will req. d to give p things foreign jurisdiction wouldn’t.

transfer: if alternative forum is not in foreign country but in us. fed. court will transfer case to the alternative forum. theoretically fed. court could dismiss if alternative forum were state court. three transfer provisions talk about at beginning of friday’s class. main focus fed subject matter jurisdiction. read material 213-228

2002-12-04T16:34:00.000-08:00

Civil Procedure: Oct. 21

Seek relief from judgement: rule 60 B in fed. rules; D can go back to court delivered judgement, and ask for relief. if you can show that you received no notice, and act quickly, then court will set aside judgement and let the case go forwared. most systems have provisions sim. to rule 60 B. if I do know the id. and location of D. don’t nec. have to serve them personally. have to serve by mail? best way to serve is personally. mullane doesn’t req. that. simply trying to use mechanism reasonalby calculcated to notify D. is dp prob. if d in fact receives method and timely and adequate notice even if method may be wrong? is problem. what’s purpose of dp to give proper notice. there isn’t prob. for dp purposes if d does receive notice, particulary if show up, and whole purpose is notice. can a state insist on more than what dp req. yes. alot of states do. nothing says state can’t insist on more exacting notice than const. will be law of state in which you institute the law suit. rule 4 is rule in fed. practice for notice of d; been huge evolution here from time when process served by fed. marshalls; now much more relaxed, and informal; p has to serve the summons by anybody not a party and at least 18, normal mechanism is 1st class mail accompanied by another form the d has to sign and send back to you. d doesn’t have to pay costs of service if signs also gets 60 days to answer instead of 20. does your obligation to serve the d, diff depending on whether its an in rem, or quasi in rem? NO, key is letting d know these proceedings have been instigated. can i waive notice? yes. and can waive right to trial. would occur in case where there’s a contractural relationship; contract waives notice and right to defend. can do that? this is more of a problem. would courts look at that more closely. yes. only one case where sc upheld that. in consumer situation and others those kinds of provisions would be looked at with great suspicion by court. did all ds in mullane have minimum contacts with ny. one of issues raised in mullane was jurisdictional. could ny enter binding judgement on everyone claimed interest. important to do that, bc want to valid, bc proceedings give the trustee certainty of not being sued. want to be able to bind everybody. can ny enter decree binds everybody so long as given notice; ny makes sense bc that’s where the assets are and where the property is and is related to the claim - shaffer v. heitner. precisely do have to bind everybody and bc ny best place, sc spends little time on question of jurisdiction. if you know d is infant, mentally incompetent, illiterate, notice will often req. more than just handing notice . if you are dealing d where you the p know that notice won’t be adequate. can you say under any circs. you’re just not going to give d notice. one decision; lehr v. robinson; woman gave birth to kid, marries later, the husband wants to adopt the kid - not biological father is - mom know who and where the bio father is. does mom want to give notice father that husband wants to adopt. mom doesn’t want kids life to go topsy turvy. husband institutes adoption proceedings, and dont’ notify, state had created the putative father’s registry; if you think you fathered a child and want notice of adoption proceeding and want notice, have to registered. we have a putative father’s registry in tn. issue before sc was whether that statute const. if you wanted notice all you had to do was register.

few instances other principles aware of in forum selection:

Each state free for itself to; states not req. to extend tj as far as dp would permit. states can enact leg. that lets courts adjudicate less than all that dp would allow. have to first look at statutory law to see if state has long arm statute, state not req. to assert tj to extent permited by dp. states have enacted laws that limit. courts must first fig. out whether state has asserted jurisdiction, an dthen whetehr jurisdiction const. has sate authorized jurisdiction over defend. sometimes embodied in courts in states, most often statuory. only get to dp if come to conclusion that state would authorize.

Gibbons v. Brown

auto accident occurs in montreal; bc one of the passengers gave driver bad directions to go down one way street. one of ps is from texas and sues driver who’s from florida. forum is florida. no problem. court concerned about second lawsuit, also brought in florida by wife of hte driver, hwo was also a passenger, she’s suing the texas passenger, and she’s saying gave faulty directions. issue in fl is whether institution of orig. law suit by texas p, allows fl to assert jurisdiction over texas d. court assumes first law suit has been terminated. court frames issue of whether prior law suit allows fl. to assert jurisdiction. court says d is not currently engaged in current activity etc. therefore rule as matter of state law p can’t institute law suit against d, bc prior lawsuit over. if i institute lawsuit against d in forum, the d can assert claims against me, at least if arises out of the same claim. some say that can be sued by d on any claim. presence as p is enough to allow the valid personal judgement against me. what if in gibbons orig. law suit still be pending, would dp allow third party to institute lawsuit? don’t know.

Venue

when thinking about lawsuit have to be concerned about tj, and notice, subject matter jurisdiction, and those three elements typically described as main ones. concept of venue, unlike tj, sj, and notice, venue not considered elemetn of validity of judgement. gen. speaking don’t worry about venue until know court does have tj and sj. venue bc an additional req, but one waivable and doesne’t det. validity of judgement. each state has own venue rules, tell which county in state expected to bring your suit. in fed. practice specify district in whihc expected to bring suit. in tn have 3 districts. tj will tell you what state can adjudicate, but rules of tj won’t tell you which district. rules id. county or district are the rules of venue.

read rest of chapter.

2002-12-04T16:33:00.000-08:00

Civil Procedure Oct. 18

Mullane.

Leading case. Could say now that court lacked jurisdiction over you, and that you were given improper notice. notice is second element det. validity of a judgement. Mullane appointed agent or attorney for people set up trust. talk about leg. ny established to allow banks to set up common trust funds. trust is assets held for someone. typical trust typically have 3 parties: 1.person who owns teh assests that will go into the trust; creator, or settlor; person actually owns the assets that will be put into that trust; settlor is the owner of the assests that will consitute the corpus of the trust; these assests can be anything of value; owner of assests the settlor takes these assets and gives them to the trustee. the settlor gives legal title to the trustee. the trustee now owns those assets. normally if own an asset you can do whatever you want with it; what could trustee theoretically do whith assets, anthing. law will say can’t. eventhough you are technically the legal owner of assets you have to administer them for the benifit of the benificierary. you are a trustee, as a trustee must handle not for own gain. beneficiers have equitable title; they have right to have these assets administered in way that is for the good of the benificiaries. LIke officers and directors in Shaffer. Trustees have certain duties that they owe to the beneficiarys. when you convey property in trust. might convey virtually anything. trustee must figure out what to do with the assets. if trustee makes money off them, then has to do something with it. settlor determines who will benifit. can set up trust in will: testimentary trust comes into effect only if you die. can set up when you’re alive too. testimentatry designate a trustee; who? bank; can designate anyone you want as trustee; lot of poeple will go to bank. one of things might tell the trustee I want you to give her money for living expenses, books, but that’s it. while she’s growing up, she’s simply going to get current income. during that period she would be benifiing on income of the trust. but main body of trust will still be with the trustee.now she’s finished her education she’s 25; will want the principle; the rest of the amount of money constitutes the trust. can say when she reaches 25 she’ll get a third of it; and when 35 gets another third, etc. do that so that she won’t blow it, and will be mature enought to handle it well.

why is central hannover bank willing to do this. they get fees for administering the trust. when dealing with really small trusts in order to make it worth while will have to charge really hefty fee. for that reason ny passed leg. so that could pool trusts together. reduces fees i will have to pay, because pot big enough bank won’t have to charge such high fee; also diversification of risk. pay less, less risk... those are advantages state of ny trying to achieve for people investing in trusts. mullane is appointed by the court as guardian; want somebody to make sure trustee is doing what trustee ought to be doing. mullane appointed to represent interest of those who would receive income from trust. central hannover bank is the trustee. vaughn is a lawyer is appointed as guardian for those who will share in the principle at some point. why do you appoint separate guardians, for those sharing in income and corpus. conflicting interst. interest of those in income could lead to risky investiments. trustee has conflicting demands. why specification of things can invest in and reasonable rate of return. can set up trust for yourself, or charitable remainder trust for charities when yo udie. beneficaries can be anybody. who brought the lawsuit? Mullane. what did the law say once set up common trust. law said the bank within 12 to fifteen months after creation and then every 3 years thereafter, you have to go to court and make an accounting. bank has to disclose investiments, payments, etc. if bank fully discloses everything they did in terms of what they did with the money, if trustee honest discloses everything did, and court will enter decree saying that during this period of time trustee did things well; degree says that thereafter no lawsuits. if trustee does bad things; can be sued. if disipated assests and breach duty as trustee can be req. to pay wiht their own money. effect of these proceeding is termination of right of anyone to bring action. then statute says three years thereafter have to make another accounting. trustee has benifit of knowing can’t be sued. important for income and principle beneficiaries to pay attention and to have a representives there.

The new york statute required them to publish in a newspaper specified by the courts. didn’t have to name the beneficiaris. here’s the name o fthe trust. it was an ad, and ad run in local newspaper in ny. beneficiaries some live in ny and some who the heck knows. could be living anywhere. practicle problem is whether that notice by pub. in local newspaper was sufficient to let people know of proceedings. notice not effective. nobody showed up except for appointed representives. why did no one show up. maybe they didn’t knwo, bc didn’t read paper. mullane saying to court that that notice req. by ny law that doesn’t afford people i represent enough notice. bank wants to know answer to that question bc they want to be able to bring proceedings that do terminate their liability. if find out notice is inadequate says the decision is not binding; that judgement would be invalid as applied to them. why did they think running ads in local paper would be consitutionally adequate notice? going back to pennoyer v. neff, sc said if you have property in state publication was sufficient. law assumes you are always in possession of property or have agent keeping eye on it. agent in this instance is the trustee. theory of ny leg. was that these are in rem proceedings. when we’re dealing with prop. under penn. as soon as this prop. is deposited with court, all ny leg doing is taking sc at word. sc holds in mullane that notice by pub. is unconst. in penn. when served process on s.o. wihtin state concomintatly gave you notice you were given notice. after is say state can assert juris. over somebody when not present. now service is viewed less of basis of jurisdiction, but of notice. under IS service notifies d of notice of law suit. in mullane said about people entitled to notice the test is not that use best method, just one where you actually want to get in contact. notice has to tell them what lawsuit is about, must afford reasonable time to reply. just have to use means reasonably likely to give notice to the d. what cat. of recepients of notice did court create. people whose identity or location was known, and people whose identities or locations were unknown or whose identity were unknown. for those unknown could do the publication bc didn’t really serve good of trust to search for them would deplete the resources of the trust, undercutting reason for allowing creation of common trusts; as a practicle matter pub. is ok, bc not much else can do. when id. and location known have to do something reasonablly calculated to give them notice. some of them may not get it if mailed, if most of them find out, all share common interest, so if some of them get notice, will rep. interest of others.

2002-12-04T16:32:00.000-08:00

Civil Procedure: Oct 16

S’s poor wife bought something from llbean, headquartered in maine, brought action against wife. under terms of order form, said any litigation arising out of order form had to be litigated in maine. lawyers from llbean, said interesting. carnival cruise lines had customers all over world, had an interest in where they could be sued. also eliminates doubt as to where suit can be brought. sc said consumers benifited. also forum connected with defendant. also plaintiff had notice, bc in contract. ll bean says that applies to us.

is the carnival cruise lines case binding precedent on the maine courts. admiralty is matter of federal law, not state law. carnival cruise lines is binding on admiralty cases. carnival cruise lines is only binding in fed. admiralty cases. Not binding precedent on maine. congress came back after carnival cruise lines case, enacted a statute said consumers should not be bound in that case. lawyers of llbean will say of course not binding precedent but should adopt its compelling reasoning. Ms. Shute probably suing for hundreds of thousands of dollars. Is Ms. Shute denied a forum to litigate the case, given contingency fees. Carninval cruise lines suing for hundereds of thousands of dollars. Wife no contingency fee, cost of litigation more than amount owed. deprived of day in court.

carnival cruise lines - international waters. no obvious choice of forum. here is a domestic forum, easily identifiable.

Ll bean intending to make profit off market place of tn, when inundate residents wiht catalogs. Intentialnal solicitation of buisiness in forum. like mcgee.

Burger King should have put “must be tried in florida” in their contract. why didn’t include choice of forum provision.

where do shutes bring the lawsuit? in washington, from washington. assume no contract provision. could WA exercise jurisdiction. carnival made 2 argumetns, 1. enforce contract, 2. WA no jurisdiction. C said insufficient contacts. Appellate court said C solicited business and but for that solicitation shutes wouldn’t have gone on cruise. one of prolific companies in these litigations is Disney. Disney runs ads soliciting people to come to Florida. Peopel injured there. Go back to home state where D been advertising and bring personal injury law suit there. D says not subject to genearl jurisdiction, not substantial contacts, no minimum contacts, bc didn’t neg. in forum state, but in Florida. Helicopter crash case: Sc said only way can understand is by general jurisdiction implying specific jurisdiction not available. D points to this case. Can WA assert jurisdiction for wrongful conduct did not occur in the forum state. Shirley Jones hurt in CA. Kathy Keeton hurt in New Hampshire. Woodson case were injured in forum state but court said no jurisdiction said no jurisdiction in OK bc retailer and distributer couldn’t know. SC has never addressed the question.

Mullane:

Go back in time to very first case talked aobut. Pennoyer v. Neff. first lawsuit there brought by Lawyer, Mitchell. Mitchell sued Neff for attroney’s fees. Mitchell said you asked me to render services in or, and I’m suing you here for non-payment of my fees. Notice by publication in newspapers. court said couldn’t serve with process in oregon because was in ca. today could oregon assert sj over neff attorneys fees. neff has purposefully availed himself of oregon. no doubt oregon can assert pj over neff. neff not cold turkey though. neff could argue I didn’t know I was being sued. what are odds neff would even know, bc ads being run in newspapers in oregon. only way you could know whetehr you were being sued woul be to read every paper. notice is element of validity of judgement. if don’t ahve notice says practiallcy you can’t defend yourself. is notice by pub. today unconst. not in certain instances.

2002-12-04T16:31:00.000-08:00

Civ. Pro. Oct 14

Burnam

Fraud.

If you are d in case where p can assert jurisdiction overy you, does the fact that you are d in pending lit. mean that any one else who wants to sue you in that state. if you are p and bring a law suit, you are present. if a p, brings a lawsuit can the d sue the p with regard to any claim. can the fact the p brought suit in forum, can third parties bring suits. what if you’re called to testify as a witness - normally can’t be forced to - what happens if you do show up; does it discuourge witnesses coming into courts. some courts have granted witnesses immunity from jurisdiction - even then have to be careful. one time witness showed up and was invited to dinner, served with process, bc. had spent extra time there. before burnam everyone assumed transient personal jurisdiction unconst. now is. have been kidnapping cases where d brought into jurisdiction. flying on air plane can be served with process. If court had not asserted pj on basis of transient jurisdiction, would in light of koko case have been hard for wife to get to juris. what if d had lot ob business in transactions in ca. if conduction business in ca, business is not related to the claim, do the contacts that est. purposeful availment have to be related or unrelated.

Insurance co. of Ireland

If you’re sued in jurisdiction, you have a choice. you can default and not show up. when judgement is souhgt to be enforeced you can argue that the judgement is invalid. if court says j was valid, you cna’t argue the merits. hwat if you do show it in the orig. proc. now we know your mere showing up, the fact you did, so and you object to the court’s jurisdiction, - if you prevail fine; possibiltiy you won’t prevail, important lesson you’re stuck with that answer. if you don’t like judgement from trial court, you have to appeal. mere fact you showed makes courts decision bindign on you. couirts always have jurisdiction to determine their own jurisdiction. foreigh insurance cos. show up in forum say no tj. p says i need more facts. engage in discovery. p attempt to engage in disc. ds say we’re not going to play. saying to court no pj and have to take their word for it. no d has right to say a court has to accept their word for it. clearly what sc says if you show up in proceding, have to be bound; can’t just play by the rules you like. have to play by the rules. court could have rule that said, anytime d shows up, we’re not going to hear jurisdiction at all - sc upheld. no state does this anymore. model is fed. rules. you can object to both tj and any other jurisdiction; in fed. can litigate both juris. and merits. that model of fed. rules is followed by most states. how you go about challenging juris. always controled by law of forum.

we’ve been talking about sits. in which courts attemtption to assert tj over people who don’t want to sued in forum. haven’t been covered = consent. consent is well est. basis for asserting tj. d can say ok to for them to be sued there. consent can be given in 2 moments in time. can consent to lawsuit has been filed. way you give your consent is by appearing and failing to object to jurisdiction. as soon as you don’t raise issue but made your appearence, court will go ahead more troublesome consent before litigaion is brought. means these parties subject to some sort of contractural relat. sometimes you can consent to the forum but not to it being the exclusive forum. sometimes consent provisions say the lawsuit must be made only in the part. forum. these consent forms can do couple of things. no limit on my consent; sometimes these provisions will subj. d to jurisidiciotn of state that under minimum contacts wouldn’t have it. if prov. said suit must be brought, has effect of ousting some other state must have had juris. prohibiting state otherwise would have had jurisdiction of ousting that juris.

how ddid courts treat issues of consent prior to Carnival. most state drew distinction btw contracts of equal bargaining power negotiate terms of the contract. as long as neg. agreement, this was term of contract will be enforced. some courts went further and asked about benif. not just neg. but that party to be bound got benifit from the provision. on other hand when dealing iwht adhesion where no real bargaining, courts much more sceptical about enforcing choice of forum provisions.

Carnival Cruise Lines

CCL based in Miami Fl. most of their ships leave from FL. Have passengers froma lll over word. on their tickets say in bold face, that acceptance of ticket consititutes acceptance of the contract, prov. of which is consent to only bring suits in FL.

Shutes: passengers; live in state of Washington, goes to washington travel agents. shutes probably saw the ads. go to travel agaent, agent books the passage; after paid for it ticket comes back with the contract attached.

Shutes boarded the ship in LA. ship sailed around mexico and returned to port of LA. Shutes on tour of galley were on int’l waters, ms. shute slipps and falls and is injured. after she returens files suit in fed. disctrict court in west district of washington. at which time carnival cruise lines objected to tj noting their forum clause. sc says forum clause should be upheld. prov. will be enforced.

Forum selection clause is under section 8. this was a contract of adhesion. you didn’t even get the contract until after you had paid for the ticket. fl long way away from the shutes. will sc force the shutes to travel all the way around the country pursuant to a provision in fine print. why did sc say would enforce. all thes prov. always enforceable? No. Subjcet to judicial scruitiny for fund. fairness. all these provisions are subject to judicioal scruitiny whether prov. is reasonable; whether it is fair. court concluded this prov. fund. fair

1. Cruise lines wants to limit where it could be sued. could be subject to suits all over the world
2. saves time/ expense on pretrial motions and litgation: waht’s reality
3. passengers benifted bc carnivalsaved money on litigation. shutes paid less for its ticket; carnival passed all those benifis on to consumers; sc went on to say if this prov. really deemed to be unfair by consumers, what will other cruise line companies do? they’ll compete; they won’t put that kind of providion in their contracts. take customers away from carnival. ridiculous. Ad: come on you can sue us anywhere even if we maim you.

say purpose of clause not to discourage litigation. do have ships leaving from fl. no indictaion of any kind of fraud. also shutes waived notice.

S’s poor wife buys too much from catalogues. LL Bean has lawyers who have read Carnival cruise lines. now on thier order form, now it says btw if you buy anything from it, and there’s any dispute arising out of it, you consent to be sued exclusively in state of Maine. S’s poor wife nameed as D. Is carnival cruise binding precident where ll bean sues S’s wife.

mclain

2002-12-04T16:29:00.000-08:00

Civil Procedure Oct 11

Background of decision in divorce. visible divorce. det. whetehr jurisdiction have to look at types of relief p seeking. if just want not to be married, p have to be domiciled in state. state can grant the divorce if domiciled. whether state can divided prop. then have to decided whether court has jurisdiction over defendant. in prior casae, koco case, court said no jurisidcition bc absaent spouse lacked appropriate contacts. if looked at the k precedent, would say no const. jurisdiction.

mr. and ms. burnam, married in west virgina, moved one year later to nj. 10 years later decided to divorce, decided mss.b would file based on irreconcilable diff. ms. b moved to ca. have ca p. bringing action in ca. if all ms. b wanted was divorce, ca could have granted. state has authority over changing statuts of citizens. real fight is over whether ca can deal with other proprietary issues arise in a divorce. only dist. feature btw this case an earlier case, was that the d was physically presenet in the state - on business and to see kids. court unanimously holds that ca could assert j over d.

in opinion of sc you and i and everyone else who thought that shaffer meant physical presence in state insuffienct were wrong. justice scalia wrote opinion, on behalf of self, chief justice, kennedy and white. opinion only on behalf of only 4 justices. Scalia four:

consistent with dp. bc history of personal juris. has always said d’s presence in state enough to det. juris. IS said that must comport wiht our traditional notions of fair play and substantial justice. in the formula scalia emphasises “traditional”.. S saying assertion of tj is const as long as the rule is trad. rule as long as in existence at time 14 amend. added to const in 1868; then asserting juris on basis of physcial precense was const. adds caveat, not only must be trad., but. S does not want fair entering into discussion at all. why isn’t s interested in fairness? rule has to be trad. but what else? still generally observed. as long as trad. rule still observed, ie followed, as long as it was ok in 1868 and as long as most states still follow it, then it’s const. under 14th amend.

other four. brennan, want to talk about fairness. they say ewe alwas have to det. whether assertion of juris. is fair. wsay reasd is and remember what said: they’re emphasising “fair play and substatntial justice.” same verbal formula given two interpretations. scalia says if it’s tradional it’s fair. brennan says fairness is trad. notion informs dpc. scalia focusing on trad. and whether rule is still observed. brennan says history relevant but main thing is whether fair.

Justice Stevens odd man out:

he says this case shoudl be decided on narrower grounds. can’t really go along with what’s going here. says it’s too broad. same objection in shaffer. says narrower grouns are: he doesn’t tell us what the narrower grounds are. then after telling us he can’t join says he agrees with them all. you can’t join either opinion bc too broad, not tell us what they are, and agree with both???
white says: ok bc defendant in state voluntarirly; might object if there not voluntarily. how can not be in state not vol.

brennan:

why fair; talks about benifits got in ca.if someone had robbed him the polie would have come, and he bought some advocados. if that’s the reason it’s fair does it matter whether he’s served in or out of sate. if it’s fair bc. enjoyed fruits of economy, and protected. if that’s fair it really shouldn’t matter whether he’s served in state or out state seems to be irrelevant. under that theory where can you and i be sued any place we have ever been. when you went to fl on vacation, could you drive on the roads, if you set yourself on fire there would the fire dept. have come. brennan saying anytime you’ve been in a state you’ve benifited from being there, therefore, assertion of j fair.

why does s not want to use the f word. he’s saying brennan’s full of it; right about it. if that’s what fairness means, then anytime we’ve been to another we’ve benifited. what does that do to everything we’ve learned from is on. totally repudiates everything court doing for 60 yrs.

what’s the fund. disagreement btw brennan and scalia. s says my only job is to interp. the const. when i interp const. must ask was it ok in 1868 and as long as it’s still observed today, then ok. he’s an originalist, try to det. original meaning of provision. s says don’t talk about fairness, have us ruling the country. ultimate interpereter of what const. means is the states themselves. states can do whatever they watn to do, as long as most agree. that raises extremely important question what is role of sc. have maj. of states done bad things? yes. this is a really fund. issue.

brennan comes along and says no sc does have role to play; and should court be able to tell states they’re wrong. B says sc has a role and can tell the states that they’re wrong. is any justification for telling states tehy’re wrong? if you’re a state how will you tell what jurisdiction is wrong? people like the husband are residents of another state. states concerned with taking care of their own. wehn state articulates rules of tj, tendancy to write so that benifits my own and hurt the outsider. have every reason in world to shape rules of tj, to benifit my own. no concern to treat outsider fairly. does sc have role to play in placing limits on what states can do if that is the underlying dynamic. only the sc in a position to protect the outsider, therefore does have a role.

is any thing do agree on? in state service still is const. pennoyer v. neff still lives. now find out that all 9 agree that still alive, agree for very diff. reasons.

what’s the biggest difficulty scalia’s got. biggest prob. he’s got is shaffer. did shaffer strike down trad. rule still followed by the states. shaffer struck down that mere presence of prop. in state is enough to assert any claim over d. shaffer said not just about fairness but also fairness. this case doesn’t overrule shaffer. all of them say shaffer still good law, including scalia.

Agree on anything else? yes, have to be present in state. when talking about out of state defendants.

Insurance co. , carnival cruise lines

2002-12-04T16:28:00.000-08:00

Civil Procedure: Oct 3

Burger King

Defendants gotten a fracise and sued by Burger King. P is the franshisor: headquarter in Miami. Suing franchisees who are from Michigan. the franchse was in Michigan. actual place of business of franchize in Michigan just outside Detroit. Forum is a federal district court in FL. How did they say cse in fed. court, bc of trademark, trademarks are protected, in this instance saying the franchisees should no longer be able to use burger king trademark to sell their burgers, bc they breached the contract. still selling burgers, and the first thing bk says is stop doing business. oner reason in fed. court is that trademarks are federally protected, also diversity bc MI and FL. BK won on the district level; defendants appealed to teh circut court which overturned bc said not enough contact, the franchiseesnot subject to personal jurisdictionof courts in FL. Contract said “it shall be governed and construed under and in accordance with the laws of the state of Florida” this is a choice of law provision. when have parties from 2 diff states engaging in a contract, possible laws of the states could significantly differ. when I sign contract want to know exactly what my obligations are under the provision. why do parties often put choice of law provision in contract. if thereis a choice of law provision in contract strong tendancyon part of courts to enforce the provisions; one of purposes of contract law trying otenfore reasonable expectations of parties. can put a choice of forum provision: we agree that if dispute arises dispute will be adjudicated in place we specify. no choice of forum in this contract; very emphatic way of saying that only choice of law provision not choice of forum, say specifically at the end that choice of law doesn’t mean choice of forum.

SC says FL can exercise jurisdiction. didn’t analyse differently althoug first case to come out of federal district court. all previous cases involved plaintiff who instituted law suit in federal district court. says bc of rules of civil procedure that the reach of a fed. court in a state is only so great as reach of state courts. Rule Four in Federal Rules-talks about territorial juridiction can be exercised by fed. court. rule 4 K limits reach of fed. court.
4k1a: says service effective if person upon whom we’re serving if person could be subject to jurisdiction of state court. incorporates state law as matter of federal law. if the state has a long arm statute - can assert jurisdiction over people residing in other states - fed court can do it too; if would be unacceptable then unacceptable for fed. cout
4k1d c and d are redundant. pt is that sometimes congress when enacts statute reg. cetain area will include in own statute their own long arm statutes. securities fraud law says can serve a d anywhere in the territory of the united states.
4k2a: rulle 14 or state parallel to rule 14 is what used in Asahi, the state equivallent of it was used. if i’m defending party can bring person should pay me into the case. rule 14 allows d party in action where their being sued to bring claim for indemnity. this rule says can assert tj over tehm as long as I serve them within a hundered miles of where fed. court is located. don’t have to worry about whether could be sued under state law. this is federal long arm provision. as long as 100 miles from court house, and 100 miles is as the crow files. can go over state lines.

when dealing wiht fed. court relevant provision is rule 4k, says tj under state law, jurisdiction over person brought into suit is 100 miles from court house, and/ or is subject to fed. long arm statute.

in this case know that the state court must have jurisdiction; can only get them if florida could get them. also

4k2 says if i’m suing d based on fed law can’t ex. jurisdiction over them in any state, can still do it if it is constitutional to do it.raises ? of whether tj greater than that of a state. can fed. courts assert jurisdiction that would be unconst. for a state to assert. this prov. baseed on idea that fed. jurisdiction is broader. why when o’connor writes opinion in asahi drops footnote about national contacts; maybe US could assert jurisdiction. leave ques. open.

court analyses quest. just as would analyse if in state court. when sc answers question ask whether state has an interest, a proper concern for the litigation of the state. FL has reason bc one of the parties is headquarters there, Fl law will govern, franchisees supposed to perform in fl, ie. make payments in fl. It’s a fl resident, perfomance to be made in fl, and fl law supposed to govern. looks a lot like the McGee case. SEcond thing have to tlak about is fairness to defendant. as we’ve talked about req. us to consider burden of defending in the forum, since Hanson court has said d must have purposefully availed selves of conducting business in state. where purposeful availment here? their face to face dealings with bk exclusively in MI. court says purposefully availment of FL

1. entered into contract with floridian.
2. MI office couldn’t do anything; all powers from fl office.

Justice Brennan quick to point out that every time two people from diff states enter into a contract doesn’t mean can sue each ohter in own home state. one thing court says here is that these guys were sophisticated business people. possible would have been diff. if not sophisticated. in burger king too ds entered into multimillion dollar deal; ds attempting to make a profit in the bk contract; both parties expect to profit. diff from consumer who’s just buying something and not attempting to profit. purposeful availment act by which avail of benifts. consumer would rep. a one-way profit. stain on consumer in small claim to litigate in foreign court; if being sued for 2000 dollars suit would cost more than the case is worth; so only choice would be to pay. burden is so great that as a practicle matter has made it impossible to defend on merits. why million dollars important. Bk rep twenty year continuing relationship, think about it carefully.

When read BK think about Shaffer v. Heitner. Officers and directors enter in contract with Grayhound. Does Del. have interest. Did they enter into long term relationship?

Move onto general jurisdiction: Washington Equipment Manufacturing, Burnum case too.

2002-12-04T16:26:00.000-08:00

Civil Procedure: Oct. 7

Shirley Jones. Mom of the partrige family. Shirley made carreer being mom of wonderful family. One day mom picks up National Enquirer learns she’s a fall down drunk. So mom sues. Mom lives in CA. that’s where her acting career centered. brings suit against several defendants. NE sells twice as many publications in CA as anywhere else. NE not objecting to jurisdiction. two people, individuals who are objecting, are the reporter and the editor. both of thme live and work in the state of FL. These people have never been in CA. Mom’s suing in CA.

Is matter of proper concern to CA. One of their residents and state has legit concern to compensate when injured. residents may be reading false material. nat’l enquirer sells twice as many copies in CA; she’s being hurt there more, and that is where her carreer is centered. CA is not disinterestedl; not stickling nose in case not its business.

Fairness to the D. Has to be some conduct of D amounts to purposeful availment. Ds said worked for the NE; said look have to be some conduct on my part, all we do is work for the NE, all the decisions as to where to sell newspapers, but that’s the action of someone else. and you the SC have said the unilateral activity of someone else cannot est. juridiction. however. they knew when put article together that would be sold in CA; know it will hurt her in CA. Is that purposeful availment? They knew they would hurt her in that state. Ed. and reporter could be sued bc they knew when wrote article that it would harm her, and that it would harm her in the state of CA.

IS what is the idea behind minimum contacts. court could have come up wiht maximum contacts, if test was state can assert jurisdiction only when max. contacts with forum state. would suggest that what we wre trying to do was to find th e absolute best place to adjudicate this case.

prob with focusing on fairnesss to the defendant doesn’t seem to focus on whether state has intereest in adjudicating the case. McGee. Have to be standard of fairness (D) and interst of state wants to adjudicate the case. state can const. assert pj if it’s a matter of proper concern to the forum state but secondly have to make sure being fair to the d. fairness to the defendant somehow tied to purposeful availment. at that pt. sounds straightforward. tehn justices of SC have minds turned to mush; look at language. white in woodson “constitutionally cognizable contacts.” what is that. pt. is court has lost its way in terms of why have the test, what purposes trying to achieve, etc. SC has talked about justification in terms of purposeful availment; but then becomes less clear bc in jones knew would inflict harm on her in forum but could say didn’t really avail selves.

specific jurisdiction - state can adjudicate this claim against D; but not any claim P has D. Tends to be linked to minimum contacts, not nec. best forum, but min acceptable. even way back in IS Sc did say that sometimes if ds relation to state is substantian enough then person can be sued there on any claim. General Jurisdiction - substantial contacts; lot more before can say that d can sued for any claim. why do we have general jurisidction; why ok to say certain places where d can be sued for any claim. if have choice, best place any body could sue you is the place most convenient to you. why for the state; probably domiciled there, state has interest in regulating people who have a fixed connection with that particular place.

Perkins v. bengla consolidated mining co.

mining co. normally operates mines in philipines. japanese occupying philipines. suit continuted after wwii. president of corp fled to ohio during the war. ohio had become about their only place of business. what have been consequences if sc had no jurisdiction; then would have had no forum. sometimes viewed as case of jurisdiciton by necessity. ok to sue in ohio, ohio has really good interest bc no place other p can go, so can say opening up ohio seemed to make a lot of sense.

next time; washington equipment co. and burnum.

2002-12-04T16:25:00.000-08:00

Civil Procedure Oct. 2

Asahi case: strong intonation that if Zurcher still in case, court might have come to diff. result. Z had settled though so only litigants remaining are the taiwanse manufacture and asahi. reason say strong intonation bc of way court analyses whole concept of reasonableness and fairness in that part of the opinion; what court does in that part of opinion looked to strength of interest of the forum and to extent plainfiff in litigaing case in CA. Said interest minimal and was minimal bc Z no longer in case. alll remained was Taiwanse corp suing japan. corp. measured interest of p in lit. against inconvenience to asahi; court decides inconvenience is severe; bc japan. corp would have to treavel halway thru world, althoug business dealings in japan. and tai. also must defend in foreign legal system. then court reiterating that pt. says internat. context should be taken into account.
One question asked was could Z have had suit adjudicated in CA, and if could have, why does it matter that Z settles latter on? Jurisdiction normally ought to be decided at begining. Practical reasons for that bc don’t want to expend time and effort to litigate the case when turns out no jurisdiction. Don’t want jurisdiction to be lost bc of subsequent events. court never raises that issue. If Z could have sued of Asahi, why did CA lose jurisdiction bc of later events.

Second question: we’re struggling with when personal juris. should or should not be permitted. should we strive for clear answers and certainty? If clear people would know whether had jurisdiction; is important bc purpose of trial is to adjudicate merits of case; to that extent if make jurisdiction unclear, we’re permitteing encouraging litigation on collateral matters, not central to matter, annd when allow interlocutory appeals really extend time of litigation. If plaintiff’s attorney bringing law suit, you will select forum where most obvious court has jurisdiction. Sometimes you can’t do that. Court came to SP involving Cathy Keeton, wife of pub. of Penthouse, one day rival publication Hustler, Keeton reads article in issue of Hustler, she thinks defames her. decides to sue Hustler. keeton is new yorker. hustler incorp in ohio and place of business in ca where sells most publications. brings suit in new hampshire. hustler did sell magazines in new hampshire but reason K brought law suit in new hampshire, but bc at time brought her claim, the statute of limitations had expired in every other state. only place where she could bring it. new hampshire filed a principle of law called the single publication rule, if i’m defamed by publication takes place in several states, single pub. rule, says not limited to seeking damage to reputation in new hampshire but in every state where publication sold. that single pub. rule change from common law rule which said had to bring suit in each state where you were harmed. hustler said couldn’t be sued in new hampshire. what did court say? Can say state has interest in maintaining order in borders. SC said new hampshire had interest in protecting people in NH from reading untruths. Is it fair to Hustler to compell them to defend there? Yes, bc Hustler sells 12000 magazines there a month. SC said K could bring suit there. Could Audi be sued in OK? Yes. If Z nevada citizen and purchased cycle there, could be sued in CA? Yes, bc CA still has interest in saftey on their highways; CA can say its fair to HOnda, etc. bc they sell their products in CA. As long as have reg. sales in forum, even if not of that particular product, still availing selves of benifits of forum.

Said test of juris. should be bright lined and predictable. Is this approach in Asahi, and way analyse it, likely to produce predicability and certainty. Keep vague, bc when talk about whether state has interest and whether fair, can say simple yes or no, does state have interest? yes. Is it fair? Yes, reg. selling products within CA, knowingly profiting off of market place. Court doesn’t approach juris. that way. Court tries to weigh. say look at how strong state interest is, how unfair to D, then compare strength of interest to unfairness, and then decide. Not likely to produce certainty and predictability.

Can crit. Asahi on two grounds: doesn’t tell us why should matter Z no longer in case; test use to det. whether or not reasonalbe or fair is one which doesn’t est. bright lines.

REal question is extent of burden. Saying is real big burden here. If no civil courts in Japan and Taiwan, then would be no remedy for plaintiff. So could say bc of necessity justified. After Hanson pull out purposeful availment, another thing might take into account, whether D has purposefully availed self of forum. You sold your product in that state, so fair that can be sued there.

Burger King v. Rudzewicz

Business dealing here is franchise agreement. Franchisee and franchisor. francisees are generally small business people. why want to set up as burger king outlet. more people go to burger king. think will make more money selling burgers under trademark.

2002-12-04T16:23:00.001-08:00

Civil Procedure: Sept.20

Schafer v. Heitner

Heitner shareholder in Greyhound brings suit bc. thinks things officers and directors of Greyhound have done things whihc hurt the company. GReyhound sued for violating anti-trust laws and found in criminal contempt. Court fined Greyhound for violating court order. H. saying violating duty of care to the corp. Heitner institutes law suit in Delaware state court. defendants are current and past officers and directors. theoretically entity harmed is corp. itself. theoretically corp should be bringing the lawsuit, to recover the damages it has suffered. but the people who usually decide whether corp will sue are officers and directors. some states will req. shareholder to ask officers and directors before bring suit, and then when say no, can bring suit. sometimes corp. named asnominal defendant bc directors (ie. corp didn’t file suit.). corp will benifit from lawsuit, bc get the money. most states in corp. law have a contemporaneous ownership law- have to be shareholder at time bad deeds occured before can bring shareholder suit. person must be shareholder at time of deeds talking about.

How did they notify the officers and directors of the institution of the law suit? Notifed by certified mail.Did defendants know being sued? They showed up in court, so probably knew of suit. How did they claim that the state of Delaware could assert jurisdiction over these officers and directors. Did they assert jurisdiction in their role of directors and officers? Asserted jurisdiction as shareholders. theory Del. has territorial jurisdiction over property located in del. that prop. in this case is the shares of stock in Greyhound, and not only shares but also stock options. stock option-can buy the stock depending on terms of offer usually for period of time at a fixed price. Use as incentive to make the directors make the corp. more valuable. If stock is selling at 5 dollares say have option to buy it in 3 years for 15 dollars. want to them to make the corp. so profitable that stock will be so profitable stock will be selling at 50. plaintiff saying is prop. in del. that belongs to some of these defendants at least. that prop is shares of stock and options. How do we know its in del.? who says its in del? del. does. del. statute says del. site of all stock held in del. corp. how do we grab share of stock. stock shares are intangible. told corp. you must put a stock transfer order - prohibits the transfer of those assets to anyone else. frozen ability of owners of the stocks and options to do anyhting with this prop. How many officers and directors had shares of stock and options: 21 of 28 named in law suit. The 21 show up.

They argue in the del. proceedings that you can’t . They’re saying just like IS said test is not mere physical power when asserting territorial jurisdiction, test of asserting it over prop. shouldn’t be mere physical power but fairness. should apply to prop. exact same minimum contacts fairness test that SP articulated in IS. Del. courts say IS just dealt with tj over person, said nothing about prop. SP says that del. court lack jurisdiction; SP said about rule of IS that use same test in regard to prop. as to person. pg. 109 very last paragraph of section 3. Say all assertions of jurisdiction of state courts according to standards set fourth in IS. Standard - have to have minimal contacts so that assertion of jurisdiction is fair/ reasonable. what really concerned about is given those contacts whether the assertion of jurisdiction can be said to be fair and reasonable. Is that test met on these facts. Court says not met. Why not met?

Pg. 107 second paragraph section 3. It’s fair to the defend. state has good reason for wanting to adjudicate the case, and it’s convenient place to litigate the matter. Hypothetical involving Jacobs and contested property in Florida. Shafer says presence of prop. ok, if dispute is who owns it, or if it’s about tenants and landlords , and injuries arising on land.

Shaffer says property no longer basis of general jurisdiction. Now claim must be related to the property. Under penn. as long as prop. there and we attached didn’t care what kind of claim it was. Is says standard is fairness. Shaffer says fairness applies to prop. claims must be related to the prop. Does Shaffer now say that mere presense of person in state no longer is acceptable basis for asserting jurisdiction on unrelating claims?

Read to 129

2002-12-04T16:23:00.000-08:00

Civil Procedure: Sept. 30

Intersest of forum, and fair to D. Is a matter of proper concern to forum and is fair to D. White in Woodson: fairness and federalism. what doesn’t make sense is court’s tendancy to say when jurisdiction is improper is tendancy to say no contacts. not true. crit. of course in IS it’s not just contacts but contacts which make jurisdiction fair. sets stage for harder question of whether contacts make it fair. great advantage of saying no contacts then don’t have to reason thru it. Muddled opinion in Woodson. Court dealing with idea that fairness to defendant tied to purposeful availment. Hanson - benifits and protects of forum’s law - can only make you defend if benifited. White talking less about benifits than foreseeability: “D’s contact with forum is such that d could reasonably be sued there.” Predictability shape conduct in such a waythat could know will be sued. 123 third paragraph.

Asahi Metal Industry Co. v. Superior Court

1978 Zurcher and his wife riding a honda motorcycle. explosion in rear tire and hit tractor. severly injured and wife killed. said bc of defective valve. filed product liability suit in CA where accident occured. Zurcher is consumer and is californian. sues cheng shin, Honda which has corp. headquarters in japan, also sues. cheng shin put together tire itself - taiwanse manufacture. cheng shin component parts manufacturers. selling component part of larger thing. really common. this is very common way in whihc products are manufactured. Zurcher sues component part manufacturer. cheng shin incorporated in taiwan. cheng shin files cross compaint against asahi metal. they say if accident caused bc rear tire lost air, reason lost air bc valve was defective. doesn’t mean they’re insulated from liability to Zurcher, but they want to hold asahi liable for the valve. Rights to indemnity or contribution - place liability on responsible party. In CA call a cross complaint; in fed. rules, rule 14 pg. 39, explains how process works; at any time after commencement of action defending party as third party plaitiff can bring summons etc against someone who may be liable to third party plaintiff for all or part of the liability. they say asahi should pay to cheng shin the liability of CS to Zurcher. Asahi is third party defendant. Asahi is a japan. co. this kind of senario very common. Zurcher settles. leaves action btw cs and asahi. honda’s out too. now only remaining case is btw CS and asahi. CS tries to serve asahi with “third party complaint” they are bringing their law suit in context of suit brought against them. bringing it now they want thier money now. more convenient to do in one case; litigating in zurcher their liability; easier to dispose all at once. asahi objects to jurisdiction, trial court in ca says jurisdiction bc A int’l corp whose product ended in CA. Reached Ca supreme court. agreed with superior court; same idea in woodson; interlocutory, don’t name judge, but court, allow these decision to go on and be decided rather than after whole thing decided.

USC majority says unfair to ASahi to defend suit in CA bc A is japan. corp. and CS taiwanese corp so CA not much interest. 9 justices on SC. One theory was that unfair to D. Other theory A didn’t purposefully avail themselves of CA law; no minimal contacts btw A and state of CA; no purposeful availment (like Hanson, then in Woodson). Two fund. theory; no minimum contacts, and even if there are assertion of jurisdiction still unfair. HOow many agree with each of these theories. 8 agree, everyone except scalia, say yeah it’s unfair to D. even assuming are minimum contacts. how many say no min. contacts: part 2A of opinion; Chief justice, o’connor, powell, and scalia. so 4. did a majority of sp say no minimum contacts. no only 4 say that. five say there are: Brennan, white, marshall, blackmun, say there are minimum contacts. four to four at this part. stevens odd person out. he says don’t even have to talk about minimum contacts bc 8 agree unfair, then talks about minimum contacts. then says court misapplies facts of case. he says he’s “inclined” to conclude... “that a reg. course of dealing that results in deliveries of over 100, 000 untis etc “ bottom pg. 135. What do you know about minimum contacts? 4 say no basis, 4 say is, one inclined. lower courts can’t decide whether stream of commerce theory is const. bc sp itself unsure and fracture. stream of commerce theory comes out of woodson. Idea if manufacture product and put in stream of commerce court strongly asserted would be const. now see court badly divided. we don’t know for sure whether are or aren’t min. contacts. do we learn anything about purposeful availment test. when white talking about purposeful availment in woodson; “with expectation purchased by consumers in forum state” purposeful availment - d. knowlingly est. benificial relat. with forum state. did asahi know its prod. sold in state of ca. asahi knew it would be sold in ca but didn’t think would be sued. white says in woodson that d must be able to predict would be sued in forum state. if test is whetehr d could predict, how likely is it could assert jurisdiction when d could file affadavit saying didn’t think would be sued there. did asahi know products being sold in ca; yes; are in diff sit. than retailer and reg. dist. in woodson; if took OK and threw into ocean wouldn’t affect business of ret. and reg. dist. if did same to ca would damage asahi; asahi getting real economic benifit from sale of products in the state; and knew products sold in state. what if in orig. law suit zurcher had sued asahi. could zurcher have sued asahi and named them as defendant could have done? would case be proper concern to ca? yes, bc zurcher californian, injured in ca; also have to be fair to defendant; would be fair bc of woodson bc knowingly benifited from market place of forum state. if maj. of court have said no min. contacts, even zurcher couldn’t sue. maj. didn’t say that.

why didn’t scalia agree that unfair. scalia oesn’t want to talk about unfairness. why did the 8 say it was unfair? Did maj. say ca didn’t have legit. interest in wanting to adjudicate? Say 133 that ca has a small interest; slight; bc all that remains is ation btw asahi and cs. if zurcher had not settled, it would have been bigger than slight. also say the forum’s interest is slight; then is it fair to d to make d defend lawsuit; burden of defense imposed on asahi too great; 133 burden on d is “severe.” forum’s interest is slight, burden of defending in forum severe. travel from japan to ca, must defend in foreign legal system. would outcome have been diff. if asahi am. corp.? yes.

why should it matter that zurcher settled. we want decision of jurisdiction to be made at beginning of case. don’t want to go through trying case only to come to conclusion at end no jurisdiction. should it matter that z settled. should jurisdictio be lost bc of events occuring sometime latter in litigation process.

2002-12-04T16:22:00.000-08:00

Civil Procedure: Sept 27

Int’l Volkswagen Corp. cont’d

Where case fits into gen. pattern. IS distinction btw specific and general jurisdiction. Gen. juris. any claim. Specific claim - jurisdiction for the specific claim bc of connection with forum state. IVC - specific jurisdiction. For specific jurisdiction just need minimal contacts. Contacts btw retailer and distributer and Ok, are minimal, at best. Hess case, s.o. drives into forum state, leaves forum state, and is sued by resident of forum state. How distinguish from IVC. The defendant has never been in the forum state. IN Hess the defendant physically present in the forum state, and while physically present there, an act they commited while in borders of forum state is cause of suit. IS salesmen in the forum state, in both cases like IS and Hess, defendant being sued for act the defedant commited (personally or thru agent) while physically present in the forum state. D being sued for act D commited in forum state. Here D never physically present in the forum state. Saying something did outside the forum state, some act commited outside forum state, some effect of that conduct in the forum state. Had a result or consequence within the forum. Did these defendants do an act which affected these Ps in Okla? Yes, so why can’t they be sued there. Court says we need to consider whether reasonable and fair to the defedant and if sufficient interest for the forum state. talks about whether the forum state has sufficient interest to open up its courts to adjudicate claim before it. Seems to stress the state’s interest the most. Says fairness to defendant becoming less important. but forum still must have legit. interest. Does Okla have interest in litigating auto accidents in its borders. What does court mean when it says these defendants have no connection to Okla. Did D have contact in Okla? Yes, sold a car to the Robinson’s. Do have any other connection with the forum? What were they selling? Cars that could be serviced in Okla. Is it important to consumer who purchases auto to know that they can get the car fixed in another state. If you’re Audi have to gurantee proper service by having service centers throughout country. Does person in Audi service center in Okla has to service even if sold in NY. Connections btw Ds and Okla: car, and they’re part of this nationwide system to distribute, sell, and service Audi automobiles. Why did the Court say no contacts. Saw this in Shaffer. Do you see problem with that reasoning in these opinions? What are or aren’t they doing? Supreme Court says things whihc aren’t true, why? Because they don’t want Okla hear the case. In IS Court said minimum contacts such that the assertion of jurisdiction is fair and reasonable. Not just minimum contacts bc everyone of these defendants have had contacts. Great advantage of saying no contacts is that they don’t really have to explain why. Do you think Court itself can’t figure out why this is not permissable. Court jumps up and down about federalism, but Okla not sticking nose into something not its business. Why talking about federalism? Is conern federalism or fairness? Court acts like this is case about federalism and its not. real concern of this case is not federalism or fairness. federalism has nothing to do with this case. real reason has to fairness. states have right to reg. behaviour to regulate behavior in borders and when s.o. hurt have perfectly legit. reason for litigating. One thing is Ds didn’t know would cause harm in forum, didn’t intend it. what then is the reason court said ok can’t adjudicate. court said people need to know from their own actions that can be sued. court focusing on whole idea of whether these defendants purposefully availed themselves of the priveleges of forum state. they’re saying the accident is the result of the Robinson’s conduct in taking the car to Okla. Fact car got to Okla fairly attributable to Rs. Can’t create connection on basis of s.o else’s conduct. what about fact Ds part of nationwide distribution system. that conduct, however, is attributable to Audi not to Ds. Some conduct fairly attributable to the defendant has to establish the tie to the forum. Never explicitly say that.

Start with Asaki

2002-12-04T16:21:00.000-08:00

Civil Procedure: Sept. 25
Shaffer v. Heitner even when asserting jurisdiction over prop. have to do same as when assert over person. Fund. reality is that you’re asering jurisdiction over people. Court had decide whetehr assertion of jurisdiction over prop/ people in Shaffer accorded with IS. Shaffer one of first cases where Court used IS to overrule something Penn. would have said was been fine. IN most cases will see minimum contacts test expanding basis under which states could assert tj.

McGee v. International Life

Involved person benificiery on life insurance policy; brought suit against Texas insurance company. Insured orig. had policy with another co. acquired by Int’l life. IL sends letter to Franklin says we’ll continue your policy. Over years Franklin pays premimium to Texas. Benificiery refused to pay benifits under policy bc of suicide exclusion. IL argued that insured had commited suicide. Teh benificier who like the insured was domiciled in CA, benif. brings action in CA against Texas insurance co. Insurance Co. doesn’t show up; default judgemnt entered against. Plaintiff took to Texas and demanded full faith and credit. IL argued that CA could not assert tj over them, so judgement invalid. SAid that only insured one person in CA; had no offices there. Said IS says minimal contacts, we just had one very minimal contact. ONly case SC had decided prior to McGee was IS. ONly contacts described in IS were systematic. Arguing under standard of IS they could not be subjected to tj. The SC says CA can assert tj over Texas insurance co. Why did the SC in McGee say CA could assert tj. IS moved us away from ? whether state had physical power to whether state have a good interest for wanting to adjudicate this case in their courts. Did CA have good interest for wanting to adjudicate? SC “It cannot be denied that CA has manifest interest in providing effective means of refdreess forits residents when hteir inusresrs refuse to pay.” Don’t make insureees follow insurance cos. around. Fair to company bc were doing business in CA, can say IL was doing business with cit. of state, benifitng from state.

McGee says sometimes very slim contacts will be enough to justify jurisdiction.

Hanson v. Denckla

REally rich woman lived in Penn. One day decides wants to set up trusts; she gives money to bank and tells it I want you to hold money and do certain things with it. She goes to Del. to set up trust. Later moves to FLA. while in FL communicates with trust company what wants done wiht residue of trust. Woamn had 3 daughters. Says to Del. trust co. what she wanted them to do was give it to 2 of the children of the first daughter. she had other prop. too, which was divided btw other two daughters. so if look at she’s trying to give the daughters roughly the same amount of money. mother lived in FL most of kids live in Fl. the two daughters getting the prop. institute legal proceding in FL that what their mother tried was legally ineffective, and that therefore that money should not go to the childeren of daughter 1, but whether should go to them so they would split it. So if they succeed they get everything, and the other daughter gets nothing. What happens now is that daughter who want it all bring law suit in FL. Daughters 2and 3 v. Daughter 1, also name as defendant the Del. bank acting as trustee. When gets to SC, issue is whether FL can exersize jurisdiction over Del. bank. Does FL have an interest in wanting ot adjudicate this case? Yes. Person who created trust died in FL; and people with interest in money almost all of them are in FL. Is it fair to the Del. trustee to make them defend lawsuit in FL. Is diff btw. what del trustee did in Fl to what IL did in CA. Del. SC says “unilateral activities of those who claim some relat. with the non-resident defendant cannot satiffy the req. of contact with forum state.” Who est. the connection btw FL and the bank? Ms. Donner; she moved to FL. It was her sole decision to move there. Diff. from IL hwere once bought other co. it was their decision to keep insuraning guy, which est. their connection with the forum state.Ms. Donner’s decision to move to FL. Court goes on ot say, “it is essentiall in each case that there be some act in whihc d purposefullly avails itslef of the privelge of conducting activites within he the forum state, thus invoking the benifits and protection of its laws.” this lang. of purposeful availment will recurr.

Fl court rules against Daughter 1; Del. court rules in favor of Daughter 1. If you’re SC want to rule in favor of Daughter 1, to do so have to rule against FL. What gives Del. right to adjudicate the case? The suit is about prop. in Del. (shaffer, out of hist. sequence; under shaffer since this dispute over interest in prop. in del. under shaffer can bind anyone who claims interest in prop.).

WW Volkswagen Corp. v. Woodson

Ruptured gas tank, fumes ignited, Robinson and kids were severely burned. Bring suit in Oklahoma where accident occured. Robinsons former residents of NY, moving to Arizona. Court treats them as if from NY. REason for that is that Court saying lets look to state citizens of at time of accidents. Hadn’t est. a domicile in Arizona need two things: physical presence and intent to make that place your home. Therefore had to be viewed as New Yorkers. Bought this Audi automobile in NY. Name four defendants:

Audi, German manufacturer
Volkswagen of Am., importer, they are Am. corp. the national importer of Audis
World Wide is the regional distributer; do business in NY, NJ, and Conn. Distribute cars, parts, etc. in tri state area; they are incorporated in NY.
Seaway; incorp. in NY, do business there, they’re the local retailer

Who’s complaining about the assertion of tj? World wide and Seaway. Audi not complaining, and Volkswagen not complaining either. Ultimately fight is btw World Wide and Seaway, two NY corps - regional distributer and retailer. Who’s Woodson?

In trial court the Ds show up and say you can’t assert jurisdiction over us. Judge says yes we can. Charles Woodson is judge of trial court who said they can be sued. why name the judge? way back wehn when law orig. being formulated in eng. if went to trial court, I’d name the judge as defendant in appeal. The judge servant of king or queen, saying their servant did something wrong. Back in ancient times? Appeals were decided by battle. Judge would hire strongest guy in county to fight the appelant. Finally come to conclusion should decide on reason. why name judge here? They’re not happy judge said can be sued in OK. want to do now, as opposed to later, they want ot appeal, now and not wait. can’t normally do that, bc. most systems operate under final judgement rule. But state of Ok, created an exception, that you could appeal these kinds of rulings as soon as made, just req. that you name as respondant the official who made the ruling. Who’s going to protect the judge’s ruling? The Robinsons. Ok req. that you do it this way, but this is really dispute btw Robinsons and defendants. SC of OK upheld the trial court. Now go to the SC which reverses and came to conclusion that OK could not assert tj over regional distributer and retailer.

Might start Asaki case

2002-12-04T16:20:00.001-08:00

Civil Procedure: Sept.23

Schaffer v. Heitner

Court seems to be saying that general jurisdiction based on prop. in a state is no longer acceptable. Prop. in state in Penn. was source of gen. jurisdiction. In area of teritorial jurs. over person IS said it depended on type of claim and how defendants contacts measured with that claim. same thing in heitner. if prop in state and dispute is about who owns the prop, or the plaintiff’s claim seeks to inforce duty arising form the prop. can assert tj. ownership of prop gives us basis for getting personal judgement against absenttee land lord. other hand dealing with auto accident in tn btw. 2 tennesseans and plaintiff seeks to bring suit in florida where defend. owns prop., can’t do that uder Heitner.

Assume lawsuit btw classmate and mr. jacobs involving auto accident in tn, classmate brings suit in tn. plaintiff wins suit for substantial damages. wants to get hands on prop. take judgement to state of florida. technically when get valid judgment in one state, makes mr. jacobs a debtor. mr. jacobs owes the judgement to the plaintiff who becomes a creditor. when plaintiff takes judgement to florida, but when take it, what most states will compell another lawsuit. Suing on basis of debt created by judgement. Classmate says Jacobs is my debtor.when classmate gets judgement in florida on basis of judgement in tn. florida has essentially converted tn judgement. full faith and credit says florida has no choice. call domesticating the tn judgement. now law enforcement officials in florida are entitled ot enforce in same way would florida judgement. Could cite Shaffer to avoid judgement in Florida domesticating tn judgement? No, sp says in Shaffer that only deals with where you can litigate underlying claim, and you’re only seeking to enforce valid judgement its ok. Using presence of property to enforce judgement

Classmate finds out jacobs is going to sell prop. and going to stash money in off shore haven, so will never have to pay the judgemnt. can classmate go to florida and ask florida courts to prevent you from selling that land? Using prop. in Florida to secure judgement in another state where florida doesn’t have jurisdiction.

why did the court in shaffer say these officers and directors couldn’t be suied in del. heitner brought action against officers in deleware. why didn’t try to get personal judgemtn against officers and directors in del. what do we mean by contact; really going to ask whether defendant has any relationship wiht that state. a contact can be any physical 0r non physical circumstances that serves to link this defeneant to forum state. did these defendants have contacts with forum state? yes. sp in IS didn’t say test is whether defendant had contacts but whether sufficent. why didn’t try to get personal judgement. why go through game of saying they have prop. in del. and im goint ot sequester it. Tell us del. bases juridiction not on status as corporate fiduciaries, but on presence of prop. in del. say del. has not enacted law that said if you become a director or officer of del. corp. we’re going to assert personal jurisdiciton over you. couldn’t go after them as officers and directors, so have to go after prop. sc says prop only works if claim related to the prop.

1. where ownership is disputed
2. where seeking to impose duty on defendant as owner of the prop.

Heitner not saying bring claim on basis of duty the offierces owed as shareholders. Instead to impose liability owed him as officers and directors. as soon as shaffer handed down, the leg. in del. enacted a statute giving its courts jurisdiction over officers and directors of its corps.

Now going to bring law suit against officers and directors personally bc. delaware now allows it. Would the sc uphold the del. statute. last paragraphy 111. sc saying about the officers and directors have no contacts, ties, or relations to state of del. if that’s true can del. adopt a statute saying that they do have contacts when they don’t. have to say don’t know if would uphold delaware statute? bc. of 111 and 109 contradictions btw.

2002-12-04T16:20:00.000-08:00

Civil Procedure Sept. 18

Pennoyer concerned with state’s power. Have SP in Pennoyer talking about jurisdiction in state, talking about powr of the state to assert territorial jurisdiction. When talk about power talk about physical power over person or prop. of defendant at the time of the suit. that powr in turn was defined territorially, when person or prop in the state. state can only acto n people and things present in its borders.

Did Int’l shoe abolish territoriality? NO, how did it change it? IS doesnt abandon territoriality, but unlike Penn. which insisted on person or prop. in present, but IS says territoriality can be satified by past connection. The things done in past can give state reason to open up its legal system. Power less important than state having an interest. the state still can have a good reason, can have an interest for opening up its courts and asserting its powr over this dispute. IS moves topic of jurisdiction away from physical power, to does state given not only present but also past have good reason for asserting jurisdiction over the state.

Principle focus of IS is on the defendant. Focus less the state, focus tends to be on the defendant. Question whether state’s assertion of territorial jurisdiction over defendant is fair given defendant’s relation to state. Fairness irrelevant in Pennoyer. IS says also have to be concerned about defendant. Implicit in IS is if still is concern with powr of state not one of territory of state but rather of interest of the state. We’ll see this dictonomy play some interesting games with our minds as we look thru cases later on. Notice of the suit. In Pennoyer to assert powr had to serve the person in the state. IS said powr of state to adjudicate case not based on physical powr but interest. Service in IS serves purpose of fairness, bc that way defendant will receive notice of the suit. In Penn. critical to assertion of state’s powr, in IS service of process makes sure defendant knows about the suit. If had served Neff in California would have given him noticed, state would still not have had powr to adjudicate under Penn. Service of process bc. mechanizem of giving notice under IS. Under IS all want to know is whether way served defendant adequate to give notice. IN IS served a salesman and sent it to last known in address in MO. Know got it bc. defendant showed up. Service of process serves very diff. purpose under IS than Penn.

What IS did was only deal with part of the conceptual framework SP orig. dev. in Penn. Penn. concerned with assertion of TJ over indiv. as opposed to IS which was concerned with TJ over corp. Penn had another branch - asserting TJ over prop. present in state. IS didn’t deal with either of those things. IS didn’t explicitly tell us if applied to indiv. or what effect new test would have on assertion of TJ over defendan’t prop. Courts talked about TJ over prop in 2 major cats.

In Rem
Quasi in Rem

Priniciple diff was in true in rem actions purpose of proceeding was to bind everyone in whole wide world who claimed and interest in prop. present in state. Purpose of true in rem was to hand down judgement against everyone who held interest in the prop. in a state. One ex. would be a lawsuit to det. title to land in a state. Find out who really owns this piece of land. Suit would say if you claim interest in this land you have to assert it in this lawsuit. Key to being able to bind these people is to give them notice. Purpose of true in rem to bind everyone.

Quasi in rem action doesn’t porport to bind everybody in whole wide world, simply want to adjudicate the interest these people have in the land. Simply purporting to id. the interst of part. indentified persons in the prop. Just btw you and me, etc. Don’t purport to bind anybody other than people directly involved in suit. Quasi in rem got divided into:

Type 1: Simply trying to adjudicate interest in property in the state. Dispute over ownership or interest over that part. piece of prop.

Type 2: Plaintiff says this prop. belongs to defendant; but I’ve got claim for money against defendant and I want to satisfy that claim using defendant’s prop. in the state. Mitchell would say this is Neff’s land (if Neff owned the land at the time of suit) and I want to get my 300 by attaching that land and getting my money out of it. Often called attachment jurisdiction. Want to attach that land prove he owes me money and collect by attaching that land and executing sale of it. This ability to attach prop as basis for asserting tj applied not only to tangible prop. but also to intangible prop. like debts. Debt. claim lender have against borrower based on promise to pay it back. If say can assert tj using intangible prop. have to figure out where it is . Debt traveled with the debtor, bc lender could sue the debtor anywhere. Location of debt. is with the debtor.

Shaffer v. Heitner

Heitner names as defendant Greyhound, as well as directors, officers of corp. both present officers and directors as past. Brought a dirivitive shareholder suit. Heitner owns one share. Brings this derivitive actions, saying officers and directors actions hurt company, bc. actions hurt the company lowered the value of the stock, and that’s got me angry. Officers and directors of corp. don’t own the prop. of corp. Shareholders own the corp. Offficers and directors are really dealing with other people’s prop. If dealing wiht own prop. can pretty much do with it whatever want with it. Should law let officers and directors do whatever they want with other’s prop.? NO. Law imposes legal obligations on them, basically that they must treat that prop. as if it was their own. Officers and directors have two duties imposed upon them by law: duty of loyalty, and duty of care. Duty of loyalty: in role of officer and director learn of profitable opportunity only bc of your position; law prevents you from personally profiting from that knowldege. Duty of care: have to exercise reasonable business judgement on behalf of corp. Heitner involved duty of care: bc. of what these officers and directors did subjected Greyhound to anti-trust suit; Greyhound also held in criminal contempt; violated directive of judge to stop doing what they were doing. Who do these officers and directors work for? The corporation. Officers and directors normally make decision to bring a law suit. Not likely officers and directors would sue themselves. Corp. has been harmed, and would normally expect it to sue, but the people who have harmed it in this case are the officers and directors. So law created derivitive shareholder suit. Basically enforcing the corp’s rights. Law gives right ot sue to shareholder bc people who would normally decide whether or not sue are the people who would in this case be the defendants. Some states say shareholder must first ask corp to bring suit.

2002-12-04T16:19:00.000-08:00

Civil Procedure: 9/16

Washington v. Int’l Shoe Co.

Suit brought by Washington to recover unemployment compensantion taxes owed by Defendant. Invoices and collection made at place of shipmnent: out of state. IS notified in two ways. One of the salemen was served; and service sent to headquarters in MO. Supreme Court must decide whether state can levy tax and assert jurisdiction.

Significance of IS. Suppose have to decide case based on priniciples of Pennoyer. Have to serve process on person of defendant while defendant in the state. Problem that IS is a corporation. Under Bank of augusta v. Early corp. only present in state of incorp. Couldn’t assert jurisdiction in Washington, because chartered in Delaware. Could also assert jurisdiction over property. Could seize the shoe samples. Not going to get Washington money it needs. Have a real problem. What’s the fund. theory of jurisdiction under Pennoyeer? Presence. Presence within a state significant becasue within its own territority a state has sovereinty, raw physical power over everyone and everything within it. Fundamental theory of Pennoyer is physical power over people and things in borders of state. If Washington and the only thing we can assert power over is a pile of shoes.

If look at how IS constructed business, way handled borders, set up manufacturing, trying to make sure no one could say they were present in state of Washington. Structured business so no one could say they were present in Washington. Fundamental theory of IS is fairness. Should be able to assert jurisdiction bc its fair. Penn. asks is it there? IS asks is it fair? pg. 97 first full paragraph: capias ad respondendum: sherriff would arrest the defenadant until trial and until judgement and defendant pays. Court would have controll then of defendant, but we’re civilized now, so don’t. But now that arrest warrant has given given way to summons, dp req. only that in “order to subject a dendant to a judgment in personam, if be not present within the territory of the forum, he have certain mnimum contacts with it such that the maintance of the suit does not offend ‘traditional notions of fair play and substantial justice.” Court gave some help in sorting out when it might be fair to assert jurisdiction. Primary factors in IS that SP said we ought to look to for purposes of trying to answer whether it was fair:

Contacts: Whatever relat. defend. has with forum state. when look at relat. IS has with WA. Systematic and continous contact. At the other end of the spectrum would be isolated, and casual, or none.

Relationship: That relationship is relationship btw these contacts and the plaintiff’s claim against the defendant. That relationship btw. those contacts can be one where the claim is related to the contacts. Other cat. is that the claim might theoretically be unrelated to those contacts.

Under IS look at extensiveness of defendant’s contacts with forum state, and the relationship. IS is systematic and related. Assertion of jurisdiction is under those circumstances fair. DP will be satisfied where defendant maintains systematic contacts with forum, and claim is related to those contacts. Systematic contacts: IS had employs in the state. Claim arose out of the solicitiation of business these salespeople were engaged in.

What about the other categories of cases. Pg. 98 penultimate paragraph: DP does not complate can make in personam judgement with whom state has no contacts ties or relations. Have to have something linking defendant to forum. Could have unrelated claim and isolated contacts: pg. 97. bottom of page. Isolated contacts, unrelated claim, that’s not fair. Systematic and continous, but unrelated claim to those activities: 98 first full paragraph: might be fair under those instances, if the contacts are so substantial, maybe depending on how substantial those contacts are. Isolated and related: 98 second full paragraph: Maybe; depending on the nature and quality circumstances of their commission. Maybe.

Whole diff way of thinking about jurisdiction once get to case like IS. In Penn. v. Neff only think want to figure is if present. Under Penn. if I’m there and served, court has jurisdiction. Penn. gives you a yes, or no. When get to IS get yes, no, maybe. Authors of textbook talk about specific pj, and general pj.

Specific personal jurisdiction deals with cat where plainfiff’s claim is related to defendant’s contacts in state. Minimal contacts.

Other concept is general personal jurisdiction; if state has general pj over defendant if defendant has substantial contacts. Substantial contacts.

Problem 4

1. Isolated contact; related claim. Yes. State has substantial interest to protect citizens in state; that survives continues even though defendant no longer there...
2. Casual contacts, unrelated claim.
3. Have to argue so substantial contacts that corp. can be sued there for anything.
4. Can sue corp. on any claim in state of incorp.

2002-12-04T16:18:00.000-08:00

Civil Procedure: 9/13

What happened historically after decision of SP in Pennoyer and decision in International Shoe. International Shoe foundation for almost all modern decisions court has handed down in regard to tp.

Two types of defendants
Individual
Corporations

Individuals: based on decision in Penn two cats of instances in which Court said can enter judgement against d. d present in forum state and while there seved with process. Court can then adjudicate any claim against d. Or. can assert jurisdiction if defendnant appeared in the original action brought by p, bc if appear in orig. action then present. all based on idea that have so in territory of state and that’s enough.

world began to change after Penn. Cars made people made people much more mobile. in response to cars states confronted situtations where out of state defendant injured so in forum state, and then returned home. Cit. of Penn operated auto in Mass and injured so in Mass. Mass plaintiff instituted process against Penn d who was then Penn. REason p thught could get away with it was bc mass had enacted non- resident motorist statutes. instituted what is called implied consent. even under Pennoyer if d consented to be sued in state, then could be sued. That idea of actual consent then streatched by lot of states into “implied consent.” Drafted statutes like that on pg. 91. Statutes said if you drive auto into our state that act will constittue your consent to be sued in the forum state. Statute req. p. to serve process on state official, and that is the same as if actually served out of state defend. State official must tehn mail to defend. at last known address. called implied consent bc didn’t care actually consented or not. wouldn’t have done any good to write to gov. and say i don’t consetn to be sued in your state.

SP had to decide whetehr these statutes which extracted consent were const. SP upheld non resident motorist statutes. That’s certainly going beyond Pennoyeer which would have held that must serve person of defend. not some state official.

Prob. most dramatic change from Pennoyer were decision of SP that held could serve against person domiciled in state. domicile asserted as valid for personal jurisdiction over defend. even though defend. not present in the state.

Things starting to change a bit for indiv. in regard to strict standards of pennoyer.

Corporations:

Corp. now becoming dominant method by which business in US. Why? Concept of a corp. has great advantages. 1. advantage is that if you’re shareholder in corp. if judgement handed down against the corp. you can’t be held liable. Judgement can only be against corp. holding. in corp. limited liability meant all could take was money had paid to get share. Corp. can last forever, unless take action to dissolve it. Only corp’s own property subject to judgement. Corp. composed of people. People who will incorporate it. Have boards of directors - those people in charge of major business decision. Then officers of corporations - run corp. on day to day basis. Corp. can employ agents to carry on business of corp. Corp. can own prop. in own name and conduct legal transaction.

How do apply Penn. to what is essentially a legal construct. In State of Augusta v. Earl SP said corp. is present only in state where incorporated. Corp. must dwell in place of creation, and can’t migrate. Can always sue corp. in state of incorp. but not anywhere else. Wouldn’t matter if officer or director in another state, couldn’t be served with process. The corp. could sue in any state it wanted to. As corp. form of business became wide spread those restrictions struck courts as unrealistic and unfair. Courts began to dev. theories on when corp. amenable to suit outside state of incorp.

Consent theory: corp. could do business outside stte of incorp. only with consent of other state. states inacted statutes saying if out of state corp wants to do business in state can only do so if appoint agent to be served with process. Like non-resident motorist statutes.
If in fact out of state corp did appoint agent, then corp. could be sued for any claim p. wanted to bring against corp, even though the claim was not based on corp. activities in that state. On other hand, if corp. defied law and didn’t appoint agent, statutes said will appoint agent for it, in which case corp could only be sued in that state for activities in forum. Much more beneficial to violate law than complie.

Presence theory: much slower in gaining acceptance bc of Bank of Augusta which said corp only present in state of incorp. courts realized that corps conducting business in other states by agaents. if enough activity by agents could constitute presence. courts divided on whether corp. could be sued for any claim or only for claim arising out of activities conducted in state.

How did court determine whether corp or consented? By business corp. doing in state. Courts began to talk about doing business as third and only indep. theory as to when could assert personal jurisdiction. Courts guided esp. in the beginning by framework of Pennoyer.

International Shoe:

Foundation for all modern decisions regarding personal jurisdiction. IS incorp. incorp. in Delware. Head Quarters in MO. Had done business in Washington. Washington wanted unemployment compensation. To create fund Washington created unemployment compensation tax. IS did not manufacture shoes in Washington. Had salesmen in Washington. Would take shoe to people. Sometimes would rent rooms. Soliciting orders with shoe samples got from International. Could only solicite offers, which they would tehn send to IS for acceptance. If accepted, shoes would be shipped into the state. IS had approx. 11 salemen. Salesmen paid on commission. Paid collectively approx 31K a year. Washington sent notice of assessment to IS saying you’re supposed to be contributing to unemployment fund and haven’t been. Sent that order to headquarters and personally served one of the salespeople in Washington. IS knew had been assessed these taxes; know this bc show up in Washington and said don’t have to pay. Say not present in state and therefore can’t be taxed and also can’t be sued. If not present in Washington can’t be taxed or sued in Washington. Show up by making a special appearance. Up to Washington whether allow special appearance of not, but allowed IS to do it. Go through agency first, appeal to State circut court, appeal to Washington SP, then appeal to SP. Important for Washington to be able to sue in Washington Court bc many states then said that their courts not open to suits for taxes by another state.

2002-12-04T16:16:00.000-08:00

Civil Procedure: 9/11

Procedures specified in fed. rules of cp how to raise objection to fed. courts for territorial jurisdiction.

1. Pre-answer motion to dismiss. 12 (b) 2 - lack of jurisdiction over person. Whether make motion according to rule 12 b is up to you. Or rather instead what you do, is go ahead and file answer, can then include in answer objection ot jurisdiction. Most folks in these instances will make pre=answer motion. if really think no jurisdiction, then simplest and most direct way to object. and quick easy way to get action dismiss case. most who do realy believe no jurisdiction do this.

have to be careful. if do file pre-answer motion, have to include all objections rule 12 allows you to raise in the pre-answer motion. don’t allow defendant to drag thing out by filing motion after motion. this is under rule 12 g. some exceptions in 12 h (2) and 3.

12 b says every defense in law or fact... shall be asserted in the responsive pleading (answer), except can be inclueded in pre-answer motion. is answer last option, 12 h defense of lack of personal jurisdiction is waived if fail to put in pre-answer motion, or in ansawer. if don’t do either with lack of jurisdiction over person is raised. what i s rule designed to force you to do? raise tj at outset. that way don’t waste people’s time. ironically subject matter jurisdiction does stay alive. why? what does fact can waive territorial jurisdiciton tell about it? not as solid, trying to protect the defendant. D can say i don’t need any protection. tj designed to protect defendant. smj comes from constitution and statutes. fed courts courts of limited smj, only have power congress gives them. courts really feel are courts of limited smj, can only adjudicate cases authorized to, and loathe to overstep. parties can’t confer on courts jurisdiction don’t have. fed. courts can hear cases on fed. law or diversity. acceptance of parties to the jurisdiction is irrelevant.

courts will raise smj, but not tj bc tj protects defendant, and if D doesn’t want protection then court won’t raise the matter. if make objection to tj in pre-answer m., would like to appeal right now. if right don’t want to have go thru the whole trial, in order to appeal and appellate court says no tj, then have done everything, and all for nothing. plaintiff would like to try case. how many kinds of objections can defendant make, lack of tj, smj, statue of limitations, venue, etc. whole list of reasons why case shuoldn’t go forward. should allow to appeal all of them as they are decided. problem with a system that allows that, bc you could drag it out forever, overall cost of litigation increases. would it be allow each ruling made getting to the merits to be appealed as made, not good idea. most state and fed. courts adhere to final judgement rule - can’t appeal until the last thing court does. fed. courts operated under final judgement. most state courts do too. one of reasons final judgemtn rule defended, is that some of things may become moot. final judgemnt rule reduces or perhaps illiminates need for appeal. is in fed. court some things may be appealed before final judgement, called interlocutory appeal. Rule 54 b of FRCP. another example. often must get permission. are exceptions to fjr, but in main only after final judment can appeal.
Hypothetical 3b on pg. 94

Should say both together.

Hypothetical 3c on pg. 94.

Answer: Rule 12 doesn’t answer specifically. by literal terms of rule 12 doesn’t explicity answer. but in theory want to know whether you object to tj or not. shouldn’t be able to do this. can argue though that it should go either way.

Hypos on 86.

if want to know how to raise objection to tj have to look the law of the forum state. forum has right to reg. own procedures. does forum have to give you an opportunity to object? Yes. pg. 82 first full paragraph. Could state where judment being sought say t o you this: if you appear, you waive your objection to tj, only way can object is to wait for default judment against you. SC said can force you to make that choice. as long as state gives you choice. Fed. rules and most state rules will allow you to object on tj and argue on merits, but don’t have to, SC said that in York v. Texas, Texas bc for years Texas said can allow one or other but not both.

Need to look to the law of the forum. May say only way can make objection to tj, is by making special appearance, and only can argue tj, and if argue something else converted to general appearance, in which case you’re present, and tj no longer applies. Fed. Rules don’t require special presence, and can argue both tj and merits.