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Civil Procedure Outline

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Importance of jurisdiction:
Court's power over you to issue judgment that is entitled to enforcement by other states because of Full Faith and Credit clause o
Knowing where you are/could be subject to jurisdiction tells you what laws apply to you

4 lug (CA)/3 lug (MI) hypo o
Laws, juries, attitudes toward corporations etc. vary across states
** note federal and state courts sitting in the same state have the same jurisdictional reach (Federal Rules of Civ Pro Rule 4k)
3 types o
(1) in personam: power over D himself because of presence/personal service,
agent, consent, domicile

General: court can adjudicate any claim

Substantial activity unrelated to litigation

Personal service/presence/agent/consent

Domicile (residence for person; state of incorporation or principal place of business for corporation)

Specific: court can adjudicate only claims related to activity in that forum

Substantial activity/isolated activity of D related to litigation o
(2) in rem: power to adjudicate ownership of property located in the forum o
(3) quasi in rem: power over D up to the value of D's property owned within the state (limited FFAC)

QIR 1: property related to litigation

Survives if min contacts (between defendant's property and the dispute) is shown, but rare because in personam Jx is a good substitute
(unless need to seize property for protective reasons/security attachment)

QIR 2: property unrelated to litigation

Sanctioned by Pennoyer/Harris, destroyed after Shaffer

Sniadach: before property seizure, need a mini-hearing

Wage garnishment is not permissible property seizure because imposes hardship o
(4th type from Mullane): jurisdiction out of necessity

when state's interest is so obvious as to allow jurisdiction over a socially beneficial system (ex. common trust fund)
2 step analysis of jurisdiction o
(1) statutory authorization

Type 1: statutes exercising Jx up to the limits of the due process clause

Type 2: statutes exercising Jx over specific enumerated contacts with the state (ex. Transacting business, committing a tortious act, owning property)

** requires that the claim arises out of the enumerated act of the defendant 

Difficulty interpreting statutes

Ex. Tortious act (Gray in IL SC defined this as final act that caused injury; other courts have used location where the tort was done - state where thing was manufactured)
(2) constitutional/DP clause authorization

Does exercise of Jx violate due process?
Evolution o
Power theory

State can assert jurisdiction over people/property within its territories,
over which it has power

Pennoyer - If you cannot get someone (Heff) with in personam jx, must seize their property (their land grant) first before adjudication (QIR jx)

3 Problems

*** QIR power too broad with intangible property

Harris - court determined that location is debt is wherever the debtor is

Implication that bank funds can be seized wherever the debtor is and can withdraw the money

*** Mobile society with transportation allows people to move easily - can get out of the forum after wrongdoing before service in forum

*** Where is corporations located apart from their state of incorporation?
Consent theory

Expansion of consent to implied consent

Hess - if drive in this state, can assert Jx because we imply from your driving here that you consent to Jx by service by agent

Types of consent

Express ("I want ice cream")
Implied ("You didn't say you want ice cream, but you brought cherries, sprinkles, and whipped cream to class")
Coerced Consent ("In order to enroll in this class you need to have ice cream")
Imputed Consent ("If you come to class I'll assume you want ice cream")
Forced Consent ("I'll steal your laptop unless you take this ice cream")

o *** adjudication of legal status of in-forum person that affects another out-of-forum person
 Jx OK with (1) competency (2) marital status (3) child custody because of presence  Jx not OK with (4) child support/alimony (5) debtor status because this is property that affects status of out-of-forum person > need to establish Jx over out-of-forum person first
 Burnham: adjudicating child support/alimony ok because out of state person came into the forum and was served, allowing general Jx
 Scalia/Brennan debate about power theory vs. fairness

Elimination of QIR 2
 Quasi in rem Jx requires Int'l Shoe min contacts analysis: does the QIR property relate to the dispute?
 Shaffer - statute on QIR (saying that shares in Delaware corp is located in
Delaware) is facially unconstitutional because capable of gross abuse (allows Jx over someone with shares in Delaware corp because of pension plan in a claim unrelated to the stock)
 QIR is just another way to reach out of state defendants like in personam jurisdiction

Fairness theory
 Int'l Shoe: to have Jx, D must have "minimum contacts with the forum so that jurisdiction does not offend the traditional notions of fair play and substantive justice"
 Minimum contacts is limited to cases arising out of the relations between D and state (relatedness)
 Note: contacts is not about quantity, but "quality and nature"
 No contacts/isolated contact/casual contact > no Jx
 Single act/continuous but limited contact > specific Jx
 If substantial or pervasive contacts > def specific Jx, maybe general Jx!
 (1) Requires purposeful availment (PA) (Hanson)
 Defendant must actively/volitionally reach out to the state (not passive relationship) and purposeful avail itself of the opportunity to conduct activities in the state, thus getting economic benefits and protections of the forum

Hanson - contact must arise from defendant's actions, unilateral action by plaintiff (moving to Florida and exercising power of appointment) that creates contact between defendant and forum not enough, agreement was made in DE and DE trust activities
(communication and payment) not rise to solicitation in McGee and constitute PA

Counterargument (BN): after she moved, defendant continued to correspond with her and send her income payments! > counterargument: bank had an obligation to continue the trust, could not walk away!

Kulko - D didn't make daughter go to CA, unwillingly allowed her to - "acquiescence" (sending kids to CA is not enough to imply volitional behavior) 

Walden - agent did not actively created contact with NV, only contact of interaction with the gamblers who happened to be affiliated with residents of NV is not enough

WWVW - no PA because consumer unilaterally moved car into OK,
WWVW never reached out to OK

Cannot only foresee movement of product into the forum,
must foresee possibility of being haled into court there because of the availment of privileges and benefits of the forum state

Keeton - PA because Hustler intentionally targeted D

Calder - PA because Florida defendants knew of the magazine circulation in CA, exploited the CA market, targeted the plaintiff and caused harm!

He did not invoke the protections of CA laws or intended/expected to receive a corresponding benefit

McGee - in reaching out to CA, soliciting the policyholder, creating the contract, and continuing the ongoing relationship, the company volitionally created min contacts with CA

*** does not require physical presence/action of D in forum state
(can act outside and cause harm inside)

Calder - Florida D never been to CA but still Jx because out of state actions of writing the libelous article caused harm to
P's reputation inside forum
Stream of commerce test

Stream of commerce (SC) = flow of defendant's goods into the forum state and the final consumer through a distributor or final manufacturer/ series of economic events and changes good goes through before reaching consumer (what's the best definition)

NOT SC when the consumer after purchase moves the object around to another state

WWVW - SC ended with the sale in NY

2 approaches from Asahi split

O'Connor (4): SC + general foreseeability (awareness that goods could reach a state) not enough

Need specific foreseeability/ intent to serve market

Intentional Targeting/Conscious Affiliation/
D seeks to serve the market > designing for the market, advertising, customer service for people in that market etc.

Subjective test: ask for subjective intent in addition to causation 

McIntyre plurality (Kennedy 4): no specific foreseeability because McIntyre did not directly advertise in NJ

Calder: specific foreseeability from knowledge that magazine circulates in CA

Brennan (4): SC + general foreseeability enough

Objective test: only look for causation

Gray: uses objective test because harm caused in
IL, generally foreseeability that good would end up in IL

McIntyre (Ginsburg 3): Mc was targeting the U.S.
market including NJ!

Additional approach from Stevens: SC + high volume is enough

Asahi: torrent of commerce - min contacts

McIntyre (Breyer/Alito): trickle of commerce (few machines) - no min contacts

BN dislikes because no metric to determine if SC is torrent or trickle (1000 $1 pens vs. 1 $1000 machine)
Calder's effects test: jx if "conduct expressly aimed at the forum state,
knowing that the brunt of the harmful effects would be felt there"
(usually tort, not sufficient alone to establish Jx)

Keeton - caused injury to P nationwide, court seems to invoke G Jx but BN thinks it is expanded specific Jx 2 - specific related jx
(magazines in NH similar to magazines in other states)

Calder - Florida D knew that national enquiry serves and circulates in the CA market where P is, targeted CA aimed at harming P and caused harmful effects in CA

*** there is no special First Amendment set of min contacts

Effects test limited by

Kulko - harmful effects test not useful in domestic contexts
(don't want domestic decisions affected by legal strategy),
limit test to "disputes involving commercial activity or wrongful activity done outside the state but generating instate negative effects"

Walden - D must also actively reach out to the state to create contacts (police did not target NV, gamblers happened to be NV residents)

WWVW - D's sole contact with state due to consumer movement of good into the forum not enough

General: WWVW, Gray, McIntyre

Specific: Calder, Keeton 

If intentional tort, only need general foreseeability (because D are less sympathetic as they intended to hurt someone, could generally foresee that someone would be harmed)
If unintentional tort, need to prove foreseeability (because specific f incentivizes people to change their conduct)

Contracts-plus analysis
 Contracts plus ongoing business and economic relationships (place of negotiation, execution, performance of contract)
 Burger King contracts test: "a court is to look at all of the communications and transactions between the parties, before,
during and after the consummation of the contract, to determine the degree and type of contacts the defendant has with the forum,
apart from the contract alone"
 Burger King: jx because contract, defendant's continuous communication/negotiation with Miami headquarters,
relevant notices and payments sent to Florida
 McGee - there was a contract and continuous economic relationships between the policyholder and the company
 Hanson - no jx because despite the presence of contract, there was unilateral movement by tracehe party and D did not reach out to that forum volitionally
Reciprocity as part of PA? (getting benefit from the state: rule of law,
economic benefits/exploitation of market)
 Walden no jx because customs official not receive benefit from NV
 Stream of commerce cases: WWVW did not benefit from OK (no sales there)
 Hanson: Bank did not receive benefits from Florida (vs. dissent: they did, getting premiums from a Florida resident!)
Types of claims/relationship to PA
 Contracts: PA and specific jx easiest to establish
 Because specific intent and voluntariness of defendant is required for entering into a valid contract and contracts are bilateral in nature, contracts imply a higher degree of volitional conduct. Contracts often involve an economic transfer, allowing the defendant to exploit the forum state of the other contracting party. (McGee, BK)
 Often a contract is preceded by ongoing negotiations or followed by ongoing conduct and relationship
 Bilateral nature of contract creates a race to the courthouse problem because jurisdiction can be established in both forum states where the contracting party is over the other party.
 Intentional tort: PA easier to establish unintentional torts, more difficult than contracts 

Intentional tort requires specific intent of the actor to create an effect or an injury (such as exploiting a market or destroying someone's reputation) (Keeton, Calder, Walden)
Unintentional tort: whether there is PA depends on min contacts/approach of stream of commerce
 Because unintentional torts does not require specific intent or a consensual relationship, need to look at the contacts of D
with the forum and determine whether they are sufficient and related to the dispute (Gray, Asahi, McIntyre, WWVW)
Family law: court reluctant to incentivize domestic behavior based on strategic legal calculations (not apply effects test in Kulko)

(2) Relatedness: plaintiff's claim must arise from or relate to the defendant's contacts with the forum
 Adjudicatory facts must overlap with merits facts
 Bristol-Meyers Squib - no jx over non-Californians: Non-resident claims did not arise in California, so their claims do not arise out of or relate to activities of defendant in the state
 Defeats idea of expanded specific jurisdiction/specific related jurisdiction (argument that the pills non-CA plaintiffs took were the same pills as the CA plaintiffs took)
 Goodyear - no specific jx because only few tires sold in NC (not suff contacts) and those tires are different from tires in the accident (contacts not related to dispute)

(3) Asahi Trap Door: Jx Reasonable?
 Can have min contacts but no Jx because Jx not reasonable
 5 factors:
 (1) burden to defendant (least dispositive)
 Defendant must prove jx is so gravely difficult and inconvenient that D is in a severe disadvantage in the case compared to the opponent (BK) (difficult standard)
 Overseas corporation?
 (2) forum's interest in adjudicating
 Are parties citizens of the state?
 Mcgee - CA had interest to provide redress to citizens wronged by an out of state company
 Asahi - CA has no interest in providing forum for indemnification claim between a Taiwanese and
Japanese company
 Daimler - CA has no interest to provide forum for foreign plaintiffs to sue a foreign corporation (with no contacts with CA) over a foreign tort (interest in advancing HR
everywhere is not sufficient)

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