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Jurisdiction And Preclusion Outline

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STAGE ONE: JURISDICTION & PRECLUSION I.

Personal Jurisdiction - U.S. CONST. amends. V, XIV; FRCP 4 a. Synthesized Rule i. If state has general jurisdiction over D, P may sue D in state for any good reason. This is established by domicile or possibly "systematic and continuous" operations in a state. ii. If state has specific jurisdiction over D, P may only sue D in state for reasons due to
D's contact with the state. This is established by minimum contacts. b. Textual Rule i. Due Process: state/federal deprivations of life/liberty/property require due process. U.S. CONST. amends. V, XIV. ii. Establishing Jurisdiction: serving a summons establishes personal jurisdiction over a D
who is subject to the state of the court or who is a party joined under Rule 14 or 19 and is served not more than 100 miles from where the summons was issued or when authorized by federal statute. FRCP 4(k). iii. D Not Subject to Any Jurisdiction: if case is federal question, summons also establishes P.J. over D who is not subject to jurisdiction in any state's courts, so long as consistent with the U.S. Constitution and laws. FRCP 4(k). c. Analysis i. Establishing Jurisdiction

1. If the state court would have jurisdiction, the federal court in the state also has P.J. FRCP 4(k)(1)(A).

2. There are two types: specific jurisdiction and general jurisdiction. ii. Standards for Establishing Specific Jurisdiction

1. There must be an affiliation between the forum and the controversy, via minimum contacts, fair play, purposeful availment, "systematic &
continuous," etc. Goodyear.

2. J. McIntyre "Purposeful Availment" Standard (2011) a. D must purposefully avail itself of privileges of conducting activities in a state for it to have P.J., with the minor exception of intentional torts. This standard includes the explicit consent of D, i.e. Pennoyer; the presence within a state at time of suit, i.e. Int'l Shoe; and citizenship, domicile, or principal place of business. b. The standard rejects foreseeability; jurisdiction is question of sovereignty, not fairness. c. Similar to O'Connor's dissent in Asahi, that D must have a "substantial connection" with state.

3. World Wide Volkswagen "Stream of Commerce" Standard (1980) a. If D can reasonably foresee that it could be haled into court by participating in a stream of commerce, P.J. is okay. But the foreseeability must be reasonable, i.e. P who unilaterally visits different state is not enough. World Wide Volkswagen.

4. Int'l Shoe "Minimal Contacts" Standard (1945) a. Whenever D exercises privilege of doing business in state, this may give rise to specific jurisdiction over the activity if D has "minimal contacts" with the state; some isolated/sporadic acts of such nature to justify "presence," e.g. Hess. i. Another example: an insurance company had one Cal. policy; this was enough for Cal. to have P.J. over that policy. McGee v. Int'l Life Ins. Co. (U.S. 1957).

5. Silver "Valid Interest" Standard (N/A) a. A state should have personal jurisdiction over D if it has a valid interest in doing what it wants to do, e.g. protect its citizens from threatening D who never set foot in state. iii. Standards for Establishing General Jurisdiction

1. Applies to D's home, domicile, principal place of business, or "systematic and continuous" operation in state; it means state has unlimited P.J. over D for anything. Goodyear. This is much easier to establish than specific jurisdiction, if true, and is based in consent.

2. Tag Jurisdiction a. Warm-bodied Ds may be "tagged" with general jurisdiction simply by entering a state, so lnog as they were not forced to be there. E.g.

Burnham v. Super. Ct. (U.S. 1990): N.J. D travelled to Cal. for business and was served with Cal. divorce by wife. Since he was in the state, state has P.J. over him. b. This does NOT apply to corporations. c. Partnerships are considered groups of individuals; if one member of a partnership is in, e.g., New York, he may be served on company's behalf. First American Corp. v. Price Waterhouse LLP (2d Cir. 1998).

3. Domicile a. Applies to where D both resides and intends to reside indefinitely.

4. Principal Place of Business; Corporations v. Unions/Partnerships a. "Principal place of business" of corps. is determined in various ways, e.g. "nerve center." But if D has systematic and continuous operation in a state, it may be subject to PJ even if not the principal place of business. b. Examples i. Philippine corp. that temporarily had principal place of business in Ohio. Perkins v. Benguet Consol. Mining Co. (U.S. 1952). ii. Corp's regular purchases from Tex. not gen. jur. Helicopteros (U.S. 1984).

5. Pennoyer "Consent" Standard (1878) a. State has absolute power within its borders, and none outside of them. Service must be within the state, and presence in state is prerequisite for jurisdiction. Pennoyer v. Neff (U.S. 1878). b. This applies to "tag" jurisdiction, too. Burnham. iv. Service & Enforcement

1. Service done in-state establishes P.J.; most states don't allow this when D was forced to go there.

2. The minimum contact / stream of commerce / purposeful availment standards are all alternatives for determining whether an absent D's property (quasi in rem) is related to litigation, not whether a present party may be served with process. Burnham.

3. If State A has P.J. over D, State B must enforce its decisions. U.S. CONST. art. IV. But if State A does not have P.J. over D, State B cannot enforce A's decisions because of the 14th Amendment.

4. If D never returns to State A or State B, either may enforce "quasi in rem" jurisdiction by attaching property to the claim to force D to appear. If D does not, the sheriff may sell the property. v. Special Appearances (State Court Only)

1. D who rejects claim to jurisdiction may make a special appearance in state court to challenge jurisdiction via a writ of prohibition, if challenging it in litigation would, itself, establish jurisdiction. This occurred in Int'l Shoe and World Wide Volkswagen. d. Cases i. Goodyear Dunlop Tires Operations v. Brown (U.S. 2011): D made tires in Turkey that killed P's kid in France. D's parent was based in N.C. and was sued there. Despite a "stream of commerce," there is no affiliation between the forum and underlying controversy, and court does not have general jurisdiction r. ii. Hess v. Pawloski (U.S. 1927, 696): Pa. P got in car accident in Mass. A Mass. statute said by driving in the state, P gave implicit consent that RMV in state may be served with process. Since state may exclude drivers, state may allow drivers privilege in exchange for implied consent. iii. Int'l Shoe Co. v. Wash. (U.S. 1945, 700): Del. corp. D, based in Mo., had salesmen in Wash. arranging sales of shoes. Did not pay Wash. taxes, and Wash. served a salesman. Since D had "systematic and continuous" operation in the state, Wash. has general jurisdiction.

1. Black, J., concurring: rule should be when state can tax corporation, it can serve process too. iv. World Wide Volkswagen Corp. v. Woodson (U.S. 1980, 720): P sold cars in N.Y.; D
purchased car and drove to Okla., where a defect blew up the car. P made a special appearance to challenge P.J.; no P.J. since the contacts between P and Okla. were too attenuated. "Woodson" was D because P made special appearances and asked for writ of prohibition against Woodson, Okla. judge.

1. Marshall, J., dissenting: state should have P.J. over products whose purpose is to be able to go there. v. Kulko v. Super. Ct. (U.S. 1978): N.Y. divorcee went to Cal.; husband bought tickets for kids to visit. She sued him and claimed tickets were minimal contacts. No P.J. since D
had not availed himself of Cal. privileges. vi. J. McIntyre Machinery v. Nicastro (U.S. 2011)(plurality opinion): U.K. D made product that was distributed to U.S. through independent intermediary. One product made it to N.J., where it harmed P. Even though D marketed the product in other states, it didn't go to conventions in N.J. Since D didn't purposefully avail itself of N.J. laws, no P.J.

1. Breyer, J., concurring: a strict rule of intent may be too narrow for purposeful availment, but a single isolated sale is not enough. Yet foreseeability is too broadly pro-P.

2. Ginsberg, J., dissenting: this rule allows Ds to escape liability via independent distributors. Fairness, foreseeability, and stream of commerce standard is best. vii. Asahi v. Superior Ct. (U.S. 1987)(Brennan + 3): stream of commerce is all D needs for P.J.: if D can foresee goods will be sold in Cal., Cal. has P.J.

1. O'Connor, J., dissenting (+ 3): need stream of commerce plus substantial connection. viii. Burnham v. Super. Ct. (U.S. 1990): N.J. D travelled to Cal. for business and was served with Cal. divorce by wife. Since he was in the state, state has P.J. over him. ix. Squibs

1. Specific Jurisdiction a. Lesnick v. Hollingsworth & Vose Co. (Utah 1989): no P.J. in Md. for Mass. asbestos company that sold to manufacturer which marketed products nationally. b. Parry v. Ernst Home Ctr (Utah 1989): no P.J. in Utah for Japanese D
which sold product to exporter, who sold to consumer in Idaho. c. Boit v. Gar-Tec Products (1st Cir. 1992): no P.J. in Me. for D from Ind. just because Me. P bought tool via specialty tool catalogue. d. Shute v. Carnival Cruise Lines (9th Cir. 1990): Wash. has P.J. because
D solicited business and purposefully availed, and solicitation led P to claim (i.e. but-for causation). e. Nowak v. Tak How Investments (1st Cir. 1996): proper standard is proximate cause: whether D could see that advertising would lead to liability; P went from Mass. to H.K. because of special ad. rates. f. Aristech Chem. Int'l v. Acrylic Fabricators Ltd. (6th Cir. 1998): reasonable for Canadian D to be sued in Ky. because it's close and uses same common law background. g. Buckeye Boiler Co. v. Super. Ct. (Cal. 1969): D made boilers sold in Cal. but the boiler that injured P was not sold in Cal.; court held that D
could foresee that boiler would reach Cal.

2. Consent / Gen. Jur. a. Nat'l Equip. Rental Ltd. v. Szukhent (U.S. 1964): D signed form authorizing P to serve wife as their N.Y. agent. P.J. okay. b. Adam v. Saenger (U.S. 1938): P consented to P.J. by filing suit; counterclaim therefore has personal jurisdiction. c. Nobel Floral Inc., v. Plato (Cal. App. Ct. 2003): P who filed suit in Cal. consented regarding a later suit from same transaction. d. Phillips Petrol. v. Shutts (U.S. 1985): nationwide class action implicitly consents to P.J., which is okay because counterclaims are extremely rare. e. M/S Bremen v. Zapata (U.S. 1972): freely negotiated forum select. clause valid. No P.J. in U.S. f. Carnival Cruise Lines v. Shute (U.S. 1991): forum selection on form contract also valid. II.

Subject-Matter Jurisdiction Part I: Federal Question - U.S. CONST. art. III; 28 U.S.C. SSSS
1331, 1333, 1343 a. Synthesized Rule/Procedure i. P may sue in federal court regarding any "well-pleaded" complaint where the case or controversy arises under the Constitution or federal law/treaty.

ii.

The federal question must be brought by P's complaint; it may not be raised in D's defense or counterclaim. b. Textual Rule i. Federal Question: district courts have original S.M.J over civil actions arising under the Constitution or federal laws or treaties. 28 U.S.C. SS 1331. ii. Civil Rights Cases: district courts also have original jurisdiction over cases in which people seek damages under an act of Congress re: civil rights. SS 1343. iii. Admiralty: district courts have exclusive S.M.J. over admiralty or maritime jurisdiction. SS 1333. iv. Supreme Court Jurisdiction: the Supreme Court may hear an appeal from a State Supreme Court that decides a case that turns on a federal question. 28 U.S.C. SS 1257. c. Analysis i. Federal Defenses

1. The federal question must be raised by the claim, not the defense, even if the defense is expected. Louisville & Nashville R.R.

2. D may not remove based on a defense or anticipated defense either. Rivet v. Regions Bank (U.S. 1998).

3. Ps might get around this with inventive pleading. American Inves. Co. Countryside, Inc. v. Riverdale Bank (7th Cir. 1979). a. But if to prove the state claim P must prove a federal claim, this is "artful pleading" and removable. Bright v. Bechtel Petroleum, Inc. (9th Cir. 1986). b. Also Ps cannot attempt to get a declaratory judgment just to declare a federal defense invalid; the case is a federal question only when coercive action would itself be within the federal jurisdiction. Skelly Oil Co. v. Phillips Petrol. Co. (U.S. 1980). c. So it is not okay for P to sue for declaratory judgment on whether federal law upholds D's defense. Franchise Tax Bd. v. Const. Lab. Vaca. Trust (U.S. 1983).

4. D's counterclaim with a federal question also fails well-pleaded complaint test. The Holmes Grp. v. Vornado (U.S. 2002). ii. Federal Defense Exceptions & Preemption

1. When D is a federal officer (SS 1442), a member of the armed forces (SS 1442(a)), a D who cannot enforce rights in state court (SS 1443), or a congressionally created corporation, Osborn v. Bank of United States (U.S. 1824). a. Same thing with the American Red Cross. American Red Cross v. S.G. (U.S. 1992).

2. P may also sue for injunctive/declaratory relief against state law on grounds of preemption, as there is implied right of action under supremacy clause. Verizon Md. Inc. v. Public Servs. Comm'n (U.S. 2002).

3. Complete Preemption: when statute so completely preempts particular area, e.g. Labor Mgmt. Relations Act, all questions are federal questions. Avco Corp. v. Machinists (U.S. 1968). a. If there is complete preemption, there is an exclusive federal cause of action. Ben. Nat. Bank v. Anderson (U.S. 2003). b. Artful pleading by P precludes considerations P declined to raise unless Avco applies. Rivet v. Regions Bank (U.S. 1998).

4. Supreme Court Exception: a. If the State Supreme Court decides a case that turns on a federal question, the Supreme Court may hear the case. 28 U.S.C. SS 1257. iii. State Claims with Federal Ingredients

1. This is rare. The federal issue must be substantial and arise from a common nucleus of operative fact as the state claims. Three-part test: a. the federal law or issue must be applied to resolve the claim; b. there must be a strong federal interest at stake; c. the issue must present few implications for the federal-state division. Grable & Sons. iv. Domestic Relations & Probate Exception

1. Federal courts do not have power to issue divorce, alimony, child custody decrees, etc. They do have power to weigh in on domestic violence torts. Ahkenbrandt v. Richards (U.S. 1992).

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