I



I. The Big Picture

A. where is everyone’s:

1. domicile, residence, contacts

2. where is the accidents situs

3. what are the relevant laws of ea. jx?

B. where is there personal jurisdiction?

1. domicile

2. minimum contacts

3. where did coa arise (usually if tort happened there, there are min con)

4. other places you can personally serve D (“gotcha jx”)

C. laws of each jx:

1. is the coa recognized there?

2. what defenses are available in the forum?

D. choice-of-law of each jx (whose laws will they apply?)

1. a forum always applies its own COL doctrine

2. but that may mean applying the substantive/procedural laws of another forum

3. conflict or no-conflict? (or false conflict)

II. Flowchart

1. jx

2. long-arm (rule)

3. notice

4. choice of law of forum

5. whose law is chosen

III. Personal Jurisdiction (territorial)

A. to get jx:

1. statute or rule to authorize service of process

2. notice

3. power to hail into court (DP – this is where min/con or “gotcha jx” comes in)

B. minimum contacts (specific jx: only good enough to hail you into ct. for that case!)

1. minimum contacts: purposeful availment of the privileges of conducting bsns in the forum (except Asahi)

a. making a mobile product & knowing it could be carried by consumer to forum state is not purposeful availment b/c it is unilateral activity of the consumer WW Volkswagen

b. consider the “nature and quality” of the activity and the cirx of their commission

c. foreseeability alone is not enough, but…

d. rzbly anticipate being haled into court there

e. chain of distribution & streams of commerce:

i. two scenarios:

A) product purchased in forum: jx over everyone in chain of distribution (b/c maker can rzbly anticipate it will be sold in forum)

B) product purchased outside state, brought into forum by the P: have to do min/con analysis

ii. Asahi: split court (there is no rule); there were min/con, but not FPSJ (but probably would be okay today

A) O’Connor -- knowing products may be brought to forum not enough; must purposefully direct activities at the forum (intentional contacts w/ forum like advertising) or “intent to serve the market”

B) Brennan – awareness the product is marketed in forum is enough

2. does not offend traditional notions of FP & SJ (fair play & substantial justice)

* this can negate/bolster a strong/weak finding of minimum contacts!

a. burden on the D

i. this does not include merely having to appear out of state but some substantial obstacle

ii. must burden your getting a fair trial

b. P’s interests

c. forum state’s interest in adjudicating the dispute

d. interstate judicial system’s interest in obtaining efficient resolution of the claim

e. shared interests of all the states in furthering substantive social policies

f. ease of access to proof, witnesses, etc.

C. General Jurisdiction

1. “gotcha” jx (in personam jurisdiction) (physical presence)

a. people: physical presence & personally serve them

2. domicile: you are always generally present here

a. people

i. the place to which you return

ii. you were once physically present there

iii. with the intent that it be your permanent home

b. corporations: can have many places of general jx

i. incorporated

ii. own property there

iii. have employees there, etc

iv. test: is the D engaging in such activity that it is reasonably fair to sue them for anything by anyone there

3. property in rem actions (follow the usual min/con test)

a. in rem: property status decided against everyone

b. type I cts. have jx over disputes arising out of the land in their jx

c. type II: dead – must do min/con analysis Shaffer v. Heitner

D. consenting to jurisdiction

1. general appearance = consent

2. designate agent for service of process = consent (you are consenting to be sued there b/c serving your agent for process is = serving you…but you can still be sued elsewhere)

3. special appearance does not give consent but you can only specially appear to attack jx or notice of the court

4. no collateral attack unless:

a. no notice

b. no personal jx

c. => you can collaterally attack, but you’d better be right!

E. Internet Jurisdiction (Zippo)

1. Mink v. AAA

a. just b/c you have a web page doesn’t mean you’re present

b. a website on the Internet doesn’t mean you’re doing bsns in every state

2. Zippo

a. if you do bsns by entering into K’s with residents of other states that involves the knowing and repeated transmission of files over the Internet = personal jx (C&S activity from which suit arises out of)

b. if you just advertise on your website => no jx!!!

c. middle ground – exercise of jx is determined by level of interactivity & commercial nature of the exchange of info. that occurs on the website:

i. who reached out? did company reach back?

ii. substantial connection btwn use and site?

iii. arise out of website?

iv. FP & SJ

IV. Service of Process

A. Texas has long-long-arm statue

B. strict compliance is req’d

C. must comport w/ DP (the rule)

V. Forum Selection clauses (Bremen)

A. prima facie valid

B. will be upheld unless unrzbl

C. no fraud, undue influence, overreaching allowed

D. they only chose forum, not law!

E. K’s of adhesion (Carnival Cruise Lines)

1. adhesion K’s not invalid pers se

2. so must evaluate the rzblness of the clause

3. SCt. used very liberal (easy to meet) rzblness test

4. Texas: generally the same

VI. Notice

A. notice must be rzbly calculated to give actual notice (else violates DP) Mullane

B. but actual notice is not required

C. ways to give notice

1. personal service (best)

2. mail

3. if you can’t find them & used due diligence => publication is enough

VII. FNC (Forum Non Conviens)

A. will seldom happen b/c of the “FP & SJ” part of the min/con analysis

B. may happen with “gotcha” jx

C. factors:

1. private interests of litigant (access to proof, cost, practical problems)

2. public interest (docket mngmt, jury duty, no eerie cts.)

D. to win…

1. there must be another jx available!!

2. factors must tip strongly in your favor

3. trial ct gets much discretion

VIII. Transfer Venue

A. can only transfer to a jx where D was amenable to process

B. not hard to get; avail. to P and D

C. the ct that originally had jx (before transfer) will have their COL rules apply!

IX. CONFLICTS & CHOICE OF LAWS

A. generally:

1. No conflict- law same in both/all states so apply the law of the forum

2. False conflict- law different but there is only one interested state

3. True conflict- two or more interested states each with a different law

B. some rules

1. as for capacity, the law of the A's domicile controls.

2. a forum always applies its own choice of law rules.

a. § 90: if you believe the law is against your public policy, you must dismiss the action and not just replace it with your own law (if another state has most significant relationship).

C. analysis of cases

1. tort, K, property, procedure?

2. what states are interested?

3. (if K, is there a COL provision)

4. is there a statute of the forum that controls?

5. what is the state is the state of MSR? § 6 factors

D. Tort

a) to to gateway § 145

how many states are interested?

• where did injury occur?

• where did the conduct causing injury occur?

• where are parties

• realationship of the parties is centered

i. one --> stop

ii. more than one -->

is there a conflict of laws?

1. there is no conflict of law issue --> stop

2. there is a conflict of law issue -->

characterize the specific legal issue(s)

choice of law statute?

A. there is a choice of law statute of the forum that applies => follow it (it trumps a state’s judicial choice of law doctrine per §6.1 of the rsc)

B. there is no choice of law statute

perform the § 6 MSR analysis on each issue

I) presumption: apply law of where cause of action arose

II) balancing overcome? use factors

1. needs of interstate an international system

2. relevant policies of forum

• show the policies of the state are furthered (set-back) by the facts of the case

• more than just showing it’s the forum!!!!

• do not say it helps the Texas P recover!!!! that’s not a valid MSR factor

3. policies of other interested states & their relative interests to determining the issue

4. protection of justified expectations

5. basic policies underlying the particular field of law

• law moving in a direction?

• better rule of law argument

6. certainty, predictability and uniformity of result and

7. ease in determining & applying the law to be applied

• not that the law is “hard” to apply

• but that it is particularly cumbersome to the facts of the case

8. public policy in Texas:

• good morals

• natural justice

• or is prejudicial to the general interests of our own citizens

• do not say the law is different, b/c different isn’t bona fide against public policy (dissimilarity doctrine)

• IF against PP of the forum, result? must refuse to entertain the suit (dismiss the lawsuit) but Texas hasn’t accepted the comments to § 90, yet, so they are probably willing to listen to a PP argument.

E. Contract: go to gateway

F. Property: go to gateway

G. Procedure: some special rules – see flowchart

Personal Jurisdiction

I. Is there consent (implied, or express/contract), domicile, or personal in-state service?

II. Is the long-arm statute satisfied?

III. Is constitutional Due Process satisfied? (Minimum contacts ala Intl Shoe)

A. Purposeful availment?

B. Did the action arise out of the forum contacts? (i.e. specific jurisdiction)

C. is exercise of personal jurisdiction reasonable on the facts?

1. minimum contacts

a. systematic and continuous

b. nature and quality

c. reciprocity -- enjoyed benefits and protections of forum?

2. fair play / substantial justice

a. interest of the forum state

b. burden on defendant

c. foreseeability of being haled into court in forum

d. completeness of records and evidence

Personal Jurisdiction Hypos

Q: Company A does no business in IL, however, A's HQ is in St.Louis, very close to IL. P has a vacation home in IL and thinks it would be very convenient to litigate in IL. Can P sue A in IL?

A: No. A does not have the "minimum contacts" with the forum state IL required by Intl Shoe. There doesn't appear to be any of the normal contacts required such as purposeful availment by conducting business, presence of headquarters, state of incorporation, and no foreseeability of being haled into court in IL. Further, there seems to be no state interest for IL. It may not be very inconvenient for A to litigate in IL, and it may be in their base of operations, particularly if P wants to sue in East St. Louis.

Q: Company A operates one retail outlet in Washington. A customer buys a defective product there. Can the customer sue A in Washington?

A: Yes. Personal jurisdiction would lie here because A has purposely availed itself of the privilege of doing business in WA. This business activity creates a reciprocity where A enjoys the benefits and protections of WA law. The operation of a retail outlet would be considered a systematic and continuous activity, and A could expect they might be sued in a location where they conduct business. There is a state interest in regulating the businesses in that state. Even if general jurisdiction did not lie, specific jurisdiction would because the suit arises out of the very activity that A conducts in that forum state.

Q: Company A operates retail outlets in WA but not OR. An OR citizen visits the WA store and buys a defective product, which she takes back to OR. Can she sue A in OR?

A: Probably no. Since there seems to be no activities purposely directed at OR, there is no reciprocity. This one contact with OR was due to the unilateral act of someone other than the defendant. Hanson v. Denckla would suggest this isn't enough. If any of the stores are close enough to the border such that OR is in their "base of operations," Kenerson, that might create enough systematic and continuous contacts with OR, and it also make a lawsuit in OR foreseeable. If A could foresee being haled into court, it probably wouldn't offend "traditional notions of fair play and substantial justice."

Q: Suppose OR resident saw product in WA store and then ordered it directly from A to her home by mail. Can she sue A in OR?

A: There is just one contact here, it may not be enough that A would foresee being sued in OR. If P can find evidence of prior shipments to OR she'd have a stronger case, but purposeful availment is weak on just one contact. This contact may give rise to specific jurisdiction, as the suit arises out of the one contact with the forum state.

Q: Suppose OR resident picked up the product in Missouri while in St. Louis, making it very clear she was taking the product back to OR. Can she sue in OR?

A: No. This is just like WWVW, even if the sales clerk is told that the product will go to another state, that does not give A foreseeability that they might be sued there. They are not purposely availing themselves of the benefits and protections of OR, there is no systematic and continuous contact. It wouldn't be fair to P and it would not be convenient for D to take all the records that are in MO to OR to try the suit.

Q: Suppose A makes product components and sells them to a PA company that incorporates them int a product that is sold in OR. Can an OR consumer who is injured by a defective component sue A in OR?

A: No. This is like Asahi, that laid out a two step process: (1)minimum contacts/purposeful availment, (2)fair play/substantial justice. Placing a product into the stream of commerce plus knowledge that it would reach the forum was enough for 4 justices, but they are all gone from the court now. Something more is probably required to meet minimum contacts. A doesn't have purposeful availment either, as the other company takes the component to the forum state. Fair play/substantial justice probably wouldn't even be considered, but if it was, there is probably no foreseeability of being sued in OR. There is a state interest in having safe products and efficiently resolving the issue, but an efficient resolution would be in A's home state where the records all are and under Carnival the burden of carrying on a lawsuit in a distant state doesn't seem to carry much weight.

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