Wed., Sep. 13 w hy I hate personal jurisdiction

Wed., Sep. 13

w

hy I hate personal jurisdiction

c

an California constitutionally assert personal jurisdiction over a Nevadan?

c

an California constitutionally extend its law (which creates $1b in liability) to a Nevadan (no liability under Nevada law)?

i

f states retain sovereignty, which is protected under the Due Process Clause of the 14

th

A, shouldn’t the character of that sovereignty be a matter of international law?

s

pecific in

personam

jurisdiction

Int’l Shoe theory of power

v.

convenience/reasonableness (or “McGee factors”)

Worldwide Volkswagen:

“Even

if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment

.”

Burger King:

McGee factors

“sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required

.”

Asahi

–

McGee factors on their own can knock a case out

t

he puzzling cases – out-of-state activities having in-state effects

McGee v. Int’l Life Ins. Co.

(US 1957)

Demo is incorporated in Pa and has all of its employees and facilities in Pa

i

t sends one of its produce by mail to Paula (a California citizen)

t

he product injures Paula and she sues Demo in Ca

Chung v. NANA Development Corp.

783 F.2d 1124 (4th Cir. 1986)

- Va. P goes to Alaska to buy reindeer horns from Alaska D.

- Wants them to remain frozen.

- Requests that the D ship some of them to him in Va.

- When they arrive in Va. they are melted.

- P sues D in Va.

- no PJ

World-Wide Volkswagen v. Woodson

(U.S. 1980)

i

t is not enough that Seaway could reasonably foresee that product will end up in Oklahoma

must purposefully direct its activities toward Oklahoma

This is not to say, of course, that

foreseeability

is wholly irrelevant. But the

foreseeability

that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.

Ohio v. Wyandotte Chemicals

(U.S. 1971)

A

shoots B

A’s defense is that he did not intend that the bullet enter B, but only that it go right up to B’s body and no further

d

o you always intend the natural and probable consequences of your actions?

American forces drop a bomb on a munitions plant

there is a hospital next to the plant

do the American forces intend to destroy the hospital?

Calder v. Jones (U.S. 1984)

- Floridian Nat’l Enquirer writer and editor were sued, along with publisher and distributor, for defamation in CA state court by CA resident

- Writer and editor argued no PJ in CA because they had no control over where the distribution was

-

SCt

held unanimously there was PJ

w

as it enough that that the Ds could reasonably foresee that their Florida activities would have an effect in Cal.?

Walden v. Fiore

w

hy did the Ds in Calder purposefully direct their activities toward California?

The defendants relied on phone calls to “California sources” for the information in their article; they wrote the story about

the plaintiff’s

activities in California; they caused reputational injury in California by writing an allegedly libelous article that was widely circulated in the State; and the “brunt” of that injury was suffered by the plaintiff in that State.

“In

sum, California [

wa

]s the

focal point both of the story and of the harm suffered.”

The crux of

Calder

was that the reputation-based “effects” of the alleged libel connected the defendants to California, not just to the plaintiff. The strength of that connection was largely a function of the nature of the libel tort. However scandalous a newspaper article might be,

it can

lead to a loss of reputation only if communicated

to (

and read and understood by) third persons.

Accordingly, the

reputational injury caused by the defendants’

story would

not have occurred but for the fact that the defendants wrote an article for publication in California that

was read

by a large number of California citizens.

… In

this way, the “effects” caused by the defendants’ article—

i.e.,

the injury to the plaintiff ’s reputation in the estimation of the California public—connected the defendants’ conduct to

California

, not just to a plaintiff who lived there. That connection, combined with the various facts that gave the article a California focus, sufficed to authorize the California court’s exercise of jurisdiction.

i

s this it…?

It

was the purpose of the Ds' writing the article that it be published (including in CA). They may not have had control over where the article went, but they clearly wanted this publication and distribution.

Essay Question 6

.

D

, a scientist who is a national and domiciliary of Sweden, was employed in Sweden by Magazine (which is incorporated and has all its offices and employees in Sweden) to write an article about widgets. Magazine distributes its magazine all over the world, including California, and D was aware of this. After performing tests in Sweden on widgets provided to him by Magazine, D wrote an article, which was then published and distributed by Magazine, in which he stated that the P Corp.’s widgets were defective. The P Corp. is incorporated and has its principal place of business and all of its manufacturing in California, and D was aware of these facts when he wrote the article. The P Corp. sued D in state court in California for defamation under California law. D makes a motion to dismiss for lack of personal jurisdiction. Will the motion succeed?

c

ontract cases…

Burger King v.

Rudzewicz

(US 1985)

D

(

Mich

) wishes to buy widget from the P Corp (Fla)

h

e learns about the widget from a P Corp website, which he views in

Mich

in the ad, D is required to email an order form to the P Corp’s office in Fla

the order form says that the contract is entered into in Fla (when the D Corp ships the widget) and is governed by Fla law

upon receipt of the widget D is required to send $25 to Fla

D does not pay, so P Corp sues D in Fla state

ct

- PJ?

c

ase is in federal court in Fla

why do we care about the 14

th

Amendment?

Rule 4. Summons

. . .

(k) Territorial Limits of Effective Service.

(1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:

(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;

c

hoice of law clause

choice of forum clause

s

tream-of-commerce

c

omponent part examples

distributor examples

Asahi Metal Industry Co. v. Superior Court

(U.S. 1987)

Justice O'CONNOR announced the judgment of the Court and delivered the unanimous 

 opinion of the Court with respect to Part I, the opinion of the Court with respect to Part II-B, in which THE CHIEF JUSTICE, Justice BRENNAN, Justice WHITE, Justice MARSHALL, Justice BLACKMUN, Justice POWELL, and Justice STEVENS join, and an opinion with respect to Parts II-A and III, in which THE CHIEF JUSTICE, Justice POWELL, and Justice SCALIA join.

Part II-A - O’Connor, Rehnquist, Powell, Scalia

Part II-B – O’Connor, Rehnquist, Brennan, White, Marshall, Blackmun, Powell, Stevens

Part II-B

We have previously explained that the determination of the reasonableness of the exercise of jurisdiction in each case will depend on an evaluation of several factors. A court must consider the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief. It must also weigh in its determination "the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies." (O'Connor II.B)

Part II-A

Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State. But a defendant's awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State. (O'Connor II.A)

Asahi sells all of its valves to Cheng Shin

Cheng Shin just happens to sell all its products in CA and Asahi knows this

p

ower over Asahi in CA under O’Connor approach?

Brennan’s concurrence

Brennan, White, Marshall, Blackmun

As long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise. Nor will the litigation present a burden for which there is no corresponding benefit. A defendant who has placed goods in the stream of commerce benefits economically from the retail sale of the final product in the forum State, and indirectly benefits from the State's laws that regulate and facilitate commercial activity.

(Brennan, concurring)

Stevens’s concurrence

The plurality seems to assume that an unwavering line can be drawn between "mere awareness" that a component will find its way into the forum State and "purposeful

availment

" of the forum's market. Over the course of its dealings with Cheng Shin, Asahi has arguably engaged in a higher quantum of conduct than "[t]he placement of a product into the stream of commerce, without more...." Whether or not this conduct rises to the level of purposeful

availment

requires a constitutional determination that is affected by the volume, the value, and the hazardous character of the components. In most circumstances I would be inclined to conclude that a regular course of dealing that results in deliveries of over 100,000 units annually over a period of several years would constitute "purposeful

availment

" even though the item delivered to the forum State was a standard product marketed throughout the world.

(Stevens, concurring – with White and Blackmun)

J. M c INTYRE MACHINERY, LTD., v. NICASTRO

(U.S., June 27, 2011)

Kennedy’s opinion (4)

Breyer’s concurrence (2)

Ginsburg’s dissent (3)

Kennedy’s opinion

Kennedy:

“The principal inquiry in cases of this sort is whether the defendant’s activities manifest an intention to submit to the power of a sovereign….Sometimes a defendant does so by sending its goods rather than its agents. The defendant’s transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State.”

“These facts may reveal an intent to serve the U. S. market, but they do not show that J. McIntyre purposefully availed itself of the New Jersey market.”

Breyer’s concurrence

Here, the relevant facts found by the New Jersey Supreme Court show no “regular … flow” or “regular course” of sales in New Jersey; and there is no “something more,” such as special state-related design, advertising, advice, marketing, or anything else. Mr. Nicastro, who here bears the burden of proving jurisdiction, has shown no specific effort by the British Manufacturer to sell in New Jersey. 

(Breyer, concurring)

Ginsburg’s dissent

Ginsburg:

“In sum, McIntyre UK, by engaging McIntyre America to promote and sell its machines in the United States, “purposefully availed itself ” of the United States market nationwide, not a market in a single State or a discrete collection of States.”

“[N]o issue of the fair and reasonable allocation of adjudicatory authority among States of the United States is present in this case. New Jersey’s exercise of personal jurisdiction over a foreign manufacturer whose dangerous product caused a workplace injury in New Jersey does not tread on the domain, or diminish the sovereignty, of any sister State.”

w

hat does it mean for a cause of action to arise out of or be related to contact with the forum state?

e

vidence test

but-for test

Driver, a citizen of New York,

is on his way to his

summer home in

Massachusetts

a

fter

driving through Connecticut, he

hits Pedestrian, a citizen of

Connecticut in

Massachusetts

i

s

Driver subject to specific personal jurisdiction

in

Connecticut

?

Hotel

(UK) offer to Mass. Co. for discounted rates on UK hotel

Mass. Co. makes reservations for employees

to stay at Hotel for a business

trip

w

hile

staying at Hotel, Employee drowns in Hotel pool.

PJ over Hotel

in Massachusetts?

NY Co. distributes

its widgets in every state in the

country

i

t

sends a defective product into Pennsylvania where Consumer, a citizen of Ohio, purchases

it

Consumer

takes the product to his home in Ohio where he suffers serious injuries caused by the

defect

PJ

over

NY Co. in

Ohio

?

s

ame as above except Consumer as co-plaintiff with P, an Ohioan who bought his widget in Ohio

t

he internet

Zippo

Manufacturing Co. v. Zippo Dot Com, Inc.

(W.D. Pa. 1997)

active

interactive

passive

Jackson v. California Newspaper Partnership (N.D. Ill

. 2005)