Midterm (1-6)

Question 1

Constitutional Limits in Litigation

Answer 1

Constitution Art. III § 2 = Sets limits of federal judicial authority. Fed courts cannot exceed these boundaries (SMJ).
Constitution Art. IV § 1 = Full Faith & Credit Clause = Requires that full faith and credit be given in each state to the judicial proceedings of every other state (UNITED states).
Fourteenth Amendment § 1 = Due Process Clause = No state shall deprive any person of life, liberty, or property without due process of law. = A court cannot exercise power over a person unless the state of that court has some connection to that person or the incident.

Question 2

What is personal jurisdiction?

Answer 2

PJ concerns about state’s ability to assert power over a defendant.

Only cares about D because P, by bringing suit, consented to jurisdiction of that court.

Question 3

Pennoyer v. Neff - Key Holding

Answer 3

PRESENCE is required for personal jurisdiction
§ Authority of tribunal is restricted by territorial limits of the state. Every state possession exclusive jurisdiction and sovereignty over persons and property within its territory.
§ No state can exercise direct jurisdiction over persons or property outside its territory.
□ Reason?
® Due Process Clause (14th amendment) restricts power of state governments and would be violated if a court without personal jurisdiction was about to hear a case against you.
® Full Faith and Credit Clause (Art. IV §1 US Const.) tells us that the courts of State A do not need to enforce a judgment against a defendant entered by the courts of State B if State B lacked personal jurisdiction over the defendant.

Question 4

Limitations of Pennoyer:

Answer 4

You don’t have to be / live in a state to cause damage to the state
□ Ex: Prof. Kim chucking trash from NH to VT (with no property in NH); oil spills effecting multiple states; internet.

What about companies?

Question 5

International Shoe Co. v. Washington - Key Holding

Answer 5

“But now due process requires only that in order to subject a defendant to a judgment in personam, if he is not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”
§ PJ changed from being based on presence (D or D’s property) under Pennoyer to fairness under International Shoe Co.

Shaffer tells us that this standard applies to any defendant (corporation or person)

Question 6

What if you sue out of state person and win… how can you collect? Can you?

Answer 6

Take the judgment to that state and they are bound to enforce it (McGee v. Int’l Life Ins. Co.).
Why?
Full Faith and Credit Clause (Art IV § 1).
Makes our states UNITED. Without it, people could just flee to other states.
McGee tells use we can go to a foreign state to get enforcement for your state’s court’s judgment.

Question 7

What are “certain minimum contacts”?

Answer 7

Hanson tells us that we need “some act by which the defendant purposefully avails itself on the privilege of conducting activates within the forum state, thus invoking the benefits and protections of its laws.”
McGee – advertised in sold to Cali. Reached out. (TX life insurance company refusing to pay Cali)
Hanson – bank never reached out to do anything themselves in FL. (one daughter cut out of will)

Question 8

Foreseeability and certain minimum contacts

Answer 8

Foreseeability alone is not enough for PJ. Defendant must benefit from forum states law / purposefully avail itself.
World-Wide Volkswagen Corp. v. Woodson
Foreseeable car bought in NY would be in OK not enough for minimum contacts with OK

Question 9

Why is it important that a company “purposefully avail” itself?

Answer 9

So that it has clear notice it is subject to suit there and can act to alleviate the risk of burdensome litigation via insurance, distributing expected cost, or severing connections.

Question 10

Nicastro weird problem

Answer 10

No majority so no precedent… but if you targeted the entire US shouldn’t that make you liable in every state rather than none?

Question 11

Piercing the corporate veil

Answer 11

Corporation is only technically a sperarate person, really is the alter ego of same company. RARE – used to get around how difficult it is to hold a corporation liable for something another corporation did.

Question 12

Do the “certain minimum contacts” have to cause/give rise to the plaintiff’s claim?

Answer 12

The requirement of certain minimum contacts establishes no “causation” requirement. It is not necessary that the defendant’s forum conduct gave rise to the plaintiff’s claims. Rather, the Court’s precedents require only that the suit “arise out of or relate to the defendant’s contacts with the forum.”
Ford Motor Co. v. Montana Eighth Judicial District Court
Ford’s substantial presence in the states (advertising, selling, and servicing those two car models, even if not the two specific vehicles involved in this case) establishes minimum contacts, and it does not matter that those contacts did not cause the plaintiffs’ injuries.

Question 13

Bristol-Myers Squibb Problem

Answer 13

How can the plaintiffs know where BMS made the drug? Or where the marketing strategy was made?
- Sue them to get discovery… (then it’ll get dismissed for lack of PJ and you have to sue again).

Question 14

What is general jurisdiction?

Answer 14

A state in which any suit may be brought against a defendant for any claim (Shoe tells us all US defendants have at least one state that has GJ over them).

Question 15

What state has general jurisdiction over an individual?

Answer 15

The state of their domicile (residence).

Question 16

General jurisdiction over corporations (development and current)

Answer 16

Goodyear (2011)
GJ requires “continuous and systematic” business contacts that make the corporation “essentially at home” in a state. (BAD LAW since Daimler)
Guideline. Pros = flexible. Cons = too flexible that no one knows that it means.

Daimler AG (2014) (good law)
“essentially at home” for a corporation means either
1. State of incorporation, or
2. State with headquarters (“principal place of business Bright line rule. Predictable. Downside = extremely rigid.

Question 17

What is transient jurisdiction?

Answer 17

Jurisdiction over a nonresident, who was personally served with process while temporarily in that State, in a suit unrelated to his activities in the state. (Still works – see Burnham v. Superior Court).
“Tag” jurisdiction

	Burnham v. Superior Court Weird fact = no majority. Only thing people agree on is that transient jurisdiction still works.

Question 18

Advantages and disadvantages to consenting to PJ

Answer 18

Advantages = avoid cost and time fighting in court about where you can sue (see Bristol-Myers Squibb 5 years)
Disadvantages:
Plaintiff = more options give tactical advantage (e.g. friendly jury)
Defendant = harder to sue. San drag out suit so long P gives up without getting to merits.
Additional = risk of forum selection and choice of law clauses to be used to “ambush”
E.g. Kim’s K from DC that required suit to be brought in France and use Polish law.

Question 19

Forum selection clauses & choice of law clauses

Answer 19

Forum Selection Clause = Determines which state a defendant can be sued in (has PJ).
Choice of law clause = Determines which state’s law applies to litigation, regardless of which state the defendant is sued in.

Question 20

Can a forum selection clause determine PJ?

Answer 20

Carnival Cruise Lines v. Shute
Issue: Can a forum selection clause determine PJ?
Held: Yes, forum selection clauses can determine PJ as long as it is “fundamentally fair.”

Dissent: Plaintiffs were never notified of the FSC. Perspectives of notice can change the issue from “should the law let parties contract their PJ?” to “are some people using FSC to ambush unsuspecting parties?”

Question 21

Weird way defendants can accidentally consent to PJ

Answer 21

Appearing for court CONSENTS to PJ as a defendant. Only way to dispute PJ is by “special appearance” (showing up only to fight about PJ).

Question 22

In personam

Answer 22

Sue the person.

Under Pennoyer, in personam requires that the plaintiff have the defendant personally served process within the borders of the state in question.

Question 23

In rem

Answer 23

Sue the property

Suing the property to universally settle ownership. “Everyone who thinks they have a claim of title come forward.”
Game 7 World Series ending baseballs

Question 24

Quasi in rem type 1

Answer 24

Property and action ARE related.
(only the parties to the lawsuit are bound)
About being made whole
McGee v. Int’l Life Insurance. Co.

Question 25

Quasi in rem type 2

Answer 25

Property and action NOT related
Using property to reach a person (not allowed after Shoe)
“You stabbed me somewhere else, but I can’t find you, so I am going to sue your property for you stabbing me.”
Pennoyer

Question 26

Constitutional requirements of notice

Answer 26

Constitutional requirements require a “fundamental requisite of due process of law” = opportunity (or the right) to be heard.
Right to be heard has “little reality of worth unless one is informed”
There is no formula for satisfactory notice, (doesn’t always have to be personal service) BUT the method of notice must be “reasonably calculated, under all circumstances to apprise the parties . . . And afford them an opportunity to present their objections.”

Subsequent cases make it clear that only very unusual circumstances can justify failure to give personal service to any defendant whose identity and location are known and is not seeking to evade service.

Question 27

FRCP 4

Answer 27

4(m) = defendant to be served within 90 days of filing the complaint
4(c)2 = Any person who is at least 18 years old and not a party may serve a summons and complaint.
Plaintiff can’t personally serve (if he does, P can dismiss for insufficient process)
4(d) = plaintiff can ask D via mail to waive service (can’t serve via mail though).
Carrot = 12a1aii extends time to answer complaint from 21 days to 60 (90 if outside US) if you agree to waive.
Stick = If D does not waive, D must pay for the cost of service if he has without good cause refused to waive.

Question 28

States and service

Answer 28

States might waive personal service depending on facts. Notice requirement does not apply to state courts.
Batido v. Blood-Dzuraku holding service via Facebook to be “reasonably calculated” under the circumstances.

  Increasingly popular to serve over internet in states. Lower costs/

Question 29

But what about a class action with thousands of people? How does courts decide if claimants were properly notified?

Answer 29

Percentage of emails bounced back.
Issue = spam….

Question 30

Specific Performance two prong test

Answer 30

Courts award specific performance when:
1. Damages would be inadequate
2. Specific performance would be in the public interest

       Second prong much harder to meet.

               Lucy Webb Hayes v. Geoghegan (hospital wife)
               Musk buy twitter market manipulation

Question 31

Why are temporary remedies a thing?

Answer 31

Trials take a long time (18 months). Sometimes you need immediate action.

Question 32

Temporary restraining order

Answer 32

65(b).
Usually lasts just long enough to have a hearing on the motion for a preliminary injunction.
CAN be ex parte.

Question 33

Ex parte TRO

Answer 33

61b1
“Without written or oral notice to the adverse party”

Order issued without notice to the opposing party or opportunity for that party to present evidence or argument.
Lasts 14 days… but can be extended ano their 14 days (65b2) (or longer if the other party consents)

Question 34

Doesn’t ex parte violate violate due process?

Answer 34

65b suggests reason for allowing:
Act of notifying opposing party will cause the threatened harm or allows D to get out of reach of the court.

In such cases, 65b allows ex parte no longer than 14 days with a provision for a hearing on two days notice if sought by the party subject to the order.

Question 35

What happens when a TRO expires?

Answer 35

Preliminary injunction

Question 36

What is a preliminary injunction?

Answer 36

65a
Lasts much longer (through trial)
Occurs after evidentiary presentations and argument (but with less discovery and evidence)
Requires notice and a hearing on whether it should be granted

Question 37

Test for preliminary injunction

Answer 37

A plaintiff must establish
1. The case is likely to succeed on its merits at full trial
2. It is likely to suffer irreparable harm without relief.
Winter v. NRDC = must show LIKELY not just possibility.
3. Benefits to plaintiff outweigh the burden to the defendant.
4. An injunction comports with public interest.

Question 38

Problems with preliminary injunctions

Answer 38

What if preliminary injunctions are wrongfully issued?
Ex: alleged patent violation. D about to launch new popular produce. P gets preliminary injunction. Trial lasts years, P loses. D was wrongfully preventing from selling the product AND P doesn’t have to compensate them.

Question 39

Why does personal jurisdiction only “target” the defendant?

Answer 39

The plaintiff, by filing the suit has consented to the jurisdiction of the court.

Question 40

Which of the constitutional provisions most directly concerns personal jurisdiction?

Answer 40

The Due Process Clause of the Fourteenth Amendment

Question 41

Which constitutional provision most directly concerns subject matter jurisdiction?

Answer 41

Article III § 2 of Constitution — Federal courts are courts of limited subject matter jurisdiction.

Question 42

What constitutional provision most directly allows foreign states to enforce judgment of other states?

Answer 42

Article IV § 1 of Constitution — Full faith and credit clause.

Question 43

When Goodyear was still good law, what states had general jurisdictions over corporations?

Answer 43

States in which the company is “essentially at home.”

Flexible guideline.

Question 44

What case replaced Goodyear’s “essentially at home” general jurisdiction for corporations and how did it replace it?

Answer 44

Daimler AG v. Bauman (2014)
General jurisdiction exists over a corporation if that is the state they are incorporated or maintain a headquarters.

Question 45

What do long-arm statutes do?

Answer 45

Long-arm statutes create specific jurisdiction in nonresidents by listing the defendant’s concrete acts.

Question 46

How did PJ change from Pennoyer to Shoe?

Answer 46

Presence Pennoyer -> Fairness Shoe

Question 47

Can states decline to exercise PJ where the constitution authorizes them to?

Answer 47

Yes, as long as it doesn’t grab MORE power than the constitution authorizes them to. Has to follow the constitutional limits of 14th amendment and “traditional notions of fair play.”

Question 48

Federal long-arm statute 4(k) FIRST prong

Answer 48

4(k)(1) federal court has long-arm specific jurisdiction if the state long-arm statute confers personal jurisdiction.

Question 49

Federal long-arm statute 4(k) SECOND prong

Answer 49

If the state long-arm statute doesn’t grant PJ…
4(k)(2) jurisdiction if
1. claim rises under federal law.
2. Defendant is not subject to jurisdiction in any state court
3. Exercising jurisdiction complies with due process “traditional notions of fair play”
We know if it meets 3 if
a. defendant purposefullly directed its activities at the forum
b. lawsuit “arises out of or relates to” those activities.
c. Exercise of jurisdiction is “reasonable” (satisfying a & b likely satisfies c)

Question 50

What does “court of general jurisdiction in the state where the district court is located” mean in FRCP 4k1A

Answer 50

Different than PJ GJ. Refers to a court of unlimited subject matter jurisdiction (opposed to a subject specific court like probate court)