Civil Procedure The Express Train: General Overview of a Civil Action Jurisdiction 1. Capron v. Van Noorden (SMJ) 2. Tickle v. Barton (PJ) Structure of the lawsuit claims & parties 3. Temple v. Synthes (Joinder, Rule 19) 4. Jeub v. B/G Foods (Third-party, Rule 14) Motions to dismiss (Rule 12) 5. Case v. State Farm 6. Pruitt v. Cheney Discovery 7. DiMichel v. South Buffalo Railway Co. 8. Tran v. New Rochelle Hospital Summary judgment (Rule 56) 9. Valley National Bank v. J.C. Penney Insurance Co. 10. Houchens v. American Home Assurance Co. Division of authority between judge and jury (Rule 50) 11. Lavender v. Kurn Appeal 12. Hicks v. United States Claim Preclusion 13. Rush v. City of Maple Heights

1. Subject-matter jurisdiction: Capron v. Van Noorden, 1804a. Overview i. U.S. Supreme Court (orig. NC Federal District Court) ii. Capron sued for trespass on the case (negligence, a state law claim) iii. Van Noorden, won; Capron appealed, saying court should not have accepted the case because did not determine whether it had jurisdiction iv. Capron won the appeal and the right to begin suit again; claim preclusion not possible because original judgment was voided. However, the court might exercise equitable estoppel in the interest of fairness. b. Subject matter jurisdiction (the courts authority to hear generic types of cases) i. Question: Can the plaintiff appeal based on a lack of jurisdiction in a court that he had chosen in the first place? 1. Lack of jurisdiction: The court would only have SMJ if the case was a diversity case (not a federal question); however, the record did not show where Capron was from, so it was unclear if the court had SMJ. ii. Answer: Yes; it is the duty of the court to determine jurisdiction. iii. Reasoning: (not in the case, but discussed in class) Emphasis on SMJ is attempt to limit the federal court from infringing on state court jurisdiction (does not have concurrent jurisdiction).

2. Personal jurisdiction: Tickle v. Barton, 1956a. Overview i. West Virginia Supreme Court of Appeals (orig. WV state circuit court)

ii. Tickle sued for personal injury damages against Barton (owner of car, VA resident) as well as the driver of the car iii. Barton filed an amended plea in abatement, challenging the validity of service of alias process, saying he was tricked into entering WV 1. *Plea in abatement = a response by the defendant that does not dispute the plaintiff's claim but objects to its form or the time or place where it is asserted iv. Judge ruled in favor of Barton; ruling affirmed on appeal. b. Personal jurisdiction (geographical limitation on the places where a plaintiff may sue a defendant) i. Question: Do the alleged circumstances of the service of process upon Barton (if considered to be true) render that service invalid? i.e., was the defendant fraudulently brought under the courts jurisdiction? ii. Answer: The court ought not to exercise its jurisdiction over the case, because it was attained through fraud. iii. Dissenting opinion: The facts properly alleged do not establish fraud or wrongdoing, so the rule of law that was applied was not relevant. c. Related notes from class i. State court had SMJ because they have general SMJ, can hear any case at all, here a car accident case (competent) ii. Key idea: you have to get the defendant into the state to get personal jurisdiction. The state cannot reach into other states. 1. Later we will see that in some cases this is not true 2. Note: Federal court cannot reach any farther than the state court of that state can (Rule 4k1a)

3. Joinder: Temple v. Synthes, 1990a. Overview i. U.S. Supreme Court (orig. Louisiana federal district court) ii. Temple (Miss. resident) sues Synthes (PA corp.) in federal court for defective device; at same time, sues doctor LaRocca and hospital in Louisiana state courts for malpractice iii. Synthes moves to dismiss Temples federal suit for failure to join necessary parties (Rule 19); court orders Temple to join LaRocca & hosp. in the interest of judicial economy iv. Temple refuses to join; court dismisses suit. Temple appeals and U.S. Court of Appeals affirms, saying it is prejudicial to defendants to have separate litigations occurring (claims overlap). v. Supreme Court reverses judgment b. Joinder i. Rule 19(a): If joining a certain party will not mess up SMJ, the party should be joined as long as (1) complete relief cannot be afforded without joining the party, OR (2) not joining the party will impair his ability to protect any interest he may have in the matter and/or leave him able to subject the already-parties to substantial risk later on. (Should be joined if considered indispensable.) 1. Note: a tortfeasor with joint-and-several liability is merely a permissive party to an action against another with like liability- so not necessarily subject to Rule 19 2. *Joint-and-several liability: a plaintiff may recover all the damages from any of the negligent defendants regardless of their individual share of the liability

ii. Question: Are LaRocca & the hospital indispensable to the case under Rule 19? Theycan be brought in because it would not destroy diversity, but must they?

iii. Answer: The threshold requirements necessary to apply Rule 19(a) here have notbeen met, so the plaintiff should not be required to join LaRocca in the suit. iv. Reasoning: LaRocca & hospital are potential joint tortfeasors with Synthes (thus merely permissive parties), and it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit. 1. Inconsistent outcomes should not be a concern with this case c. Related notes from class i. In considering what makes sense in a procedural question, need to consider which values we aim for: fairness, efficiency, accurate outcome ii. Is it more efficient to have one or two suits? Time, money if claims overlap, the parties may try to bring each other into each separate trial. iii. Is it fair? Have to worry about inconsistent verdicts; having one jury decide would prevent this from happening iv. Synthes desire to join suit: why? To shift some blame to doctor (although they could do that with doctor as witness too perhaps); using the rule to stall or get case dismissed

4. Third-party Practice: Jeub v. B/G Foods, 1942a. Overview i. U.S. District Court (not an appeal) ii. Jeub sues B/G Foods for serving plaintiff contaminated ham; B/G Foods makes Swift & Co. (producer of the ham) a third-party defendant (Rule 14) iii. Swift (third-party defendant) moves to vacate the order making it a third-party. Court denies this motion. b. Issue of Third-Party Suit i. Rule 14: A defendant ( third-party plaintiff) may at any time serve a complaint on a non-party ( third-party defendant) who is or may be liable to the defendant/thirdparty plaintiff for all/part of the plaintiffs claim against the defendant/third-party plaintiff. 1. Note: different from Rule 19. Here, with Rule 14, defendant claims no liability and transfers it to another party (who must indemnify them if defendant held liable). In Rule 19 (joinder), defendant admits liability but desires to share it with another party. ii. Question: Does the fact that the third-party plaintiff (B/G) has not yet suffered any loss prevent B/G from impleading Swift? iii. Answer: The fact that an independent action for money recovery cannot be brought at this time does not prevent the defendant (as third-party plaintiff) from impleading another party. iv. Reasoning: Rule 14 permits the impleader of a party who is or may be liable, and it allows for the rights of all parties to be determined in one proceeding. One jury will save time and expense, and will still be serving justice (determining the controversy in one proceeding will not prejudice the rights of any of the parties). c. Related notes from class i. Rule 14 is about passing on liability to another party. See contrast with rule 19 in other document.

Two motion to dismiss cases: At issue is the question of the courts duty, when considering a motion to dismiss, to create a claim that the plaintiff has not clearly articulated in the complaint. Differing interpretations of Rule 12(b)(6).

5. Motion to dismiss, part one: Case v. State Farm, 1961a. Overview i. U.S. Court of Appeals (orig. federal district court) ii. Case sued three insurance companies for damages growing out of the termination of his contract as representative iii. Court granted a motion to dismiss; Case appealed, appeals court affirmed. b. Motion to dismiss i. Question: Was the district court correct to dismiss the case because the plaintiffs stated claim was not a legal cause of action even though facts included in the claim may have entitled him to relief? ii. Answer: Yes. It is not the duty of the trial court or the appellate court to create a claim which appellant has not spelled out in his claim. iii. Reasoning: The plaintiffs cause of action was not valid because the termination of the contract by the insurance companies was legal according to the terms of the contract. His language refers to the wrongful interference of the companies in his business in violation of the contract, which would have been a valid claim, but he did not state this as his claim. c. Related notes from class i. Rule 12(b)(6) takes facts alleged in the case, assumes theyre true, and then asks if there is a legal case. ii. This case embodies one of two ideas about civil procedure: that civil litigation is a dispute resolution mechanism between private parties, with the court providing only an adjudicator to that dispute.

6. Motion to dismiss, part two: Pruitt v. Cheney, 1991a. Overview i. U.S. Court of Appeals (orig. federal district court) ii. Pruitt sued the Army for suspending her promotion after finding out from a Los Angeles Times article that she was gay. iii. Army filed a motion to dismiss and court granted it; Pruitt appealed. Appeals court affirmed in part and reversed in part. b. Motion to dismiss i. Question: Was the district court correct to dismiss the case because the plaintiffs stated claim was not a legal cause of action even though facts included in the claim may have entitled her to relief? ii. Answer: No. The complaint should not be dismissed merely because plaintiffs allegations do not support the legal theory she intends to proceed on, since the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible legal theory. iii. Reasoning: Even though plaintiffs claim of action based on the violation of her First Amendment rights was invalid, her allegations of the unconstitutionality of the Armys regulations requiring her discharge are sufficient to state an equal protection claim. c. Related notes from class i. Like Case, this case is interpreting Rule 12(b)(6), but oppositely. Why? 1. Regional difference in interpretation of federal rules?

2. Forgiveness for issues that the court determines to be important? 3. Embodies one of the two ideas about civil procedure: the more public vision of the legal system that envisions the court as an extension of the people, having a duty to ensure justice. ii. This case, and Case, are different from a 12(b)(6) dismissal where the plaintiff states a claim upon which no legal relief can be granted these two are legal claims, but the claims are faulty or invalid. Even if all facts are assumed true, plaintiffs cant win with these claims. 1. 12(b)(6) sorts out (1) being in the wrong dispute resolution system (not having a legal case); and (2) having a weak legal case

7. Discovery, part one: DiMichel v. South Buffalo Railway Co., 1992a. Overview i. New York Court of Appeals (orig. NY state circuit court) ii. Personal injury case. Plaintiff moved to compel disclosure of surveillance video taken of him; motion granted (though only for materials planned for use in trial. Upheld on appeal. b. Discovery of video i. Question: Are surveillance films prepared by a defendant in a personal injury action discoverable by the plaintiff before trial? ii. Answer: Yes, though the defendants are only obligated to disclose those tapes which they plan to use at trial, and only after plaintiff has been deposed. iii. Reasoning: Surveillance films are a material prepared in anticipation of litigation, so are subject to qualified privilege that is overcome only by substantial need and undue hardship. 1. Substantial need: plaintiff would need to verify authenticity of the film before trial started, to avoid disruption and delay. a. In order to prevent plaintiffs from tailoring their testimony according to the film, they must be deposed before seeing it. 2. Undue hardship: plaintiff cannot obtain the substantial equivalent of surveillance materials by other means- unique visual evidence. c. Related notes from class i. Defendant does not use one of the formal methods of discovery

8. Discovery, part two: Tran v. New Rochelle Hospital Med. Ctr., 2003a. Overview i. New York Court of Appeals (orig. NY state circuit court) (same as DiMichel) ii. Personal injury case. Plaintiff moved to compel disclosure of surveillance video taken of him. Defendants argued that plaintiff should be deposed first. Decision in favor of plaintiff. b. Discovery of video after legislative changes i. New statute: There shall be full disclosure of any films There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use. ii. Question: Does the new statute overrule the aspect of DiMichel which allows defendants to withhold surveillance tapes until after plaintiff has been deposed? iii. Answer (not in case materials): Yes. Because the new statute does away with the primary aspect of the DiMichel ruling (regarding which parts of the film must be disclosed), it must also do away with the timing aspect of the ruling. c. Related notes from class

i. The more full the discovery is, the better, because it may avoid the need for trial altogether if, after discovery, a motion for summary judgment may be granted. ii. Here we see a rule that is overturned by a new rule- more than one way to go about things. In these situations, lawmakers fall back on policy arguments to decide new rules based on the ultimate goals of efficiency, fairness, and accuracy.

9. Summary judgment: Valley Natl Bank of Arizona v. J.C. Penney Insurance Co., 1981a. Overview i. Arizona appeals court (orig. AZ state circuit court) ii. The estate of a disappeared man (Frank Seay, remains found in desert) sued an insurance company to pay up on an accidental death policy. Defendant filed for summary judgment, which was granted. Seays estate appealed; decision reversed and case remanded. b. Summary judgment i. Question: Taking the evidence and inferences presented in a light most favorable to appellant (Seays estate), does a genuine issue of material fact exist as to whether Seays death was accidental? ii. Answer: Yes. An accidental death may be reasonably inferred from the circumstances here. More proof than that is not needed at this time. iii. Reasoning: No one was able to ascertain cause of death. Circumstantial evidence supports, to an extent, the reasonable inference that the death may have been accidental. While plaintiff does have the burden of proving that the death was accidental, that does not have to happen until the trial. (Insurance companys argument was that summary judgment should be granted because plaintiff had not yet proved that the death was accidental.) c. Related notes from class i. The burden of proof is on the plaintiff when trying to win the case. In order to win at trial, they need a preponderance of evidence (more than 51% of the evidence in their favor). But, when a defendant moves for summary judgment, the burden of proof is on them to demonstrate that the standard for issuing a summary judgment has been met. ii. Standard for issuing a summary judgment: The plaintiff, after discovery, does not have enough evidence to prove a central element of their case. Disclosed facts do not support outcome. If the plaintiff shows that there is a genuine issue of facts, so that a reasonable juror might decide in their favor, the judge cannot issue a summary judgment.

10. Summary judgment: Houchens v. American Home Assurance Co., 1991a. Overview i. U.S. Court of Appeals (orig. federal district court) ii. Wife of disappeared man (who went to Thailand and never came back, presumed dead) sued insurance company to pay accidental death policies. Company moved for summary judgment; it was granted, and affirmed on appeal. b. Summary judgment i. Question: Is there a general issue of material fact after drawing any inferences in the light most favorable to Houchens? ii. Answer: No. The inferences in this case show equal support for opposing conclusions, so a jury would not be able to reasonably conclude that the death was caused by accident rather than by other means.

iii. Rationale: Wife must prove that husband died by accidental death; given the evidence, she cannot do this. She has failed to make a showing sufficient to establish the existence of an element essential to her case, and on which she would bear the burden of proof at trial. iv. Contrast with previous case (Valley): here there is no circumstantial evidence that supports inferences in plaintiffs favor. c. Related notes from class i. When making inferences, you have to assume the husband dead, because the state of Virginia ruled that he is legally presumed dead. ii. Evidence that would have helped plaintiff: a body, a witness, expert testimony

11. Motion for judgment as a matter of law: Lavender v. Kurn, 1946a. Overview i. U.S Supreme Court (orig. MO state circuit court, then state supreme court) ii. Estate of dead man (Haney) sued two railroad companies. Haney was killed by an unknown cause while on the job. Plaintiff claimed Haney was killed by a hook hanging off a train, so sued the railroad who owned the train for negligence as well as the railroad who owned the station for maintaining an unsafe workplace. iii. Original jury found in favor of plaintiff; on appeal, state supreme court reversed, citing no evidence of negligence substantial enough to support the submission of the case to the jury. U.S. Supreme Court reversed that decision, and remanded the case. b. Motion for judgment as a matter of law i. Question: Was the state supreme court justified in claiming that there should have been judgment as a matter of law, i.e. that the case should never have been sent to the jury? ii. Rule of law: A judge can take a case away from the jury only when, after plaintiff has presented evidence at trial, it is clear that no reasonable jury could find for plaintiff. Moreover, a judge can overturn the jurys verdict only when there is a complete absence of probative facts to support the conclusion reached by the jury. iii. Answer: No. There was evidence from which it might be inferred that plaintiffs allegations are true; this inference cannot be said to be so unreasonable as to warrant taking the case from the jury. iv. Reasoning: Speculation on the part of the jury is not just acceptable, it is necessary whenever facts are in dispute or the evidence is such that fair-minded men may draw difference inferences. c. Related notes from class i. No fact decided by a jury can be re-examined. So you cant overturn a jury exactly, but you can say that the jury was not reasonable in its decision. ii. Judge writing this opinion is clearly a legal realist who cares about the facts of the case and believes they should be heard by a jury.

12. Appeal: Hicks v. United States, 1966a. Overview i. U.S. Court of Appeals (orig. federal district court) ii. Administrator of dead womans estate sued for malpractice the doctor who misdiagnosed her. The doctor worked for the U.S. Navy. The lower court dismissed the complaint because the evidence was insufficient to establish negligence. Appellate court reversed the original judges decision, finding negligence. b. Appeal i. Question: Do the undisputed facts manifest negligence?

ii. Answer: Yes. The doctor did not conform to the required standard of care, so heis liable for negligence. iii. Reasoning: The standard of care is such that if he uses ordinary care in reaching his diagnosis, and thereafter acts upon it, he incurs no liability, even if the diagnosis was incorrect. In this case, the doctor did not use ordinary care, according to the experts. iv. More important issue: The ability of this court to overturn the lower court judges dismissal decision. 1. Question: Does a finding of negligence constitute a finding of fact or a question of law? 2. Rule: Only questions of law can be reviewed and overturned by appellate courts. A trial judges (or jurys, if there is one) finding of fact cannot be disturbed unless clearly erroneous. 3. Answer: A finding of negligence is a question of law because it involves not only the formulation of the legal standard, but also its application to the evidentiary facts as established. Thus, when a judge sitting without a jury makes a determination of negligence, his conclusion is freely reviewable on appeal. c. Related notes from class i. Question of jurisdiction. Why in federal court? This case arises under the Federal Torts Claims Act because it is against the U.S. government. The govt has sovereign immunity, except when its agents involve in torts (in some situations). In those cases, the litigation is tried in the govts own federal court system. 1. Why no jury? The Federal Torts Claims Act does not permit one, because it states that a government is not subject to the decision of its own subjects. ii. Fact and law. In trial, the jury usually distinguishes facts and the judge concerns himself with the law. Here things are more complicated because there is no jury. Judge does everything. The facts have to be distinguished from the law because an appellate court can only review questions of law, not re-decide any matters of fact. 1. This is because matters of fact, when decided in lower court, are decided based on first-hand viewing of witnesses and evidence, something that the appeals court cannot do. At the same time, the appellate court is able to make decisions on law issues because it is not bogged down by issues of fact and can focus exclusively on the law. Specialization. Moreover, trial judges have to make many decisions during the case of a trial and cannot think about each one as long; but appellate judges think about fewer decisions, because only one or a few are brought up in each appeal. 2. Facts can only be reversed in appellate court if they are made by a judge and clearly erroneous. (Jury findings of fact can never be reversed.) The legal decision, on the other hand, is reviewed from scratch (de novo). Thus, when appealing, you want to frame the matter at hand as an issue of law, not fact. In this case, in order to appeal a finding of negligence, the appeals court has to conceptualize it as a legal decision, not a factual one.

13. Preclusion: Rush v. City of Maple Heights, 1958.a. Overview i. Ohio Supreme Court (orig. Cleveland municipal court & county court- 2 actions) ii. Personal injury case. Rush sued the city for negligence (street maintenance) for personal property damage in municipal court and won. Also sued city for personal injuries in county court and won. She was allowed to go forward on the issue of damages alone in the 2nd trial because the issue of negligence was res judicata.

iii. On appeal of 2nd case, judgment reversed and found for defendant.b. Preclusion i. Question: Did the courts, following the precedent of the Vasu case, permit error in permitting the plaintiff to split her cause of action? ii. Vasu ruling: Injuries to person and property suffered by the same person as a result of the same wrongful act are infringements of different rights and give rise to distinct causes of action. So, as long as judgment was for the plaintiff in the first property damages case, that is no bar to an action subsequently prosecuted for personal injury. iii. Answer: Yes. Whether or not injuries to both person and property resulting from the same wrongful act are to be treated as injuries to separate rights or as separate items of damage, plaintiff may maintain only one action to enforce his rights existing at the time such action is commenced. Thus the rule declared in the Vasu case should not be followed. iv. Reasoning: The rule in the Vasu case is in conflict with the majority practice and has caused vexatious litigation. The majority practice has been to require all damages sustained to be sued for in one suit, to prevent multiplicity of suits, burdensome expense, and delays to plaintiffs. The Vasu rule is applicable only when an insurer has acquired the right to recover for money it has advanced to pay for property damage, and the insured sues separately for personal injury. c. Related notes from class, first time around i. First case: Rush asks for property damages, and thus needs to prove the issue of the citys negligence (and does). Second case: Rush asks for personal injury damages arising from same set of operative facts (same accident) as in the first case. ii. Claim preclusion means that all claims arising out of one incident/transaction that could have been brought in an action, even if not brought, merge into the first judgment and cannot be brought again. This is why Rush cannot bring her related claim in a second suit. iii. Rushs argument that the issue of negligence was already res judicata was an attempt at issue preclusion because it was already decided in a previous suit. iv. Concurring judge justifies overturning Vasu by claiming that the relevant passages in that opinion were just dicta, not the case holding. Also, in this case, there was no insurer, so the Vasu rule was not relevant. d. Related notes from class, second time around i. Case #1: Rush v. City ii. Case #2: Rush v. City (same parties) iii. In second case, Rush tries to run issue preclusion against the city (liability already established). City tries to run claim preclusion against Rush (all claims Rush should have brought in first case are merged into the first judgment). iv. Both cases were brought in the same judicial system: intrajurisdictional preclusion.

The Local Train: Detailed Journey into Each Step of the Civil Action Personal Jurisdiction 1. Pennoyer v. Neff (traditional bases of PJ) 2. Hess v. Pawloski (undermining the bases established in Pennoyer) 3. International Shoe Co. v. Washington (minimum contacts standard) 4. Gray v. American Radiator (long-arm statutes) 5. McGee v. International Life Insurance Co. (optional squib jurisdiction trends & forums interest) 6. Hanson v. Denckla (optional squib unilateral activity) 7. World-Wide Volkswagen v. Woodson (two-part test) 8. Burger King v. Rudzewicz (two-part test) 9. Asahi Metal v. Superior Court (purposeful availment & stream of commerce) 10. Helicopteros Nacionales v. Hall (specific/general jurisdiction) 11. Snowney v. Harrahs Entertainment (the internet) 12. Harris v. Balk (property) 13. Shaffer v. Heitner (property) 14. Burnham v. Superior Court (physical presence) 15. Carnival Cruise Lines v. Shute (consent) Procedural Due Process 16. Mullane v. Central Hanover Bank (notice) 17. Jones v. Flowers (notice) 18. Goldberg v. Kelly (opportunity to be heard) 19. Mathews v. Eldridge (opportunity to be heard) 20. Fuentes v. Shevin (OTBH) 21. Mitchell v. W.T. Grant Co. (OTBH) 22. North Georgia Finishing v. Di-Chem (OTBH) 23. Connecticut v. Doehr (OTBH) Subject-Matter Jurisdiction 24. Mas v. Perry (diversity determining citizenship) 25. Arbaugh (diversity timing requirement) 26. AFA Tours v. Whitchurch (diversity amount in controversy) 27. Osborn v. Bank of the United States (federal question constitutional interpretation) 28. Louisville & Nashville Railroad Co. v. Mottley (federal question plaintiffs claim only) 29. TB Harms Co. v. Eliscu (federal question Holmes test) 30. Smith v. Kansas City Title & Trust Co. (federal question exception to Holmes test) 31. Merrell Dow Pharmaceuticals v. Thompson (federal question private right of action) 32. Grable v. Darue (federal question 3-part test) 33. United Mine Workers v. Gibbs (supplemental jurisdiction nucleus of facts) 34. Aldinger v. Howard (supplemental 2 defendants) 35. Owen Equipment v. Kroger (supplemental complete diversity) 36. Finley v. United States (supplemental statutory authorization) 37. Exxon v. Allapattah/Ortega v. Star-Kist (supplemental amount in controversy) Venue and Transfer 38. Bates v. C&S Adjusters (venue) 39. Hoffman v. Blaski (transfer of venue) 40. Piper Aircraft v. Reyno (forum non conveniens) Ascertaining the Applicable Law 41. Swift v. Tyson 42. Erie RR Co. v. Tompkins 43. Stewart v. Ricoh Pleadings 44. Dioguardi v. Durning (pleading dismissals with 12(b)(6))

45. American Nurses Association v. Illinois (pleading dismissals with 12(b)(6)) 46. Beeck v. Aquaslide (pleading amendments, rule 15) 47. Worthington v. Wilson (pleading amendments, rule 15) 48. Zuk v. Eastern Penn. Psychiatric Institute (pleading truthful allegations, rule 11) Structure of the Case 49. Harris v. Avery (historical joinder of claims) 50. M.K. v. Tenet (permissive joinder, rule 18 and 20) 51. United States v. Heyward-Robinson (counterclaims, rule 13) 52. Lasa Per LIndustria v. Alexander (cross-claims, rule 13) 53. Bank of California v. Superior Court (joinder of necessary and indispensable parties, rule 19) 54. Too v. Kohls Department Stores (third-party impleader, rule 14) 55. Smuck v. Hobson (intervention, rule 24) 56. Falcon v. General Telephone (class actions, rule 23(a)) 57. Castano v. American Tobacco Co. (class actions, rule 23(b)) 58. Hansberry v. Lee (class actions, due process considerations) 59. Snyder/Zahn (not outlined class actions, subject matter jurisdiction) 60. Phillips Petroleum Co. v. Shutts (class actions, personal jurisdiction) Discovery 61. Cummings v. General Motors (initial disclosures, discovery sanctions) 62. Hickman v. Taylor (attorney work product) Summary Judgment 63. Lundeen v. Cordner (motion by plaintiff) 64. Cross v. United States (motion by plaintiff) 65. Adickes v. S.H. Kress (motion by defendant) 66. Celotex Corp. v. Catrett (motion by defendant) 67. Anderson v. Liberty Lobby Inc. 68. Matsushita Electric v. Zenith Radio Corp. Trial/Right to a Jury 69. Beacon Theatres v. Westover (which claim gets heard first, legal or equitable?) 70. Local 391 v. Terry (how do you know if a claim is legal or equitable) 71. Galloway v. United States (rule 50, directed verdict/j.n.o.v./judgment as a matter of law) 72. Unitherm Food Systems v. Swift-Eckrich (rule 50) 73. Aetna Casualty & Surety Co. v. Yeatts (rule 59, new trial motion) How Do Cases End? Judgments: Remedies, Appeal, and Preclusion 74. Liberty Mutual Insurance Co. v. Wetzel (appeal- final judgment rule) 75. Cohen v. Beneficial Industrial Loan Corp. (appeal- collateral judgment rule) 76. Will v. Hallock (appeal- limiting the collateral order doctrine) 77. Mathews v. New York Racing Association (claim preclusion) 78. Federated Department Stores v. Moitie (claim preclusion) 79. Mitchell v. Federal Intermediate Credit Bank (claim preclusion/defense preclusion) 80. Linderman Machine Co. v. Hillenbrand (claim preclusion/defense preclusion) 81. Cromwell v. County of Sac (issue preclusion) 82. Russell v. Place (issue preclusion) 83. Rios v. Davis (issue preclusion) 84. Bernhard v. Bank of America (preclusion/mutuality) 85. Blonder-Tongue Laboratories v. University of Illinois (preclusion/mutuality) 86. Parklane Hosiery v. Shore (offensive non-mutual preclusion) 87. Cooper v. Federal Reserve Bank of Richmond (preclusive effect of class action judgment) 88. Martin v. Wilks (binding non-parties) 89. Hooters of America v. Phillips (ADR/arbitration) 90. Morrison v. Circuit City Stores (ADR/arbitration)

1. Personal Jurisdiction: Pennoyer v. Neff, 1877a. Overview i. U.S. Supreme Court (case #1 in Oregon state court, case #2 in federal district court) ii. Case #1: Mitchell, Neffs lawyer, sues Neff in Oregon state court for payment of lawyers fees (collection action/contract case) in the amount of $300. Mitchell wins on default judgment because Neff does not show up. Mitchell gets a writ of execution to use Neffs land in order to pay the damages he is owed. The sheriff sells Neffs land at auction, and Mitchell himself buys it. Mitchell assigns the land to Pennoyer. iii. Case #2: Neff sues Pennoyer in an action for ejectment to get Pennoyer off his land. Neff claims ownership of the land under the Oregon Donation Act; Pennoyer claims ownership because he was assigned title to the land by Mitchell. Neff argues that Pennoyers claim to the land is not valid because it arises out of the judgment from case #1, which was not valid because the court had no jurisdiction. The federal court finds in favor of Neff; Supreme Court affirms. b. Personal jurisdiction i. Question: Was the judgment in case #1 valid? i.e. Did the state court have personal jurisdiction over Neff? ii. Answer: No. The state court had no personal jurisdiction over Neff because the service of process, which was constructive/ substituted (published in a newspaper), was ineffectual. iii. Reasoning: Service by publication is only sufficient when the proceeding is in rem; however, this proceeding was in personam, determining the personal rights and obligations of the defendant. The state court failed to attach Neffs property at the beginning of the case (failing to make the case a quasi-in-rem case), thereby failing to establish personal jurisdiction over Neff. Jurisdiction over a property must exist before the judgment is rendered in order for the judgment to be valid. If there is no jurisdiction, the due process clause of the 14th Amendment of the Constitution has been violated. c. Related notes from class i. The federal court rules that there were two problems with the state courts judgment that make it invalid; the Supreme Court agrees only with the second. First, the federal court says that the service of process was faulty because the affidavit certifying publication in a newspaper was signed by the wrong person. The Supreme Court does not care about this technicality; it is not an issue that can be attacked collaterally in case #2 (only on appeal from case #1, which Neff didnt do). What both courts agree on is the personal jurisdiction issue, that the service of process (the mechanism by which PJ is asserted) was not properly executed, so PJ never existed. ii. There are three ways to serve process on someone in state court (3 ways of alerting someone that they are being sued): 1. Delivery in person 2. Publication in newspaper 3. Attachment of land (at beginning of case) seizure of the land to let the defendant know he is being sued by putting a fence or sign on the land this is ok because its the defendants responsibility to keep track of his land (similarly, a bank account can be frozen, and a land title can also be frozen to prevent its owner from alienating it) iii. Mitchell could have sued Neff in the state court where Neff was located (if he knew Neffs location). Creditors can chase debtors to sue them. He had problems suing Neff in Oregon because you cant send someone notice of process when theyre in

another state; that would violate the sovereignty of the other state by allowing Oregon to reach in. iv. Difference between in rem and in personam proceedings: 1. In rem cases: the court determines the status of property. a. Example: a piece of propertys ownership needs to be determined, so the court wants the owner to come claim it. Anyone wanting to claim title is invited into the case. In these cases, constructive service (notice by publication) is sufficient in combination with seizure of the property in question. 2. In personam cases: court determines status/obligations of people in the state. a. Constructive service not sufficient in these cases. 3. Quasi-in-rem cases: an in personam case where property is used to recover damages. The property has to be taken at the outset because it is the basis of the jurisdiction; the jurisdiction extends only so far as the value of the property. The property value defines the boundaries of judgment. v. The Constitution states that each state must give full faith and credit to the judgments of other states. Thus if you get a judgment in one state and the defendant is in another state, you can take the judgment to that second state and have their courts execute on it (e.g. taking money from a bank account). This must be done even if the laws of the second state differ from those of the first state. vi. Glannon: This case was a landmark case because the Supreme Court asserted that, according to the due process clause of the 14th Amendment, fair procedure includes appropriate limits on the places where a defendant can be required to defend suit.

2. Personal Jurisdiction: Hess v. Pawloski, 1927a. Overview i. U.S. Supreme Court (orig. Massachusetts state court) ii. Hess, a PA resident, drives to MA and, while there, hits Pawloski. Pawloski sues in MA court. Court finds in favor of Pawloski. Hess appeals by questioning personal jurisdiction; Supreme Court affirms. b. Personal jurisdiction i. Question: Does the MA statute (stating that, when you drive on MA roads, you implicitly appoint the secretary of state of MA as your agent on whom your process can be served) violate the due process clause of the 14th Amendment? ii. Answer: No. This statute does not discriminate against non-residents; it actually puts them on the same footing as residents. It also follows naturally from Kane v. New Jersey. iii. Reasoning: Kane v. New Jersey held that the state may require a nonresident to actually sign a form appointing an official as his agent; this case goes only one step farther, and the difference between the formal and implied appointment is not substantial. The MA statute is a legitimate way to establish personal jurisdiction over nonresidents driving on public roads in the state. c. Related notes from class i. This was one of the first steps of the unraveling of Pennoyer. The automobile was a major part of that cases demise. ii. The holding in this case is so ridiculous that it could not last very long.

3. Personal Jurisdiction Minimum Contacts: International Shoe Co. v. Washington, 1945a. Overview i. U.S. Supreme Court (orig. Washington state courts)

ii. In lower court, Washington State sues Shoe Co. (a Delaware corp. headquartered inMissouri) to recover unpaid state unemployment tax. Notice of process is issued to an employee of the company in Washington. Shoe Co. resists personal jurisdiction by saying it was not doing business in WA and had no agent there. Lower state court, state supreme court, and U.S. Supreme Court all ruled in favor of Washington State. b. Personal jurisdiction i. Question: Does the state of Washington have personal jurisdiction over Shoe Co.? ii. Answer: Yes. Shoe Co.s operations establish sufficient contacts with the state to make it reasonable and just to permit the state to enforce the obligations which Shoe Co. has incurred there. iii. Reasoning: The court discusses various case precedents and then lays out a twopronged test to determine whether or not a defendant can be brought under personal jurisdiction according to the due process clause. 1. The defendant must have certain minimum contacts with the forum territory. a. There exists a spectrum of contacts ranging from single or isolated to continuous and systematic. There is no jurisdiction resulting from the former, but there is from the latter (general jurisdiction). When the contacts fall somewhere in between, jurisdiction can only be exercised over causes of action stemming from the particular contact in question (specific jurisdiction). b. The contacts in a particular case must be evaluated based on the facts of the case (the quality and nature of the activity) a legal realist approach. 2. The maintenance of the suit must not offend traditional notions of fair play and substantial justice. a. An estimate of the inconveniences is relevant. Underlying this test is a contract-based theory implying that, in return for a corporations enjoyment of the benefits and protections of the laws of a state while it is conducting business there, it must be held to any obligations that arise out of those business activities. iv. Influence of case precedents: 1. Pennoyer: Presence within territory used to be the rule for whether or not personal jurisdiction could be exercised. a. But with a corporation, unlike an individual, its presence in the state can only be manifested by activities carried on in its behalf by those who are authorized to act for it. 2. Hess: Some acts committed in a state by an out-of-state entity may be deemed sufficient to render the entity liable to suit in that state. v. In this case: Shoe Co.s activities were systematic and continuous; thus they establish sufficient contacts. During their business activities they received the benefits and protection of the laws of Washington State; thus it is fair and just to permit the state to enforce obligations they have incurred. c. Related notes from class i. This case represents a move away from a rule-based system such as that in Pennoyer (a state court has jurisdiction over people and property in the state, and no jurisdiction over people and property not in the state). Hess already demonstrated that change was occurring: the court attempted to deal with the rise of interstate lawsuits. ii. Now, the court in this case reads into the 14th Amendment, making essential the territorial connection to the forum state in order for due process to be satisfied. It becomes the third component of due process, along with notice of suit and the

opportunity to be heard. As a result, a set of criteria has to be created to determine what exactly constitutes a territorial connection. Now we have a standard-based system instead of a rule-based system. It is more flexible and subject to argument over when the standard applies. iii. Thus, this case also represents a move away from a focus on the law and toward a focus on facts (a legal realist approach). In Shoe, like Lavender (same time period), the case contains many facts that figure into the courts decision regarding the application of the standard.

4. Personal Jurisdiction Long-Arm Statutes: Gray v. American Radiator, 1961a. Overview i. Illinois Supreme Court (orig. Illinois state courts) ii. Gray, an IL resident, sues Titan Valve Co. (an Ohio corporation) in IL courts for negligently manufacturing a valve that exploded and injured her. Summons is served on Titan in Ohio. Titan argues that it is not subject to jurisdiction because it did not commit a tortious act in IL. Lower court dismisses case (in favor of Titan), but state supreme court reverses and remands, claiming personal jurisdiction. b. Personal jurisdiction i. Questions: (1) Does the Illinois state statute apply to Titan, i.e. did Titan commit a tortious act in Illinois? (2) If so, does the statutes authorization of jurisdiction over Titan violate due process of law? ii. Illinois state statute: A nonresident who commits a tortious act within Illinois submits to its jurisdiction. Service outside the state on nonresidents who have submitted to IL jurisdiction has the force and effect of personal service within the state. iii. Answers: (1) Yes. A tortious act occurs where the harm takes place, and the harm took place in Illinois; thus the tort was committed in Illinois. (2) No. The use of a companys defective products in a state is sufficient contact with the state to justify a requirement that the company defend there. iv. Reasoning (for Question #2): Determining whether a state long-arm statute violates due process of law requires looking at the Shoe minimum contacts standard and whether or not the statute violates concepts of fairness. Here, the court finds that it can exercise jurisdiction because continuous activity by the defendant is not necessary to establish minimum contacts; the commission of a single tort is sufficient. 1. The court also takes account of the trend of recognizing personal jurisdiction based on minimum contacts, not so much on territorial presence in the state. 2. Finally, it restates the contract-based theory that a corporation enjoying the protection/benefit of the laws while doing business in a state must be held responsible for obligations it incurs within the state thus the suit is fair. c. Related notes from class i. This case is not a U.S. Supreme Court case, so its constitutional analysis is not precedent. ii. This case shows that there are two parts to any personal jurisdiction case: 1. What is authorizing service of process? (e.g. long-arm statute a law that is required for a state to be able to reach outside its territory) 2. Does that state action comport with the Constitution? iii. Influence of Shoe: Before that case, the law was that process can be served on anyone in the state. After that case, laws were changed enabling people who commit a tort in a particular state to be served by that state no matter where they are.

5. Personal Jurisdiction Trends & Forum States Interest: McGee v. International Life Insurance, 1957(Optional Squib) a. Overview i. U.S. Supreme Court (orig. CA state court, then TX state court) ii. Had to do with enforcing a life insurance policy made by an AZ corporation to a policyholder in CA. CA ruled that foreign corporations could be sued in CA for insurance contracts with in-state residents. Plaintiff tried to get this enforced in TX; TX court said CA judgment void under 14th Amendment. Supreme Court upheld the CA decision. b. Personal Jurisdiction Important things that other cases cite i. Trends: With increased nationalization of commerce, there are more interstate business transactions. A trend has thus developed toward expanding the scope of state jurisdiction over foreign corporations and non-residents. ii. Forum states interest: A state has a manifest interest in providing effective means of redress for its residents when foreign entities injure them. This is often mentioned as an other factor that supplements the minimum contacts test of PJ. c. Related notes from class i. This case and Hanson came out different ways, causing the Court to put the issue of PJ on hold until 1980 (World Wide Volkswagen).

6. Personal Jurisdiction Unilateral Activity: Hanson v. Denckla, 1958 (Optional Squib)a. Overview i. U.S. Supreme Court (orig. FL state court) ii. Had to do with a trust made in a DE bank by woman who moved to FL. Her family in FL sued the DE trustee bank. The Court ruled in favor of defendant no PJ because no minimum contacts. b. Personal Jurisdiction Important things that other cases cite i. The unilateral activity of a plaintiff who claims some relationship with a nonresident defendant cannot satisfy the requirement of minimum contact with the forum state. It is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. c. Related notes from class i. This case and McGee came out different ways, causing the Court to put the issue of PJ on hold until 1980 (World Wide Volkswagen).

7. Personal Jurisdiction Two-Part Test: World-Wide Volkswagen v. Woodson, 1980a. Overview i. U.S. Supreme Court (orig. Oklahoma state court) ii. Robinsons buy an Audi from Seaway Volkswagen in NY and gets into an accident in Oklahoma. Plaintiffs sue Seaway (retail dealer), World-Wide (regional distributor), Volkswagen of America (importer), and Audi (manufacturer). Seaway and WW object to personal jurisdiction because they dont do business in OK. Lower court finds in favor of plaintiffs under minimum contacts/foreseeability argument. Supreme Court reverses. b. Personal jurisdiction i. Question: Does the Oklahoma courts exercise of personal jurisdiction over these nonresident corporations, whose only connection to the state is the fact that a car they sold in NY is involved in an accident in OK, violate the Due Process Clause?

ii. Answer: Yes. Defendants have no contacts, ties, or relations with the State ofOklahoma, so the state cannot exercise jurisdiction over them.

iii. Reasoning: The court mostly bases their decision on the Shoe minimum contactstest (whose precedents they summarize nicely). However, we see the beginnings of a two-part test also taking into account other factors regarding traditional notions of fair play and substantial justice. 1. This second prong of the test relates to the reasonableness of the relationship between the defendant and forum. The court asserts that there are no affiliating circumstances that would allow the defendant to pass the minimum contacts test because they conduct and solicit no business in the state. In terms of other factors, the court also clarifies the foreseeability benchmark, saying that the only foreseeability that matters is whether or not the defendants conduct and connection with the forum state would cause him to reasonably anticipate being sued there (which is a circular argument since this judgment itself is what is determining whether he can anticipate being sued there). The court refers as well to the purposeful availment factor brought up by Hanson, saying that their intent allows defendants to anticipate lawsuits in various areas, while the unilateral activity of the plaintiffs is not enough to cause defendants anticipation. iv. Dissent: The dissent considers the other factors more important than does the majority opinion; it says the Shoe standard of just minimum contacts is antiquated. It places great weight on the forum states interest in litigating certain suits and the burdens on the defendant (especially regarding mobility of his defense). These other factors sometimes allow suits to potentially go forth in more than one state. c. Related notes from class i. See discussion (not explicitly related to this case) about considerations states make when deciding to enact a broad or narrow long-arm statute. ii. The plaintiffs here want to sue in state court because they think the local jury will be more sympathetic to plaintiffs. The defendants (for the same reason) want to move to federal court, but because plaintiffs have included Seaway and WW, there is not complete diversity of citizenship so federal court does not have SMJ. iii. The two-part test taking shape is (1) minimum contacts, and (2) other factors of fairness and justice. In this case, that second prong combines foreseeability with intention (purposeful availment)intention to create minimum contacts by doing business in OK or even putting cars into the stream of commerce with the intention of them getting to OK. The consumer moving the product by his own accord outside the place the retailer sold it does not count.

8. Personal Jurisdiction Two-Part Test: Burger King v. Rudzewicz, 1985a. Overview i. U.S. Supreme Court (orig. FL federal district court) ii. Two MI residents opened a Burger King franchise in MI by contracting with BK headquarters in FL. They did not pay monthly payments, and BK sued them in FL for breach of contract. Defendants challenged personal jurisdiction. Lower court found for plaintiff; appeals court for defendant; Supreme Court reversed (finding for plaintiffFL does have personal jurisdiction). b. Personal jurisdiction i. Question: Does the FL district courts exercise of personal jurisdiction over the MI residents violate due process? ii. Answer: No. Defendant established a substantial and continuing relationship with the forum state, received fair notice from contract documents and the

course of business that he might be subject to suit there, and has failed to demonstrate how jurisdiction there would be fundamentally unfair. Thus jurisdiction in FL does not violate due process. iii. Reasoning: The court discusses the two-part test begun in World-Wide more explicitly. (This opinion was written by the author of the World-Wide dissent.) Once it has been decided that a defendant purposefully established minimum contacts within the forum state, these contacts may be considered in light of other factors to determine whether the assertion of PJ would comport with fair play and substantial justice. These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. 1. Examples of other factors: The burden on the defendant; the forum states interest in adjudicating the dispute; the plaintiffs interest in obtaining convenient and effective relief; the interstate judicial systems interest in obtaining most efficient resolution; shared interest of furthering social policy. 2. This case also counts as a factor the fact that defendant knew he could potentially be held liable in FL. Thus the two-part test: his deliberate affiliation with the forum state and the reasonable foreseeability of possible litigation there Note that the minimum contacts test is further narrowed down by limiting it to only those contacts created deliberately by the defendant, or that represent continuing obligations on the part of the defendant, leading him to receive the benefits and protections of doing business in the state. Also, the court reaffirms the importance of examining the specific facts of each case rather than utilizing any talismanic jurisdictional formulas. iv. Dissent: The dissent argues that there is unfairness in submitting the defendant to FLs jurisdiction. Defendant was primarily dealing with the MI office, not the FL headquarters; thus he had no reason to anticipate litigation in FL. c. Related notes from class i. Note the difference between choice-of-law provisions and jurisdictional provisions. Just because FL law can be applied to the case does not mean it has to be tried in FL; MI courts could apply FL law as well. However, it remains true that the facts of the case associate it with FL. ii. Note as well that the rule the majority establishes (use other factors to help plaintiff bring defendant into court when minimum contacts are minimal; force a defendant to show other factors when contesting jurisdiction if minimum contacts are great) cuts both ways in favor of the plaintiff. Justice Brennan was extremely liberal and wanted to help the little guy. iii. We have now moved from the Shoe minimum contacts test to a complex two-part test in which the two parts have a complicated relationship and the second part includes many factors.

9. Personal Jurisdiction Stream of Commerce: Asahi Metal v. Superior Court, 1987a. Case overview i. U.S. Supreme Court (orig. California state courts) ii. Zurcher had a motorcycle accident in California. He sued Cheng Shin (Taiwanese manufacturer of motorcycle tube), who filed a cross-complaint for indemnification against Asahi (Japanese manufacturer of tube part). All claims settled except for Cheng Shins claim against Asahi. Asahi argued that there was no personal

jurisdiction in California. After many reversals, Supreme Court ruled in Asahis favor. b. Personal jurisdiction i. Question: Does the mere awareness on the part of a foreign defendant that the component it manufactured, sold, and delivered outside the U.S. would reach the forum state in the stream of commerce constitute minimum contacts between the defendant and the forum state such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice? ii. Answer: (no majority opinion) No. All justices agree that the fairness requirement is not met, and that this requirement can defeat personal jurisdiction even if minimum contacts may or may not be present. Regarding minimum contacts, two interpretations are offered, and the debate is not resolved. iii. Minimum contacts issue stream-of commerce standard (introduced in World Wide) has two interpretations 1. Some courts allow an exercise of PJ to be based on no more than the defendants act of placing the product in the stream of commerce. These courts have held that mere foreseeability or awareness is a constitutionally sufficient basis for PJ. This is a more liberal interpretation (Brennan). 2. Other courts require the action of the defendant to be more purposefully directed at the forum state than the mere act of placing a product in the stream of commerce. These courts require something more than awareness of the products entry into the forum state through the stream of commerce. This is a more conservative (narrower) interpretation. 3. The Supreme Court in this case is split on the issue. iv. Fairness issue other factors 1. All agree that the other factors are not present. The burden on the defendant is severe (foreign legal system); California has little interest in deciding the matter c. Related notes from class i. Even if Cheng Shin got a judgment against Asahi in California, it would be difficult to execute in Japan. Japanese courts might re-try the personal jurisdiction issue. ii. Which of the two interpretations of stream-of-commerce best fits with globalization? iii. Think of the two purposes of Due Process. One is to control each state within a federal system. The other is to defend the individuals right not to be dragged into court in a faraway state. This second right can be waived, but then are you also waiving federalism?

10. Personal Jurisdiction Specific vs. General: Helicopteros Nacionales v. Hall, 1984a. Case overview i. U.S. Supreme Court (orig. Texas state courts) ii. A helicopter owned by Helicol crashed in Peru with Americans on board. Their families sue Helicol (and others) in Texas. Helicol argues against PJ, saying that there is not enough to sustain a suit in Texas. (Helicol bought helicopters from a Texas company, trained pilots there, and attended meetings there.) After many reversals, the Supreme Court ruled in favor of Helicol (no PJ). b. Personal jurisdiction i. Question: Is personal jurisdiction justified when the cause of action against a corporation does not arise out of, or is not related to, the corporations contacts with the forum state?

ii. No. If a cause of action does not arise out of, or is not related to, the defendants contacts with the forum state, general jurisdiction is not warranted. iii. Reasoning: The majority does not consider specific jurisdiction possible in this case because they do not consider the claim to arise out of Helicols contacts with Texas. They do not consider Helicols activities in Texas to be continuous and systematic general business contacts. They decide that the purchases and related trips are not enough to warrant PJ over Helicol because the cause of action was unrelated. iv. Dissent: Brennan argues that there are both general and specific jurisdiction over Helicol in this case. He argues that Helicol has purposefully availed itself of the forum, and that there is a direct relationship between the cause of action and Helicols contacts with the forum. Additionally, he argues that Helicols contacts with Texas are continuous commercial contacts and justify general jurisdiction. 1. He distinguishes between arising out of and related to, arguing that the related to standard (which is broader) is applicable here. c. Related notes from class i. Is cause of action related to defendants contacts with forum? If yes, you can get specific jurisdiction. If no, you need general jurisdiction. To get general jurisdiction, there must be many continuous contacts with the forum. A resident of a certain state has such strong contacts with it that they can be sued there for any reason. If sufficient contacts do not exist, you can get specific jurisdiction if the cause of action relates to the few contacts that do exist. ii. In this case, they try to link a tort suit to a business transaction. It might not meet the narrow arising out of standard, but it may meet the broader related to standard. iii. Which has a better case for being heard in the U.S., Hall or Asahi?

11. Personal Jurisdiction The Internet: Snowney v. Harrahs Entertainment, 2005a. Case overview i. California Supreme Court (orig. California state courts) ii. Snowney (Cal. resident) sued a group of Nevada hotels in a class action suit for false advertising; they failed to alert customers of a $3 energy fee. These hotels advertised heavily in California and maintained a web site targeted at Cal. residents. Plaintiff also made reservations from Cal. by phone. California Supreme Court ruled that there was personal jurisdiction over the hotel. b. Personal jurisdiction i. Question: May a state exercise specific jurisdiction over a foreign hotel that advertises in that state and maintains a web site targeted at that states residents if the cause of action is related to these contacts? ii. Answer: Yes. If the hotel has purposefully availed itself of forum benefits, and if the controversy is related to or arises out of the defendants contacts with the forum, and if the assertion of personal jurisdiction comports with fair play and substantial justice, specific jurisdiction may be exercised. iii. Reasoning: The court explicitly uses a three-part test to determine specific PJ. 1. Purposeful availment This requirement focuses on the defendants intentionality. Here, the hotels web site establishes personal availment by focusing specifically on California residents; the hotel also has derived a benefit from their Internet uses in California. There is not any need to use the Zippo sliding scale because purposeful availment (as far as the web site) is met. In any case, the web site in conjunction with the hotels other contacts in the state clearly constitute purposeful availment.

a. The courts understanding of this concept: Purposeful availment exists whenever the defendant purposefully and voluntarily directs its activities toward the forum state in an effort to obtain a benefit from that state. It may exist even though the defendant did not invoke the legal protections of the forum state. 2. Relatedness The controversy is related to/arises out of defendants contacts with California. The court uses a substantial connection test and finds that there is a substantial connection because the injury relates directly to the content of defendants advertising in the state. 3. Fairness Defendants do not contend that the exercise of PJ wouldnt be fair. c. Related notes from class i. A class action suit like this is good because it prevents a large company from getting away with taking a little bit of money from a lot of different people. Class action suits are the private sector doing the governments regulatory job (more efficiently). ii. The internet issue is still being played out. It is hard to know with the internet where the injuries are occurring.

12. Personal Jurisdiction Property: Harris v. Balk, 1905a. Overview i. U.S. Supreme Court (orig. Maryland court, case #1, and North Carolina court, #2) ii. Harris (NC resident) owed $180 to Balk (NC resident), who owed $344 to Epstein (MD resident). Harris visited Maryland, and while there, Epstein instituted a garnishee proceeding in MD court, attaching Harriss debt to Balk. Judgment was entered against Harris and he paid Epstein the $180. Later, Balk sued Harris in North Carolina for the same $180. Harris said he already paid, but Balk said the NC judgment was invalid because NC had no personal jurisdiction. Trial court ruled for Balk, but Supreme Court reversed and ruled in favor of Harris (there was PJ). b. Personal jurisdiction i. Question: Does a court have quasi in rem personal jurisdiction over a persons debt? ii. Answer: Yes. A debtors obligation to pay can be enforced by the court of any foreign state if the debtor has been served while present in the state. iii. Reasoning: In a quasi in rem case using a debt as the property to be attached, it is nothing but the obligation to pay that is attached, and that obligation of the debtor goes wherever he goes. c. Related notes from class i. Epstein instituted a quasi in rem proceeding by attaching Balks property while it was in the state of Marylandthat property was Harriss debt to Balk. This establishes jurisdiction over Balks property and allows Epstein to take it. (A garnishee proceeding sues the property itself.) ii. The Supreme Court continues to follow the Pennoyer standard. The idea is still that if a state attaches property within the state at the beginning of a lawsuit, the suit can be adjudicated up to the value of the property (quasi in rem). The judgment can never be good for more than the value of the attached property that has created the jurisdiction. iii. This suit also represents a move from tangible property to intangible property (debt) as a basis for personal jurisdiction. iv. Here the state is expanding personal jurisdiction within the state by expanding the idea of property. This is the inverse of what happened with the advent of cars (then, the state expanded PJ outside of the state).

13. Personal Jurisdiction Property: Shaffer v. Heitner, 1977

a. Overview i. U.S. Supreme Court (orig. Delaware state courts) ii. Heitner, a Greyhound shareholder, sued Greyhound executives in a shareholder derivatives suit on behalf of the corporation (see notes for more info about this process). He sues them for engaging in business practices that have decreased the value of Greyhound stock (thru lawsuits). He sues them in Delaware even though the company is run in Arizona and the business practices took place in Oregon (but the corporation is incorporated in Delaware). Greyhound contests PJ. Delaware courts agree that there is PJ, but Supreme Court reverses and says that there is not. b. Personal jurisdiction i. Question: (a) Is the standard used to evaluate personal jurisdiction in quasi in rem cases still valid? (b) Does the state where a corporation is incorporated have jurisdiction in a quasi in rem case where the corporations stock is the property attached? ii. Answer: (b) No. All assertions of state-court jurisdiction must now be evaluated according to the Shoe minimum contacts standard. (b) Not when the defendants connections with the state do not meet the minimum contacts standard (even if property within the state has been attached). iii. Note: The new standard will only affect quasi in rem proceedings. With in rem proceedings, the property located in the state will in itself create minimum contacts because it is the very subject of the litigation. iv. Reasoning: (a) The standard needs to be re-evaluated because, unlike with in personam cases, in rem standards have not evolved to accommodate notions of fair play and substantial justice. After all, in rem cases affect not things, but peoples interest in those things. To get jurisdiction over people, Due Process must be satisfied. (b) The property is not the subject matter of the litigation, and the underlying cause of action is not related to the property either. The forum state has no interest in this case (if it did, its statutes would reflect that interest). The forum is not fair for the defendant, who has had nothing to do with the state of Delaware. v. Concurring: Stevens notes that if the court does not decide this way, anyone who owns stock in a company incorporated in Delaware will be subject to suit there, and that is not reasonable. vi. Dissent: The decision may be too broad; the issue is not yet ready for decision because it has not yet passed through state courts. There are not enough facts to justify deciding whether minimum contacts exist in this case. c. Related notes from class i. There are many layers of legal fiction at work here: (1) There is such a thing as stock. (2) The stock physically exists in the state of Delaware. (This is a fiction created by a Delaware law.) (3) The stock can be seized by the court. ii. Notes about quasi in rem Now the same basis is used for personal jurisdiction for quasi in rem and in personam cases (minimum contacts). For quasi in rem, the property itself cant be the minimum contact if theres no connection between the property and the cause of action. iii. Now, property alone is not enough to create jurisdiction in a quasi in rem case, although it is still necessary. Why require having property in the state when jurisdiction can be created through minimum contacts anyway? Quasi in rem is used in part to guarantee that there will be an asset remaining at the end of the case that will be able to satisfy a judgment for plaintiff. It can be useful when the defendants

whereabouts are unknown (though you can still get in personam jurisdiction over him in this case). Also, it is more vindictive to use this method. iv. *The effect of this decision is to NARROW the states reach of personal jurisdiction. This is the OPPOSITE of what the minimum contacts standard did for in personam cases.

14. Personal Jurisdiction Physical Presence: Burnham v. Superior Court, 1990a. Overview i. U.S. Supreme Court (orig. California state courts) ii. Mrs. Burnham sues Mr. Burnham (NJ resident) for divorce in CA. When he comes to visit the children, she serves him with process. He objects to PJ because he does not have minimum contacts. Court rules that there is personal jurisdiction over him. b. Personal jurisdiction i. Question: Does the Due Process Clause of the 14th Amendment deny a states courts 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? ii. Answer: No. States have jurisdiction over nonresident visitors who are served while physically present in the state. iii. Reasoning: While the Court agrees on the judgment, it disagrees as to the reasons. The chief debate is between Justices Brennan and Scalia. 1. Scalia: The use of physical presence as a basis for PJ has a long history. It was the practice when the 14th Amendment was adopted; the concept of due process was in part defined by this very practice. Shaffer does not apply because it was about absent defendants, not ones present in the state. Brennans standard is too subjective; Scalia likes his because it is a hard and fast rule. He says the legislatures can change the practice if they want, but so far they have not. 2. Brennan: Just because a practice is tradition does not mean it should not be reevaluated. All rules of jurisdiction, even ancient ones, must satisfy contemporary notions of due process. The Court changed the rules with Shaffer, it is not out of the question to do so again. Yet it is not necessary in this case, because the current system as it stands satisfies his conception of fair play and substantial justice. c. Related notes from class i. Scalia interprets the Due Process Clause according to tradition; Brennan interprets it according to fairness. Brennan says that these days physical presence is not always necessary according to Shoe even though fairness is not a hard and fast rule, but rather a subjective standard, it is still the standard the courts have been moving towards with recent decisions. Scalia says that Brennans conception of fairness does not adequately protect defendants. Scalias solution of having the legislatures deal with this is unrealistic the people who would want a state to change its PJ statutes are nonresidents who have no say (cant vote to have legislature change the laws). ii. These justices dont really care about PJ; this case is about abortion. The 14th Amend is being debated because of substantive due process. 1. Procedural due process: the steps the government has to go through before depriving you of life/liberty/property 2. Substantive due process: certain types of life/liberty/property cant be taken away at all

The two positions are important in the abortion debate tradition (abortion laws existed when 14th Amendment was enacted) vs. fairness (evolving contemporary conceptions of due process)

15. Personal Jurisdiction Consent: Carnival Cruise Lines v. Shute, 1991a. Overview i. U.S. Supreme Court (orig. federal district court in WA) ii. Mrs. Shute (WA resident) slips and injures herself on a Carnival cruise and sues in WA federal district court for personal injury. Carnival (FL company) says no PJ because the contract had a clause that all suits would be brought in FL. District court rules in favor of plaintiff, but Supreme Court reversesthere is no PJ in WA. b. Personal jurisdiction i. Question: Can a plaintiff sue in a state that is not that state specified in a contracts forum-selection clause? ii. Answer: No. The Court will enforce consent to jurisdiction as specified in a contracts forum-selection clause. iii. Reasoning: The Court did not consider minimum contacts in this case, only the forumselection clauses enforceability. The Court listed three policy-related reasons why this clause should be enforced. 1. A cruise line has a special interest in limiting the fora in which it can be sued. 2. This clause has the beneficial effects of dispelling confusion about where suits may be litigated and conserving judicial resources that would be devoted to deciding pretrial forum motions. 3. Passengers benefit from this policy because the money that Carnival saves in limiting litigation costs is passed onto passengers in the form of cheaper tickets. c. Related notes from class i. These reasons have to do with the Courts notion of fairness. ii. This case is not really about PJ, but about the contract, asking if it is the kind of promise that the law should enforce. iii. This case shows the Court allowing consent to trump everything weve been talking about. (Signing a contract with a forum-selection clause when purchasing a cruise ticket is equivalent to consenting to personal jurisdiction in the selected forum.) This makes life easier for the courts.

16. Procedural Due Process Notice: Mullane v. Central Hanover Bank, 1950a. Overview i. U.S. Supreme Court (orig. NY state courts) ii. In NY supreme court (lower court), bank sues for judicial settlement of accounts (asking to be released from liability so no one can sue them later on for mismanagement). Mullane is appointed to represent the beneficiaries of the trust. He argues that the notice given to the beneficiaries was insufficient (it was published in the local paper). The lower court finds in favor of the bank, Supreme Court reverses, saying that notice was insufficient. b. Notice i. Question: Is it constitutionally sufficient to give notice by publication in a local paper to beneficiaries on judicial settlement of accounts by the trustee of a common trust fund established by the N.Y. Banking Law?

ii. Answer: No. Notice by publication in these circumstances is incompatible withthe requirements of the 14th Amendment as a basis for adjudication depriving known persons whose whereabouts are also known of substantial property rights. iii. Reasoning: As far as PJ goes, a state always has jurisdiction over the adjudication of trusts within the state as long as there is notice and opportunity to be heard. A fundamental requirement of due process in any proceeding is notice reasonably calculated, under all the circumstances, to apprise interested parties of the action and afford them an opportunity to be heard. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The means employed at least has to be not substantially less likely to give notice than other feasible/customary substitutes. Here, publication alone is no more than a feint at giving notice. Publication might have been enough for those beneficiaries whose whereabouts or interests were not known, or whose interests are conjectural or future. But for beneficiaries with known whereabouts and interests, publication is not enough, because the bank is able to better contact them. c. Related notes from class i. The N.Y. Banking Law allows a release from liability in suits for mismanagement, fraud, theft. It stops other lawsuits from happening through preclusion. The point of having this first proceeding is to have it be contemporaneous with anything that might be going on at the bank that will be investigated. ii. This adversarial system is an alternative to a regulatory system (e.g. auditing the bank). Here, we have litigants argue that the bank did or did not mismanage. The powerful tools of the legal system (discovery, subpoenas) can be utilized, and also, only a judgment can preclude future suitsnot an audit. iii. The court says that the bank could never successfully give actual notice to every single person with an interestsome people may have an interest in the trust who arent even born yet (extreme example). (They are still precluded from suing in the future because their interests were represented by someone else, here Mullane, and thus they are bound to the outcome even though they didnt have notice and OTBH.) Anyway, notice must be reasonably calculated to reach people. iv. Possible methods of notice: personal service; attachment; publication; mail. Mail is determined to be the most reasonable method here. Really, there is no good answer to what constitutes reasonable notice. We discussed the possibility of notice by e-mail as a method and if opting into that system made it more viable. v. In this case the Court unanchors notice from the type of lawsuit involved (in personam /in rem)a departure from Pennoyer. A moment of legal realism, acknowledging that these categories are legal fictions. The new standard (reasonableness of notice) applies in all cases. Note that this is the same Court that created a new standard (minimum contacts) for PJ in Shoe. This standard is more protective than what came before; it does more for the defendant. At the same time, it does not guarantee that you even get notice; the state just has to reasonably try. The judicial system doesnt guarantee perfection. vi. The reality of notice: People can challenge notice while the original suit is going on, but if you show up to court and argue no notice, the judge will probably not entertain your challenge. vii. The context of notice: Notice is evaluated in the context of the system of notice that we have (we could have imagined alternative systems). Why do we care about notice? Its instrumental valuegets defendant to court. This would not matter if no OTBH.

viii. Should you be able to consent to giving up your rights to notice/OTBH the way you can consent to PJ? In the criminal system, this can happen, with plea bargains although this is not done in advance of any crime being committed so not the same.

17. Procedural Due Process Notice: Jones v. Flowers, 2006a. Overview i. U.S. Supreme Court (orig. Arkansas state court) ii. Jones did not pay property tax on his house and the state took it and sold it. Before doing so, it attempted to notify him in various ways (certified mail, publication), but the certified mail was returned unclaimed. After the house was sold to Flowers, Jones sued Flowers to get him out of the house. The lower court said that notice was sufficient, but the Supreme Court said that the notice was insufficient because the state didnt do anything after finding out that its notice had failed. b. Notice i. Question: Has the state done all it is expected to do after it has used certified mail to give notice and learned that the notice has failed? ii. Answer: No. Notice was inadequate here, because the state should have taken any of the additional reasonable steps before taking an individuals property. iii. Reasoning: Actual notice was not required, only a reasonable attempt at notice (as Mullane says). The attempt at notice here was not reasonable because of the states failure to follow up. The state is required to consider unique information about an intended recipient. Here the occupant of the house (after Jones) was not obligated to inform Jones that he had received certified mail (because the occupant could not receive or open it). Anyway, there were other reasonable steps the state could have taken. The notice could have been resent by regular mail or posted on the door. However, there is a limit on what the state is expected to do; it did not have to search for Jones address in a phone book or other government records. iv. Dissent: Due process was satisfied. The state satisfied due process by attempting to contact Jones by certified mail, and exceeded the constitutional minimum by publishing notice in a local newspaper. The proposed alternative methods are burdensome, impractical, and no more likely to succeed than the methods actually employed by the state. c. Related notes from class i. Mullane said that mail was reasonably calculated to give notice; here the court says that certified mail was not reasonably calculated to give notice because the state knew that the method failed and did not do anything about it.

18. Procedural Due Process OTBH: Goldberg v. Kelly, 1970a. Overview i. U.S. Supreme Court (orig. NY federal district court) ii. Group of welfare recipients sued the welfare system administrator about the process by which welfare is terminated. They argued that there should be a pre-termination hearing. The court found in their favor. b. Opportunity to be heard i. Question: Does a state that terminates welfare payments to a recipient without affording him the opportunity for an evidentiary hearing prior to termination deny him procedural due process in violation of the Due Process clause? ii. Answer: Yes. Only a pre-termination evidentiary hearing satisfies the constitutional command.

iii. Reasoning: The state must give you due process before depriving you of life, liberty, or property. Welfare can be considered property and thus due process is required. We must not deprive someone of their means of survival without OTBH. The interest of the eligible recipient in uninterrupted receipt of public assistance, coupled with the states interest that his payments not be erroneously terminated, clearly outweighs the states competing concern to prevent any increase in its fiscal and administrative burdens. The hearing should have minimum procedural safeguards adapted to the particular characteristics of welfare recipients. They must be able to confront adverse witnesses and present their cases orally. iv. Dissent: The increased number of hearings is too burdensome on the government and imposes a huge expense. It is unfair to the government to allow those who draw undeserved payments to keep collecting them during the hearing process knowing that the government can never recoup this money. Moreover, welfare should not even be considered property for the sake of due process, especially when unfairly gotten. There is no precedent for the courts decision in this case. c. Related notes from class i. Key question: Is the government depriving welfare recipients of their property? Is welfare their property? The Court says yes here. ii. A lot of due process is given to welfare recipients, but the courts say that more of it should happen before termination of benefits. iii. This case is unusual because the Court is actually prescribing a form for the hearings. iv. *The Court is telling us how to read the due process clause, saying that it varies by context. Two things must be weighed: 1. The interests of the welfare recipientthe value of the necessities they receive (enormous value placed on this even though government has no obligation to provide welfare in the first placeno constitutional basis. You cant force the government to help you, but you can force it to not stop helping you, once its started, without due process) 2. The interests of the governmentincreased costs (new system would increase number of hearings, and also with hearings afterward the government would no longer get to stop paying benefits as early) (Although on this side you can also claim that the govt has an interest in protecting its citizens)

19. Procedural Due Process OTBH: Mathews v. Eldridge, 1976a. Overview i. U.S. Supreme Court (orig. ?? doesnt say) ii. A group of social security recipients sue the social security secretary about the process by which benefits are terminatedvery similar to Goldberg. The Court goes the opposite way here and says that the post-termination hearing is constitutional. b. Opportunity to be heard i. Question: Does the Due Process clause require that, prior to termination of Social Security benefit payments, the recipient be afforded an opportunity for an evidentiary hearing? ii. Answer: No. An evidentiary hearing is not required prior to the termination of disability benefits; the present administrative procedures fully comport with due process. iii. Reasoning: Some form of hearing is definitely required before an individual is finally deprived of a property interest. However, due process is flexible and calls for procedural protections as each particular situation demands. Three factors must be considered:

1. The private interest that will be affected by the official action. 2. The risk of an erroneous deprivation of such interest through the procedures used, and the probably value (if any) of substitute/additional procedural safeguards 3. The governments interest, including the function involved and the fiscal burdens that additional/substitute procedures would entail. iv. Factor #1: The situation is different from Goldberg because the financial need of social security recipients is less than that of welfare recipients. Even though there would be financial hardship if benefits were wrongfully terminated, it would not be as serious. v. Factor #2: There is a lower risk of error in the existing procedures here than in Goldberg because the test is more objective (medical assessment). A pre-termination hearing would not greatly decrease this risk. vi. Factor #3: There would be a huge cost on the government because of increased hearings and the expense of providing benefits to ineligible recipients pending decision. c. Related notes from class i. This case comes out oppositely from Goldberg because the Court does not use the same test. Here factor #2 (the accuracy lens) is a new consideration. This threepart test is the state of the law today for due process. However, it is problematic in that it is difficult to tell what the current accuracy of a procedure is and whether the results would change with an additional/substitute procedurespeculative. ii. The three-part test is a combination of normative factors (the value of OTBH) and consequential factors (will a new procedure turn out better than the current one?). iii. What if the current procedure were right 100% of the time? Would there still be a need for OTBH?

20. Procedural Due Process OTBH: Fuentes v. Shevin, 1972a. Overview i. U.S. Supreme Court (orig. Florida federal district court) ii. Two cases are considered, the FL case and one from PA. In FL, Fuentes purchased a gas stove and stereo from Firestone under a conditional sales contract (with monthly payments). A dispute developed and Firestone sued in small claims court to repossess the items. Before Fuentes knew about the action, Firestone got a writ of replevin to seize the goods. Fuentes sued in federal court to challenge the laws constitutionality. (The Penn. case is very similar to all of this) Lower courts upheld the law, but the Supreme Court overturned it. b. Opportunity to be heard i. Question: Are these state statutes constitutionally defective in failing to provide for hearings at a meaningful time? ii. Answer: Yes. The Florida and Pennsylvania prejudgment replevin provisions work a deprivation of property without due process of law insofar as they deny the right to a prior opportunity to be heard before chattels are taken from their possessor. iii. Reasoning: Neither of these laws provides for notice or OTBH before the seizure. The purpose of the OTBH is to prevent arbitrary (unfair or mistaken) deprivation of property. Thus it must be granted when the deprivation can still be prevented. Both laws violate this principle. The interests in the chattels being taken are protected by the 14th Amendment (protecting any significant property interest). There are some situations that justify postponing notice and OTBH, but this case is not one of these

exceptions. (e.g. seizure is directly necessary to secure governmental or public interest; state has strict control over its monopoly of legitimate force) Also, the appellants have not waived their rights to an OTBH by signing sales contracts. iv. Dissent: The creditors, not just the debtors, have an interest in this property. Also, this opinion proposes no real change because in the future, creditors can just include a clause in their contracts waiving debtors OTBH. c. Related notes from class i. Here, the property seized is itself the subject of the lawsuit (contrast with Doehr). ii. Why attach this property at the outset? To make sure defendant doesnt sell them, to prevent defendant from being judgment proof? *Possibly but only because the defendant is poor. To get property back in the best condition they can? No, judgment could be adjusted to account for that. Actually, plaintiff wants to be able to use the property for the purposes they desire re-leasing it to someone else. Yet the defendant also wants to use it. The plaintiff has the