Personal Jurisdiction

Question 1

When client first describes problem involving multiple jurisdictions, what is the first question an attorney should probably ask-then what?

Answer 1

Whether a federal claim existed. If no federal claim, ask whether the states involved recognize the specific claim (like privacy torts of Girls Gone Wild in Bullard v MRA)

Question 2

If you are able to “open the court house doors” in State A for a claim involving State A, B and C, what state law applies?

Answer 2

Typically, State A’s choice of law principles apply-not necessarily State A’s substantive law!

Question 3

What are the 5 factors of Personal Jurisdiction?

Answer 3

1. Domicile
2. Consent
3. Service in State
4. Status <a></a>
5. Contacts</a>

Question 4

What is territorial PJx?

Answer 4

All things the state can do within its borders while still abiding by Pennoyer v. Neff (e.g. SiS, Stuff, Domicile, Consent, Status).

Question 5

Under Pennoyer v. Neff, what power do the states have?

Answer 5

The power to act within their borders. Thus, states must show an act of judicial power within the state like find and serve someone within the state, or find a person’s stuff in the state and take it–though the “stuff” idea doesn’t really apply after 1977.

Question 6

What is the doctrine lex loci de licti?

Answer 6

It is the choice of law idea that where the injury occurred is where an action may be brought (Bullard v. MRA).

Question 7

Hess v. Pawloski is an example of why Pennoyer v. Neff was doomed from the beginning. How?

Answer 7

The Court upheld a long-arm statute saying anyone who used the state’s roads was deemed to consent to PJx for car accidents. Basically allowing the state to reach beyond its borders for judicial actions.

Question 8

What “new box” did International Shoe create for PJx?

Answer 8

The case created the idea of minimum contacts, which allowed states to act outside of their territorial bounds–functionally abandoning Pennoyer v. Neff.

Question 9

After International Shoe, what happens to Pennoyer v. Neff?

Answer 9

The part constricting territorial acts of power is dead, but International Shoe simply opened the constriction allowing territorial acts plus more–PJx expounded after International Shoe.

Question 10

Pre-International Shoe set a floor of PJx (borders), and post-International Shoe set a ceiling (mc/fp/sj), which must be met how?

Answer 10

A long-arm statute

Question 11

What are the political or policy reasons for a long-arm statute?

Answer 11

States want to authorize their courts to do everything allowed by the DPC. Thus, most states’ (46) long-arm statutes simply say the court’s authority goes to the limits of DP. NY and OH are states that don’t adopt this.

Question 12

McGee v. International Life and Hanson v. Denkla discuss what important rule w/r/t communication between parties in different states?

Answer 12

The number of lines of communication between states doesn’t matter, so long as there is at least one. The important part of those lines is the arrow direction. If multiple lines and one direction of arrow heads, then only one party has reached out. If one line with two directional arrow heads, then minimum contacts on both ends is established.

Question 13

When it comes to SMJx, it’s either on or off for all parties. Does PJx operate in the same way?

Answer 13

No, it’s very specific to each party, and claim.

Question 14

For contact PJx, reaching out provides two distinct ways to gain jx, what are they?

Answer 14

General: systematic and continuous
Specific: Minimum contacts and Fair Play/Substantial Justice

Question 15

In World-Wide VW, after the district court denied a motion that they had no minimum contacts, a writ of prohibition was filed. What is that?

Answer 15

An order from a higher court, to a lower court, for the lower court to stop doing something.

Question 16

According to World-Wide VW, what is the purpose of minimum contacts?

Answer 16

Protect D from inconvenient forums, and ensure states-as coequal sovereigns-relate within the federal system fairly.

Question 17

If contacts shrink to zero, do borders still matter?

Answer 17

Yes, because of interstate federalism–how states interact/relate to each other within a federal government. Borders always matter because you can live your life avoiding every sovereign except your state or the federal government. You have the right to control your jx’l destiny.

Question 18

What is the first thing to ask in a contacts analysis?

Answer 18

Did X, themselves, ever reach out to the forum? It can’t be someone else reaching out for X because that’s not X.

Question 19

What is the difference between horizontal and vertical conflicts?

Answer 19

Vertical = federal vs. state (really no "choice of law" because federal law trumps state law)
Horizontal = state vs. state

Question 20

What is the difference between naked stream of commerce and stream of commerce plus?

Answer 20

Naked stream of commerce: you make stuff and your responsibility follows your stuff through the stream of commerce-no r/o necessary (Brennan +4 Asahi). Plus: A manufacturer must r/o in someway via the stream of commerce (O’Connor +4 Asahi).

Question 21

What are the FP/SJ factors?

Answer 21

1. P’s interest in relief
2. D’s burden
3. Forum’s interest in being forum
4. Interstate system’s interest in efficiency*
5. Shared interest in social policy*
   * Gensler doesn’t think these matter as much

Question 22

After Asahi, which plan-Brennan’s or O’Connor’s-was used by federal and state courts?

Answer 22

Federal district courts split between the two. State courts overwhelmingly opted for Brennan’s plan because it gave them more power.

Question 23

What were the three camps after Nicastro?

Answer 23

Kennedy +3: Need to r/o to that state
Ginsburg +3: If r/o to US, you r/o to all 50 states
Breyer +1: Agreed with Kennedy, but don’t need to decide non-traditional r/o (like internet issues)

Question 24

If a foreign manufacturer (A) ships his products to a Canadian distributor (B), who, then, ships the products to the USA (C), who has reached out to whom?

Answer 24

A –> B –> C; A never r/o to C.

First rule of r/o: it has to be you!

Question 25

While you can theoretically only avail yourself, personally, to one forum (two with the federal govt) your whole life, is that feasible for a business?

Answer 25

It’s possible to stay strictly local, but it’s also SUPER easy to forfeit your right to stay local with businesses.

Question 26

Which weighs more when determining r/o: contracts or behaviors?

Answer 26

Behaviors. A contract alone doesn’t constitute r/o because it doesn’t tell us who r/o to whom.

Question 27

How relevant are the fairness factors when discussing r/o?

Answer 27

The court in Burger King seemed to not really care about them by “just going through the motions.” Gensler says they don’t work in a domestic case, but they do matter with international cases.

Question 28

Even if D would suffer minimal or no inconvenience; even if the forum state X has a strong interest in applying it’s law to a controversy; and even if the forum state X is the most convenient, state X may sometimes lose its power to render judgment. How?

Answer 28

The DPC, as an instrument of interstate federalism, may do so to ensure fairness and efficiency.

Question 29

In World-Wide VW, P argued that because a car is mobile by its very design and purpose it was ‘foreseeable’ that P’s VW car would cause injury in OK. Why did the court not buy that?

Answer 29

“‘Foreseeability’ alone has never been a sufficient benchmark for PJx under the DPC.” If “a corporation delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state,” then the corporation has clear notice (or foreseeability) that it is subject to suit there.

Question 30

What is the “fair warning” requirement of the DPC?

Answer 30

“By requiring that individuals have ‘fair warning that a particular activity may subject [them] to the jx of a foreign sovereign,’ the DPC ‘gives a degree of predictability to the legal system with some minimum assurance as to where that conduct will and will not render them liable to suit.’” Burger King quoting World-Wide VW.

Question 31

How is the fair warning requirement satisfied?

Answer 31

If D has “purposefully directed” his activities at residents of the forum, and the litigation results from alleged injuries that “arise out of or relate to” those activities.

Question 32

How must “substantial connections” be satisfied?

Answer 32

D “deliberately” has engaged in significant activities within a state, or has created “continuing obligations” between himself and residents of the forum.