1. 1 Agenda for 24th Class Admin –Name plates –Handouts Slides –No TA office hours after this week –Prof. Klerman office hours for rest of semester T 11/24. 1-2PM M 11/30. 3:30-4:30PM (not M 12/2) W 12/2. 3:30-4:30PM Th 12/3. 3:30-4:30PM –Review class Th 12/10 10-noon. Rm TBA Today’s class – Personal Jurisdiction –Review of World-Wide Volkswagen & McIntyre –Burger King –Internet

2. 2 Assignment 28 USC 1391, 1404, 1406 Yeazell 174-89 5 Blackboard Questions on Venue Questions to think about / Writing Assignment for Group 7 –Briefly summarize Dee-K Enterprises –P. 176 Q5; pp. 178ff Q1a, 2 –Briefly summarize Piper Aircraft In your summary, please incorporate answers to pp. 186ff Qs1, 4, –Suppose a chemical plant in India owned by an American company leaks gas into the surrounding neighborhood and kills 16,000 people and injures half a million. The victims sue in US court. Defendants move for dismissal on the basis of forum non conveniens. The plaintiffs argue that dismissal is inappropriate, because Indian courts require a filing fee equal to 5% of damages claimed, which in this case could be billions of dollars. There are long delays in Indian courts. Indian courts have very few tort precedents and none relevant to mass torts. Discovery is usually very narrow, if allowed at all. Should the court grant the forum non conveniens motion? If it does, are there any conditions it should attach? Optional – Glannon Chapter 8 (Venue), 1 (Personal Jurisdiction),

3. 3 Review of World-Wide Volkswagen Forseeability is not enough; Purposeful availment requires more –Jurisdiction cannot be established by plaintiff’s actions (driving car to Oklahoma) –Minimum contacts focus on defendant’s actions (not plaintiff’s) World-Wide Volkswagen was NOT stream-of-commerce case –Car got to the forum (Oklahoma) because the plaintiffs drove it there NOT because it was sold by a distributor or retailer there –But dicta in WWVW discusses the stream-of-commerce A strict view of specific jurisdiction would say that there would NOT be jurisdiction over Audi or Volkswagen of America –They have contacts with Oklahoma, because they sell cars there But might not be sufficient under McIntyre –But those contacts are not (strictly) related to the Robinsons’ suit, because the car that caused the accident was purchased in NY –A less strict view of specific jurisdiction might say that the contacts were sufficiently related, because they sold the same kind of car in Oklahoma

4. Review of McIntyre –Court continues to be divided on Stream of Commerce –Kennedy + 3. Defendant must “target” the jurisdiction Putting product in stream of commerce not enough to show purposeful availment –Ginsburg + 2 Establishing distribution network to serve whole US sufficient to show purposeful availment of particular U.S. states –Breyer + 1 This case is anomalous. No jurisdiction, because only a few of McIntyre’s machines were sold to NJ Seems also to endorse narrow view of O’Connor’s Stream of Commerce Plus approach But mostly defers real analysis of stream-of-commerce decision for the next case –No majority opinion –Need to “count to 5” 4

5. 5 Questions on Burger King & Internet Briefly summarize Burger King Yeazell pp. 117ff. Q1, 2 Suppose you buy Duck Boots mail order from LLBean and pay with a check. They send you the boots, but your check bounces. LLBean sues you in Maine, where it is headquartered. Does the Maine court have jurisdiction over you? Briefly summarize Revell Handout Problems 2-18 to 2-20

6. 6 Other Traditional Bases for PJ What about other bases for personal jurisdiction from Pennoyer v. Neff –Is minimum contacts just substitute for “presence” for corporations? –Or is minimum contacts analysis the framework for analyzing all personal jurisdiction issues Shaffer v Heitner (1977) –Minimum contacts is framework for everything Quasi-in-rem jurisdiction is invalid, b/c it is general jurisdiction without extensive contacts –Q-i-R is jurisdiction in state over any dispute based on ownership of property in state (with judgment up to value of property) In-rem jurisdiction is valid, because it is specific jurisdiction –Jurisdiction over property dispute based on assertion of ownership over that property Burnham (1990) –Scalia+3. Tag jurisdiction (general jurisdiction based on presence) is ok because traditional Minimum contacts analysis is irrelevant –Brennan+3. Tag jurisdiction is ok because consistent with minimum contacts –Stevens. Tag jurisdiction ok b/c traditional and consistent with minimum contacts

7. 7 Consent to Jurisdiction Consent was basis for in personam jurisdiction before Intl Shoe Consent continues to be basis for jurisdiction 3 kinds of consent –Consent after sued in particular forum –Failure to object / waiver –Forum selection clause in contract Note difference from choice of law clause Carnival Cruise Lines –Choice of law clauses generally enforceable –Forum must be reasonable –Can‘t be chosen just to inconvenience plaintiff –Ok if some relationship to dispute E.g. defendant's headquarters state Even if inconvenient to plaintiffs Strategy –Almost always advantageous to include choice of forum and choice of law clauses in contracts –Mutually advantageous to reduce uncertainty –Especially beneficial if your client has bargaining power to choose advantageous law and forum

8. 8 2 Ways to Challenge Jurisdiction In court where sued –Make 12(b)(2) motion or state equivalent –“Special appearance” means defendant appears in court solely to challenge jurisdiction Otherwise, appearance in court could be construed as consent to jurisdiction Collateral attack –Only possible where defendant does not have assets in forum So plaintiff would have to enforce judgment in state where defendant has assets Enforcing judgment in another state requires separate suit in that state –But Full Faith & Credit Clause of US Constitution requires state to respect judgment of another state, IF THE STATE WHICH RENDERED THE JUDGMENT HAD JURISDICTION –Defendant does not appear in court where sued –Default judgment is entered against defendant –When plaintiff goes to enforce judgment in state where defendant has assets, defendant raises lack of personal jurisdiction as defense –Very risky, because if enforcing court decides the original court had jurisdiction, defendant cannot then challenge judgment on merits

9. Introduction to Venue What court within a state? –State court: LA Superior Court or San Francisco Superior Court –Federal court. If state has more than one district, which district S.D.N.Y or E.D.N.Y. Purely statutory –No constitutional constraint –States have own statutes –Federal statute is 1391 Transfers –Can transfer case between federal districts for convenience –Cannot transfer case between court systems E.g. from MA court to CA court E.g. from US court to UK court But sometimes court will dismiss case over which jurisdiction and venue are proper, but when a court in another court system would be more appropriate –Forum non conveniens 9