Here and after the jump.
Four questions. One will be answered in fewer than 10 words (you will know which one it is); the others are max 1000 words each. 140 points towards your final grade.
Please note the part of the instructions that you must work alone and that you may not discuss this exam with anyone.
So remember Meishe v. TikTok, the subject of Essay # 8? TikTok successfully transferred to the Northern District of California. And the judge in ND Cal dismissed the claims without prejudice.
Are available outside my office. Folders are separated by section and marked by number. I am happy to meet to review any papers and to ask any questions in advance of tomorrow's Q&A. Score info after the jump.
Q&A sessions will be tomorrow, Friday, April 26. Section A will be at 9:30 in RDB 2006; Section B will be at 12:30 in RDB 2008. These are Q&A--I will have no prepared remarks and we will stay as long or as short as you have questions.
If your creative project involves a video to be shown or something else web-based, please send a link or bring a thumb drive by my office today.
Creative projects should occupy about the first half hour, then we will move to Q&A.
Defendant’s motion to transfer venue under § 1404 is granted; the civil action is transferred to the United States District Court of the Northern District of California.
The court should deny the 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction.
Essay # 6 is graded and available outside my office. Also, all prior graded essays are in the folder for the appropriate class.
Essay # 6:
Section A: Mean: 11.72; Median: 12
Section B: Mean: 12.4 Median: 11.5
Sample answer after the jump.
Remember the connection between statutes and cases interpreting and elaborating on a statute. They together create the RE in your CREAC. But you start with the precise text of the statute, then move to the interpretation and elaboration. For example, you don't begin with "complete diversity" (words that appear nowhere in § 1332). You begin with "between citizens of different states" in § 1332, then move to the complete diversity interpretation, what it means, and how it contrasts with minimal diversity. And always define your terms, from statute or case--don't assume even a law-trained reader knows the meaning. The definition is the key to the "A" in your CREAC--you can't explain why there is complete diversity if you have not defined that term.
The move from statutory text to judicial interpretation works the same for congressionally enacted laws and for rules enacted under the REA. Start with the text of § 1332, then move to Mas; start with the text of FRCP 8(a)(2), then move to Conley and Twiqbal.
Begin your analysis with the specific motion your are asked to resolve, then move from there to the rules, statutes, or cases that provide the legal rules for resolving that motion.
Remember the role you are asked to play and write the essay accordingly. If you are the court, there is no "should grant." Just grant it.
Last-day audio--Section A, Section B.
Essays 7 and 8 are due by the beginning of classtime on Monday (10 a.m. Section A, 2 p.m. Section B). I will leave folders outside my office beginning this afternoon if you finish early. I hope to have them graded before the final, but I can make no guarantees.
Essay # 6 should be available for pick-up outside my office by next Monday.
Q&A sessions will be on Friday, April 26. Section A will be at 9:30; Section B will be at 12:30. These are Q&A--I will have no prepared remarks and we will stay as long or as short as you have questions.
Creative projects will be displayed or presented at the beginning of each session. Visual projects will be displayed in the room; presentable things will be shown or presented. Please bring a thumb drive or send links for videos and anything else online. Please limit performances, videos, etc. to 3-5 minutes.
I will be in my office all of next week. I also am available by email. My practice with email questions is to anonymize and share the question on the blog.
The exam will be posted to the blog at 9 a.m. on Monday, April 29; it will be due outside my office by 1 p.m. on Tuesday, April 30. Details to follow.
Wednesday audio--Section A, Section B.
We continue working through the Erie Puzzles, beginning with # 4. Now that you know how the analysis goes, take some time to work through the problems again and check your work against what we did today.
Note that what we are doing with # 4 is considering the arguments that each party will make--Plaintiff, arguing that the special motion is not available, needs FRCP to apply and makes the arguments we described; Defendant, arguing that the special motion is available, needs to state law to apply and makes the arguments we were describing at the end of class.
In addition, reconsider # 1 (the disclosure rule)--is there an argument that no Act of Congress controls and it requires an unguided Erie analysis?
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
BEIJING MEISHE )
NETWORK TECH. )
CO., LTD., )
Plaintiff )
v. )
TIKTOK, INC., )
Defendant )
Complaint
* * *
1. Plaintiff, Beijing Meishe Network Technology Co., Ltd. (“Meishe”), is a Chinese limited-liability company with its principal place of business in Beijing. It maintains a 300-person office in Austin, Texas; this is a business and marketing office that does not engage in or perform engineering work, does not employee any engineers, and does not work with source code.
2. Defendant, TikTok, Inc. (“TikTok”), is a Chinese corporation with its principal place of business in Beijing. It employs a team of engineers in an office in Mountain View, California. One engineer works remotely, living and working in Irving, Texas. The engineers in the Mountain View office handle all implementation of all technology for TikTok’s app and social-media site.
* * *
7. Meishe owns several Chinese copyrights covering the source code for certain video- and audio-editing software.
8. A former Meishe employee disclosed the Meishe’s source code to defendant. Defendant used the improperly disclosed code to design and develop video- and audio-editing functionality in China. Defendant’s engineering team in Mountain View, California implemented the new functionality (which relied on the infringing source code) into the TikTok application. That functionality became part of the TikTok social-media site, used all over the United States and all over the world.
9. The source code used by TikTok in developing and implementing its editing functionality is virtually identical to Meishe’s copyrighted source code, as a comparison of the codes by knowledgeable engineers will reveal.
10. The source code disclosed to TikTok constitutes a protected trade secret, unlawfully provided to TikTok and therefore unlawfully used. Knowledgeable engineers can testify to the nature and secretness of the code.
Count One
Violation of Copyright Act, 17 U.S.C. § 501
Count Two
Violation of State Trade Secretes
Count Three
Conversion (State Law)
TikTok moves to transfer the case to the Northern District of California. In resolving the motion, you have the following information:
• Irving, TX is in the Northern District of Texas.
• Mountain View, CA is in the Northern District of California.
• Irving, TX is 113 miles from the courthouse for the Western District of Texas.
• The court has not resolved whether Texas or California law governs the state law claims. But the laws of conversion and trade secrets in Texas and California are substantially similar. Any differences do not involve complex or unique aspects of state law.
• As of December 31, 2023, the Western District of Texas had 10,672 pending cases (civil and criminal); the average time from filing to disposition for all civil cases was 7.3 months; the average time from filing to trial (for civil cases that reach trial) is 28.3 months; and 8.5 % of its cases were more than three years old.
• As of December 31, 2023, the Northern District of California had 14, 237 pending cases (civil and criminal); the average time from filing to disposition for all civil cases was 6.9 months; and the average time from filing to trial (for civil cases that reach trial) is 48.9 months; and 21.7 % of its pending civil cases were more than three years old.
• To the extent this answer requires any personal-jurisdiction analysis, do only the Shoe analysis; do not worry about the preliminaries.
• TikTok concedes that the Western District of Texas is not its "home" in any sense.
For the court, resolve the motion.
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
SAMUEL JOHNSON )
and JILL JOHNSON, )
Plaintiff )
v. )
KATHY GRIFFIN, )
Defendant )
Complaint
* * *
4. Plaintiff Samuel Johnson (“Samuel”) is a citizen of Franklin, TN. Prior to late April 2023, Samuel was the CEO of VisuWell, Inc., a Tennessee healthcare tech start-up with its principal place of business in Nashville, TN.
5. Plaintiff Jill Johnson (“Jill”) is a citizen of Franklin, TN.
6. Defendant, Kathy Griffin (“Griffin”), is a California citizen; she has resided there for more than 40 years and owns a house in Los Angeles County, California. She has not resided outside of Los Angeles County since moving to California in 1979. She is a comedian, actress, celebrity, and political activities. She has more than two million Twitter followers, an unknown number of whom are in Tennessee; she posts about everything from comedy to politics. She has a long career doing comedy tours, returning from all tours to her home Los Angeles County, California; her comedy touring has stopped since 2019, when her Twitter post suggested violence against then-President Donald Trump, by depicting her holding the president’s severed head. Prior to 2019, Griffin performed at colleges and comedy clubs across the United States, including in Nashville, Knoxville, and Memphis.
* * *
8. On April 24, 2023, Samuel and Jill were having dinner at a hotel in Franklin. A group of forty to fifty teenagers from a Nashville high school were taking prom pictures in a courtyard near the restaurant.
9. When the noise level disturbed Samuel and other customers, he approached the group’s chaperone and asked him to get the teens to settle down.
10. One of the teens, a young male student from the school wearing a red prom dress, overheard the request and confronted Samuel. Another student, apparently the first student’s boyfriend and also student at the school, video-recorded the encounter.
11. During the encounter, Samuel told the student who confronted him that he “looks like an idiot in that dress.” Samuel regrets the comment, although the student clearly sought to goad him into a negative reaction.
12. Samuel and Jill left the hotel soon after to have dinner elsewhere.
13. The student’s boyfriend posted the video to TikTok, from which users downloaded the video and reposted it to other social media sites, including Twitter.
14. On April 25, the chairman of VisuWell, having become aware of the video, assured Samuel the company would stand by him.
15. On the morning of April 26, Griffin retweeted the video to her two million followers, adding the comment “If this is Sam Johnson of Nashville, Tennessee, the CEO of VisWell, healthcare-tech growth strategist, married to Jill Johnson where they reside in Franklin, Tennessee, it seems like he’s dying to be online famous.” The retweet included a caption from a previous post reading “Homophobic POS in Tennessee harasses a teenager for wearing a dress to prom.” The tweet tagged VisuWell’s Twitter account (tags send a tweet to the tagged user and allowed readers to link directly and comment to the company’s Twitter feed).
16. Later on April 26, the student’s boyfriend (who recorded the incident) tweeted at Griffin, thanking her for helping the video go “viral.” Griffin responded that she was “grateful” he filmed and said she would do anything she could to help.
17. Two hours later, Griffin tweeted two pictures of Samuel’s face with the caption “Who is? THIS Sam Johnson of Franklin Tennessee.”
18. Several VisuWell customers—via social media and other methods of communication—condemned Samuel and threatened to reevaluate their business ties.
19. Later on April 26, VisuWell fired Samuel and announced the firing in a reply to Griffin’s original tweet.
20. Griffin responded in the same thread, asking if VisuWell had removed Samuel from the Board of Directors and what “measures” VisuWell was taking. Her tweet added “keeping him on the Board suggests VisuWell intends to rehire him” and “the nation will remain vigilant.”
21. VisuWell responded to that with a new tweet stating that VisuWell no longer employed Samuel Johnson in any capacity.
22. Some of Griffin’s social-media followers tweeted that they had “succeeded” in having Samuel removed as CEO.
23. Griffin doxed Samuel and Jill by disclosing and emphasizing to her two million followers the private information that they lived in Franklin, TN.
24. As a result, Samuel and Jill received and continued to receive threats and harassment from Twitter users online and by phone and mail in their Franklin, TN home. The threats and harassment began before VisuWell fired Samuel on April 26 and continued after the firing.
25. As of April 2023, VisuWell was a fast-growing tech start-up. Its commercial success was due in large part to proprietary software Samuel developed.
26. During Samuel’s three years as CEO, VisuWell sales increased by 1,200 %.
27. Prior to Griffin’s tweets, VisuWell had offered Samuel support and promised to stand by him. VisuWell fired him after Griffin’s tweets about his encounter with the teens.
First Cause of Action
Tortious Interference with Employment Contract
Second Cause of Action
Intentional Infliction of Emotional Distress
Third Cause of Action
Invasion of Privacy
In response to the Complaint, Griffin moves to dismiss under FRCP 12(b)(2) and 12(b)(3). For purposes of both motions:
• Franklin is a suburb of Nashville; both are in the Middle District of Tennessee.
• Los Angeles County—which includes Los Angeles, Hollywood, and other cities—is in the Central District of California.
• Tennessee’s Long Arm Statute provides as follows: Courts of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of the United States and the Constitution of Tennessee.
Section A: For Johnson, respond to the FRCP 12(b)(2) motion, including whether Griffin waived the defense of lack of personal jurisdiction by litigating improper venue.
Section B: For the court, decide the FRCP 12(b)(3) motion, including whether Griffin waived the defense of improper venue by litigating lack of personal jurisdiction.(You want to build a complete record, so analyze all possible bases for venue).
I have fielded several emails raising the same issue about the scope of § 1391(b)(3). I think I was not clear enough, so let me clarify.
The provision says "if there is no district in which an action may otherwise be brought as
provided in this section, any judicial district in which any defendant
is subject to the court’s personal jurisdiction with respect to such
action." That does not mean you apply (b)(3) if (b)(1) and (b)(2) are not satisfied as to the current district. It means you turn to (b)(3) in the chosen district only if no other federal district satisfies (b)(1) or (b)(2). If another district satisfies either--even if it is not the district in which the plaintiff seeks to bring the action--then the first part of (b)(3) is not satisfied and cannot be used to establish venue in the current district.
Now that we have completed Personal Jurisdiction, some recent developments that might help in understanding how courts approach the analysis.
• Media Matters sued Texas Attorney General Ken Paxton on a First Amendment claim, alleging a First Amendment violation from Paxton sending a "civil investigative demand" (essentially a subpoena) seeking documents related to Media Matters' negative reporting about Twitter (which I never will call X). Paxton challenged personal jurisdiction in the District of the District of Columbia (where MM and its reporter are located); the district court denied the motion. The decision is about the D.C. long-arm statute, but the court incorporates constitutional principles into its analysis. "Conducting business" under the statute means the same thing as "serve or seek to serve." There is some similarity between serve/seek and contract as a means of purposeful availment; contract requires a formal agreement, where seek may include (as it does here) the anticipated long-term connection between Paxton and MM as a result of the subpoen.
• For her court-observation assignment, Isabella watched the 3d DCA argument in Facebook v. Grind Hard Holdings, considering personal jurisdiction (under Florida's Long Arm and the 14th Amendment) over online contacts.
• This is a bit dated (from 2006) given the run of recent cases, but it is amazing:
Friday audio--Section A I, Section A II; Section B I, Section B II. Essay # 6 due at the beginning of class Wednesday. Essays ## 7 and 8 will post at noon Monday; due outside my office at the regular class time on Monday, April 22.
Please share any photos of Erie flowchart--either send them to me or in any chat group.
We will spend the final two class days working through a series of Erie puzzles. With the analytical framework presented in class Friday (derived from §§ 1652 and 2072, Erie, and Hanna and as elaborated upon in the Glannon reading), work through these cases.
Each
case involves a state law claim in federal court on diversity
jurisdiction (the necessary predicate to ever having to do an RDA/REA/Erie/Hanna analysis). Each case introduces a state-law provision; the question is whether the federal court must apply that provision.
In prepping, consider how each issue arises procedurally--what parties do to trigger consideration of choice of law and what law will apply. Unless indicated otherwise, it is on you to figure out what federal laws or FRCP provisions are in play based on your knowledge of the rules (hint: Some discuss rules we have learned, others require you to identify and interpret new rules in the FRCP--you are familiar enough with the rules as a whole). You must consider (even if speculating) the underlying purpose of both the federal law (whether FRCP, statute, or judge-made rule) and the underlying purpose of the competing state law--what do the various rules hope to achieve. To the extent you see two possible answers to a problem (including competing paths through the analysis or competing conclusions), be ready to argue both.
Be ready to walk through the analysis beyond the broad outline from the board--use the precise language from the rules, statutes, and cases.
As you go into this, I offer this advice: This is complex stuff with a lot of moving pieces. If you put in the time and work through the problems, you will get this. And you will be only person in the courtroom who does.
After the jump are additional materials to be downloaded and printed for the class. These are indicated by Blog in the Syllabus.
Thank you to Tabitha. Use this in preparing your outline and in answering any PJ questions. Obviously you have a lot of detail to fill-in. But this shows the basic structure.
Thursday audio--Section A, Section B. Essays ## 7 and 8 post at noon Monday, April 15 and are at 10 a.m. (Section A) and 2 p.m. (Section B) on Monday, April 22. Essay # 6 due next Wednesday.
On Consent as a basis for jurisdiction: While primarily about registering to do business, consent also would cover a contract case with a forum-selection clause; had the contract in BK had a clause that litigation would be in Florida, a court never would have reached Shoe--Rudzewicz consented to PJ through the contract. This generally does not happen, because a party under a contractual provision would never challenge PJ, unless he could argue the forum-selection clause is invalid. Then the court would have to analyze jurisdiction through some other basis (likely through a Shoe analysis).
Double Session tomorrow, with a 20-minute break between sessions.
We continue with Venue. Recall FN 6 in Atlantic Marine (the note is attached to the end of the first sentence of Part III.A).
Factors relating to the parties’ private interests include “relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Piper Aircraft Co. v. Reyno, (internal quotation marks omitted). Public-interest factors may include “the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; [and] the interest in having the trial of a diversity case in a forum that is at home with the law.” Ibid. (internal quotation marks omitted). The Court must also give some weight to the plaintiffs’ choice of forum. See Norwood v. Kirkpatrick.
• What is the difference between improper venue and change of venue--in terms of how they are raised, what they argue, and the appropriate remedy?
• What is the difference between § 1404 and forum non conveniens? How are they the same? What are the three steps in the analysis?
• Look at VOA: Is venue proper in ND Cal?
• Burger King is sued in the Southern District of Florida and the Middle District of Florida. How would the venue and PJ analyses differ in those two cases.
We then move to Erie, which I confess is my favorite part of the class. For tomorrow, prep Introduction and History, which will be all about Erie itself, then Modern Approach, which will be all about Hanna and the analytical framework that comes from that case. The Glannon reading and problems (pp. 193-211 and 213-32) will be really helpful in preparing and understanding this. Read § 1652 and §§ 2072 and 2074 very carefully and understand what they are about. Consider:
• What does the Rules of Decision Act say and mean?
• What was the issue in Erie and what were the different answers in federal court and state court under Swift? Who wins in Erie, given resolution of the choice-of-law issue?
• Erie overrules Swift in four steps--what are they? What is forum shopping and why is it problematic? What is the difference between "horizontal" forum shopping and "vertical" forum shopping?
• If a federal court must predict how the state supreme court would resolve an issue, what can it look to in deciding that?
• Under Hanna, what is the connection between the RDA and the Rules Enabling Act?
• What are the "twin aims of Erie?"
• What is procedure? What is substance? What are the 3 types of rules we might have under Hanna?
I hope to go through the framework in the two classes tomorrow. Then we will spend Wednesday and Thursday of next week working through a series of puzzles that show how this works.
Wednesday audio--Section A, Section B. Essay # 6 posted at noon. Essays 7 and 8 will post next Monday, April 15 and be due outside my office on Monday, April 22. We will tack on 10 minutes tomorrow and one class next week. Double sessions this Friday. Review these pages in the old edition of Glannon on property cases.
Here is the text of FN 19 in Daimler (the FN is at the end of the 2d full ¶ on p. 173), which we discussed in class:
We do not foreclose the possibility that in an exceptional case, see, , described at 10–12, and n. 8,a corporation’s operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in that State. But this case presents no occasion to explore that question, because Daimler’s activities in California plainly do not approach that level. It is one thing to hold a corporation answerable for operations in the forum State, see , at 23, quite another to expose it to suit on claims having no connection whatever to the forum State.
A helpful way to think about general v. specific jurisdiction and the difference between Ford and Daimler. General jurisdiction means the defendant has contacts with the forum, but those contacts have nothing to do with the claim, because everything the defendant did having to do with the claim took place somewhere other than the forum. Specific jurisdiction means the defendants have contacts with the forum that have something to do with the claim (how much goes to the difference between give rise and relate to). So Daimler had contacts with California, but those contacts had nothing to do with the claim; everything Daimler (allegedly) did as to the claim occurred in Argentina. Ford had contacts with Minnesota, but those contacts connected (remotely, but still) to Minnesota because the accident occurred there. Had the plaintiff in the Minnesota case, having been injured in Minnesota sued in North Dakota, that would be general jurisdiction.
Finish the remaining sections of Personal Jurisdiction--Property, Service, Consent and Review. Consider:
• How should the Shoe analysis address the concerns that Breyer raisies on pp. 138-39 in Nicastro?
• What was the claim in Shaffer? How do property-based claims fit in the Shoe analysis? What type of property case was Shaffer (in Glannon's framework)? Be sure to look at the Glannon work (and the Blog overview of PJ) so you can understand Shaffer.
• A (OH) sues X (IA) in California; the court enters judgment for A. X owns property in New York. Can A enforce the California judgment by suing in New York and attaching that New York property?
• How is personal jurisdiction analyzed for a non-US citizen? What about for a US citizen sued in another country?
• State law requires entities to register to do business in the state and provides that registration constitutes submission to the jurisdiction of the courts of the state for all purposes. Valid?
Be ready to analyze jurisdiction in the following case, walking through the full analysis we have on the board: Clemens v. McNamee:
Clemens (TX), a former MLB pitcher, sues McNamee (NY), his former personal trainer for defamation in Texas state court. McNamee removes and moves to dismiss for lack of personal jurisdiction.
McNamee made a series of statements about administering performance-enhancing drugs to Clemens. He made the statements to MLB investigators in New York and to a reporter from Sports Illustrated during an interview in New York. The statements described administering the drugs to Clemens in New York and Toronto while playing for teams in those cities.
McNamee and Clemens had a long-standing relationship. Over the years McNamee traveled to Texas more than 35 times to work with and train Clemens.
Texas has the same catch-all long-arm statute as California.
Prep all of Venue, Change of Venue, Forum Non Conveniens--note the several statutory provisions to really parse and arrange to see how they fit together. Also see FN 6 in Atlantic Marine (the note is attached to the end of the first sentence of Part III.A).
Factors relating to the parties’ private interests include “relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Piper Aircraft Co. v. Reyno, (internal quotation marks omitted). Public-interest factors may include “the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; [and] the interest in having the trial of a diversity case in a forum that is at home with the law.” Ibid. (internal quotation marks omitted). The Court must also give some weight to the plaintiffs’ choice of forum. See Norwood v. Kirkpatrick.
• What is the difference between improper venue and change of venue--in terms of how they are raised, what they argue, and the appropriate remedy?
• What is the difference between § 1404 and forum non conveniens? How are they the same? What are the three steps in the analysis?
• Look at VOA: Is venue proper in ND Cal?
M & B Oil Co. (“M&B”) is a Texas corporation with headquarters in St. Louis, MO. Federated Mutual Ins. Co. (“Federated”) is a Minnesota corporation with its headquarters in St. Paul, MN. Officers of both companies operate out of their headquarters. The City of St. Louis is a municipal corporation created under the laws of Missouri, with city hall in St. Louis.
M&B suffered a water leak in its building, resulting in $ 400,000 in property damage. M&B believes the Ciry of St. Louis caused and exacerbated the water damage by unreasonably using and maintaining the building's water-piping system. And the City failed to shut-off the water to the building, as it promised to do, when M&B discovered and reported the leak. M&B submitted a claim for coverage to Federated, its property insurer; Federated denied coverage.
On February 17, 2024, M&B files suit in the Circuit Court of Missouri for the City and County of St. Louis. It asserts a state-law claim for Breach of Contract against Federated, based on its vexatious failure to pay. It asserts two state-law claims against the City of St. Louis—1) Detrimental Reliance based on the City’s failure to shut the water and 2) Inverse Condemnation based on the City’s unreasonable maintenance of the building’s water-piping system. On February 26, M&B serves Federated. On February 29, Federated removes the case to federal court by filing a Notice of Removal. Although the City has not been served, it consents to removal.
M&B moves to remand on April 10. In opposing the motion, Federated argues that the motion is untimely and that the court should deny remand because the City of St. Louis had not been served at the time of removal.
For the court, decide the motion.
Graded papers available outside my office.
Section A: Median: 18 Mean: 17.66
Section B: Median: 16 Mean: 15.3
Friday audio--Section A, Section B. Essay # 6 will post at noon Wednesday, April 10, due in class on Wednesday, April 17. Remember our double session on Friday.
Here is the Notice of Removal in Worldwide. Note the dates, as we discussed in class--the action was filed in 1977 and removed in 1980, after the case went through three levels of review. Because of § 1446(c)(1), this could not happen today.
Finish Modern Approach--Burger King and Walden (not Ford for this section). Then prep Property (including reviewing these Glannon excerpts) and General Jurisdiction Revisited.
• How does a contract create minimum contacts? What is the test and what are the jurisdictional facts in BK?
• What is the "effects test" for PJ? How does Walden distinguish Calder?
• Why would there by jurisdiction over Roper (the Walmart driver) in Morgan?
• What is the difference between general and specific jurisdiction? When is a defendant subject to general jurisdiction according to Daimler? Can it be broader than what Daimler describes? How does the question of specific or general jurisdiction fit into the Shoe framework? What happens if there is no specific jurisdiction?
• How do property-based actions (in rem and quasi in rem) fit in the Shoe framework? (Review the old Glannon pages on property-based jurisdiction, as well as the Preliminaries of Personal Jurisdiction). Is there jurisdiction over the following:
• A (OH) sues X (IA) in California; the court enters judgment for A. X owns property in New York. Can A enforce the California judgment by suing in New York and attaching that New York property?
• A (OH) ® X (IA) ® Judgment for A in CA ® Attach NY prop to enforce?
Thursday audio--Section A, Section B.
We skipped this for time reasons, but review 15 U.S.C. § 78aa (this was among assigned additional materials), governing suits under federal securities laws. Section (a) gives the federal court jurisdiction (another statute-specific grant) and establishes the district where suit can be brought. Beginning on the tenth line, it says "and process in such cases may be served in any other district of which the
defendant is an inhabitant or wherever the defendant may be found." This is what FRCP 4(k)(1)(C) has in mind--a federal statute establishing rules for service of process (and thus personal jurisdiction)--in this case where the defendant can be found. That is, regardless of where the securities fraud suit is filed, a defendant anywhere within the U.S. is subject to jurisdiction.
Move to Modern Approach. Prep World Wide, Nicastro, and Burger King. Also, consider whether there is personal jurisdiction over Roper (the Walmart driver) in New Jersey.
• Consider the party line-up in World Wide Volkswagen:
Robinson (NY) sued Audi (a German company), Volkswagen of America (the US subsidiary, a NJ corporation with PPB in NJ), World-Wide Volkswagen (the regional distributor, a NY corporation), and Seaway (local dealer, a NY corporation). Robinson sued in Oklahoma state court. Audi and VWA are subject to PJ in Oklahoma, but prefer federal court? How can they make that happen?
Also, Robinson and his family were driving through Oklahoma as part of a permanent move from NY to Arizona; Robinson had a new job and the family planned to stay in Arizona permanently. Why is Robinson a NY citizen?
• How does World Wide adjust the two pieces of the Shoe standard and how do the two connect? How does a defendant establish "certain minimum contacts?" How can a defendant "purposefully avail?" In what way(s) did WW and Seaway, perhaps, purposefully avail?
• What is the difference between "stream of commerce" and "stream of commerce-plus?" Did Nicastro resolve which is required (hint: count the votes). Where can Nicastro sue, if not New Jersey? Does FRCP 4(k)(2) have anything to say on this?
• How do contract claims create purposeful availment? What were the jurisdictional facts in Burger King?
Wednesday audio w/ extra 10 minutes--Section A, Section B. As noted, double sessions for both sections on Friday, April 12; no class on Friday, April 19; final meeting on Thursday, April 18. Essay # 6 will post next Wednesday, April 10 and will be due on Wednesday, April 17.
We will finish SMJ with Removal. What is the process for removing and what can a plaintiff do following removal? Note the sample Notices in Kinsmann and Maldruccio.
Move to Personal Jurisdiction. Before doing anything, read the Preliminaries of Personal Jurisdiction Blog Post for background. Then prep all of Shift to Minimum Contacts, including Glannon pp. 93-100, then read World Wide Volkswagen. Review FRCP 12(h)(1).
• How can each party consent or submit to a court's jurisdiction?
• What is general personal jurisdiction, what is pecific personal jurisdiction, and how do they differ?
• Why do they call them "Long Arm Statutes?"
• How does the PJ analysis in federal court compare with the PJ analysis in state court?
• Consider:
A (TX) sues X (NY) for diversity in Texas state court; the amount in controversy exceeds $ 75,000. X does not believe he is subject to personal jurisdiction in Texas. His forum preferences, in order, are: 1) anywhere other than Texas; 2) federal court in Texas; 3) state court in Texas. As X's lawyer, what is your procedural strategy to obtain the most favorable forum?
• Consider the party line-up in World Wide Volkswagen:
Robinson (NY) sued Audi (a German company), Volkswagen of America (the US subsidiary, a NJ corporation with PPB in NJ), World-Wide Volkswagen (the regional distributor, a NY corporation), and Seaway (local dealer, a NY corporation). Robinson sued in Oklahoma state court. Audi and VWA are subject to PJ in Oklahoma, but prefer federal court? How can they make that happen?
Also, Robinson and his family were driving through Oklahoma as part of a permanent move from NY to Arizona; Robinson had a new job and the family planned to stay in Arizona permanently. Why is Robinson a NY citizen?
• How does World Wide adjust the two pieces of the Shoe standard and how do the two connect? How does a defendant establish "certain minimum contacts?" How can a defendant "purposefully avail?" In what way(s) did WW and Seaway, perhaps, purposefully avail?
On Thursday, we jump into into Personal Jurisdiction with International Shoe in 1945. But there is some background and about 70 years of stuff before Shoe. For purposes of time, this post provides basic background on civil litigation and personal jurisdiction prior to Shoe. Before reading the material assigned for Thursday, read this post in conjunction with Glannon pp. 69-71 and these pages from Glannon's prior edition (he removed this material from the new edition, but has given permission to share the old pages).
For personal reasons, I will be out of town on the final meeting day of the semester, Friday, April 19. So we will do an advance make-up on Friday, April 12, following the format we used last week:
Section A: 10-11:10; 11:30-12:30
Section B: 1-2:10; 2:30-3:40.
Your LSV briefs will have been submitted and your arguments will not have begun. You can schedule practice sessions around these times.
The advantage is our final class meeting will be on Thursday, April 18.
We have introduced these terms but have not gotten sharp definitions or examples. The best definition involves one or both of two features. First, the complaint includes the legal arguments and citations plaintiff will make to defend the claim in opposing a motion to dismiss or for summary judgment. Second, the complaint anticipates and responds to defenses, including by making legal arguments about why the defense fails or why the plaintiff can overcome the defense
Here is a nice example. Plaintiff sued the DA and ADA for Starr County, TX for a constitutional violation following her arrest on murder charges following a medication abortion. The ADA secured a grand-jury indictment and had plaintiff arrested, although the DA dismissed the charges three days later.
See Parts V and VI (the complaint uses a weird and probably incorrect numbering scheme). Part V lists the statutory provisions involved--a feature of an appellate brief, as you now know, but not of a complaint. Part VI argues why, with case citations, the affirmative defense of prosecutorial immunity does not bar the claim. Neither is necessary or appropriate for a short-and-plain statement. Why not state your claim--they arrested and had her indicted on nonsense charges, violating the Constitution, and entitling plaintiff to $ 1 million--and let the rest play out later in the litigation process?
One reason, perhaps, is knowing this case will attract national attention and wanting to get ahead of those issues in public. But consider whether it is worth it to complicate your case that way.
Section A: Median: 18.5; Mean: 17.5
Section B: Median: 19; Mean: 19.2
Papers available for pick-up outside my office. Please form an orderly mob.
To save class time, here is what I usually lecture on in a portion in class; you can read and take notes here. Review this prior to class on Thursday (Section A) and Friday (Section B), as it will be helpful in understanding Supplemental Jurisdiction. , as well as looking at the assigned (and linked) statutes.
Read this in conjunction with the assigned (and linked) statutes; you can supplement this with Glannon pp. 25-30, which gives a nice basic overview.
We cover Federal Question Jurisdiction in great depth in Federal Courts, an upper-level class that I encourage you to take during the next two years.
Yes, you are responsible for knowing this and it is fair game for the exam.
Thursday audio--Section A I, Section A II; Section B I, Section B II. Essay # 5 due beginning of class Thursday. Essay # 6 will be posted on Friday of next week. I will post the primer on federal question jurisdiction in a few moments. Review that, although we hit the basics in class today.
Prep the rest of Supplemental Jurisdiction.
• What is the connection between § 1367(a)'s standard and the standard for joinder in FRCP 13(a), (b), and (g); 14, and 20? There are 3 logical possibilities--what are they and which does Jones adopt? What does that mean for the counterclaim in Jones? What about the counterclaim in Kinsmann?
• Recall the old (fictional) contract claim between VOA and BSO. Can it be joined under the rules? Is there jurisdiction?
• Does § 1367(b) apply in Godin? What are the "jurisdictional requirements" of § 1332?
• § 1367(b) identifies 3 categories of cases to which supplemental jurisdiction does not apply. What do they have in common? Does § 1367(b) limit supplemental jurisdictional in the following?
• A (FL) sues X (CA) and Y (CA). X files a cross claim against Y. Y impleads its insurer (CA).
• Consider whether, in light of the
language of § 1367(b), there can be supplemental jurisdiction in the
following. (See also the discussion in Glannon on this, especially as to
the amount in controversy).
• A (NY) v. X (NJ) & Y (NY). Can there be diversity over the claim v. X and supplemental over the claim v. Y?
• A (IA) v. X (NE). X (NE) impleads M (IA). Can A bring a claim against M and get supplemental jurisdiction?
• A (NJ) & B (DE) v. Walmart (DE/AR). Can there be diversity over A's claim and supplemental over B's?
Then move to Removal. Read the assigned statutes (§§ 1441, 1446, and 1447) and map out the process for removal. What is the effect of filing a notice of removal? What is not required for a defendant to remove? What happens then?
• A, Inc. (IL/IL) sues X, Inc. (PA/PA) in state court in Pennsylvania. The day after filing, A's attorney calls X's attorney and asks it to waive service; X's lawyer declines. The next day X removes to federal court. Under § 1441(b)(2), is removal proper?
Thursday audio--Section A, Section B. Essay # 5 posted at noon (it erroneously went up for a bit this morning, then went back up at the scheduled time) and due next Thursday. I would remind everyone to read all the assigned materials in that section, even stuff we did not discuss in class, to get a full understanding of how summary judgment works.
CivProachella tomorrow. I know many people will be attending a 3 p.m. Mass for Good Friday. The class will be audio-recorded, as always.
We will finish Diversity Jurisdiction, so read and/or review all pieces of that. What are Mrs. Mas' possible domiciles and where did the court land as to her citizenship and why?
• Consider the bases for jurisdiction of the following:
• A (PR) v. X (DC)
• A (Cuba) v. X (FL)
• A (Cuba) v. X (Venezuela)
• A (TX) & B (China) v. X (Taiwan)
• A (TX) & B (FL) v. X (Taiwan) & Y (FL)
• A (Cuba/Lawful permanent resident domiciled in FL) v. X (FL)
• A (NY) v. X (US Citizen domiciled in France)
• How do you determine domicile for corporations? What about for non-corporate business entities? What is the significance of entities having (potentially) multiple domiciles? Is there diversity jurisdiction in Morgan? What about in VOA?
• What happens if adverse parties are entities with multiple citizenships? Consider whether there is jurisdiction (and on what bases) in the following cases:
• A, Inc (DE/DE) v. X, Ltd. (NJ/Canada)
• A LLC (NY/Mexico) v. X, Ltd. (NJ/Canada)
• What is the purpose of the amount-in-controversy requirement? How do you determine if it is satisfied? What if the case seeks equitable relief (such as specific performance or an injunction)?
• Plaintiff files in state court and wants to make clear the case cannot be filed in federal court because of the amount-in-controversy, by dramatically being .01 below the threshold. The complaint states "The amount in controversy is $ 74,999.99 and not one cent more." What did the lawyer do wrong, if the goal was to be .01 below?
We move to Supplemental Jurisdiction, which involves § 1367, an unfortunately confusing statute. For tomorrow, prep § 1367(a) and (c); FRCP 18 and 82; and Glannon pp. 253-61 and 267-70. Consider whether there is supplemental jurisdiction in VOA and in Godin and why. Consider whether there is supplemental jurisdiction over Winston's counterclaims and why. What might cause the court to decline jurisdiction under (c)? When should the parties and court rely on § 1367(a) and how does that show problems with VOA's complaint? Why is it preferable to establish diversity jurisdiction rather than rely on § 1367?
• What is the connection between § 1367(a)'s standard and the joinder rules of FRCP 13, 14, and 20?
• Ford says § 1367(a) reaches the limits of Article III. What does that mean?
• Recall the old (fictional) contract claim between VOA and BSO. Can it be joined under the rules? Is there jurisdiction?
Kieran Ravi Bhattacharya v. James B. Murray, et al.
Kieran Ravi Bhattacharya (“Bhattacharya”)
sues numerous officials at the University of Virginia and the University of
Virginia School of Medicine (collectively, “UVa”), arising from his suspension
from medical school; he claims the school suspended him in retaliation for his
protected speech, in violation of the First Amendment.
UVa moves for summary judgment as to the suspension from school. It concedes that plaintiff engaged in protected First Amendment activity in asking questions during an academic panel.
Section A: For Defendants, argue in support of the motion.
Section B: For Plaintiff, argue in opposition to the motion.
The legal and factual record is after the jump.
You all have seen the email from Prof. Carpenter regarding your pre-makeup classes for Criminal Law. Therefore our schedule for this Friday, March 29 will be as follows:
10 a.m.-11:10 a.m.: Section A (regular class)
11:30 a.m.-12:40 p.m.: Section A (makeup)
1 p.m.-2:10 p.m.: Section B (regular class)
2:30 p.m.-3:40 p.m.: Section B (makeup)
We will still add 10 minutes to our Friday classes on April 5, 12, and 19. That will bring us to even.
Wednesday audio--Section A, Section B. Essay # 5 will post at noon tomorrow and will be due in class on Thursday, April 4.
One final point on Summary Judgment: There is a third, rarer situation in which it might be "beyond peradventure" that a movant with the burden of persuasion and initial burden of production is entitled to summary judgment: When the movant presents overwhelming evidence from the nonmovant and the nonmovant's witnesses, such that the nonmovant cannot attack or undermine its own evidence. We saw this in Dominion v. Fox News, a defamation action over statements about Dominion voting machines and the 2020 election; the case settled for $ 768 million. Dominion sought and won summary judgment because emails and text messages from Fox employees and on-air personalities and the deposition testimony of those officials showed they knew their statements were false; Fox could not counter evidence from its own witnesses. Again, this is fairly rare.
We continue with Diversity Jurisdiction; prep the entire section, which will take us through our (some form of) double session on Friday. Review your notes (from the second day of the semester) on the basic structure of the federal judiciary and the difference between exclusive jurisdiction and concurrent jurisdiction.
• What is the constitutional structure of the federal judiciary? What does Article III tell us about the jurisdiction of the federal courts? What doesn't it tell us about the jurisdiction of the federal courts? What is the connection between Article III and the various statutes, such as § 1331 and § 1332?
• What is the purpose or rationale behind diversity jurisdiction?
• A(FL) sues X (NY) in federal court in Louisiana; is there subject matter jurisdiction?
• What is complete diversity and minimal diversity? What is required, by what source of law, and why? How does that requirement relate to the purposes of diversity jurisdiction? What is the argument in favor of minimal diversity and what are the problems with that argument, given the purposes of diversity jurisdiction?
• What is the statutory basis for jurisdiction in Mas and why? Why is it necessary to consider the citizenship of Mr. and Mrs. Mas?
• Consider whether there is complete, minimal, or no diversity in the following:
• A (FL) v X (FL)
• A (FL) v. X (NY)
• A (FL) v. X (NY) & Y (FL)
• A (CA) v. X (NY) & Y (MN)
• A (NY) & B (FL) v. X (NJ) & Y (FL)
• A (NY) & B (FL) v. X (NJ) & Y (IL)
• A (NY) & B (NY) v. X (CA) & Y (CA)
• A (NY) v. Audi (Ger) & VWA (NJ) & WorldWide (NY) & Seaway (NY)
• What is domicile? What is change of domicile? What facts and evidence can parties use to prove domicile?
• Consider the bases for jurisdiction of the following:
• A (PR) v. X (DC)
• A (Cuba) v. X (FL)
• A (Cuba) v. X (Venezuela)
• A (TX) & B (China) v. X (Taiwan)
• A (TX) & B (FL) v. X (Taiwan) & Y (FL)
• A (Cuba/Lawful permanent resident domiciled in FL) v. X (FL)
• A (NY) v. X (US Citizen domiciled in France)
Section A: Median: 14; Mean: 15.2
Section B: Median: 15; Mean: 17
A couple of general reminders about common problems that have come up on all 3 essays; I addressed these in the instructions for the essays and in the blog posts on good writing, but they bear repeating (and the prior explanations bear review):
• Know the role the question asks you to play. If you are the judge deciding a motion, don't say "The court should grant the motion." You're the court--grant it or deny it.
• I don't require you to find the original cases and provide full citations. In fact, the instructions make very clear that you should not be looking at anything other than the essay prompt and class materials. You should not be going online for anything, even to find a full citation for a case--since you don't need to provide citations at all.
• Think about how you organize your rule/explanation where you have a rule with multiple possible independent factors, such as the Foman reasons. Is it better to list and explain all 6 reasons, then go back and apply each? Or is it better to explain and apply one ground, then move on to the next? Which makes it easier for a reader to see and understand your rule/application?
• On that note: If you do not have facts that could support some of those reasons, no need to give equal space to all.
• You were asked to decide a motion for leave to amend. FRCP 15(a)(1) is irrelevant to anything in the case. Regardless of whether the party could have amended as a matter of course, by moving he necessarily asked the court for permission and therefore must satisfy 15(a)(2) and Foman. In other words, there was no reason to analyze or even discuss the 15(a)(1) time periods at all.
• Similarly, no facts indicated the amendment was filed after the limitations period had run. So there was no need to discuss relation back.
• You do not have write to the full 1000 words. But I try to make each essay substantial enough that a good anser will come close to that. It is unlikely anyone is such a concise writer that he could do a thorough and complete analysis in 700 words.
Friday audio--Section A, Section B. Essay # 4 due at the beginning of class Wednesday. We will finish Summary Judgment on Wednesday, so Essay # 5 will be posted at noon on Thursday, March 28 and due on Thursday, April 4.
We pick up with Salazar-Limon. The evidence described in the record is complete; it reflects what both parties submitted in support and opposition to the motion. (Note that moving ∆ here used both 56(c)(1)(A) in offering his own testimony and 56(c)(1)(B) in pointing to the insufficiency of plaintiff's evidence). Accepting there is no dispute as to whether π was reaching for his waistband, how can plaintiff argue there is a genuine dispute as to a material fact. We also will discuss the problems in Glannon pp.408, 409, and 417.
• The law recognizes "mixed-motive" employment discrimination cases--where the defendant took an adverse employment action based on permissible and impermissible grounds. The plaintiff must prove the impermissible grounds were the "but-for" cause--the employer would not have made the adverse decision without the impermissible reason. Courts adopt a burden-shifting framework in such cases (here is your example in which the substantive law declares that the burden of production shifts): The plaintiff offers evidence that the defendant acted for an impermissible reason; the burden of production shifts to the defendant to offer evidence that it would have made the same decision based solely on permissible grounds.
Recall our hypothetical of the African American non-attorney denied a job as an attorney because he is African American and he is
not an attorney. Consider how the plaintiff and defendant could move for summary judgment in this case and what each must do to support the motion.
• What can a non-moving party do if it needs more time to gather evidence to oppose a summary judgment motion?
• Review the Seventh Amendment; we will consider whether summary judgment is a valid procedure, as a conceptual matter and as the courts apply it.
We then move to Subject Matter Jurisdiction: Overview and the beginning of Diversity Jurisdiction. Prep all of Overview, in addition to FRCP 12(b)(1), 12(h)(3), and § 1332(a).
• When does each party consider whether the case is in the correct forum?
• How does each party (the plaintiff filing in federal court and the defendant sued in federal court) present issues about subject matter jurisdiction to the Court?
• What is the constitutional structure of the federal judiciary? What does Article III tell us about the jurisdiction of the federal courts? What doesn't it tell us about the jurisdiction of the federal courts? What is the connection between Article III and the various statutes, such as § 1331 and § 1332?
• What is the purpose or rationale behind diversity jurisdiction?
