For Thursday, April 9

Wednesday audio--Section B (first ~20 minutes cut off), Section A. Essays ## 6 and 7 posted.

Those assigned Essays ## 8, 9, and 10: Would you rather have it posted this Friday (due our final day of class) or next Monday (due the last day of class in my office, even though we do not meet).

If you are interested, here is Mallory, in which the Court held that a state could compel consent to general jurisdiction in its registration statute. And here is Fuld, in which the Court did not decide what, if any, limits the 5th Amendment imposes on Congress' power to grant personal jurisdiction.

Question 8 on Glannon p.149 illustrates the type of Quasi-in-Rem II action that survives Shaffer--plaintiff seizing property in State B to enforce a (valid) judgment from State A. One way to think about is that Ito's property in New Mexico (his minimum contact with that state) is related to the enforcement action in New Mexico, satisfying Shaffer. The enforcement action is a distinct civil action in New Mexico from the underlying fraud action in Emporia. And the property is related to that enforcement action as a possible way plaintiff can enforce the valid judgment.

Prep Venue, Transfer Venue, and FNC. I hope to finish that in one day. For tomorrow:

The Atlantic Marine excerpt omits FN 6 (on the word "consideration," at the end of Sentence 1 of ¶ 1 of Part III.A). This offers a different statement of the 3-part balancing test on Glannon p.183. The footnote reads, in full, as follows. You can use either version (or both) in your analysis.

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. 

 

 

 

We then will start Erie on Friday. 

Essay # 6 (Both Sections)

Download here. Due in class Wednesday, April 15.

Essay # 7 (Both Sections)

Download here. Due on Wednesday, April 15.

Sample Answer: Essay # 5 (Sec. A)

Available outside my office.

Mean: 32.85

Median: 36

High: 45

Sample answer after the jump.

Sample Answer: Essay # 5 (Sec. B)

Available outside my office.

Mean: 29.14

Median: 30

High: 35

Sample answer after the jump. 

For Wednesday, April 8

Friday audio--Section B, Section A. Essays ## 6 and 7 will post at 12:30 Wednesday (please note the correction on which essays). Essays ## 8, 9, and 10 will post on Friday or the following Monday. Again, all essays will be due before classes end and reading week begins.

We will cut 10 minutes off class on Wednesday and Friday of next week; we will make it up the following week.

Section B: Remember that we are flipping class with Crim; we will meet at 9 on Wednesday in RDB 2008. Remember that next Friday's class will be in the Courtroom.

Prep the rest of Personal Jurisdiction--Property and Review. We will begin with whether the contacts in Ford "relate to" the claim. What make "relate to" entail beyond what Ford did? Consider: Defendants travel to TX to enter into a contract to provide transportation services for a pipeline project in Colombia; the helicopter crashes in Colombia; plaintiffs sue in TX.

How is Ford not the old "doing business" general jurisdiction? Note Justice Breyer's concerns in Nicastro for Appalachian potters, Brazilian coops, and Egyptian shirtmakers; how should the Shoe algorithm deal with those concerns?

I want to do a short discussion at the end about PJ in federal court. Go back to FRCP 4(k). Consider 18 U.S.C. § 2333, authorizing suit against foreign terrorist organizations, and § 2334, which establishes jurisdictional rules for such actions. Thinking about how Shoe and World Wide define what the the 14th Amendment does, what is different about the due process analysis in federal court and how might that affect the PJ analysis?

For Friday, April 3

Thursday audio--Section A. Essays ## 7 and 8 will post next Wednesday, April 8, due Wednesday, April 15.

Prep all cases in Modern Analysis (Nicastro, Walden, BK), then prep General Jurisdiction Revisited. Prep the puzzles and questions ahead of time.

On the subject of Long Arm Statutes: This short article includes an appendix identifying the long-arm provision for each state, including where it appears (Constitution, statute, court rules) and whether it is an enumeration, a catch-all, or a hybrid. Nice resource to have.

In returning to Daimler, the casebook omits two footnotes that are worth highlighting, for understanding the Shoe Algorithm and how the analysis works. Both are on p.173:

• FN 19 is at the end of ¶ 2, on the word State.

We do not foreclose the possibility that in an exceptional case, see, e.g., Perkins, described supra, 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 infra, at 23, quite another to expose it to suit on claims having no connection whatever to the forum State. 

• FN 20 is at the end of Part IV.B, on the word California.

To clarify in light of Justice Sotomayor’s opinion concurring in the judgment, the general jurisdiction inquiry does not “focu[s] solely on the magnitude of the defendant’s in-state contacts.” Post, at 8. General jurisdiction instead calls for an appraisal of a corporation’s activities in their entirety, nationwide and worldwide. A corporation that operates in many places can scarcely be deemed at home in all of them. Otherwise, “at home” would be synonymous with “doing business” tests framed before specific jurisdiction evolved in the United States. See von Mehren & Trautman 1142–1144. Nothing in International Shoe and its progeny suggests that “a particular quantum of local activity” should give a State authority over a “far larger quantum of . . . activity” having no connection to any in-state activity. Feder, supra, at 694.Justice Sotomayor would reach the same result, but for a different reason. Rather than concluding that Daimler is not at home in Cali- fornia, Justice Sotomayor would hold that the exercise of general jurisdiction over Daimler would be unreasonable “in the unique circumstances of this case.” Post, at 1. In other words, she favors a resolution fit for this day and case only. True, a multipronged reasonableness check was articulated in Asahi, 480 U. S., at 113–114, but not as a free-floating test. Instead, the check was to be essayed when specific jurisdiction is at issue. See also Burger King Corp. v. Rudzewicz, 471 U. S. 462, 476–478 (1985). First, a court is to determine whether the connection between the forum and the episode-in-suit could justify the exercise of specific jurisdiction. Then, in a second step, the court is to consider several additional factors to assess the reasonableness of entertaining the case. When a corporation is genuinely at home in the forum State, however, any second-step inquiry would be superfluous.Justice Sotomayor fears that our holding will “lead to greater unpredictability by radically expanding the scope of jurisdictional dis- covery.” Post, at 14. But it is hard to see why much in the way of discovery would be needed to determine where a corporation is at home. Justice Sotomayor’s proposal to import Asahi’s “reasonableness” check into the general jurisdiction determination, on the other hand, would indeed compound the jurisdictional inquiry. The reasonableness factors identified in Asahi include “the burden on the defendant,” “the interests of the forum State,” “the plaintiff’s interest in obtaining relief,” “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,” “the shared interest of the several States in furthering fundamental substantive social policies,” and, in the international context, “the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction.” 480 U. S., at 113–115 (some internal quotation marks omitted). Imposing such a checklist in cases of general jurisdiction would hardly promote the efficient disposition of an issue that should be resolved expeditiously at the outset of litigation. 

The missing clause in 1367(b)

In class, we discussed this puzzle:

    A (NJ) + B (DE) v. X (DE)

We explained that this case is not covered by the text of § 1367(b), which does not include "claims by plaintiffs joined under Rule 20" from supplemental jurisdiction. But the Court nevertheless said no jurisdiction. Given the fundamental nature of the complete diversity requirement (no reason for a federal forum with less than complete diversity), § 1332 is not satisfied absent complete diversity. Since § 1332 is not satisfied, the court lacks "original jurisdiction" and thus lacks supplemental jurisdiction under § 1367(a). The court cannot "split" jurisdiction and exercise diversity between the diverse parties and supplemental between the non-diverse parties. And it was necessary to do this, lest an obvious drafting error blow up Strawbridge.

Several alert readers expressed confusion at this, pointing to a discrepancy between that and the final problem in the Glannon reading on supplemental jurisdiction. Glannon offers a version of this:

    A (NJ) ($ 1.5 m) + B (NJ) ($ 30k) v. X (DE).

This presents the same problem as the one we discussed in class--one of § 1322's "jurisdictional requirements" is missing in an action involving plaintiffs joined under Rule 20. The difference is that the missing requirement is not complete diversity but amount-in-controversy--one of the plaintiffs does not meet the jurisdictional minimum (recall that each plaintiff must seek > $ 75k from each defendant).

As Glannon explains, the Court in Exxon said there was supplemental jurisdiction over B's claim, since that combination is not listed in § 1367(b)'s exclusion.

So how do we square that with the problem from class? Exxon held that the complete diversity requirement is so fundamental that § 1332(a) is not satisfied without it (and because § 1332(a) is not satisfied, § 1367 does not grant supp jur). But the no-aggregation rule is less fundamental. The point of the AiC requirement is to ensure only "big cases" go to federal court. This case is "big" because A seeks millions of dollars, even if B seeks less than the jurisdictional minimum. So § 1332 is satisfied by complete diversity and the presence of A's large claim; the court therefore can exercise supplemental jurisdiction over the one small claim because § 1367(b) does not address this line-up (joined plaintiffs).

Does that seem absurd? Absolutely. As Justice Ginsburg argued in dissent in Exxon, § 1332(a) by its terms does not create a hierarchy of elements. She argued that § 1332(a) is not satisfied (thus no supp jur is possible) unless all of § 1332(a) is satisfied.

Fortunately, this does not arise all that often for two reasons:

1) It is relatively rare that a plaintiff cannot meet the AiC requirement. Absent clear law or obviously minor injuries, it rarely "appears beyond doubt" plaintiff cannot recover more than $ 75k. Most defendants don't really contest it.

2) (More important): This problem only arises in a case of multiple plaintiffs against one defendant. Once we add defendants (joined pursuant to Rule 20), the case falls within the first category in § 1367(b): Claims by plaintiffs against persons made party under Rule 20, which is expressly excluded from supp jur.

Sometimes confusion is good. It means you are understanding things, so that stuff that does not fit causes confusion.

Moot Court 1L Interest Meeting

12:30 p.m., Friday, April 17.

I encourage everyone to attend and find out. The fall intramural competition is a a lot of fun and Moot Court is a great thing to show employers.

And remember: If you can handle this class, you can handle oral arguments.

For Thursday, April 2

Wednesday audio--Section B, Section A. Essay # 5 due in class tomorrow.

Correction to assignment for tomorrow, beyond what I said at the end of class:

    • Read this blog post and the linked pages.

    • Prep all of Shift to Minimum Contacts, including the Questions and Puzzles.

    •  Modern Analysis or The Shoe Algorithm; prep World Wide and Nicastro.

Into Friday, we will cover the rest of Modern Analysis, plus General Jurisdiction Revisited.

Personal Jurisdiction Preliminaries

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 current edition, but has given permission to share the old pages).

Change to Essay Schedule

I understand that your final LSV briefs are due on Saturday, April 11. I understand that but for this Sunday being Easter, they would have been due this Sunday, April 5. So this coming weekend is really the "final" weekend to work on the brief.

Because I try to avoid assigning essays during that final "real" LSV weekend, I am changing the schedule as follows:

Essay # 6: Will be posted on Wednesday, April 8; due on Wednesday, April 15.

Essay # 7: Will be posted on Thursday, April 9; due on Thursday, April 16. 

Meet-and-Confer

On a recent ABA program.