Post
by skoobily doobily » Fri Dec 03, 2010 1:01 am
I've started typing out canned answers for everything. Will practice sticking them into hypo's tomorrow morning bright and early!
something like this:
The first question when deciding whether or not a state has personal jurisdiction over the defendant is to see if there is a statute governing the limits of jurisdiction within that state. Statute x notes that x and x must be required in order for a state to have jurisdiction. Because the defendant did x, it is likely that the statute will be satisfied and there is statutory jurisdiction.
The next issue is whether or not the statutory jurisdiction for x state is within the constitutional limits of due process. The contacts for jurisdiction are for a defendant to be served in state, for a defendant to have residence in the state, for a defendant to be served process within the state, or for the defendant to have minimum contacts with the state.
If the defendant is served within the state there may still be an issue of minimum contacts. According to the case in burnham if the defendant subjects himself to the rules and the economy of the state then is likely availing himself. Thus if the defendant has never done anything more than fly over the defendant state then there may be dissent within the brennan camp as to whether or not there is jurisdiction. However in burnham the father was only there for 3 days visiting his children and in a business meeting, if the defendants conduct was far superior to that then there will likely not be a question about whether the jurisdiction is constitutional, and the state will indeed have jurisdiction over him.
If the defendant is served as a matter of minimum contacts, then we must first look to see if there is general jurisdiction over the defendant. The courts in perkins ruled that when a company’s main headquarters was in a state then that was sufficient for general jurisdiction. On the opposite end of the spectrum in helicopteros, the court held that a company who had several contacts, although fairly isolated, with the state was not enough to grant general jurisdiction. Based on the evidence of the defendants contacts x x x it is difficult to tell because the courts have not set a standard for when there is and when there isn’t general jurisdiction, although, because it is closer to (perkins, helicopteros) the court may more likely than not rule (xxx).
If the court ruled that there is no general jurisdiction, then the court will look to see if the claim arose from the contacts the defendant had with the state. If the claim has arisen out of the contacts then there may be specific jurisdiction within the state.
To ask the question of whether or not there are minimum contacts under specific jurisdiction the court will look to see if the defendant availed himself to the forum state.
If the act in the forum state was carried by a unilateral actor having purchased the product, then the courts should look to whether or not the defendant availed himself to that specific market, and whether or not it was foreseeable that a claim could arise from the state. Based on the actions of the defendant that xx and x. the court will probably find that the defendant (did, did not) avail himself to the forum state. The facts of this case (may be) similar to worldwide in which the defendant did nothing to lure in business from the forum state, and had did not enjoy the business of this state’s economy. Therefore the defendant (may, may not) have specific jurisdiction in the forum state.
If the act in the forum state arose because the product was carried in a stream of commerce by commercial distributors then the question arises whether or not the availment was purposeful and foreseeable by means of a stream of commerce into that forum state. The supreme court is split on this issue. If the goods are merely sent in significant quantities to the forum state, then the brennan group may find that there is jurisdiction because the actor foresees the commerce headed to that state and enjoys the benefit of that state’s economy. However the O’Connor side of the supreme court will find that mere awareness is not sufficient for the state to grant jurisdiction over the defendant. More evidence of availment may be required such as advertisement within the state, or manufacturing specifically to the market.
Based on the evidence (insert evidence) the court will likely find that the defendant (does enough to satisfy both camps and will probably have jurisdiction, is somewhere in between and the answer will remain ambiguous and must look to lower courts to determine if there is jurisdiction, is not enough to satisfy either camp and probably does not have jurisdiction such as an insignificant quantity)
The final question in determining whether there is jurisdiction are the fairness factors tests. Things to consider when deciding the fairness of the jurisdiction include: burden to the defendant and the plaintiff, if for instance the defendant has never been to the forum state (see: less than burger king) then he may have difficulty litigating in that state. Where the witnesses are, if most witnesses are in the forum state, it may be too much of a hardship for the plaintiff to litigate in defendant’s home state.
The state’s interests must also be protected. Does the state have an interest in litigating the issue and defending it’s citizens? In McGee, the state of California had an interest in protecting a single mom against an insurance company from texas (the case may resemble something to that manner, if so analogize facts from that case)
(this was all stream of consciousness, so forgive me ahead of time for the crappy writing)
nice. i'll give that a look
