Civ Pro - Tag a Corporation?

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cool
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Civ Pro - Tag a Corporation?

Postby cool » Wed Dec 14, 2011 12:27 am

Say a corporation is domiciled in NY. If you tag the CEO in Virginia, is that sufficient to confer jurisdiction in VA?
Last edited by cool on Wed Dec 14, 2011 2:17 pm, edited 1 time in total.

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NoleinNY
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Re: Civ Pro question about foreign corps and PJ

Postby NoleinNY » Wed Dec 14, 2011 12:31 am

Under the Nicastro plurality, the foreign corporation would probably get off the hook.

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cool
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Re: Civ Pro question about foreign corps and PJ

Postby cool » Wed Dec 14, 2011 12:34 am

NoleinNY wrote:Under the Nicastro plurality, the foreign corporation would probably get off the hook.


never read that case, i'll look into it.

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orm518
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Re: Civ Pro question about foreign corps and PJ

Postby orm518 » Wed Dec 14, 2011 12:35 am

Yeah it sounds like that fact pattern is directly adapted from Nicastro. Read it if you're interested, it explains it better than I could.

http://www.supremecourt.gov/opinions/10pdf/09-1343.pdf

Hot off the presses, from this June.

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NoleinNY
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Re: Civ Pro question about foreign corps and PJ

Postby NoleinNY » Wed Dec 14, 2011 12:37 am

cool wrote:
NoleinNY wrote:Under the Nicastro plurality, the foreign corporation would probably get off the hook.


never read that case, i'll look into it.


If your professor didn't cover it, it's probably not on your exam.

In Nicastro, a foreign company made a sale for a piece of equipment that injured someone in America. I think they sold via a trade show to someone from a different state (than the trade show).

Kennedy (+ Roberts, Thomas, and Scalia):
Sided with O'Connor Asahi rule. Sought to clarify the case. It is a company's actions, not expectations, that determine jdx.
Company had no office, paid no taxes, did no advertise in, and had no real contact with forum state.

Breyer/Alito concurrence:
Reached same conclusion, but they were uncomfortable with broad rule without considering modern day consequences. Kennedy's rule is way too strict to them. Just have to look at precedent.
OTOH, SOC requires “something more” than a single sale of a product... Like targeting a state.
EVEN IF a ∆ puts a product in SOC, fully aware AND HOPING SUCH A SALE WILL OCCUR, a single sale is not enough.
Here, no regular flow/sales of products into NJ. No trade shows, etc.

Finally, the ladies had their own opinion
Ginsburg/Sotomayor/Kagan:
Felt company purposefully availed itself. There are no rules allocating jdx among all states. By exercising jdx, NJ courts are not treading on the JDX or sovereignty of other states.

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jarv1506
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Re: Civ Pro question about foreign corps and PJ

Postby jarv1506 » Wed Dec 14, 2011 12:40 am

If you use a stream of commerce analysis then under Asahi and then the Nicastro plurality I don't see how the foreign corporation could be subject to PJ. Under O'Conner in Asahi you have to know you're product will enter the forum, under Brennan you only have to reasonable expect it. I guess it would depend on how connected the 2 corporations are. If the foreign corporation is the parent corporation then it's probably subject to PJ. BUt if they don't share the same ownership, and just sell the same products, then do any of the foreign corporations products ever enter the US? If they do then perhaps they might be subject to PJ b/c they should have known their product would enter the forum. I think more facts might make it a bit easier to decide, but I agree with NoleinNY under the facts you've given I don't think there will be PJ.

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orm518
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Re: Civ Pro question about foreign corps and PJ

Postby orm518 » Wed Dec 14, 2011 12:43 am

NoleinNY wrote:If your professor didn't cover it, it's probably not on your exam.


This is good advice. If you didn't cover Nicastro, just do a stream of commerce analysis. Essentially with taking cert on Nicastro I think people thought SCOTUS would settle the dueling pluralities of Asahi, but instead we wound up with a Kennedy plurality that basically endorsed O'Connor.

So, there's been no binding majority, but the Brennan plurality from Asahi seems to be losing.

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jarv1506
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Re: Civ Pro question about foreign corps and PJ

Postby jarv1506 » Wed Dec 14, 2011 12:46 am

orm518 wrote:
NoleinNY wrote:If your professor didn't cover it, it's probably not on your exam.


This is good advice. If you didn't cover Nicastro, just do a stream of commerce analysis. Essentially with taking cert on Nicastro I think people thought SCOTUS would settle the dueling pluralities of Asahi, but instead we wound up with a Kennedy plurality that basically endorsed O'Connor.

So, there's been no binding majority, but the Brennan plurality from Asahi seems to be losing.


This is exactly the way we covered it, but of course we had to walk through both O'Connor's analysis and Brennan's on our exam.

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cool
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Re: Civ Pro question about foreign corps and PJ

Postby cool » Wed Dec 14, 2011 12:49 am

orm518 wrote:
NoleinNY wrote:If your professor didn't cover it, it's probably not on your exam.


This is good advice. If you didn't cover Nicastro, just do a stream of commerce analysis. Essentially with taking cert on Nicastro I think people thought SCOTUS would settle the dueling pluralities of Asahi, but instead we wound up with a Kennedy plurality that basically endorsed O'Connor.

So, there's been no binding majority, but the Brennan plurality from Asahi seems to be losing.


So, Nicastro is basically O'Connor's idea of stream of commerce plus intent?

What was Brennan in Asahi? It was basically like the holding in VW right?

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orm518
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Re: Civ Pro question about foreign corps and PJ

Postby orm518 » Wed Dec 14, 2011 12:55 am

cool wrote:
What was Brennan in Asahi?


Brennan said Asahi was one of rare cases where D has purposefully engaged in forum activities but exercise of jdx is unreasonable. Most (I think 8 justices) justices all held that there was no jdx over Asahi in CA. Brennan said it was mostly because the interest of state has faded in the foreign contract dispute at hand. The personal injury plaintiff had settled out, it was two foreign corporations.

Brennan's says the Stream of Commerce is not an unpredictable current, you know who you give your product to and where it generally goes. Brennan is usually pro-jurisdiction, he comes up a lot in CivPro, usually dissenting with a more expansive jurisdiction position.

So, Brennan says "that's how the economy works stupid, sometimes your stuff ends up in a state you didn't sell it in, deal with it."

O'Connor is more like "yeah, stream of commerce, but if you showed no interest the the forum, didn't advertise there, didn't adapt your product to take advantage of that forum, then probably unreasonable to forsee being haled into court there."

WayBryson
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Re: Civ Pro question about foreign corps and PJ

Postby WayBryson » Wed Dec 14, 2011 12:40 pm

Might take a look at Goodyear Dunlop v. Brown (2011). The suit involved a similar fact pattern.

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cool
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Re: Civ Pro - Tag a Corporation?

Postby cool » Wed Dec 14, 2011 2:21 pm

Say a corporation is domiciled in NY. If you tag the CEO in Virginia, is that sufficient to confer jurisdiction in VA?

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orm518
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Re: Civ Pro - Tag a Corporation?

Postby orm518 » Wed Dec 14, 2011 2:55 pm

cool wrote:Say a corporation is domiciled in NY. If you tag the CEO in Virginia, is that sufficient to confer jurisdiction in VA?


Jurisdiction, no, not without minimum contacts.

We had a question like this except it asked if service was proper. Would love to know this, it was on my exam today. I don't have my book on me. At first I thought it would be ok, and answered accordingly. But then I thought it would only be proper if the CEO was there on business? I left my first answer

Damn multiple choice.

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cool
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Re: Civ Pro - Tag a Corporation?

Postby cool » Wed Dec 14, 2011 3:18 pm

orm518 wrote:
cool wrote:Say a corporation is domiciled in NY. If you tag the CEO in Virginia, is that sufficient to confer jurisdiction in VA?


Jurisdiction, no, not without minimum contacts.

We had a question like this except it asked if service was proper. Would love to know this, it was on my exam today. I don't have my book on me. At first I thought it would be ok, and answered accordingly. But then I thought it would only be proper if the CEO was there on business? I left my first answer

Damn multiple choice.


What about Nat’l Equipment Rental v. Szukhent?

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orm518
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Re: Civ Pro - Tag a Corporation?

Postby orm518 » Wed Dec 14, 2011 3:35 pm

cool wrote:What about Nat’l Equipment Rental v. Szukhent?


Didn't read it, but just skimmed the brief. I think that's a bit like a case we did read, Hess v Pawloski, where MA appoints the state motor vehicle registrar as your agent of process if you come and drive on their roads and someone wants to sue you.

In the case you cited the consumer didn't know about a clause in the lease that said an agent in NY was his agent for service. This is normally proper as long as the agent then gives notice to the person sued via some sort of statutorily designated method, usually registered mail.

I'm not sure the correlation between the Szukhent case and your hypo. But, normally if a CEO is in a state not conducting business of the corporation if you serve process there the court will not have jurisdiction over the corporation unless they have some other contacts. If you read Burnham v. Superior Court, there that was an individual who was served while in CA and had no other contacts, they upheld jdx, but it's different for corporations. The CEO if he's just on a golf vacation in VA doesn't bring with him the corporation for jdx purposes.

thekid001
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Re: Civ Pro - Tag a Corporation?

Postby thekid001 » Thu Dec 15, 2011 8:40 pm

I don't see how Nicastro is relevant at all. Mcintiyre's CEO is not in NJ

Of course not. How IS a CEO the corporation? This wouldn't fly in any case since Pennoyer. If goodyear turkey's CEO flew to NC, NC would have personal jurisdiction?Of course not.
Maybe Im reading the question wrong, IDK, but there is no such thing as tag jurisdiction for a corporation. (Theoretically, you could try to make a case for tag jurisdiction based on Brennan's theory in Burnham of benefiting, but this even seems more of a stretch from that broad dissenting theory)

But in no sense, does an individual=corporation for purposes of personal jurisdiction. (in most normal circumstances. situations arise like where the earlier person tries to make personal jurisdiction based on a CEO there for business. I mean maybe that would fly. But then it woldn't be tag jurisdiction. It would be the CEO creating minimum contacts in a certain forum. )




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