1L Substantive Law Questions (c/o 2017) Forum

[drumstickies]

thanks y'all for the replies.

@cardozo

idk if contacts and fair play/substantial justice can always be conflated like that
contacts might be undisputed, yet there might be no J because of a lack of interest of the forum state (asahi), or a burden on D so grave as to be unconstitutional (burger king)

Cardozo is correct based on the language of International Shoe: "he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" They aren't two separate tests.

not that it's two separate tests, but that it's more of a two-step single test. (sorry for being vague.) first look at the existence of minimum contacts and then look at whether asserting jurisdiction over D would be reasonable (i.e., not offend traditional notions of fair play and substantial justice). at least, i know a couple of civ pro profs approach minimum contacts like that from my school. it's just confusing to me, since it seems like they can be conflated at times.

we define minimum contacts as any D that purposefully avails itself to the forum state. it can even be a minor purposeful availment (e.g., McGee, where D's purposeful availment was a single letter asking whether P wanted to continue business). however, purposeful availment seems also to go to the second factor of the test, whether jurisdiction is "reasonableness" or fair, since in Hanson, D's continuous correspondence with P wasn't purposeful availment... because P's moving to FL was a "unilateral action." D was just maintaining existing business with P.

OR do we define minimum contacts as any contact and then determine whether it's reasonable/fair + substantially just by looking at purposeful availment? that might bridge our 1 test v. 2 test (or two-factor single test) distinction.

[drumstickies]

no, it is a two prong test

from the opinion in burger king:
"Nevertheless, minimum requirements inherent in the concept of “fair play and substantial justice” may defeat the reasonableness of jurisdiction even if the defendant has purposefully engaged in forum activities."

fair play and substantial justice form the basis for brennan's "fairness" test in burger king (or o'conner's "reasonableness" test in asahi) which allow for a finding of no personal jurisdiction despite contacts that would otherwise be sufficient

this makes sense. i like it

[CardozoLaw09]

OR do we define minimum contacts as any contact and then determine whether it's reasonable/fair + substantially just by looking at purposeful availment? that might bridge our 1 test v. 2 test (or two-factor single test) distinction.

I think this is right

Min contacts is a threshold that has to be met before determining whether those contacts have been "purposefully availed" by D so that the notions of fair play and substantial justice are not offended. At least this is how I'm understanding it now after reading the responses and referring back to my material.

[03152016]

re: the 2 vs 1 test thing
i don't think anyone said it was two tests, i only said it was a two-prong test
the two tests thing was something malleus brought up re: my statement that contacts and fair play/substantial justice can't be conflated

this all gets a little confusing bc we're not specifying whether minimum contacts refers to the minimum contacts themselves or the minimum contacts test
fair play/substantial justice is a component of the minimum contacts test, but is distinguishable from the minimum contacts themselves

[malleus discentium]

no, it is a two prong test

from the opinion in burger king:
"Nevertheless, minimum requirements inherent in the concept of “fair play and substantial justice” may defeat the reasonableness of jurisdiction even if the defendant has purposefully engaged in forum activities."

fair play and substantial justice form the basis for brennan's "fairness" test in burger king (or o'conner's "reasonableness" test in asahi) which allow for a finding of no personal jurisdiction despite contacts that would otherwise be sufficient

I mean you're not wrong to say that the test has been blurred and Burger King makes it seem like two things. But neither am I wrong that International Shoe treats it as one thing, which is what I said. I am also not wrong to say, more generally, that it is not particularly clear that they are two unique and equally necessary inquiries. O'Connor's plurality specifically concludes with the International Shoe framing. And who the hell knows what's going on after McIntyre, which barely even talks about "minimum contacts."

[sesto elemento]

Since we are on the topic of CivPro...how does Daimler AG v. Bauman fit into personal jurisdiction?

[Mal Reynolds]

You guys are confusing a few things, and focusing on irrelevant distinctions. Malleus discentium is just wrong. Int. Shoe is just the case people point to when they talk about the origin of minimum contacts. The actual jurisprudence separates the two inquires one hundred percent. Check current cases in any jurisdiction you want. And what does it matter, you're still going to talk about the fairness factors, and they can still overrule minimum contacts. I don't get what your point is.

I. Specific Personal Jurisdiction-All of A/B/C need to be met to find PJ.
___A. Minimum Contacts
_______Purposeful availment is another way of saying you have minimum contacts with the forum state. You have "availed" yourself of the resources and legal
system of the forum state. There are sort of two parts to this, but they probably are more similar than different: 1) what you did in the forum state and 2) whether it's foreseeable that you will end up in court due to 1). The reason why it's not that necessary to separate this analysis is because the more actions/contacts you have in a forum state, the more foreseeable it is. Foreseeable is just an empty conclusion anyway. You always need something more so I would be careful using the term as a stand in for substantive analysis-this goes for torts and causation also.

There are multiple ways or theories to get to minimum contacts/purposeful availament. However it will depend on the individual cases you guys have read. I organized it like it is below because it's an easy way to clue you in to the different factual scenarios possible and what cases or nuances in the rules you can cite to in your arguments.

Purposeful Availment Theories:
_______1. Seeking the commercial benefits of the forum state: This is World Wide Volkswagen. The dealer only did business in the tristate area. So he wasn't seeking the commercial benefits of Oklahoma or wherever the car ended up. Also another BIG part about this case is that it was the unilateral act of a third party that brought the car into another forum state, where the defendant wasn't seeking commercial benefits. If someone randomly takes your product elsewhere, jurisdiction is less likely to be exercised.
_______2. Contractual Relationship in the Forum State: This is Burger King. It's slightly related to 1., but the contract can be in a different state than the business you are doing-like in this case. The Burger King was gonna be in Michigan but the contract was negotiated in Florida and has a forum selection clause for FL (which is not determinative but a forum selection clause really helps).
_______3. Stream of Commerce: This one is a pain since Asahi and J McIntyre were both plurality opinions. This one is sort of related to 1. and 2., but it deals with whether your products are components or other products likely to end up in other forum states through commerce (NOTE: Not through the consumer walking it in to the forum state. This is overruled in World Wide Volks). Some justices think that stream of commerce is enough. If you sell components, then you should be liable in any state they end up in. Other justices ascribe to Stream of Commerce PLUS. You need something extra, like marketing in that state, or taking some actions directed at that forum. Policy judgments about PJ in general will get you to home base here.
_______4. The Internet: If the shit ends up on the internet and into a forum state there are multiple tests that can establish sufficient minimum contacts. Depends on what you read or if you did at all, as different tests are always falling in and out of favor.

___B. Relation of the contacts to the cause of action.
_______This is something people forget. The defendant's contacts have to be related to the plaintiff's lawsuit. If you're getting sued for defamation related to a magazine you publish, the contacts have to be related to your business for that magazine in the forum state. Not some other sort of contacts.

___C. Fairness/Burger King Fairness Factors
_______Whether it's reasonable to extend jurisdiction even when there is a showing of minimum contacts. I'm pretty sure it's never reasonable to extend jurisdiction in the absence of any meaningful contacts however.
_______Constitution doesn’t guarantee BEST forum, just not a constitutionally unfair one. Rather: so grave and difficult that a defendant would be at severe disadvantage. Greater wealth of opponent will not defeat jurisdiction.

2. Fairness Factors
a. Burden on the Defendant
b. State Interest
c. Plaintiff Interest
d. System Efficiency
e. Furtherance of Social Policies

Sorry if this the format is confusing. I have no idea how to indent apparently.

[Br3v]

Shout out to Br3v for making last year's topic.

2Ls / 3Ls / graduates are encouraged to contribute to this thread.

Outlining season is upon us. Exams are within sight.

How does 2-207 work? What's the Erie Doctrine? Don't understand a concept? Ask it here.

Good luck guys!

[JustHawkin]

Since we are on the topic of CivPro...how does Daimler AG v. Bauman fit into personal jurisdiction?

This!

[03152016]

it narrows the scope of what constitutes "home" for a corporation for purposes of establishing general jurisdiction
"constant and pervasive contacts" is open-ended language; based on their extensive sales nationwide, who's to say daimler isn't at home in every state?
court rejects this; "home" for a corporation is where it is headquartered and/or incorporated
however, the opinion also allows for "exceptional" cases in which contacts are so extensive and of such a nature as to render them at home in the state

[CardozoLaw09]

Torts

Even though most jurisdictions have abolished the distinction between the categories of entrants to land, I still can’t wrap my head around the concept that a “known” or “discovered” trespasser is owed a higher duty of care (reasonable care) than a mere trespasser (duty to warn of hidden dangers only). To me that implies the following: if you trespass somewhere enough, then not only do you get to keep trespassing, but your duty of care is upgraded to reasonable care. Assume a parking lot, which had trespassing sign's that warned people that unless they are a customer, they are trespassing, of a store was used frequently by people who cut through the parking lot because it saved time on their walk home. If X - and others - regularly trespassed by walking through the store's parking lot, they would be owed a higher duty of care, which runs counter to the goal of the trespassing sign’s that were placed outside the store. Instead of the sign’s serving as a deterrent, they encourage trespassing, as long as it is done enough and made aware to the store ie) they would be foreseeable trespassers because they do it so often. How does that make sense?

[wsparker]

tag

[pancakes3]

Torts

Even though most jurisdictions have abolished the distinction between the categories of entrants to land, I still can’t wrap my head around the concept that a “known” or “discovered” trespasser is owed a higher duty of care (reasonable care) than a mere trespasser (duty to warn of hidden dangers only). To me that implies the following: if you trespass somewhere enough, then not only do you get to keep trespassing, but your duty of care is upgraded to reasonable care. Assume a parking lot, which had trespassing sign's that warned people that unless they are a customer, they are trespassing, of a store was used frequently by people who cut through the parking lot because it saved time on their walk home. If X - and others - regularly trespassed by walking through the store's parking lot, they would be owed a higher duty of care, which runs counter to the goal of the trespassing sign’s that were placed outside the store. Instead of the sign’s serving as a deterrent, they encourage trespassing, as long as it is done enough and made aware to the store ie) they would be foreseeable trespassers because they do it so often. How does that make sense?

The trespassers wouldn't be owed a higher duty of care than the customers since the customers aren't trespassers at all. Those who cross through regularly would be owed a higher duty of care than say... a robber though. The shift is from categories of entrants to a sliding scale of reliance to ascertain duty. The foreseeable trespasser that is known to you has a higher reliance on your duty of care than someone who is unknown to you.

[p3aceandl0v3]

Can someone explain to me the holdings in Stewart and Walker? (under erie)

[Mal Reynolds]

Stewart and Walker most directly speak to whether the federal rule is sufficiently broad to control the issue before the court-or whether there is a conflict with a federal rule and state rule/practice. If there is a true federal conflict the federal rule trumps.

So first off, you have to make sure that you're in a Hanna/REA regime. If you've determined that it's either a contitututional provision, federal statute or FRCP, then you have to ask whether or not the rule is in conflict with the state law/rule. Whether or not there is a conflict with the rule is more of a standard, so just make sure you make good arguments on both sides-in fact all of eire is fairly easy in my mind if you have the framework down, since it's such a squisy process. So there are a number of cases that hold there is a conflict. Stewart is one of those. It talks about the 1404 transfer provision. The court said that which federal court should hear the case is arguably procedural, therefore the federal statute governs whether you are able to transfer venues. Walker goes the other way and argues that Rule three and the statute of limitations provision isn't broad enough to cover tolling issues. Rather it only covers time periods of the SoL. These cases can go either way so I wouldn't worry about how they reason in each case. They are terrible with their ratoinales.

Here is my genral outline.

I. Is there a constitutional provision, federal rule, or federal statute?
__The constitution always trumps. Federal statute will trump if it's arguably procedural, then it will also trump under the necessary and proper clause. Judge-made rules will be governed by the Byrd/RDA analysis. If it's a federal rule then you have to determine whether it's broad enogh to govern the issue before the court.

Here are the cases I read which detemrine whether a rule is sufficiently broad or not. This can really go either way so try to compare and contrast which cases you have covered.

On Point/Conflict: Hanna, Sibbach, Stewart, Shady Grove

No conflict: Cohen, Palmer, Walker, Ragan, Semtek, and Gasperini

II. If you have detemined whether there is a conflict then, you just have to ask whether the statute is constitutionally valid. If it's arguably procedural then the supremacy clause governs.

III. Statutory validity. Finally you have to ask whether the REA is statutorily valid

Here is my outline for section III.
_1. Really regulates procedure and justly administers remedy and redress.
_2. Doesn’t modify, enlarge or enhance any state-created rights.
__a. Presumptive validity of federal rules.
____i. Substantive state rights if it requires policy choices OUTSIDE of the courts.
______1. Outside
__________a. Trespassers recovery of damages
__________b. Monopoly contracts
_______2. Inside
__________a. Limiting depositions.
__________b. Bifrucated trial
_______3. In between
__________a. Attorney client privilege seems to affect inside and outside
behavior.

[Manteca]

Mal, you are a godsend.

[p3aceandl0v3]

Mal, you are a godsend.

Agreed. Thanks!

[Fiero85]

Torts

I liked this post because it was labeled by course topic.

I had a 30 second freak out when I had no idea what class the Int'l Shoe/Minimum contacts shit was even from lol.

[Attax]

Torts

I liked this post because it was labeled by course topic.

I had a 30 second freak out when I had no idea what class the Int'l Shoe/Minimum contacts shit was even from lol.

Literally went over Int'l Shoe last week in CivPro.

We move really slow in CivPro.

We've covered pleadings, parties & claims, and personal jurisdiction so far.

[sam91]

it narrows the scope of what constitutes "home" for a corporation for purposes of establishing general jurisdiction
"constant and pervasive contacts" is open-ended language; based on their extensive sales nationwide, who's to say daimler isn't at home in every state?
court rejects this; "home" for a corporation is where it is headquartered and/or incorporated
however, the opinion also allows for "exceptional" cases in which contacts are so extensive and of such a nature as to render them at home in the state

Yeah--I agree this trips me up a little.

If your going off of Burger King that two prong test seems to be:
1) Is there a minimum contact(s) with the state that makes it reasonably foreseeable that a D could be hailed into court? [O'Connor in Asahi joined by 4 judges explained merely putting a product into the stream of commerce is NOT enough to satisfy this prong; Brennan believed it was enough]
2)Is it in compliance with fair play and substantial justice?
(the burden is now on D if the first prong is satisfied to prove it is unfair to subject him to PJ -- the court in Burger King held that if the first prong is satisfied the unfairness would have to be so gross as do deny a defendant his day in court...

For a PJ question I am going to go with the above, using McGee/Hanson/WWVW to further support my analysis.

[CardozoLaw09]

Civ Pro

On the exam, are we supposed to argue why we think the facts "arise from similar transactions or occurrences?"

[TheoO]

Holy shit, Mal! That's a fantastic outline!

[sam91]

CIV PRO

Would someone be so kind as to clarify if the below looks like i have the understanding of the below correct:

1) Pendent claim jurisdiction- when the P has one claim for which there is no independent basis of federal subject matter jurisdiction and one claim for which there IS an independent basis for federal jurisdiction (ANCHOR claim and another)
2) Pendent Party Jurisdiction- arises when the separate claim P wants to join necessitates joining another claim and another PARTY.
3) Ancillary Jurisdiction- comes into play after the initial pleading; it concerns the responses of the party to the initial complaint.

Thanks

[chem!]

Civ Pro

On the exam, are we supposed to argue why we think the facts "arise from similar transactions or occurrences?"

You want to argue both sides of the issue. Don't ignore the "why nots".

[Manteca]

Civ Pro

Question for clarification: Under §1332, if there's multiple Ps asserting the same claim against D (non-class action suit), can you aggregate the amount in-controversy?