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Can someone help me out a bit with this..Asahi has been a huge part of my professor's class (civ pro, obviously). Last year, the exam was basically Asahi, and this years mid-term was Asahi and Nicastro. So, I'm going over PJ now and just want to make sure I have the ideas in Nicastro correct.


Basically, the plurality opinion states that "fair play and substantial justice" shouldn't be considered. It is minimum contacts and purposeful availment. Therefore because there was no purposeful availment, applying O'Connor's test in Asahi, no jurisdiction. But, I don't really see how the "fair play and substantial justice" could have even helped out Nicastro..or was it not meant to?

I'm a little confused, wasn't really into Civ Pro when we went over it in class, so I need a little clarification...thanks guys. Appreciate any insight I can get.

sknight323 wrote:Can someone help me out a bit with this..Asahi has been a huge part of my professor's class (civ pro, obviously). Last year, the exam was basically Asahi, and this years mid-term was Asahi and Nicastro. So, I'm going over PJ now and just want to make sure I have the ideas in Nicastro correct.


Basically, the plurality opinion states that "fair play and substantial justice" shouldn't be considered. It is minimum contacts and purposeful availment. Therefore because there was no purposeful availment, applying O'Connor's test in Asahi, no jurisdiction. But, I don't really see how the "fair play and substantial justice" could have even helped out Nicastro..or was it not meant to?

I'm a little confused, wasn't really into Civ Pro when we went over it in class, so I need a little clarification...thanks guys. Appreciate any insight I can get.

Disclaimer: we read Nicastro in lieu of Asahi.

The thing the plurality and concurring seem to agree on is the lack of purposeful availment of the protections and benefits of the laws of NJ. The dissent has a pretty convincing argument, IMO about NJ being the largest scrap metal dealer and so if you're selling a scrap metal machine, you're de facto targeting New Jersey. However, the plurality held that they didn't purposefully avail themselves on the NJ market, only on the US market in general so they can't be subject to personal jurisdiction in NJ because it is inconsistent with fair play and substantial justice

sknight323 wrote:Can someone help me out a bit with this..Asahi has been a huge part of my professor's class (civ pro, obviously). Last year, the exam was basically Asahi, and this years mid-term was Asahi and Nicastro. So, I'm going over PJ now and just want to make sure I have the ideas in Nicastro correct.


Basically, the plurality opinion states that "fair play and substantial justice" shouldn't be considered. It is minimum contacts and purposeful availment. Therefore because there was no purposeful availment, applying O'Connor's test in Asahi, no jurisdiction. But, I don't really see how the "fair play and substantial justice" could have even helped out Nicastro..or was it not meant to?

I'm a little confused, wasn't really into Civ Pro when we went over it in class, so I need a little clarification...thanks guys. Appreciate any insight I can get.

I may be COMPLETELY wrong, however, the way I've come to understand the personal jurisdiction analysis is that a minimum contacts and purposeful availment analysis is performed FIRST. And then, if your case or hypo or whatever passes that, then you move on to using the fair play and substantial justice analysis outlined in Asahi. In Nicastro, because the case failed personal jurisdiction at the minimum contacts and purposeful availment stage, there was no need to perform a fair play and substantial justice analysis.

Once again, I'm learning just like you, so if I'm completely and absolutely off base, I'm sure someone will tell us.

SilverE2 wrote:

sknight323 wrote:Can someone help me out a bit with this..Asahi has been a huge part of my professor's class (civ pro, obviously). Last year, the exam was basically Asahi, and this years mid-term was Asahi and Nicastro. So, I'm going over PJ now and just want to make sure I have the ideas in Nicastro correct.


Basically, the plurality opinion states that "fair play and substantial justice" shouldn't be considered. It is minimum contacts and purposeful availment. Therefore because there was no purposeful availment, applying O'Connor's test in Asahi, no jurisdiction. But, I don't really see how the "fair play and substantial justice" could have even helped out Nicastro..or was it not meant to?

I'm a little confused, wasn't really into Civ Pro when we went over it in class, so I need a little clarification...thanks guys. Appreciate any insight I can get.

I may be COMPLETELY wrong, however, the way I've come to understand the analysis is that a minimum contacts and purposeful availment analysis is performed FIRST. And then, if your case or hypo or whatever passes that, then you move on to using the fair play and substantial justice analysis outlined in Asahi. In Nicastro, because the case failed personal jurisdiction at the minimum contacts and purposeful availment stage, there was no need to perform a fair play and substantial justice analysis.

Once again, I'm learning just like you, so if I'm completely and absolutely off base, I'm sure someone will tell us.

I don't know if there's necessarily no need to look at fairness/substantial justice, but I think from deciding someone never purposefully availed themselves on a forum that it would therefore be inherently unfair to subject them to personal jurisdiction. ETA: at least that's how I've come to look at it. Also a 1L and we started with PJ so it's not exactly fresh in my mind

SilverE2 wrote:

sknight323 wrote:Can someone help me out a bit with this..Asahi has been a huge part of my professor's class (civ pro, obviously). Last year, the exam was basically Asahi, and this years mid-term was Asahi and Nicastro. So, I'm going over PJ now and just want to make sure I have the ideas in Nicastro correct.


Basically, the plurality opinion states that "fair play and substantial justice" shouldn't be considered. It is minimum contacts and purposeful availment. Therefore because there was no purposeful availment, applying O'Connor's test in Asahi, no jurisdiction. But, I don't really see how the "fair play and substantial justice" could have even helped out Nicastro..or was it not meant to?

I'm a little confused, wasn't really into Civ Pro when we went over it in class, so I need a little clarification...thanks guys. Appreciate any insight I can get.

I may be COMPLETELY wrong, however, the way I've come to understand the personal jurisdiction analysis is that a minimum contacts and purposeful availment analysis is performed FIRST. And then, if your case or hypo or whatever passes that, then you move on to using the fair play and substantial justice analysis outlined in Asahi. In Nicastro, because the case failed personal jurisdiction at the minimum contacts and purposeful availment stage, there was no need to perform a fair play and substantial justice analysis.

Once again, I'm learning just like you, so if I'm completely and absolutely off base, I'm sure someone will tell us.

That's how my professor has taught us as well. I believe Scalia basically says that in Asahi himself? Hopefully somebody can clarify. I thought the same thing you did, but then reading Ginsburg's dissent, she believes there is minimum contacts/purposeful availment. She then says it would be fair...

So basically...If you pass the minimum contacts test, then you get to fair play and substantial justice. But then, why does the Court in the plurality opinion speak of kind of "fixing" Asahi?


Also, there seems to be an issue of sovereignty and the "fair play" concept. In Nicastro it seems like they decide using the Stream of commerce plus (OConnor) idea that you are consenting to the sovereign powers of a state. Ostensibly, that comports with fair play and substantial justice. Using a Brennan idea, even if there no stream of commerce plus, you can bring somebody under jurisdiction if they enter the stream of commerce with forseeability and it is compatible with the 5 notions in Asahi..am I right on this? Also, just because it was forseeable, doesn't mean you can be brought into court, if you are following the plurality in Nicastro or the O'Connor opinion, correct?

Damn I've spent my entire Friday night on this case. I listened to the oral argument. And I probably have it all wrong.

Flips88 wrote:

SilverE2 wrote:

sknight323 wrote:Can someone help me out a bit with this..Asahi has been a huge part of my professor's class (civ pro, obviously). Last year, the exam was basically Asahi, and this years mid-term was Asahi and Nicastro. So, I'm going over PJ now and just want to make sure I have the ideas in Nicastro correct.


Basically, the plurality opinion states that "fair play and substantial justice" shouldn't be considered. It is minimum contacts and purposeful availment. Therefore because there was no purposeful availment, applying O'Connor's test in Asahi, no jurisdiction. But, I don't really see how the "fair play and substantial justice" could have even helped out Nicastro..or was it not meant to?

I'm a little confused, wasn't really into Civ Pro when we went over it in class, so I need a little clarification...thanks guys. Appreciate any insight I can get.

I may be COMPLETELY wrong, however, the way I've come to understand the analysis is that a minimum contacts and purposeful availment analysis is performed FIRST. And then, if your case or hypo or whatever passes that, then you move on to using the fair play and substantial justice analysis outlined in Asahi. In Nicastro, because the case failed personal jurisdiction at the minimum contacts and purposeful availment stage, there was no need to perform a fair play and substantial justice analysis.

Once again, I'm learning just like you, so if I'm completely and absolutely off base, I'm sure someone will tell us.

I don't know if there's necessarily no need to look at fairness/substantial justice, but I think from deciding someone never purposefully availed themselves on a forum that it would therefore be inherently unfair to subject them to personal jurisdiction. ETA: at least that's how I've come to look at it. Also a 1L and we started with PJ so it's not exactly fresh in my mind

That's a fair understanding of the doctrine if you had just gotten to International Shoe:

International Shoe wrote: "due process requires . . . if he be not present within the territory of the forum, he must have certain minimum contacts with it such that maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'"

That standard seems to say that sufficient minimum contacts is what makes it consistent with fair play and substantial justice. So on that view there's only one test.

But the doctrine continued to evolve, and split it into two tests. World-Wide hints at this, with a lot of talk about other factors to consider beyond minimum contacts: :

World-Volkswagen wrote:The protection against inconvenient litigation is typically described in terms of reasonableness or fairness. We have said that the defendant's contacts with the forum State must be such that maintenance of the suit "does not offend traditional notions of fair play and substantial justice. . . . Implicit in this emphasis on reasonableness is the understanding that the burden on the defendant, while always a primary concern, will in an appropriate case be considered in light of other relevant factors, including the forum State's interest in adjudicating the dispute; the plaintiff's interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies

So those are all going to be factors, despite not all of them really having too much to do with minimum contacts.

In Burger King, they explicitly say that there are two tests:

Burger King wrote:Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with "fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S., at 320, 66 S.Ct., at 160. Thus courts in "appropriate cases" may evaluate "the burden on the defendant," "the forum State's interest in adjudicating the dispute," "the plaintiff's interest in obtaining convenient and effective relief," "the interstate judicial system's interest in obtaining the most efficient resolution of controversies," and the "shared interest of the several States in furthering fundamental substantive social policies." World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S., at 292, 100 S.Ct., at 564.

So you need both.

So then the wrangling in Asahi is about the first prong, minimum contacts/purposeful availment (they agreed in Asahi it wasn't fair, while arguing about purposeful availment). There were two views in Asahi: Brennen said that just selling a product meant you were entering it into the stream of commerce, and had thus availed yourself of whatever jurisdiction the product wound up in. O'Connor wanted something more than just selling a product and having it wind up in the state in which you're being sued. As Brennen put it:

Brennen in Asahi wrote:I do not agree with the interpretation in Part II-A of the stream-of-commerce theory, nor with the conclusion that Asahi did not "purposely avail itself of the California market." Ante at 480 U. S. 112. I do agree, however, with the Court's conclusion in Part II-B that the exercise of personal jurisdiction over Asahi in this case would not comport with "fair play and substantial justice," International Shoe Co. v. Washington, 326 U. S. 310, 326 U. S. 320 (1945). This is one of those rare cases in which "minimum requirements inherent in the concept of 'fair play and substantial justice' . . . defeat the reasonableness of jurisdiction even [though] the defendant has purposefully engaged in forum activities."

Asahi was a 4-4-1 split, with Stevens refusing to decide between the two views.

Nicastro, as I understand it, settles the debate by saying O'Connor wins and Brennen loses: just selling a product and having it injure someone in a different state from where you sell it is not enough purposeful availment to satisfy the minimum contacts test. From Breyer's concurrence:

Breyer wrote:Here, the relevant facts found by the New Jersey Supreme Court show no “regular … flow” or “regular course” of sales in New Jersey; and there is no “something more,” such as special state-related design, advertising, advice, marketing, or anything else.

I don't think Nicastro touches the fairness/reasonable prong at all. From the dissent:

Nicastro dissent wrote:no issue of the fair and reasonable allocation of adjudicatory authority among States of the United States is present in this case

But double check everything here with your civ pro professors, I could easily be not remembering correctly or not understanding something.

EDIT: You know, looking at Nicastro again, there does seem to be some language about getting rid of the fair play analysis as a separate prong:

In products-liability cases like this one, it is the defendant’s purposeful availment that makes jurisdiction consistent with “traditional notions of fair play and substantial justice.”

That does seem to go back to the International Shoe understanding, at least in certain kinds of cases. I'll have to plow through the plurality again.

But, remember, that's only 4 Justices, as the dissent notes:

While I dissent from the Court’s judgment, I take heart that the plurality opinion does not speak for the Court, for that opinion would take a giant step away from the “notions of fair play and substantial justice” (internal quotation marks omitted).

Breyer and Arlito are clearly still interested in fairness, so I don't think there are the votes to change that.

So it still seems like a mess, and I think the best thing is to ask your professor.

Nicastro doesn't solve anything since it was 4-2-3. The controlling part of the opinion is the narrowest slice in which 5 Justices agree, which would be the Alito/Breyer concurrence.

Right, but how would you attack an exam question where there was a personal jurisdiction question? Are there just two separate analytical paths you can take? I know for a fact I'm going to encounter a huge Asahi and Nicastro question. I'm going to see my professor to clear this up, but I like hearing what everyone else has to say. Basically you could say that under an Asahi analysis, while there is a stream of commerce +, the five factors still render it unfair..however with the Kennedy opinion from Nicastro, this doesn't matter, thus there is PJ. But, the idea of stream of commerce plus without the substantial justice test being met is very confusing.


Can anyone think of a situation where somebody could meet the "purposeful availment" requirement from O'Connor's opinion and NOT be subject to PJ due to fair play and substantial justice? Seems to me that is the reason Kennedy and crew want to get rid of that analysis.

sknight323 wrote:Right, but how would you attack an exam question where there was a personal jurisdiction question? Are there just two separate analytical paths you can take? I know for a fact I'm going to encounter a huge Asahi and Nicastro question. I'm going to see my professor to clear this up, but I like hearing what everyone else has to say. Basically you could say that under an Asahi analysis, while there is a stream of commerce +, the five factors still render it unfair..however with the Kennedy opinion from Nicastro, this doesn't matter, thus there is PJ. But, the idea of stream of commerce plus without the substantial justice test being met is very confusing.


Can anyone think of a situation where somebody could meet the "purposeful availment" requirement from O'Connor's opinion and NOT be subject to PJ due to fair play and substantial justice? Seems to me that is the reason Kennedy and crew want to get rid of that analysis.

I think it's like this. First you look for a basis for personal jurisdiction: (1) domicile (2) physical presence in state (3) consent [express/implied/waiver] (4) minimum contacts.

If it's a minimum contacts analysis, first look to the long arm statute to see what it authorizes. Then look to whether the defendant has minimum contacts with the forum state. This will depend on the facts of the case. If it's a company that manufacturers a product and places it into the stream of commerce, look to the Asahi/Nicastro line of cases, and analyze according to O'Connor's opinion and Brennan's opinion. They differ on the first part of the 2-step minimum contacts analysis, whether placing a product into the stream of commerce is sufficient. However, they both agree that the 2nd step, analyzing the factors of fair play and substantial justice, cuts against personal jurisdiction in Asahi.

sknight323 wrote:Can anyone think of a situation where somebody could meet the "purposeful availment" requirement from O'Connor's opinion and NOT be subject to PJ due to fair play and substantial justice? Seems to me that is the reason Kennedy and crew want to get rid of that analysis.

Read Breyer's concurrence, he muses on this. He's worried about small manufacturers being hailed to distant courts.

ph14 wrote:Right, but how would you attack an exam question where there was a personal jurisdiction question? Are there just two separate analytical paths you can take? I know for a fact I'm going to encounter a huge Asahi and Nicastro question. I'm going to see my professor to clear this up, but I like hearing what everyone else has to say. Basically you could say that under an Asahi analysis, while there is a stream of commerce +, the five factors still render it unfair..however with the Kennedy opinion from Nicastro, this doesn't matter, thus there is PJ. But, the idea of stream of commerce plus without the substantial justice test being met is very confusing.


Can anyone think of a situation where somebody could meet the "purposeful availment" requirement from O'Connor's opinion and NOT be subject to PJ due to fair play and substantial justice? Seems to me that is the reason Kennedy and crew want to get rid of that analysis.

Here's how my flow chart I made would attack this. They aren't a resident of the state, weren't served personally, and didn't consent to jurisdiction. So now you go to check the long arm statute. Looking at the IL one, it allows jurisdiction for those responsible for the commission of a tort in the state so that would catch them. Then you have to check and make sure the exercise of jurisdiction under the long arm statute doesn't violate due process. Since there was no personal service or property in the state involved, you're in the International Shoe world and have to check minimum contacts. If it's a products liability/stream of commerce case then you look if it's domestic or foreign company. Since it's foreign you use Nicastro and Asahi. So then you ask if they purposefully availed themselves on the market and sought the benefits and protects of the law and whether it was foreseeable that their product would make it to the forum via stream of commerce. If yes, then you check reasonableness of. If not, then personal jurisdiction fails.

Flips88 wrote:

ph14 wrote:Right, but how would you attack an exam question where there was a personal jurisdiction question? Are there just two separate analytical paths you can take? I know for a fact I'm going to encounter a huge Asahi and Nicastro question. I'm going to see my professor to clear this up, but I like hearing what everyone else has to say. Basically you could say that under an Asahi analysis, while there is a stream of commerce +, the five factors still render it unfair..however with the Kennedy opinion from Nicastro, this doesn't matter, thus there is PJ. But, the idea of stream of commerce plus without the substantial justice test being met is very confusing.


Can anyone think of a situation where somebody could meet the "purposeful availment" requirement from O'Connor's opinion and NOT be subject to PJ due to fair play and substantial justice? Seems to me that is the reason Kennedy and crew want to get rid of that analysis.

Here's how my flow chart I made would attack this. They aren't a resident of the state, weren't served personally, and didn't consent to jurisdiction. So now you go to check the long arm statute. Looking at the IL one, it allows jurisdiction for those responsible for the commission of a tort in the state so that would catch them. Then you have to check and make sure the exercise of jurisdiction under the long arm statute doesn't violate due process. Since there was no personal service or property in the state involved, you're in the International Shoe world and have to check minimum contacts. If it's a products liability/stream of commerce case then you look if it's domestic or foreign company. Since it's foreign you use Nicastro and Asahi. So then you ask if they purposefully availed themselves on the market and sought the benefits and protects of the law and whether it was foreseeable that their product would make it to the forum via stream of commerce. If yes, then you check reasonableness of. If not, then personal jurisdiction fails.

Excellent. Send me this flowchart .

sknight323 wrote:Last year, the exam was basically Asahi, and this years mid-term was Asahi and Nicastro.

You do more than 1 year of civ pro?

zomginternets wrote:

sknight323 wrote:Last year, the exam was basically Asahi, and this years mid-term was Asahi and Nicastro.

You do more than 1 year of civ pro?

I'm assuming he has access to last year's exam.

keg411 wrote:Nicastro doesn't solve anything since it was 4-2-3. The controlling part of the opinion is the narrowest slice in which 5 Justices agree, which would be the Alito/Breyer concurrence.

This.

I agree with about half of the reasoning in this thread so far. I think nicastro is like a hypo. The court (rather Breyer and Alito) give us leeway to go either way on this issue.

Breyer's opinion is specifically and strategically narrow. The one extremely informative thing he does say is that if the plaintiff had pleaded the facts that the dissent uses (I.E. NJ has a huge scrap metal industry) he may have sided with the dissenters. I took that as sign that a well plead case that shows a business knew or should have known that the product would end up in a state could survive. I think the difference is providing proof and figures (like Ginsburg does). However, just saying "stream of commerce" does not pass muster for purposeful availment under the current make up of the court.

I really like this case because it gives you a perfect "fork" to argue either way on an exam.

There may well have been other facts that Mr. Nicastrocould have demonstrated in support of jurisdiction. And the dissent considers some of those facts. See post, at 3 (opinion of GINSBURG, J.) (describing the size and scopeof New Jersey’s scrap-metal business).

Sorry all, I'm behind (waaay behind), but McIntyre is confusing as fuck. Does this seem right?


McIntyre v. Nicastro. 2011.

• - Kennedy in plurality. Rejects Brennan dissent in Asahi, with foreseeability serving as a dangerously broad "touchstone." Conditions O'Connor by saying that purposeful availment will depend on the defendant's conduct and economic realities.
  - Breyer concurrence. Wants complete adherence to precedent.
  - Ginsburg dissent. IV-A draws distinction between WW Volkswagen and Asahi, indicating that Audi and the foreign importer were subjected to Oklahoma jurisdiction, whereas under Asahi two foreign litigants who had never advertised nor actively distributed their products in the US had a "pure" stream of commerce argument against jurisdiction. Wonders how the Court got so far away from Shoe.

I know I'm missing something, but mostly I'm wondering, did they simply forget about Asahi II-B?

Please call me dumb then correct me, I've been doing this all day, and I'm losing my mind.

I interpreted the Alito/Breyer concurring opinion in McIntyre to say this:
- that they felt an "isolated" sale w/o "something more" like advertisement, etc. was not enough minimum contact. even if defendant was aware (even hoping) the sale would take place.
- they felt there was no "regular...flow" or "regular course" of sales in NJ


I interpreted that to mean they may have found minimum contacts in McIntyre if the sale of goods into NJ were a regular occurrence even if there was no "something more" and McIntyre were merely aware.

In other words were Asahi decided today Alito and Breyer may have agreed with Stevens concurring opinion that "In most circumstances...a regular course of dealing that results in the deliveries of over 100,000 units annually over a period of several years would constitute 'purposeful availment'". - with the implication being that "something more" is not needed.