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Hey guys, quick Civpro Question.

So I know that after Burnham tag jurisdiction is still a thing, but for the life of me I can't think of a situation where it could be used properly to cover all of PJ, diversity and venue, since it can't be served on corporations and individuals have general PJ where they are domiciled anyway.

Thanks for your help!

Well...there's Burnham, for instance.

I'm not sure why you think diversity and venue are going to be systematically problematic.

Swimp wrote:Well...there's Burnham, for instance.

I'm not sure why you think diversity and venue are going to be systematically problematic.

Yes, but there is no way that Burnham fulfills the venue requirement in California, right? The substantial part of the events that gave rise to the claim (divorce) occurred in NJ. Therefore, even if you tag him in CA, venue would be improper and the case would most likely be moved to NJ, nullifying any advantage that tag jurisdiction may have had. And on the flip side, if the events that gave rise to the claim had taken place in CA, then there would presumably be PJ over P anyway and there would be no need for tag in the first place.

Aporia88 wrote:Yes, but there is no way that Burnham fulfills the venue requirement in California, right? The substantial part of the events that gave rise to the claim (divorce) occurred in NJ. Therefore, even if you tag him in CA, venue would be improper and the case would most likely be moved to NJ, nullifying any advantage that tag jurisdiction may have had. And on the flip side, if the events that gave rise to the claim had taken place in CA, then there would presumably be PJ over P anyway and there would be no need for tag in the first place.

Ignoring divorce as a claim (I think divorce is never in federal court)... You are correct that tag PJ will sometimes not make a big difference because venue provisions (particularly transfer provisions to most convenient forum) will result in the action being transferred. But it depends on the facts of the case. Let's do a hypo about the sale of goods:

A in New Jersey lists a painting for sale on eBay. B in California bids on the painting and wins. B pays for the painting, and A ships it to California. Uh oh, it's a forgery. A is non-responsive to B's requests for a refund. The following year, A travels to California for an art gallery opening. B tags A while A is in California. A does not regularly sell paintings to California residents.

Generally, an isolated sale to a non-resident will not satisfy due process for specific (and obviously not general) PJ. See, e.g., J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2792 (2011) (Breyer, J., concurring) ("And the Court, in separate opinions, has strongly suggested that a single sale of a product in a State does not constitute an adequate basis for asserting jurisdiction over an out-of-state defendant, even if that defendant places his goods in the stream of commerce, fully aware (and hoping) that such a sale will take place."); McKesson Corp. v. Hackensack Med. Imaging, 962 A.2d 1076, 1079–80, 1086 (N.J. 2009) ("In today's rapidly shrinking world, the purchase of goods from out-of-state vendors has become commonplace. Those instances, standing alone, are insufficient to establish the requisite minimum contacts needed to invoke long-arm jurisdiction consistent with due process.").

Under this hypo, venue would seem proper in California under 28 USC 1391(b)(2) due to the location of the property and substantial facts test. I'm not up to speed on venue transfer tests (as I work exclusively in state law), but I can't imagine NJ would be a more convenient forum compared to California.

So tagging in this instance seems to work pretty well. Would also seem to work if the product that was sold (e.g., a car) blew up in California, causing personal injury. Also Internet defamation.

Aporia88 wrote:

Swimp wrote:Well...there's Burnham, for instance.

I'm not sure why you think diversity and venue are going to be systematically problematic.

Yes, but there is no way that Burnham fulfills the venue requirement in California, right? The substantial part of the events that gave rise to the claim (divorce) occurred in NJ. Therefore, even if you tag him in CA, venue would be improper and the case would most likely be moved to NJ, nullifying any advantage that tag jurisdiction may have had. And on the flip side, if the events that gave rise to the claim had taken place in CA, then there would presumably be PJ over P anyway and there would be no need for tag in the first place.

I don't think it's straightforward that venue is improper. If you're able to get both parties into the courtroom, you're in pretty good shape for a divorce proceeding. Plus, the children are already in CA, so custody matters will be convenient to deal with. I don't think there's anything so glaringly wrong that the case would be dismissed, so even if the judge decided to transfer it, under either 1404(a) or 1406, the wife is getting into court on her terms first. Remember that Burnham had filed for divorce on grounds more favorable to him in NJ but never tried to serve his wife. Mrs. Burnham filed in CA on grounds that would get her more money (abandonment, I think). So by getting personal jurisdiction over her husband first, she got her foot in the door before he did, wherever the case ends up getting decided.

ggocat wrote:

Aporia88 wrote:Yes, but there is no way that Burnham fulfills the venue requirement in California, right? The substantial part of the events that gave rise to the claim (divorce) occurred in NJ. Therefore, even if you tag him in CA, venue would be improper and the case would most likely be moved to NJ, nullifying any advantage that tag jurisdiction may have had. And on the flip side, if the events that gave rise to the claim had taken place in CA, then there would presumably be PJ over P anyway and there would be no need for tag in the first place.

Ignoring divorce as a claim (I think divorce is never in federal court)... You are correct that tag PJ will sometimes not make a big difference because venue provisions (particularly transfer provisions to most convenient forum) will result in the action being transferred. But it depends on the facts of the case. Let's do a hypo about the sale of goods:

A in New Jersey lists a painting for sale on eBay. B in California bids on the painting and wins. B pays for the painting, and A ships it to California. Uh oh, it's a forgery. A is non-responsive to B's requests for a refund. The following year, A travels to California for an art gallery opening. B tags A while A is in California. A does not regularly sell paintings to California residents.

Generally, an isolated sale to a non-resident will not satisfy due process for specific (and obviously not general) PJ. See, e.g., J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2792 (2011) (Breyer, J., concurring) ("And the Court, in separate opinions, has strongly suggested that a single sale of a product in a State does not constitute an adequate basis for asserting jurisdiction over an out-of-state defendant, even if that defendant places his goods in the stream of commerce, fully aware (and hoping) that such a sale will take place."); McKesson Corp. v. Hackensack Med. Imaging, 962 A.2d 1076, 1079–80, 1086 (N.J. 2009) ("In today's rapidly shrinking world, the purchase of goods from out-of-state vendors has become commonplace. Those instances, standing alone, are insufficient to establish the requisite minimum contacts needed to invoke long-arm jurisdiction consistent with due process.").

Under this hypo, venue would seem proper in California under 28 USC 1391(b)(2) due to the location of the property and substantial facts test. I'm not up to speed on venue transfer tests (as I work exclusively in state law), but I can't imagine NJ would be a more convenient forum compared to California.

So tagging in this instance seems to work pretty well. Would also seem to work if the product that was sold (e.g., a car) blew up in California, causing personal injury. Also Internet defamation.

Thanks so much, this makes sense. I didn't consider that part of Nicastro, and was instead only doing analysis in the context of McGee v. International Life Insurance, where a single sale of insurance was enough for PJ. However, your hypo is a good example of one where the defendant didn't purposefully reach into the market.

Swimp wrote:I don't think it's straightforward that venue is improper. If you're able to get both parties into the courtroom, you're in pretty good shape for a divorce proceeding. Plus, the children are already in CA, so custody matters will be convenient to deal with. I don't think there's anything so glaringly wrong that the case would be dismissed, so even if the judge decided to transfer it, under either 1404(a) or 1406, the wife is getting into court on her terms first. Remember that Burnham had filed for divorce on grounds more favorable to him in NJ but never tried to serve his wife. Mrs. Burnham filed in CA on grounds that would get her more money (abandonment, I think). So by getting personal jurisdiction over her husband first, she got her foot in the door before he did, wherever the case ends up getting decided.

I think a divorce case will be in state court (as it was in Burnham), so 1404/1406 will not be applicable. You'd have to look at state venue provisions, which of course do not authorize transfer to another state (though maybe there is an exception for divorce? need to check state law on that). I think state venue provisions are pretty lax. In my state, for example, venue can be proper in the P's county of residence if the D is not a resident of the state. And there's a whole separate set of jurisdiction rules for divorce cases, anyway, with a uniform law I'm not very familiar with.

ggocat wrote:

Swimp wrote:I don't think it's straightforward that venue is improper. If you're able to get both parties into the courtroom, you're in pretty good shape for a divorce proceeding. Plus, the children are already in CA, so custody matters will be convenient to deal with. I don't think there's anything so glaringly wrong that the case would be dismissed, so even if the judge decided to transfer it, under either 1404(a) or 1406, the wife is getting into court on her terms first. Remember that Burnham had filed for divorce on grounds more favorable to him in NJ but never tried to serve his wife. Mrs. Burnham filed in CA on grounds that would get her more money (abandonment, I think). So by getting personal jurisdiction over her husband first, she got her foot in the door before he did, wherever the case ends up getting decided.

I think a divorce case will be in state court (as it was in Burnham), so 1404/1406 will not be applicable. You'd have to look at state venue provisions, which of course do not authorize transfer to another state (though maybe there is an exception for divorce? need to check state law on that). I think state venue provisions are pretty lax. In my state, for example, venue can be proper in the P's county of residence if the D is not a resident of the state. And there's a whole separate set of jurisdiction rules for divorce cases, anyway, with a uniform law I'm not very familiar with.

Good call. My Civ Pro class solely looked at the federal rules just to keep it simple--I forgot that it's Burnham v. Superior Court of CA.