Civil Procedure II

3 October

• MS (WA Corp, WA HQ) Carla, exec, wuits after failure to promote. She moves to CA, files suit in federal district court in L.A. alleging discrimination. 12(b)(2) motion. The question is is whether there's general jurisdiction. Specific jurisdiction would be of interest if the question were about CA law, but it's not, so it's just whether there was general jurisdiction.
• Burnham takes us back to Pennoyer, but maybe not quite.
• CT Corporation: agents for service of process.
• Carnival Cruise
  Can a forum-selection clause in a form contract be upheld? Yes.

  Most of the time courts think parties to contracts of adhesion have the option of not entering the contract.

• Second writing assignment (2 weeks from today):

  Review memorandum on WMP (Wisconsin Metal Products) in supplementary materials.

  Looks like a forum-selection and a choice-of-law clause. And indemnification.

  Letter to client. Requirements:

  1. Clarity
  2. Concise (2-3 pages)
  3. Understandable to Joe the businessman
  4. Correctly address the problem

  Due 10/17

• Wuchter: individuals being sued in personam must receive some sort of notice
• Mullane v. Central Hanover Boank & Trust Co.
  Standards of notice in cases with multiple potential parties.

  States have consitutional authority to regulate, but the NY statute was insufficient notice for due process.

  So the requirements differ between parties who can be adequately identified and those who can't.

  So do we have a terrible problem here (i.e., not knowing whether process is adequate until the suit is over)? Potentially, but in practice, it's usually pretty obvious.

• Long-arm statutes come in three forms:
  1. Explictly co-extensive with the constitution
  2. Limited to less than the constitution allows
  3. Construed as co-extensive with the constitution (WI is one of these)

5 October

• Put the venue statutes on the comparison chart also.
• We can combine our discovery requests into a single document; don't put name-- only exam number.
• Gibbons v. Brown
  If the long-arm statute allows jurisdiction, then we consider whether it's constitutional.

  There was no "substantial and not isolated activity" here, so it was dismissed on the basis of the statute, and we didn't reach the constitutional issue. The court reads "is" to mean "currently," by the way.

• Venue: 28 USC § 1391. Venue wants to be where either of the parties are, or the events giving rise to the case.

  Doesn't have to do with the power of the court, but rather the location of the court that will hear the case.

  1391(a): claims solely on diversity - only in a district where any defendant resides if all defendants are in the same state; or a district in which a substantial part of the events or omission giving rise or a substantial part of the property; or a district in which any defendant is subject to personal jurisdiction at the time the action is commenced if there is no other district in which the action may be brought

  1391(b): not solely diversity - the default clause is different ("found" as opposed to subject to jurisdiction)

  1391(c): corporations - any judicial district in which it is subject to personal jurisdiction (and if more than one district in a state, there's a rule for deciding which one)

  1391(d): foreign powers

1392: defendants or property in different districts or states.

• Dee-K Enterprises
  § 1391(b)(3) is thorny, apparently.

  "Sdn. Bhd." means, essentially, LLC

  There's a jurisdiction issue here, but we're focusing on the venue one. It has 1391(d) (venue is OK for the foreign defendants) and 1391(b)(3) (not sure about venue-- need to show where at least one defendant is "found").

• Federal venue statutes apply only to suits brought in federal court; cases removed to federal court get venue from that process. A defendant who removes to federal court can move for transfer of venue, but not on the basis of improper venue.
• Transfer and forum non conveniens: courts can decline to exercise jurisdiction.
• Piper v. Reyno This is like an exam question.

  Why doesn't Piper challenge jurisdiction in CA the way Hartzell did? Because they'd be gotten-- they sell aircraft all over the place.

  But not so with Hartzell. Remove to federal court in CA. Next motion to transfer venue to middle PA (Rule § 1404(a)). Venue is proper in CA, because it's in the district whence it was removed. But they move for the convenience of parties, and witnesses (because Piper HQ is there, and venue could be there if this had been brought there to begin with).

  Now Piper moves to dismiss for forum non conveniens. Could they have done that without removing or transferring? Sure. Why didn't they? They like their chances better in middle PA.

• Factors in the decision: public (courts) and private (litigants).
• Long-arm statutes represent a legislative choice before the face, and in some sense are more democratic.
• Forum non conveniens represents an after-the-fact decision, and it's judicial.