Civil Procedure II

26 September

• 10 points for oral participation (subjective, at the end of the semester, not necessarily tied directly to scores).
• 30 points for written exercises
• 2 study guides of 5 points each
• All that stuff together will make 40% of grade
• You inherit a vacaion home in ID from a distant relative.

  First, children who live next door fall into a pit, neighbors sue you for attractive nuisance. Probably there's jurisdiction (related to your holding there).

  You and your teacher involved in an auto accident in LA, teacher sues you and attaches the land. Probably no jurisdiction (there would have been under Pennoyer, but Shaffer says no.

  Over T-Day, you're headed to your property and stay over in OR. You fail to pay your hotel bill. Is there jurisdiction in OR? Yes.

  In CA auto accident, you're served in OR-- jurisdiction in CA? Probably (but revisit after Burnham).

• Now on to specific jurisdiction. We've got 4 cases (World-Wide VW, Asahi, Burger King, Pavlovich).
• World-Wide Volkswagon
  Creek County, OK was regionally famous for high plaintiffs' verdicts.

  The Robinsons are NY citizens still, so they name the distributors to defeat diversity (because they want to stay in OK state court).

  Woodson, the defendant here, is the district court judge. He denied the motion to dismiss, so the appeal is from a non-final order (on a writ of prohibition): to prohibit the trial court judge from exercising jurisdiction. So that's a kind of arcane procedural moment.

  WI SC has "petition for review," not "certiorari," by the way.

  Just placing things into the stream of commerce did not make OK a constitutionally required jurisdiction.

• Asahi Metal Industries
  > In CA, they call impleading "cross claim."

  So there were a whole bunch of claims and defendants at one point, but now it's just Asahi and Cheng Shin because everyone else has settled out.

  Whether you "purposely avail yourself of the benefits and protections" of the forum state is a factor in all these cases.

  Here maybe courts should reject jurisdiction, even where there are significant contacts with the forum, if jurisdiction would be unfair: there's a 5-prong test.

  Here, maybe the more people you sue, the better your chances of settling.

• Burger King
  There was a choice-of-law clause, but not a forum selection clause.

  The biggest reason that FL has jurisdiction is that Rudzewicz went out of his way to involve himself with a FL-centric business. Plus that choice-of-law clause.

• Pavlovich. v. Superior Court
  This is the DVD CSS stuff. And note that we've got a state court, not a federal court, putting its jurisdictional foot down.

  The plaintiffs really should have showed that there actually was some injury (i.e., what videos did he experiment with).

• What if Pavlovich were served with process while visiting Disneyland in LA? Under Pennoyer there would be jurisdiction.
• Jurisdiction is about power, fairness, sovereignty. Jurisdictional fights are part of litigation strategy: these cases aren't esoteric, they're about influencing the probability of an outcome.
• When defendant raises a jurisdictional defense, plaintiff has the burden of showing that there is jurisdiction and can use easily-available info (ads, phone books, etc.). There can be some discovery as well (we'll see this when we get to Coastal Video).
• From these cases, you can imagine how the litigants could have done better (e.g., making a better factual record about the DVDs, pleading something specific about the VW dealers, suing Burger King first in Michigan on some contractual issue, putting a forum selection or arbitration clause in the contract, etc.).
• Burger King: Brennan's expansive view of jurisdiction is vindicated, but only in a way that drags the little guy into a faraway court.
• Gneral jurisdiction:

  Individuals subject to it in the state of domicile.

  Corporations are subject where they're incorporated and where they have their principal place of business. And maybe where there are heavy contacts (i.e., substantial business).

• In federal court, and in many states, you can use a declaration instead of an affidavit. The former doesn't have to be notarized, but it is explicitly made subject to penalty of perjury.

28 September

• Perkins
  Most states have a long-arm statute (for bringing out-of-state people into court in the state). So one question might be whether the long-arm statute applies? Then next, does the exercise of that statute comport with due process? The WI caselaw basically says that WI's long-arm statute should be interpreted as broadly as due process allows. That essentially collapses things into just one issue. But some states might have a more limited long-arm statute.

  Where would the case have gone if jurisdiction had not been found? Maybe the Phillipines. Which, of course, didn't have working courts at the time, so maybe SCOTUS was thinking of jurisdiction by necessity.

• Helicopteros Nacionales
  How is this distinguished from Perkins? Well, the CEO in that case did a lot in Ohio, whereas here there's only one trip to TX.
• 7^th may soon rule on whether contacts via email can establish personal jurisdiction (oral arguments recently)
• Coastal Video
  Seems like Krames and Staywell are really one corporation (maybe parent and subsidiary, but more likely just divisions of the same thing).

  Why E.D.VA? Because Coastal Video filed there, because they live there. Also, that district was the fastest federal court district docket in the country at the time (neck and neck with W.D.WI).

  Anyway, the court says there's no specific jurisdiction, but the plaintiff can have 15 days to do discovery to prove that there's general jurisdiction.

• First written assignment: Discovery requests from Coastal Video to Krames designed to seek information relevant to personal jurisdiction over Krames. 30(b)(6): if you don't know who you want to depose (by name), you can describe with reasonable particularity the subject matter that you want to cover.
  1. Notice of deposition
  2. 10 interrogatories
  3. 10 document requests
  4. 5 requests to admit
  Due Monday 10/10. Read the WI rules in the supplemental materials. Don't write definitions or instructions for the interrogatories-- use the E.D.WI rules.
• The 5 possible answers to deposition questions:
  1. Yes
  2. No
  3. I don't know
  4. I don't remember right now (the "right now" part preserves your options for later-- it doesn't seem inconsistent if you remember later)
  5. Something else

  Just answer the questions asked. If you wait and go slowly, the deposition will go more swiftly, because you're not opening the door to all kinds of other follow-up questions.

• The goal of your deposition is not to win the case, or to educate the other side. It's to answer questions truthfully: cases are lost at deposition, not won.
• Read all of 30, 33, 34, 35: that's what we need for the assignment.