Professional Documents
Culture Documents
ANALYSIS:
Specific rules, then
Principles (of public law), supporting the rules, then
Socio/Economic/Political Context
LAWYERING TOOLS:
Procedural Realism: Be well connected to the real world; how procedure is crafted, interpreted,
and applied.
Prophesy: “the role of the lawyer is prophesy…” –Supreme Court Justices of the past.
We don’t just determine what the law is today and was yesterday, the real way to earn your keep
as a practicing lawyer is to predict – what will the law be in the future and how can you change
the law to what you would like.
BROADER PICTURE: Despite post Civil war amendments and 14th amendment; court wanted to reassure
southern states that 14th amendment wasn’t going to be used to allow one state to power over another
state (particularly the northern states will not have control over the dealings of other states).
Underlying Suit:
Present Suit:
RULE:
“The acceptance of a non-resident of the rights and privileges [from the state] as evidenced by his
operating a motor vehicle… on a public way… shall be deemed the equivalent to an appointment of [the
state registrar to receive service for him in the state].”
Non resident voluntarily accepts the amenities of the state (state laws, rights, privileges)?
then non resident should be subject to the laws of the state.
Palowski’s single contact with Massachusetts gave rise to the claim.
Court stayed within the rule of Pennoyer by stating that a form of mandated consent was given
by Palowski by driving on Massachusett’s highways (used Kane case ).
Sometimes a single contact can be enough (if the nature and quality – reciprocity) confer
general PJdx.
BROADER PICTURE:
Expansion of state court jurisdiction because:
o State looking out for safety of its citizens; police power to protect the safety and welfare
of the people; State’s interest in regulating the highways; state’s interest in having
forum in own state to enforce own laws; equal treatment between nonresidents and
residents.
o It is FAIR to make sure that Palowski comes back to Mass and accepts responsibility.
Pennoyer does not incorporate fairness.
BROADER PICTURE:
Corporations are legal fictions they can’t be physically present.
Revolutionary reframing of the rule territory and sovereignty taken out of the picture.
Court engaging in procedural realism (get away from the fictions and labels) to look at what’s
really going on.
Underlying Suit:
Audi (Germany)
Volks (Michigan)
Robinsons (NY)
World-Wide (NY)
Seaway (NY)
Present Suit:
WWVW Woodson
Seaway
When the claim is a products liability case (product defect cases), you must show defect and
causation, then everyone in the chain of distribution is liable.
In HI: asbestos, lead poisoning, agent orange
Theory: if it is a mass manufacturing of goods, many people are benefitting from it and many
people are injured by it.
BACKGROUND OF CASE:
Plaintiffs in underlying case (Robinsons) want to stay in OKLAHOMA STATE COURT – Creek
County because of FAVORABLE JURY POOL.
o Blue collared county
o Very sympathetic to people injured by outside companies
Robinsons sued all four defendants in chain of distribution.
Seaway and WWVW filed a motion to dismiss for lack of personal jurisdiction – FRCP RULE 12(b)
(2).
Trial judge Woodson denied their motion to dismiss.
Writ of Mandamus Filed: Since there is no right to appeal until the final judgment is rendered,
WWVW and Seaway file a writ of mandamus (separate lawsuit to challenge a judge who is
allegedly exceeding her jurisdictional powers; lawsuit is rarely allowed and starts in the Supreme
Court).
HI Standard for Writ of Mandamus: writ of mandamus lies when judge exceeds her jurisdiction
(DP) or where judge is manifesting an egregious use of authority.
Strategic Significance:
o WWVW and Seaway is backed by Audi and Volks (funding litigation) in an effort to get
WWVW and Seaway dismissed from case.
o With WWVW and Seaway dismissed, complete diversity of citizenship is established
remaining defendants can remove to federal court.
o A removal to federal court for the defendants can mean pulling a different, broader jury
pool who is less sympathetic to injured plaintiffs than the state court jury pool.
LAWYERING STRATEGY:
If you want to get a broader jury pool in federal court make sure to establish complete
diversity of citizenship, even if this means trying to get a party or two dismissed.
If you want to stay in state court for the favorable jury pool make sure to enjoin all defendants
to prevent establishment of complete diversity of citizenship.
RULE:
Court reaffirms International Shoe.
Adds on to clarify the due process framework:
PERSONAL JURISDICTION
1. LA Statute
a. Transaction of business within this state (NARROW)
b. Commission of tortious act within this state (BROAD, as long as injury is
experienced in the state, then the tortious act is considered to committed
within the state)
2. Due Process
a. Minimum Contacts - D’s Contacts
i. Reciprocity (Quid pro Quo) – Hess
ii. Purposefulness in Contacts – change from Int’l Shoe (more
restriction here) **Additional requirement (p.99) – nature of
contact is such that D should reasonably anticipate being haled into
court there.
1. D must purposely do it with knowledge that he is
receiving benefits (notice and forseeability)
*If you don’t establish minimum contacts, then you cannot get to convenience analysis
b. Convenience
i. D’s interest – primary concern (Int’l Shoe) (other factors from Hess)
ii. P’s interest in obtaining convenient and effective relief
iii. State’s interest in adjudicating the dispute (protecting its own
citizens, insuring that its own substantive laws are protected and
followed).
iv. Interstate judicial system’s interest (vague)
v. Shared interest of the several states in furthering fundamental
substantive social policies
White’s Stream of Commerce Theory: State satisfies DP “if it asserts personal jurisdiction over a
corporation that delivers its products into the stream of commerce with the expectation that they will be
purchased by consumers from the forum state.”
Knowledge is required that the product is going to that specific state and that you are getting
benefits from that state.
If purposeful, then D has notice to buy insurance, pass on costs to consumers, etc.
In WWVW, not purposeful in case where product brought in to forum state by consumer.
Other Notes:
We know DP protects individuals from state BUT the issue is resurrected again at the bottom of
p.98)
The court is trying to find a rationale to pull back state court jurisdictional reach.
Turns out that this is the wrong concept but the underlying motivation may have been correct –
there needs to be some kind of limits for state court jurisdiction.
Dissent by Justice Brennan:
o Rejects White’s Stream of Commerce Theory
o States that autos are meant to be mobile.
o Feels for individuals who are hurt by this opinion.
o Feels that White’s formula is too restrictive no expectation is needed.
Underlying Suit:
Superior Court of California
settled Honda
Zurcher (CA)
settled Cheng Shin Rubber Industrial Co.
(Taiwanese Manufacturer)
(Indemnification suit)
Brennan:
Would take the “expectation” out because a corporation could expect that product would move
because product is mobile.
Thinks that injured P should be #1 factor on convenience.
White:
SOC Theory satisfies both elements of power in a situation involving out of staters and mass
manufactured goods are travelling through the chain of distribution.
RULE:
PART IIA: POWER
o Addresses White’s SOC Theory
Some courts follow it directly
Some courts require that D’s actions be more purposefully directed at the
forum state.
Requires White SOC + something more
Placement in SOC not enough
O’Connor: Due Process = White + Purposeful Direction
Purposeful direction = “additional conduct of the defendant may indicate an
intent or purpose to serve the market in the forum State, for example,
designing the product for the market in the forum State, advertising in the
forum State, establishing channels for providing regular advice to customers
in the forum State, or marketing the product through a distributor who has
agreed to serve as the sales agent in the forum State. But a defendant’s
awareness that the stream of commerce may or will sweep the product into the
forum State does not convert the mere act of placing the product into the
stream into an act purposefully directed toward the forum State.” (p. 23)
Dissent to Part IIA: Power based on O’Connor’s formulation
o Brennan, White, Marshall, and Blackmun no need for purposeful direction
o Brennan abandons his previous position and embraces White’s stream of commerce
theory thinking of injured plaintiffs like the Robinsons and thinking about most
products liability lawsuits (injured plaintiffs who need relief); saw a further tightening of
the minimum contacts rule of White.
Created a tie which prevented O’Connor’s strict view from being precedent.
Precedent can be overturned.
What are the socio/political/economic factors that will carry a rule to
be applied? Ask yourself this.
Part IIB: CONVENIENCE
o Court in agreement in this analysis.
o Power is satisfied (some dissent), BUT convenience factors divest the court of its
personal jurisdiction.
o Burden too huge on D: Japanese corporation; American legal system; logistics of sending
their people here to U.S.
o Forum State Interest –
protecting citizens, but not in the lawsuit with Asahi (lawsuit is between two
corporations; not involving injured P)
protecting/enforcing safety laws – indemnity claim doesn’t involve CA state
safety laws for highways.
o Interstate Interest – implicates foreign commerce
No personal jurisdiction because
o A – minimum contacts / POWER (O’Connor – satisfied/Brennan – not satisfied)
o B – convenience (not satisfied)
o Overcomes minimum contacts
Shaw v. North American Title Corp. (1994)
Hawaii Supreme Court
Note: Court erred in not addressing convenience part of analysis.
OVERVIEW OF CASE:
Shaw (plaintiff) sues NATCO (defendant), a CA corporation.
NATCO responds to the complaint with a motion to dismiss for lack of personal jurisdiction.
ANALYSIS:
According to Kailieha: “where personal jurisdiction is at issue, we look to the allegations of the
complaint to determine jurisdiction.”
The court looked to federal sources for guidance in how to view and weigh the allegations.
HRCP Rule 12(b)(2) is identical to FRCP Rule 12(b)(2) so “the interpretation of this rule by federal
courts is highly persuasive.”
Court quotes Moore: “If the district court chooses not to conduct a full blown evidentiary hearing on
a pretrial motion to dismiss for lack of personal jurisdiction, plaintiff need only make a prima facie
showing of jurisdiction through its own affidavits and supporting materials, even though plaintiff
eventually must establish jurisdiction by a preponderance of the evidence either at a pretrial
evidentiary hearing or at trial and, before the hearing is held, a prima facie showing suffices
notwithstanding any controverting presentation by the moving party to defeat the motion.
Because the circuit court proceeded to review the motion to dismiss upon written submissions
instead of having an evidentiary hearing, all of Shaw’s allegations are presumed true and all factual
disputes are decided in his favor.
In order to defeat NATCO’s motion to dismiss for lack of personal jurisdiction, Shaw need only make a
prima facie showing that:
o HI’s long arm statute covers NATCO’s activities.
o The application of the HI Long Arm Statute comports with Due Process.
o Cowan case
(1) Was NATCO “transacting business” in Hawaii pursuant to HI long arm statute?
o Court quotes Cowan: “Whether a nonresident transacted business demands an examination
of all the defendant’s activities within the forum related to the present cause of action.”
o In Cowan: the court recognized that physical presence in the forum state is not necessary
for a finding of transacting business.
o In Cowan case: Defendant transacted business in the state because:
(1) he entered into two listing contracts with HI residents involving a sailboat
located in HI;
(2) he mailed documents to HI; signed by plaintiff in HI;
(3) he solicited customers in HI by regular advertising in a national magazine.
o In Cowan, the court found that: “Where one alleges jurisdiction over a nonresident
defendant pursuant to HI’s long arm statute, HRS § 634-35(c) requires that the cause of
action relate to the defendant’s contacts in HI.”
o In instant case, plaintiff’s facsimilies and telephone calls as well as signing and receiving
checks in Hawaii, signing escrow documents in HI were merely incidental to the escrow
transaction conducted in CA.
o No prima facie showing of transaction of business in HI also because the subject property
was in CA and the escrow contract was between CA residents.
o No contract, no solicitation, the business contacts were nominal and incidental to another
contract to which the plaintiff was not a party to.
o CONTEXT: If Court took a broad interpretation of this part, it may discourage other business
from wanting to do business in HI (anti-business, too many burdens on business)
(2) Did NATCO commit a “tortious act” in Hawaii pursuant to HRS § 634-35(a)(2)?
o According to Kailieha case: “a tort is committed where the injury occurs, and the phrase
‘tortious act’ encompasses the injurious consequences of an act.”
In this case, the court ruled that because the injury resulted in HI, the “tortious act”
element of HI’s long arm statute was satisfied.”
o Yes, NATCO did commit a tortious act in HI.
FEDERAL QUESTION
Relevant Sources:
28 U.S.C. § 1331
Constitution Art. III, § 2
Louisville & Nashville Railroad v. Mottley (1908)
Buffalo Creek Disaster
Constitution Art. III, § 2: (BROAD for U.S. Supreme Court – has power to choose cases)
The judicial power of Federal Courts shall extend to all cases… arising under the laws of
the United States.
Section I:
o The Constitution creates only one court US Supreme Court
o Congress creates all the other lower courts
Section 2:
o Purpose: to define what kinds of issues will/when the court has subject matter
jurisdiction.
Louisville & Nashville Railroad v. Mottley (1908)
Federal law must create the claim for SMJ in federal district courts
CONTEXT:
Tremendous industrialization
Huge powerful corporations had emerged
Railroads
A lot of concern about industrialization creating too much concentrated power in these
industries – industries influencing public officials and policies great public outcry
Too much concentrated industrial commercial power.
RULE:
If plaintiff’s claim is based on federal law (the federal law CREATES the claim), then the statute
authorizes subject matter jurisdiction in federal district courts.
o Ex: Federal civil rights law says that plaintiff can sue for certain circumstances. If there is
a violation of these terms, then the federal law creates the claim and plaintiff can sue.
In the instant case, the body of law creating plaintiff’s claim was state contract law, not federal
law. Federal law came in only as a defense.
o “It is not enough that the plaintiff alleges some anticipated defense to his cause of
action and asserts that the defense is invalidated by some provision of the Constitution
of the United States.”
The focus is on plaintiff’s claim
Court will not look beyond plaintiff’s claim to an anticipated defense based on
federal law to find subject matter jurisdiction.
Supreme Court finds that the Circuit Court was without jurisdiction and by its own motion was
able to dismiss the case on lack of subject matter jurisdiction. The fact that neither party brought
this up doesn’t matter, the court can dismiss on lack of subject matter jurisdiction at any time,
even on appeal. (See FRCP Rule 12(h)(3))
REASONING:
Why did the court create an arbitrary and narrow rule?
o The Supreme Court was concerned that a broad test like the federal ingredient test in
the Constitution would open the flood gates to cases that the federal courts don’t really
need to address.
Why doesn’t the Supreme Court adopt the same narrow rule and instead follow the broad
federal ingredient test under the Constitution?
o The Supreme Court is not concerned about opening their own floodgates because it
chooses its cases through WRIT OF CERTIORARI and can choose from a broader array of
federal ingredients.
DIVERSITY OF CITIZENSHIP
Relevant Sources
28 U.S.C. § 1332 – Diversity of Citizenship; Amount in Controversy; Costs
28 U.S.C. § 1441(a) – Actions Removable Generally
FRCP Rule 8(a)(1) – Claim for Relief
Citizenship of Partnerships:
For diversity purposes, partnerships are not considered as entities but as collections of
individuals; thus the citizenship of each of the members of a partnership must be considered.
Citizenship of Corporations:
The corporation is a citizen of any state where it is incorporated AND where its principal place of
business is.
o Makes it more likely that complete diversity of citizenship is destroyed.
Corporation’s Principal Place of Business:
o A corporation has only ONE principal place of business (said to be a question of fact –
according to textbook p. 234)
o Various Tests:
“Nerve center” test – look to where the executive and administrative functions
are controlled.
“Muscle” test – look to where the everyday business activities of the company
are concentrated.
o Courts tend to apply either/or test.
Textbook p. 195: “The purpose of the dual citizenship is to prevent what Congress thought was
essentially local state claims between a citizen and a local corporation, incorporated elsewhere
for convenience, from burdening federal courts. Many corporations incorporate under the law
of a state deemed to have more permissive corporation laws than those of the state of their chief
place of business. Delaware, for example, is more often the legal “home” of corporations than it
is their chief place of business.”
Lawyering Strategy:
You need to be sure to know as a lawyer what the tendency is in the court of your jurisdiction is
relating to the test used.
The test used can affect whether subject matter jurisdiction exists.
Mas v. Perry
Diversity of Citizenship and Domicile
RULE:
Citizenship is determined at the time the complaint is filed. Jurisdiction is unaffected by
subsequent changes in the citizenship of the parties.
Citizenship is determined by domicile. “A person’s domicile is the place of his true, fixed, and
permanent home and principal establishment, and to which he has the intention of returning
whenever he is absent therfrom…”
DOMICILE = residence (where the party resides) + intent to remain/return
The original domicile remains for citizenship purposes until citizenship is changed.
The party invoking diversity of citizenship has the burden of pleading and showing citizenship.
(FRCP Rule 8(a)(1))
OTHER NOTES:
COMPLETE DIVERSITY OF CITIZENSHIP:
o “… the general rule that complete diversity of parties is required in order that diversity
jurisdiction obtain; that is, no party on one side may be a citizen of the same State as
any party on the other side.”
o Although 28 USC § 1332 does not by its terms require that each plaintiff be diverse from
each defendant, that interpretation was attached to the predecessor statute by Chief
Justice Marshall in Strawbridge v. Curtiss, 7 U.S. 267 (1806).
RELATED RULES:
FRCP Rule 65(a) and 65(b)
William Inglis & Sons Baking Co. v. ITT Continental Baking Co. (1976)
FACTS:
Substantive Law Claim: violation of federal anti-trust law; conspiracy to undercut costs among
the competitors; monopolizing
Substantive Law Response: competition in good faith.
District court denied plaintiff’s motion for a preliminary injunction. Plaintiffs appealed to the 9 th
Circuit.
o ANALYSIS by DISTRICT COURT FOR PRELIMINARY INJUNCTION:
RULE:
9th Circuit said that the district court improperly applied the test.
9th Circuit advocated an alternative test to the one that was articulated by the District Court.
Case was remanded back down to determine if preliminary injunction should be granted under
the sliding scale analysis.
Court found that components should be interrelated.
o P doesn’t have to show 50% or more chance of winning on the merits.
o P can still get a preliminary injunction showing less than 50% chance of winning, if the
harm that may occur to P is sufficiently serious, it is only necessary that there be a fair
chance of success on the merits.
o You can slide down to a “fair chance of success” on the merits if the degree of
irreparable harm is high.
Modern Pleading