Civil Procedure Outline (Spring 2008 JOHNS) Basics of Civil Procedure US Common Law

Civil Law

Case Law is binding Parties control

Comprehensive codes are

precedent Litigation Judges are lawyers with political connections Parties control investigation and discovery Trial is a single event at the end of the investigation Parties have a right to a jury trial in civil cases Parties bear their own legal fees

enforced Judges control litigation Judging is a separate career path; merit selection Judges control investigation and discovery Judges evaluate the dispute episodically Parties have no right to a jury trial in civil cases Loser pays winner's legal fees

There is no right to representation in civil cases; about 50% of parties in CA are pro-se In 1938, the FRCP merged the courts of Law and Equity The Structure of the Federal Judiciary 1. The Supreme Court of the United States 1. Circuit courts of appeal 1. District courts (Trial level) a. Have Jx to determine questions of law and fact for cases arising out of Federal Questions or Diversity (+75K) The Underlying principles of the rules of Civil Procedure 1. Justice on the merits of the case 2. Speed 3. Economic efficiency Because these are not always compatible, they are in tension; the circumstances of each case point to higher or lower weights for each For example, we may be willing to accept lower standards of substantive justice in exchange for speed and efficiency in the adjudication of parking tickets, but we might weigh justice more heavily in suits for wrongful death (procedural due process) How the rules are made; how they are changed o Congress appoints national experts to the Rules Advisory Committee, which then deliberate any proposed changes to address deficiencies or new problems o The RAC then submits the changes to the Supreme Court, which can adopt them as-is, reject them, or modify them (and then submit the rules to congress for approval

Civil Procedure Outline (Spring 2008 JOHNS) Congress has the final word on changes, additions, and deletions. The 2007 RAC promulgated wide-sweeping changes, intended to modernize the language; may be some changes to the substance
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PLEADING
The 1938 Rules greatly simplified pleading in order to reach judgment on the merits, not judgment through pleading technicalities and blunders o Why have a pleading stage? 1 To acquaint the court and the parties with the facts in dispute 2 To serve as a formal basis for the judgment to be entered 3 To separate issues of fact from questions of law 4 To allow the defendant to assert res judicata if applicable 5 To notify adversaries of the other's claims, defenses, and crossdemands
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Notice Pleading

The spirit of the rules is that a complaint only needs to contain a short and plain statement of the claim showing that the pleader is entitled to relief Rule 8(a) - A pleading that states a claim for relief must contain: 2 A short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; 3 A short and plain statement of the claim showing that the pleader is entitled to relief; 4 A demand for the relief sought, which may include relief in the alternative or different types of relief (Damages, injunction, declaratory) Sources for interpreting the rules as applied to a case: 1 The text of the rules themselves 2 Context: The rules must always be read in context with all of the other rules and the underlying spirit 3 Purpose: Advisory committee notes and comments might illuminate why a change was made 4 Canons of construction: "Expressio unius est exclusio alterius," etc. 5 Case law: Supreme court decisions on rule interpretation are binding over all lower courts 1 Circuit Appellate court decisions are binding in-circuit; can be persuasive to parallel circuits Formal Sufficiency of the complaint: "Has the complaint said enough to notify the other side of the claim?" (rules 8a, 8e, 9 [to allege fraud or mistake, plaintiff must state with particularity the circumstances; states of mind may be alleged generally) See form 11 (p. 526)
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The Complaint

Swierkiewicz v. Sorema (2002)

Civil Procedure Outline (Spring 2008 JOHNS) Resolved a circuit split; one circuit ruled that a complaint needed to allege each element of the cause of action, while others ruled that the complaint only needed to put the defendant on notice of the action Supreme Court rules in favor of notice-only standard They say that it may even appear on the face that the pleader will fail on the merits; but that is not the correct question at this stage; "The issue is not whether the plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims" The purpose of the pleading rules is to allow cases to move on to discovery if the pleading sufficiently notifies the defendant of the suit and its subject It is important to distinguish between the stages of litigation; the standard required to get from pleading to discovery (to survive Rule 12(b) motions to dismiss) is lower than that required to get from discovery to trial (to survive Rule 56 Summary Judgment) Substantive sufficiency of the complaint: "Can the Plaintiff recover for this alleged wrong? In other words, Is the defendant's alleged behavior a violation of the law?" o This is an area of the Federal Rules that may be in some transition Two different takes on Substantive Sufficiency Conley v. Gibson (1957, Unanimous) "In appraising the sufficiency of the complaint we follow, or course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"
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But, in 2007: Twombley v. Bell Atlantic "The complaint warranted dismissal because it failed in toto to render plaintiff's entitlement to relief plausible." It is unclear whether the "retirement" of the "no set of facts" standard will apply only to antitrust cases, or if the "plausibility/possibility" division outlined in Twombley will be more pervasive than that. (likely to be limited to Antitrust) The majority was likely concerned about the cost of antitrust pleading, and wanted to impose additional hurdles to prevent frivolous claims; even though a jury could find for the plaintiff on the basis of parallel conduct alone, it doesn't get past pleading... Congress is totally empowered to change pleading requirements, but it did not specify a heightened standard in Sherman act cases The dissent in Twombley argues that the legislature, not the courts, wield the proper power to modify the FRCP
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While Twombley was a surprise, these 3 procedure cases in 2007 were predictable; court upholds the notice-only pleading model.
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Civil Procedure Outline (Spring 2008 JOHNS) Jones v. Bock: PLRA (Prison litigation reform act) has exhaustion requirement; exhaustion is usually treated as an affirmative defense (to be plead by defendant); courts should not require P to plead exhaustion in the complaint o Erickson v. Pardus: Prisoner's allegations of deliberate indifference provided sufficient notice where he alleged he was denied hepatitis C treatment o Tellabs, Inc. Makor Issues& Rights : PSLRA explicitly requires higher pleading for class action complaints alleging securities fraud; heightened pleading requirement OK because of fraud allegation Under rule 9, this kind of pleading is imposed anyways (because it involves fraud)
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Rule 9 - Pleading Special Matters 1 Capacity or authority to sue; Legal Existence 1 Except when required to show that the court has jurisdiction, a pleading need not allege: 1 A Party's capacity to sue or be sued 2 A party's authority to sue or be sued in a representative capacity 3 The legal existence of an organized association of persons that is made a party 2 To raise any of those issues, a party must do so by a specific denial, which must state any supporting facts peculiarly within the party's knowledge 2 Fraud or Mistake 1 To allege fraud or mistake, a party must allege with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally 3 Conditions Precedent 1 It suffices to allege generally that all conditions precedent have been satisfied; In order to deny that a condition precedent has been satisfied, a party must do so with particularity. 4 Official Document or Act 1 It suffices to allege that the document was legally issued or legally done. 5 Judgment 1 No need to plead the judgment or decision with a showing that the issuing body (foreign or domestic court, tribunal, board or officer) had jurisdiction to render it 6 Time and Place 1 An allegation of time or place is Material to the sufficiency of a pleading 7 Special Damages 1 Must be specifically stated, or it is waived

1 Service of Process
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Rule 4

Civil Procedure Outline (Spring 2008 JOHNS) 1 Plaintiff prepares a summons, which the court clerk signs and stamps with the official seal (Clerk must sign, seal, and issue if "properly completed" - no discretion) A summons will name (A) the Court and Parties (B) be directed to the defendant C) state the name and address of the plaintiff's attorney or the plaintiff if pro se (D) state the time within which the defendant must appear and defend (E) notify defendant that failure to appear will result in default judgment 2 Plaintiff then serves the summons and a copy of the complaint to the defendant, within 120 days of filing the complaint (Form 5) If the plaintiff fails to serve the defendant in this time, the complaint will be dismissed without prejudice unless the plaintiff can show good cause for the delay (and court must then grant an appropriate extension) 3 Who may serve process Any person who is at least 18 years old and not a party But, the plaintiff may request the special appointment of a marshal or other person to serve process, and the court MUST appoint such a special process server for cases in which plaintiff is proceeding in forma pauperis (an indigent, whose court filing fees are waived)or as a seaman (an employee below the rank of officer who is attached to a navigating vessel and contributes to the accomplishment of its mission)
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Waiver of service (Form 6) Rule 4(d)(1) imposes a duty on defendants who are 1. Individuals in US judicial districts, 2. Individuals in Foreign countries, 3. Corporations, partnerships, or associations, to waive formal service of process (No waiver of service by defendants who are minors, mentally incompetent, or the government (or its officers, sued in their official capacity or as individuals)) Waiver request must be initiated by the plaintiff, addressed to the defendant or someone authorized to accept service on behalf of a corporation, partnership, or association Must also name the court where the action was filed, include a copy of the complaint and two copies of the waiver form + prepaid return envelope Must be sent by first class mail (or other reliable means) Give defendant notice of consequences of waiving or not waiving service, and allow reasonable time (at least 30 days for US, 60 days for International defendants) for response

Failure to waive Courts will impose the costs of formal service on the defendants

Time to answer after a waiver Defendants get 60 days from sending of waiver request to file an answer, if they choose to waive formal service (90 days if outside the US)

Civil Procedure Outline (Spring 2008 JOHNS) an extension of time (compared to the normal 20 days) as an incentive to waive service

Waiver of service does not operate to waive defendant's objections to personal jurisdiction and venue (what about subject matter jurisdiction?)
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If the Defendant does NOT waive service: An individual, other than a minor or an incompetent, may be 1 served in a US judicial district by Following service of summons procedure for the state 1 where the federal court sits OR 1 1 Personally delivering a copy of the summons and complaint; 2 Leaving a copy of each at D's home with someone of suitable age and discretion 3 Delivering a copy of each to an agent authorized to receive service on behalf of D.

Alternative service of process: RIO properties v. RIO International Interlink Issue: Before a court authorizes alternative service of process, 0 such as by Email, must the plaintiff first exhaust the list of methods in rule 4(f)? NO. The methods described in Rule 4 are equal, and the 1 district court has discretion to authorize alternative service if the circumstances of the case so require.
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2 The Answer

Rule 8(b) Defenses; Admissions and Denials

1. In responding to a pleading, a party must: a. State in short and plain terms its defenses to each claim asserted against it; and b. Admit or deny the allegations asserted against it by an opposing party 2. Denials - A denial must fairly respond to the substance of the allegation 3. General and Specific Denials - A party that intends in good faith to deny all the allegations of a pleading - including the jurisdictional grounds may do so by a general denial. Otherwise, a party must specifically deny or admit each allegation, or generally deny all except those specifically admitted. 4. Denying part of an allegation - A party must admit the part that is true and deny the rest. 5. Lack of knowledge or information - if a party lacks knowledge or information sufficient to form a belief about the truth of an allegation, the party must say so and the statement has the effect of a denial

Civil Procedure Outline (Spring 2008 JOHNS) 6. Effect of failing to deny - an allegation (other than one relating to damages) is admitted if a responsive pleading is required and one is not submitted. If no responsive pleading is required, the allegation is considered denied or avoided.
Erroneous Admissions and denials: o Usually reversible through amendment (if the error was made in good-

faith) o See Rule 15, on amendment

Difference between the new Rule 8(b) and the old Rule 8(b) o The old rule 8(b) contained enumeration of possible affirmative

defenses, which did NOT include statutory caps on damage awards, but Did include a catch-all provision o The New Rule 8C does not have such a catch-all phrase. King Vision v. J,C, Dimitri's Restaurant o Defendants may answer by 1. Admitting allegations of the complaint 2. Denying allegations 1. Specifically, or; 2. Generally, if all may be denied in objective and subjective good faith 3. State a disclaimer (lack of knowledge or information) 1. Has the effect of a denial o Defendant answered 30 of the complaint's 35 paragraphs by saying "neither admit nor deny the allegations, but demand strict proof thereof." Judge got upset at their answer, so he ordered each of the allegations of the complaint admitted
2 Rule 8 0 Pleading affirmative defenses

Carter v. US (2003) Damages were calculated to be $3.4 million in economic damages; 15.5 million noneconomic Maryland law had a damages cap at $530,000; Plaintiff appealed that the government had failed to assert this as an "affirmative defense" in its answer This case was decided under the old rules, which included a catch-all provision to include "any other matter constituting an avoidance or affirmative defense." The new rule 8 does not include such a catch-all phrase; enumerates 19 affirmative defenses (is that intended to be exhaustive, or explicative?) The court in Carter didn't take sides; ruled that failure to plead an affirmative defense works a forfeiture only if the plaintiff is harmed by the delay in asserting it; Plaintiff does not argue here that she would have classified some damages as economic instead of noneconomic, or that she

Civil Procedure Outline (Spring 2008 JOHNS) would have devoted less to proving economic damages, so no harm to reverse. (affm'd trial court's imposition of the damage cap)
3 Rule 11 - Signing pleadings, motions, and other papers;

representations to the court; sanctions 4 The Implications of rule 11 0 Generally: Applicability - Any pleading, motion, or other paper submitted or advocated in court; not discovery Standards Party-initiated: Objective unreasonableness Court-initiated: Subjective bad faith But, there is a circuit split as to whether these should be distinguished (1st, 5th circuit say objective across the board; 7th imposes bad-faith standard when there is no safe-harbor provision) Procedure Party-initiated: Service on opposing counsel; 21 day "safe harbor" period Judge-initiated: Order to show cause why rule 11 was not violated The 2007 amendments broaden the scope of papers to which the signature certification applies, and tightens the standard of pre-filing investigation from mere "good faith" to "reasonable under the circumstances" 2 However, the rule does NOT intend to chill the creativity or enthusiasm of an advocate; the court should not judge a pleading with the wisdom of hindsight, but should inquire as to what was reasonable to believe at the time of the paper's submission. Relevant factors in determining reasonableness at the time may be: The time for investigation available to the signer; whether he had to rely on a client for facts underlying the paper's claims; whether the paper's claims were based on a plausible view of the law; or whether he depended on forwarding counsel or another member of the bar. A party trying to show cause is not compelled to divulge privileged information or work product; rule 26C protections apply
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Safe Harbor Period For motions brought by opposing counsel, the challenged party has 21 days after service of the motion to withdraw the challenged document before the challenger may submit the motion to the court

2 Patsy's Brand v. IOB Realty (Inaccurate factual assertion) 0 When the possibility of Rule 11 sanctions is raised sua sponte, and the

challenged party has no opportunity to withdraw the challenged paper, under what standard should the court issue sanctions? 1 Objective unreasonableness (which is used for sanction proceedings initiated by motion)

Civil Procedure Outline (Spring 2008 JOHNS) 2 Subjective Bad faith (for sanction proceedings initiated by the court) The district court found that the firm should face sanctions because its assertions were objectively unreasonable, even if the lawyers acted in "blind" good-faith. The appellate court reversed, ruling that in order for a court to order sanctions sua sponte, there must be a showing of subjective bad faith.
1 Frantz v. US Powerlifting Federation 0 The complaint alleges that a Corporate Officer conspired with his

corporation; Prior cases have held that this is not possible as a matter of law, and so the complaint was frivolous because it was filed without prior competent research. Under Rule 11(B)(2), legal contentions must be warranted by existing law, or non-frivolous arguments for extending, distinguishing, or reversing existing law (or establishing new law)
Rule 12. Defenses and Objections (when and how presented) o

and Motions for JUDGMENT ON THE PLEADINGS Time to serve a responsive pleading Generally 1. Unless otherwise proscribed by Law, the defendant shall answer a. Within 20 days of being served with the summons and complaint, or b. If service has been timely waived, within 60 days of the sending of the request for waiver was sent, or within 90 days if the defendant was addressed outside of a US Judicial district. c. Extra time to answer=incentive to waive service A party must serve an answer to a counter or cross claim within 20 days after being served with a pleading that asserts the counter or cross claim o A party must serve a reply to an answer within 20 days after being served with an order to reply, unless the order specifies a different time.
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2. The US and its officers, agencies, or employees sued in an Official Capacity 1. Such defendants must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the US Attorney 3. US Officers and employees sued in an INDIVIDUAL capacity 1. If the complaint is for an act or omission occurring in connection with duties performed on the United State's

Civil Procedure Outline (Spring 2008 JOHNS) behalf, the Officer or Employee must serve and answer within 60 days of service on the officer or employee or service on the US attorney, whichever is later 4. Effect of a Motion (Those outlined in 12(b)(1-7) 1. If the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 10 days after notice of the court's action; or 2. If the court grants a motion for a more definite statement, the responsive pleading is due within 10 days after service of the more definite statement. 2. Every defense to a claim for relief must be asserted in the responsive pleading if one is required. But the following defenses may be asserted by motion before filing a responsive pleading 1. Lack of subject matter jurisdiction 2. Lack of personal jurisdiction 3. Improper Venue 4. Insufficient Process 5. Insufficient service of process 6. Failure to state a claim upon which relief can be granted; and 7. Failure to join a party under rule 19 3. Motion for Judgment on the pleadings. After the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings. 4. If, on a motion under rule 12(b)(6) or 12C matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as on for summary judgment under rule 56 1. So, the standard is "no genuine issue of material fact" 2. This is a motion for "judgment on the pleadings" 5. Motion for a more definite statement - Must be made before filing a responsive pleading, and must point out the defects complained of. If the court orders a more definite statement and the order is not obeyed within 10 days after notice of the order (or within the time the court sets) the court may strike the pleading or issue any other appropriate order. 6. Motion to Strike. The Court may strike from a pleading an insufficient defense or redundant, immaterial, impertinent, or scandalous matter. The court may act: 1. On its own; or 2. On motion made by a party either before responding to the pleading, or, if a response is not allowed, within 20 days after being served with the pleading 7. Joining motions 1. A motion under rule 12 may be joined with any other motion allowed under rule 12 2. A party that makes a motion under rule 12 (b)(2, 3, 4, or 5) may not make another motion under rule 12 that was available to the party but omitted from its earlier motion 8. Waiving and preserving certain defenses 1. A party waives any defense listed in rule 12(b)(2-5) by:

Civil Procedure Outline (Spring 2008 JOHNS) 1. Omitting it from a motion in the circumstances described in rule 12(g)(2); or 2. Failing to either a. Make it by motion under this rule; or b. Include it in a responsive pleading or in an amendment allowed by rule 15(a)(1) 2. Failure to state a claim upon which relief can be granted [12(b) (6)], to join a person required by rule 19 [12(b)(7), or to state a legal defense to a claim may be raised: 1. In any pleading allowed or ordered under rule 7(a) 2. By a motion for judgment on the pleadings (rule 12C) 3. At trial Lack of subject-matter Jurisdiction 1. If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action 9. Hearing before trial 1. If a party so moves, any defense listed in Rule 12(b)(1-7) whether raised by motion or in a pleading, and any motion under 12C must be heard and decided before trial, unless the court orders a deferral until trial. A rule 12(b) motion must be filed before or concurrently with 3.

Amending the Pleadings

Rule 15 Leave to amend should be granted liberally (consistent with the rules' spirit; judgment on the merits)
Amendment as a matter of Course

1. Before being served with a responsive pleading; or 2. Within 20 days of serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar Other amendments - with the other party's written consent or leave from the court (should be freely granted when justice so requires) 1. When does justice require amendment? 1. Foman v. Davis In the absence of (1)undue delay, (2)bad faith or dilatory motive, (3)repeated failure to cure deficiencies by amendment, (4) undue prejudice to the non-moving party, or (5) futility, the court should grant a motion for leave to amend Robinson v. Sappington Defendant moved for SJ after discovery, asserting an affirmative defense not raised in its answer. The Court granted leave to amend the answer to allow the assertion of the defense, and then granted the MSJ. Plaintiff appealed the granting of leave to amend. Court ruled that the plaintiff was on-notice of the affirmative defense because it had been the focus of Defendant's discovery inquiry. There

Civil Procedure Outline (Spring 2008 JOHNS) was no harm to the plaintiff in allowing the assertion of the defense at Summary Judgment, and so it was not an abuse of discretion. Amendment and Case Management Under case management, District Judges must file a scheduling order which will impose a strict deadline for amending pleadings; to amend after the deadline, the moving party must show good cause (R.16(b)) Tension between liberal amendment under rule 15 and the strict timetable of rule 16 Courts usually apply the rule 15 standards within the deadline; after the deadline, must satisfy both rule 15 and rule 16 in order to get amendment Rule 15 - Relation back of amendments Tran v. Alphonse Hotel Corp. May a party amend a pleading to include a new claim, if in the interim between filing and amendment the SOL for the new claim has expired? In this case, the plaintiff discovered bribery (a claim under RICO) while investigating his FLSA claims. Filed for leave to amend to include RICO claim, which was granted. The RICO SOL had run, but the district court allowed amendment by finding that the RICO claim "relates back" to the date of the original pleading. Appeals court reversed, finding that the trial court abused its discretion by finding that the RICO claim relates back, because the RICO claim "does not arise out of the conduct set forth in the original complaint" (which did not mention fraud or bribery). o Seems like this case may have been decided wrongly; should have allowed the relation back, in the name of justice(because the RICO claim pertained to the overarching conspiracy that resulted in the underpayment complained of in the FLSA complaint; and, if it could go either way, the appeals court should affirm the trial judge's exercise of discretion.)
2 When might an advocate reasonably oppose amendment? o The "injustices" outlined in Foman; also, other circumstances could

reasonably call for opposition to amendment

Jurisdiction
Personal Jurisdiction: Is it fair for this court to adjudicate the rights of this defendant?
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In Rem jurisdiction: Action is against property itself to determine entitlements o Quasi In-Rem Jurisdiction: Action where property is attached in order to pay judgment on a dispute which does not involve that property itself Recovery is limited to the value of the attached property o In Personam: No specific property is attached, and the suit is against a person individually
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Civil Procedure Outline (Spring 2008 JOHNS)

Recovery (theoretically) could be much higher

More on In Personam Jx: Pennoyer v. Neff (1877) No state may exercise In-personam Jx over the citizens of another state even if the out-of-stater has substantial connections to the state (such as owning property); however, if in-state property is attached, suit against the absent property owner satisfies due process (In Rem, Quasi in-Rem) Int'l Shoe v. Washington (1945) In Personam Jx: To get out of the Pennoyer hole, the Supreme Court rules that Due Process over absent defendants is satisfied if the defendant has "certain minimum contacts with the forum state such that the maintenance of suit does not offend "traditional notions of fair play and substantial justice." As applied to Int'l shoe: Shoe sold shoes in Wash. and employed sales representatives in Wash. In Rem, Quasi In Rem: Did Int'l Shoe change the rules for suits involving in-forum property? Shaffer v. Heitner ( 1977) For In Rem cases: Applying minimum contacts would not affect jurisdiction in most cases, because the property is related to the suit (Specific Jurisdiction) For Quasi In Rem cases: Applying minimum contacts might seriously affect jurisdiction. However, the court reasons that the Int'l Shoe test can be easily applied in most cases, and when the existence of Jx under Int'l Shoe is unclear, sacrificing justice for efficiency by avoiding the Jx question is too high a price.

APPLYING MINIMUM CONTACTS - Specific Jurisdiction

EVERY exercise of Personal Jurisdiction must comply with statutory and constitutional limits
1 Statutory Authority 1. Every state has a long-arm statute, which often intend to reach the furthest extent permitted by constitutional due process 2. Constitutional authority: What are "Minimum contacts?" 1. Can a single act in a forum render it subject to Personal Jurisdiction 1. 2 different responses a. McGee v. Int'l Life (1957) CA resident claims life insurance benefits under a policy purchased by another CA resident from an AZ company. The AZ company was then taken over by a TX company, which offered to reinsure the policy holder. Holder accepted, and sent payment to the TX company. The court found this single contract was enough, because the contract was the subject of the suit (Specific Jx) 2. Hanson v. Denckla (1958) Florida could not exercise Personal Jx over Delaware Defendant because the contacts of the Florida Plaintiff with

Civil Procedure Outline (Spring 2008 JOHNS) the Delaware defendant happened before the Plaintiff moved to Florida; there was no "purposeful availment" on the part of the Delaware defendant; P's unilateral act cannot subject the D to Jx in another state. 2. World-Wide Volkswagen v. Woodson NY car dealer objected to exercise of personal Jx over it in suit in OK. Court agrees that there were insufficient contacts to warrant Jx, because it was the consumer who unilaterally brought the product into the forum state. However, "a manufacturer that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state" is subject to jurisdiction." (See Asahi Metal Co. ) 3. Keeton v. Hustler Libel suit against Hustler; H's only contact with forum state was the circulation of 10-15K of its magazines (a very small number); Court ruled that Hustler "deliberately exploited the NH market and must reasonably anticipate being haled into court there in a libel action based on the contents of its magazine. 4. Calder v. Jones CA resident sued author of an article for libel (in CA); Defendants lived in Florida. Author wrote the story in FL based on research done in FL. CA is the focal point of the story, and the brunt of the harm was focused there; the authors' act thus purposefully availed them of CA Jx. 5. Burger King v. Rudzewicz BK sued R in FL court for breach of contract. R had solicited a franchise agreement with BK, in FL. This contact, purposefully directed toward residents of another state (negotiations, contemplated future consequences), establishes jurisdiction; and the D cannot get out of it by arguing physical absence. 6. Asahi Metal Co. v. Superior Court Going back to the "stream of commerce" language from World Wide, is it sufficient that a company simple "place its products in the stream of commerce?" Or, does due process require the defendant's action to be more purposefully directed at the forum state? Plurality rules for the latter; "The substantial connection between the defendant and the forum state necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum state." Without more, mere placement of a product into the stream of commerce will not subject the company to Jx wherever that product ends up. The "more" could be (1) specific design for the forum market, (2)advertising in-forum, etc. Further, even if there were minimum contacts, Jx would be unreasonable because the forum's interest in the suit is minimal; neither party (of the indemnity suit) is a CA resident; the transaction didn't happen in CA.

Civil Procedure Outline (Spring 2008 JOHNS) Because the part of the opinion requiring more than simply placing the product in the stream of commerce was a plurality opinion, it does not have the full precedential weight of a majority opinion; some lower courts still apply the World Wide standard.

Summary: The Modern test for Specific Jurisdiction Specific Personal Jurisdiction is established when the defendant establishes "certain minimum contacts with the forum state such that the maintenance of suit does not offend 'traditional notions of fair play and substantial justice.'" Did the defendant purposefully avail himself of the privilege of doing business in the forum state? Does the claim arise out of the Defendant's forum-related activities? 1. Circuit split: 1. 9th circuit asks "but for" the contacts, would the suit have happened? Shute v. Carnival Cruise lines 2. 6th circuit asks merely if the suit is "related" to the contacts with the forum. Bird v. Parsons Is the exercise of jurisdiction reasonable? Personal Jurisdiction in the Virtual World Zippo Mfg. Co. v. Zippo.com Mfg. is a PA corporation, suing .com who is a CA corporation. .Com's contacts with PA occur almost exclusively over the internet. The court distinguishes between passive web sites and active sites (measured along a sliding scale -not a bright line between the two); active solicitation or interactivity with in-forum consumers = purposeful availment. Evidence of availment in this case consisted of agreements with ISPs in PA, and actual contracts for services with 3k PA residents.

Beyond Minimum Contacts: General Jurisdiction

Specific Jx exists when D has sufficient minimum contacts that it's fair to

require the D to defend lawsuits in the jurisdiction that arose out of the D's activities in the Jx. General Jx exists when contacts are so extensive, systematic, and continuous that it's fair to require the D to defend lawsuits in the jurisdiction that did not arise out of activities in the jurisdiction. Bird v. Parsons For purposes of General Jurisdiction, the degree of contact is evaluated on a sliding scale: