CIVIL PROCEDURE CLASS 37

1
CIVIL PROCEDURE CLASS 37

• Professor Fischer
• Columbus School of Law
• The Catholic University of America
• November 16, 2005

2
WRAP UP

• Burnham despite Shaffers broad statement all
  assertions of state court jurisdiction must be
  assessed under International Shoe, 4-4 split in
  Burnham as to whether presence in a jurisdiction
  is a basis for jurisdiction independent of
  International Shoe

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RESIDENCE, CONSENT

• Supreme Court has never held that residence and
  consent are not sufficient in themselves for
  jurisdiction (without considering International
  Shoe).

4
GENERAL JURISDICTION

• What is the difference between general and
  specific jurisdiction?

5
Supreme Court General Jurisdiction Jurisprudence

• S. Ct has only decided two cases based on general
  jurisdiction Helicopteros (rejected it) and
  Perkins v. Benguet Consolidated Mining Co. (1952)
  (upheld it)

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Helicopteros Nacionales de Colombia v. Hall

• Facts and procedural history?

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Helicopteros Nacionales de Colombia v. Hall

• Wrongful death action resulting from helicopter
  crash in Peru that killed US citizens.
  Respondents brought suit in TX against, among
  others, Helicol, Columbian operator of
  helicopter, on the basis of pilot error
• Helicol moves to dismiss for lack of personal
  jurisdiction.
• Trial court denies motion and respondents win
  jury award of over 1,000,000
• Texas Supreme Court finds there was jurisdiction
  over Helicol.

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U.S. Supreme Court

• Must determine whether the Texas state court had
  personal jurisdiction over Helicol

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Helicols Contacts With Texas

• Describe Helicols contacts with Texas
• Were these enough for specific jurisdiction,
  according to the Supreme Court?

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Helicols Contacts With Texas

• Sent representative to contract with TX company
  for transportation contract in Peru.
• Purchased most of its helicopters from TX company
• Sent pilots, management, and maintenance
  personnel to TX for training
• Received payments from TX bank accounts for
  transportation contract

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Supreme Court Only Rules on General Jurisdiction

• According to majority, specific jurisdiction was
  not argued by P
• How does it rule on general jurisdiction?

12
Supreme Court Only Rules on General Jurisdiction

• Helicol lacked the kind of continuous and
  systematic general business contacts with TX
  necessary to satisfy due process
• This seems to indicate a very high standard for
  general jurisdiction to be found.
• Leaves a lot unsettled on general jurisdiction

13
Brennans Dissent

• What is the basis for the dissent?

14
The Shutes?
15
What is Continuous and Systematic Contact with a
Forum?

• Service of process on a defendant in a forum
  Burnham
• Domicile in a forum
• Corporate incorporation in a forum
• Principal place of business in a forum (Perkins)
• Not clear whether other regional or smaller
  offices will justify the exercise of general
  jurisdiction
• Quantitative and qualitative assessment

16
Mrs. Shute Goes to Court

• Why did Mrs. Eulala Shute (and her husband sue
  Carnival Cruise Lines?
• Where did she and her husband bring suit?

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Procedural History

• Describe the procedural history of this action
  before the Supreme Courts opinion.

18
Procedural History

• Describe the procedural history of this action
  before the Supreme Courts opinion.
• Shutes file suit in W.D. WA
• CCL moves for summary judgment on basis of forum
  selection clause/no p.j. (no minimum contacts)
• District Court grants this motion, Court of
  Appeals for the Ninth Circuit reverses (minimum
  contacts with Washington due to solicitation of
  business in Washington)
• U.S. Supreme Court grants certiorari.

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Supreme Court Must Consider

• 1. Argument that forum selection clause bars
  jurisdiction over Carnival in Washington state.
• 2. Constitutional argument that CCLs contacts
  with Washington are not enough to support
  jurisdiction.

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Arguments that the Forum Selection Clause
Unenforceable

• What are the arguments in support of their
  contention that the forum selection clause is
  unenforceable that convinced the Ninth Circuit?
• Did any of them convince Justice Blackmun, who
  wrote the Supreme Courts majority opinion? If
  so, which arguments?

21
Justice Blackmuns Reasoning

• Blackkmun some nonnegotiated forum-selection
  clauses can be enforceable
• Cruise ships have special interest in limiting
  for a where they can be sued
• Such a clause spares expense of pretrial motions
  to determine correct forum and conserving
  judicial resources
• Passengers benefit in light of reduced fares that
  reflect savings cruise line enjoys by limiting
  forum where it can be sued.
• Do you buy any of these?

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More of Blackmuns Reasoning

• Shutes have not satisfied the heavy burden of
  proof required to set aside the clause on grounds
  of inconvenience (they had notice and Florida is
  not a remote alien forum especially given where
  accident took place)
• NO evidence of bad faith or overreaching
• Since Shutes had notice of contract, they could
  have rejected it.

23
Dissent

• Who wrote the dissent?
• Who joined in it?
• Describe the reasoning in the dissent. Do you
  agree with it? Why or why not?

24
Dissent

• Inadequate notice

25
Carnival Cruise Lines Narrow Sense

• Congress overturned this case in a narrow sense
  by amending a federal admiralty statute (See
  Section 3006 of the Oceans Act of 1992, P.L.
  102-587).

26
Forum Selection Clauses Jurisdiction By Express
Consent

• Remember that it is possible to consent to
  jurisdiction
• Consequently, lack of personal jurisdiction is
  one of the waivable defenses under Rules 12(g)
  and 12(h)(1)
• Contrast this with lack of subject matter
  jurisdiction, which can never be waived.

27
Forum Selection Clauses After Carnival

• Prior to Carnival, some courts refused to enforce
  forum selection clauses that barred jurisdiction
  in other courts. Now, forum-selection clauses
  generally have a strong presumption of
  enforceability, especially where there is equal
  bargaining power between the parties and they are
  represented by counsel.
• The burden is on the person challenging the
  enforcement of the clause to show it was
  unreasonable or unfair in the circumstances.
  This is a difficult burden, even where the clause
  is in a standard-form contract.

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Due Process Requirements

• Due Process requires that D has some relationship
  to the forum state that makes it fair to sue her
  there.
• Does the due process clause require anything else
  for this D?

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Notice and the Opportunity to Be Heard

• It also requires that D be given prior notice and
  an opportunity to be heard.

30
MULLANE AND NOTICE

• Mullane is the leading Supreme Court case that
  sets the modern standard for notice that
  satisfies due process.

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Mullane Facts

• Mullane involved a judicial settlement in the NY
  Surrogates Court of a common trust fund
  established by a NY bank under a NY banking
  statute.
• Who was the common trustee of this fund?
• What is the purpose of a common trust fund?
• Who were the beneficiaries?

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Judicial Settlement of Trust Account

• Why would the common fund trustee want to have an
  accounting approved?

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Parties

• Who is Mullane?

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General Notice Requirement

• An elementary and fundamental requirement of due
  process in any proceeding which is to be accorded
  finality is notice reasonably calculated, under
  all the circumstances, to apprise interested
  parties of the pendency of the action and afford
  them an opportunity to present their objections

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Standard for Notice in Mullane

• The notice must be of such nature as reasonably
  to convey the required information . . . And it
  must afford a reasonable time for those
  interested to make their appearance . . .But if
  with due regard to the practicalities and
  peculiarities of the case these conditions are
  reasonably met, the constitutional requirements
  are satisfied.

36
Published Notice

• Can published notice ever be adequate under the
  Mullane standard?

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3 categories of beneficiary was notice
acceptable?

• Some could not be identified/located with
  reasonable effort
• Some could be identified/located but had
  conjectural or future interests so it would cost
  a lot to identify/locate them
• Some were known present beneficiaries

38
Mullane Changes Historical Notice Requirement

• Notice by publication in in personam cases is
  greatly cut back
• Publication will not be sufficient notice if it
  would be reasonably practicable to provide
  individual notice
• But Mullane makes clear that official notice does
  not always have to be personal service could
  be, e.g., mail

39
After Mullane

• Court decisions after Mullane have found that
  notice by mail is the constitutional minimum for
  D who can be found by reasonably diligent
  efforts.
• Mullane paves the way for reforms to service in
  R. 4

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Dont Forget R. 4 Service Rule

• R. 4(e)
• R.4(h)

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Jurisdiction for Internet Contacts

• Zippo v. Zippo.com
• Influential case on how to determine whether a
  court has personal jurisdiction where Ds
  contacts with the forum state occurred over the
  Internet

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Zippo Sliding Scale
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Scale

• Doing business over the Internet
• Passive web site
• Middle ground
• Is this a good test? Can you think of a better
  test?