Title: CIVIL PROCEDURE CLASS 37
1CIVIL PROCEDURE CLASS 37
- Professor Fischer
- Columbus School of Law
- The Catholic University of America
- November 16, 2005
-
2WRAP 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
3RESIDENCE, CONSENT
- Supreme Court has never held that residence and
consent are not sufficient in themselves for
jurisdiction (without considering International
Shoe). -
4GENERAL JURISDICTION
- What is the difference between general and
specific jurisdiction?
5Supreme 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)
6Helicopteros Nacionales de Colombia v. Hall
- Facts and procedural history?
7Helicopteros 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.
8U.S. Supreme Court
- Must determine whether the Texas state court had
personal jurisdiction over Helicol
9Helicols Contacts With Texas
- Describe Helicols contacts with Texas
- Were these enough for specific jurisdiction,
according to the Supreme Court?
10Helicols 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
11Supreme Court Only Rules on General Jurisdiction
- According to majority, specific jurisdiction was
not argued by P - How does it rule on general jurisdiction?
12Supreme 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
13Brennans Dissent
- What is the basis for the dissent?
14The Shutes?
15What 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
16Mrs. Shute Goes to Court
- Why did Mrs. Eulala Shute (and her husband sue
Carnival Cruise Lines? - Where did she and her husband bring suit?
17Procedural History
- Describe the procedural history of this action
before the Supreme Courts opinion.
18Procedural 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.
19Supreme 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.
20Arguments 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?
21Justice 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?
22More 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.
23Dissent
- Who wrote the dissent?
- Who joined in it?
- Describe the reasoning in the dissent. Do you
agree with it? Why or why not?
24Dissent
25Carnival 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).
26Forum 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.
27Forum 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.
28Due 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?
29Notice and the Opportunity to Be Heard
- It also requires that D be given prior notice and
an opportunity to be heard.
30MULLANE AND NOTICE
- Mullane is the leading Supreme Court case that
sets the modern standard for notice that
satisfies due process.
31Mullane 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?
32Judicial Settlement of Trust Account
- Why would the common fund trustee want to have an
accounting approved?
33Parties
34General 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
35Standard 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.
36Published Notice
- Can published notice ever be adequate under the
Mullane standard?
373 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
38Mullane 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
39After 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
40Dont Forget R. 4 Service Rule
41Jurisdiction 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
42Zippo Sliding Scale
43Scale
- Doing business over the Internet
- Passive web site
- Middle ground
- Is this a good test? Can you think of a better
test?