CIVIL PROCEDURE CLASS 28

1
CIVIL PROCEDURE CLASS 28

• Professor Fischer
• Columbus School of Law
• The Catholic University of America
• November 29, 2001

2
ANNOUNCEMENTS

• Another review class will be held on Wednesday,
  December 5 at the usual class meeting time (620
  to 810) in Room 211.

3
WRAP-UP OF LAST CLASS

• We finished our study of personal jurisdiction by
  discussing a case applying International Shoes
  minimum contacts test, World Wide Volkswagen v.
  Woodson (1980)

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WHAT WILL WE DO TODAY?

• Learn about the venue requirement and the the
  federal venue statute
• Learn about the common law doctrine of forum non
  conveniens
• Learn about the transfer provisions in 28 U.S.C.
  1404 and 1406.
• Hear oral argument on Practice Exercise 31
• Time permitting, do some review problems.

5
Venue

• What is venue and why is it required?

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VENUE REQUIREMENTS ARE PURELY STATUTORY

• What is the general federal venue statute?

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VENUE IN FEDERAL DIVERSITY ACTIONS

• Under 28 U.S.C. 1391, where can venue lie in a
  federal diversity action where the defendant(s)
  is/are natural person(s)?

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MEANING OF RESIDENCE

• Should residence for venue purposes be equated
  with domicile or citizenship for diversity
  purposes?
• Compare ex parte Shaw, 145 U.S. 444, 447 (892)
  (dictum) with convenience rationale for venue

9
VENUE IN FEDERAL QUESTION ACTIONS

• Under 28 U.S.C. 1391, where can venue lie in a
  federal question action where the defendant(s)s
  is/are natural person(s)?
• How do the venue rules for federal question
  actions differ from diversity actions?

10
VENUE FOR CORPORATIONS

• Where does venue lie if a defendant is a
  corporation?
• What if the state, like Virginia or New York, but
  unlike Maryland, has more than one judicial
  district?

11
VENUE FOR ALIENS

• Where does venue lie for alien defendants?

12
FORUM SELECTION CLAUSES

• Parties may select a venue that is not a
  statutory venue by including a forum selection
  clause in a contract.
• In Bremen v. Zapata, 407 U.S. 1, 15 (1972),
  Supreme Court held that federal courts sitting in
  admiralty should enforce such clauses absent
  showing that doing so would be unreasonable or
  unjust, or that the clause was invalid for such
  reasons as fraud or overreaching
• Non-negotiable forum selection clauses have been
  enforced by the Supreme Court.

13
PIPER AIRCRAFT CO. V. REYNO (1981)

• Landmark decision
• Who is the plaintiff?
• Who is plaintiff suing?
• What is the cause of action?
• Where does plaintiff bring the action?
• Why does plaintiff choose that forum?

14
Piper Aircraft Co. v. Reyno

• Wrongful death suit originally brought in
  Superior Court of California by Gaynell Reyno on
  behalf of 5 Scottish passengers
• Defendants were Piper Aircraft Co. (aircraft mfr)
  (PA) and Hartzell Propeller Inc. (OH) (propeller
  mfr)

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DEFENDANTS MOTIONS

• Explain the strategies and procedural moves of
  defendants Piper and Hartzell. How did the case
  get from the state court in CA (where filed) to
  the federal court in PA?

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FORUM NON CONVENIENS

• What is forum non conveniens?

17
FNC For transfer to Foreign Forum or between
state judicial systems

• 28 U.S.C. 1406(a) permits court to dismiss if
  venue has improperly been laid or if it be in
  the interest of justice, transfer the case to
  any district or division in which it could have
  been brought

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IN THE U.S. SUPREME COURT

• How does the majority rule in the U.S. Supreme
  Court? Describe Justice Marshalls reasoning in
  his majority opinion.

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SIGNIFICANCE OF PIPER v. REYNO

• This case extends to doctrine of forum non
  conveniens for use in an international context by
  adopting a lower threshold and by decreasing its
  deference to foreign plaintiffs choice of forum
  (takes nationality into consideration)
• The foundation for any modern forum non
  conveniens analysis in an international context.
  
• Decision has prompted continuing criticism

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Scottish Legal System

• See student webpage on my Spring 2001 Comparative
  Law site http//law.cua.edu/classes/comparative_l
  aw/grant/
• See also Kevin F. Crombies useful site
  http//www.scottishlaw.org.uk/

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PIPER Test

• In applying the doctrine of forum non conveniens
  to a foreign plaintiff, Supreme Court essentially
  follows two steps it had articulated in Gilbert.
  
• 1. Requires a suitable forum in another country
• 2. Considers 4 factors or interests to determine
  which forum would best serve private and public
  interests
• Unfavorable choice of law alone should not bar
  dismissal

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LORD DENNING

• Famous and long-lived English judge
• As a moth is drawn to the light, so is a
  litigant drawn to the United States.

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Attractions of U.S. Legal System For Foreign
Plaintiffs

• Encouragement by U.S. plaintiffs bar for
  litigants to bring suit in U.S.
• contingency fee arrangements
• extensive pre-trial discovery
• advantageous substantive law
• availability of trial by jury
• tendency for large jury awards

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PRACTICE EXERCISE 31

• CB p. 829
• Oral argument on motion to dismiss for lack of
  subject matter jurisdiction by McGills Garage
  and Dale McGill

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EXAM TIPS

• Read questions carefully and remember to answer
  the question asked
• Use IRAC form for each issue in question
• Answer every question manage your time carefully
• Get sufficient sleep the night before the exam.

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FOR REVIEW CLASS - VERY-CLEAN HYPO

• CB p. 834
• Please prepare to discuss this hypothetical at
  the December 5 review class.