CIVIL PROCEDURE CLASS 33 Professor Fischer Columbus School of Law The Catholic University of America November 11, 2002

MINIMUM CONTACTS TEST State the minimum contacts test, as set out in International Shoe. MINIMUM CONTACTS WITH THE FORUM STATE SUCH THAT THE MAINTENANCE OF THE SUIT DOES NOT OFFEND TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE

WRAP-UP OF LAST CLASS We discussed two important Supreme Court cases, World-Wide Volkswagen v. Woodson, and Asahi, where the Court had to decide how the International Shoe minimum contacts test applies to a situation where a non-resident defendant allegedly commits a harmful act outside the forum state that causes harm within the forum state.

WHAT WILL WE DO TODAY? Continue our study of the doctrine of personal jurisdiction over non-resident defendants by reviewing 2 stream of commerce cases:World-Wide and Asahi and studying two new cases: Calder v. Jones (1984) (a case involving the issue of whether there was personal jurisdiction over non-resident defendants in an action for libel) and Burger King Corp. v. Rudzewicz (1985) (a case involving the issue of whether there was p.j. over a non-resident defendant in an action for breach of contract).

REVIEW: STREAM OF COMMERCE LINE OF CASES To what degree will A’s simply placing a product into the stream of commerce with the expectation that it will end up in the forum state subject A to personal jurisdiction in a lawsuit related to A’s placing of the product in the stream of commerce. BothWorld-Wide and Asahi make clear that A must purposefully avail itself of of the privilege of conducting activities in the forum state. Both make clear that “mere foreseeability” is not enough

REVIEW: WORLD-WIDE’S ON FORESEEABILITY To the extent that foreseeability means the mere likelihood that a product will find its way into the forum state, that is not enough to satisfy due process. “Rather,... The defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.”

REVIEW: WORLD-WIDE ON STREAM OF COMMERCE “The forum State does not exceed its powers under the Due Process Clause 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 in the forum state.” Local retailer and distributor did not satisfy this test where a customer drove car into a distant state.

ASAHI: Lack of Agreement on p.j. in stream of commerce case Asahi Court could not agree on how these principles set out in World-Wide applied to the facts of Asahi Court split on whether Asahi had minimum contacts with CA sufficient to subject it to jurisdiction of the court. All that is clear from Asahi on this issue is that, if a stream of commerce D meets the more stringent O’Connor test, that would be enough to constitute minimum contacts. A majority of the Asahi Court did agree that the fairness prong was not met on that facts.

TYPICAL 3-STEP ANALYSIS IN P.J. CASES AFTER ASAHI 1. Did D purposefully avail itself of the forum state?If so: 2. Did the cause of action arise from D’s contacts in the forum state? If so: 3. Would the exercise of personal jurisdiction over D be reasonable

Calder v. Jones: Personal Jurisdiction in Libel Actions Libel action in California over 1979 National Enquirer article that claimed that actress Shirley Jones had a drinking problem.

Calder v. Jones Which defendants contested the jurisdiction of the California court? Why?

“Come On, Get Happy!” Why does the Supreme Court rule in favor of Jones?

“Come On, Get Happy!” Why does the Supreme Court rule in favor of Jones? “Effects test”: 2 important facts showed that Ds aimed at CA residents and knew actions might cause harm in California 1. Jones lives and works in California where professional reputation centered 2. More than 10% of Enquirer’s total weekly circulation sold in California Thus, the California court had specific jurisdiction. First Amendment concerns of chilling effect were rejected.

Plaintiffs’ Forum Contacts In Calder: “may be so manifold as to permit jurisdiction when it would no exist in their absence” Asahi might put a limit on Calder’s holding- if there are 2 separate due process tests (minimum contacts and reasonablenss), and P’s contacts are relevant to reasonableness it is possible that they are not relevant to the minimum contacts prong.

Applying Calder in the Digital Age Can editors, reporters and newspapers that own a website accessible in all 50 states be sued in any state for libel over an article on the website? Fourth Circuit will consider this in Young v. Hartford Courant. 26 media companies including New York Times, Washington Post, and Associated Press have filed amicus briefs.

Burger King Corp. v. Rudzewicz (1985) What were Burger King’s claims against sue Rudzewicz and MacShara? What were Rudzewicz’s counter-claims? Why did the federal district court for the S.D. of Florida have subject-matter jurisdiction? BK (FL/FL) v. R (MI) and M (MI)

Rudzewicz’s contacts with Florida List Mr. Rudzewicz’s contacts/lack of contacts with Florida. Had he ever traveled to Florida?

“HAVE IT YOUR WAY”???? According to the majority of the Supreme Court, did the District Court’s exercise of jurisdiction under the Florida long-arm statute violate due process? Why or why not? How many Supreme Court justices dissented in this case? Why do they dissent?

BRENNAN’S 2 STAGE REASONING Brennan employed a 2 step analysis to determine that the exercise of long-arm jurisdiction did not violate due process

CONTACTS TO CONSIDER IN A CONTRACT CASE Can’t look at contract alone- it won’t be enough to result in constitutionality of jurisdiction over out-of-state D Must also consider: prior negotiations, contemplated future consequences, terms of contract, parties’ normal course of dealing

CHOICE OF LAW CLAUSE Why wasn’t this enough by itself to establish FL jurisdiction? Court says “when combined with the 20-year interdependent relationship Rudzewicz established with Burger King’s headquarters, it reinforced his deliberate affiliation with the forum state and the reasonable foreseeability of possible litigation there.”

Distinguishing World-Wide How did the BK majority distinguish World-Wide? Is their reasoning convincing? Why or why not?

HYPO p. 723 Suppose R clipped a mail order form from a magazine and sent it to the Sunshine Fitness Co. in Miami and the company shipped its Row-Your-Pounds- Away Exerciser. If R. fails to pay the bill, can Sunshine sue him in Florida? Why or why not?