CIVIL PROCEDURE CLASS 37 Professor Fischer Columbus School of Law The Catholic University of America November

Forum Selection Clauses After Carnival Strong presumption of enforceability, especially where there is equal bargaining power between the parties and they are represented by counsel.

Forum Selection Clauses After Carnival 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.

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?

Notice and the Opportunity to Be Heard The Due Process clause limits courts’ personal jurisdiction over defendants. It also requires that D be given prior notice and an opportunity to be heard.

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

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?

Judicial Settlement of Trust Account Why would the common fund trustee want to have an accounting approved?

Parties Who is Mullane?

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

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…”

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.”

Published Notice Can published notice ever be adequate under the Mullane standard?

Mullane Changes Historical Notice Requirement Notice by publication 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

Importance of Mailings Would this case have come out differently if the bank had not been sending regular mailings to the beneficiaries?

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

Don’t Forget R. 4: Service Rule R. 4(e) R.4(h)

Jurisdiction for Internet Contacts Zippo v. Zippo.com Influential case on how to determine whether a court has personal jurisdiction where D’s contacts with the forum state occurred over the Internet

Zippo Sliding Scale

PE 29 CB p. 774

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