1. 1 Agenda for 21st Class Administrative – Name cards – Handouts Slides SJ in A Civil Action (Section A-E only) – No class Friday – Next assignment is Assignment 22 Res Judicata Collateral Estoppel (same parties) Staggered Break – A-E break first F-J stay for introduction to Personal Jurisdiction & Stream of Commerce – F-J break second A-E return for introduction to Personal Jurisdiction Non-Mutual Collateral Estoppel

2. Assignment. A-E This is assignment 22. Email it to Elliott Blufer Review Choice of Law questions not yet discussed in class Read SJ in A Civil Actions re Statute of Limitations and Erie – You don’t need to read it very carefully – Personal Jurisdiction: International Shoe & early cases FRCP 4(k), especially 4(k)(1)(A) Yeazell, 79-91 Writing Assignment/ Questions to think about – Briefly summarize International Shoe – If the Supreme Court had not decided to change the rules in International Shoe, would jurisdiction have been proper under the prior rules? If your answer is “yes,” why do you think the Supreme Court changed the rules? If you answer is “no,” why was the outcome under the new rules better? – Yeazell pp. 86ff. Qs 1b, 3 – Briefly summarize McGee and Hanson Optional: Glannon Chapters 1 & 2 2

3. 3 Assignment I (F-J) This is assignment 22. Email it to Erica Haggerty Yeazell, 103-112 Questions to think about / Writing assignment. – Briefly summarize World Wide Volkswagen – Yeazell pp. 109ff 1c, 4e – Did the plaintiffs in World-Wide Volkswagen sue in federal or state court? How can you tell from the opinion itself (not Yeazell’s notes)? – What is a writ of prohibition? Why did the defendants seek one? – Who is Woodson? How did he get in the case? – Would the case have come out differently if the Robinsons had gotten into an accident in New Jersey and sued in a New Jersey court, but the facts were otherwise the same? – Suppose the Robinsons had purchased their Audi in California from Pacific Audi in Torrance, had gotten into an accident in California, and sued Audi, Volkswagen of America, Pacific Volkswagen (the regional distributor, based in Nevada) and Pacific Audi in a California court. Would the California court have jurisdiction over all, some, or none of the defendants? Note that there is a passage in the opinion which directly addresses this question. Is it dicta?

4. 4 Assignment II (F-J) Yeazell pp. 124-31 Questions to think about / Writing Assignment – Briefly summarize McIntyre – Yeazell pp. 131ff Qs 1- 4 – How would McIntyre have been decided under White’s view of the “stream of commerce” theory as expressed in his opinion in World-Wide Volkswagen – How would McIntyre have been decided under O’Connor’s “stream of commerce” plus theory – How is Kennedy’s view of jurisdiction based on the “stream of commerce” different from White’s and O’Connor’s? In what cases would they reach the same result? In what cases different results? – Questions on next slide

5. 5 Assignment III (F-J) Suppose the California courts and juries are relatively generous to product liability plaintiffs, but Nevada courts and juries are relatively stingy. A Chinese company which is breaking into the US market is considering two distributors, one based in California and another based in Nevada. The two distributors seem roughly equal in quality and price. Which distributor would you advise the Chinese company to select. Why? Suppose Washington state is suffering from high unemployment. Its legislators would like to find a way to expand employment by encouraging Chinese manufacturers to choose distributors based in Washington state. You are an adviser to a Washington state legislator. What changes would you suggest that Washington state make to its laws? If you were on the Supreme Court, in what situations would you allow those injured by products to sue the manufacturer? Would you adopt White’s Stream of Commerce theory? O’Connor’s Stream of Commerce plus? Kennedy’s theory in McIntyre? Some other rule?

6. 6 Introduction to Former Adjudication 2 concepts – Res judicata / claim preclusion – Collateral estoppel / issue preclusion Res judicata – Cannot litigate same claim several times – Sometimes bars related claim, even if not litigated before Collateral estoppel – If issue resolved in one case, cannot relitigate that issue in subsequent case Both doctrines motivated by similar policies – Finality – Save litigation costs – Avoid inconsistent judgments or verdicts

7. 7 4 Requirements for Res Judicata Same claim – Federal court. Claim arising out of the same transaction or occurrence Even if claim in second suit not actually raised or litigated in first suit – Some state courts may apply narrower rules E.g. claim in second suit arises out of “same evidence” Judgment on the Merits – Trial, summary judgment, default judgment – 12(b)(6), but not equivalent dismissals in some states courts – NOT dismissal for lack of jurisdiction or venue Final judgment – Judgment entered on all claims – In federal court, still final if appeal pending; not in some state courts Same parties – Except judgment against former real property owner bars subsequent owner – Perhaps other exceptions when interests of parties are very closely aligned But exception narrowed by Taylor v. Sturgell (not assigned) Res judicata and choice of law – Apply res judicata rules of court which rendered judgment Fed ct applies IL res judicata rules when deciding whether IL judgment bars federal litigation. Frier

8. 8 Frier v. City of Vindalia City towed Frier’s cars Frier sued city in in state court seeking replevin to get cars back – City won Frier sued city in federal court alleging Due Process violation, because city did not give him a hearing before or after it took his cars – District court found for city on merits – 7 th Circuit found for city on res judicata Note that city defended appeal on grounds that raised, but lost in district court Since 1 st judgment was rendered by IL court, need to apply IL rules for res judicata, even though 2 nd case in federal court – IL rules are narrower than federal rules – “same evidence” rather than “same transaction or occurrence” – Majority and concurrence differ in application Yeazell p. 727 Q1

9. 9 Collateral Estoppel Requirements 1. Same issue 2. Actually litigated. No C.E. if party admitted issue in first suit 3. Actually decided. No C.E. if court resolved case without deciding issue – Can be hard to tell if jury verdict 4. Necessarily decided / Essential to judgment – If changing result on issue would not change outcome of case, then no C.E. – If court decides negligence case by finding duty, but no negligence No C.E. on duty CE would not be fair to defendant, because could not have appealed finding of duty – If court decides contract case by deciding that there was no contract and that, even if there was a contract, there was no breach Some courts follow Restatement 2 nd – C.E. applies neither to “no contract” nor to “no breach” » Court may not have thought carefully about » Plaintiff may have thought appeal futile – Unless issue squarely decided on appeal Other courts follow 1 st Restatement and apply C.E. to both Like res judicata, apply collateral estoppel rules of court which rendered first judgment

10. Collateral Estoppel Questions Illinois Central v Parks – Train collision – Suit 1. Jessie v. IL Central Bertha ‘s claim. Compensation for injuries – Judgment. 30K Jessie’s Claim. Loss of services and consortium – Judgment for defendant – Suit 2. Jessie v. IL Central for Jessie’s injuries No c.e. on contributory negligence, because J for defendants could have been based on two findings – No damages in loss of consortium claim – Contributory negligence by Jessie So not clear which issue actually decided So Jessie can relitigate whether he was contributorily negligent Yeazell p. 753 Qs 1-3 Yeazell p. 753 Q 2 Ruhrgas. – Fed Court dismissed, citing lack of subject matter J and lack of personal J – Plaintiff refiled in state court Yeazell p. 756 Qs 1-4 10

11. Cons v Manuf. In CA YesProbably Stream of Commerce Question Cons v Retailer in CA Yes Cons v Manuf. In OR Yes Cons v Distrib. In NV Probably Cons v Distrib. in CA Probably Cons v Manuf. In NV No Probably F-J

12. 12 Stream of Commerce (F-J) Product manufactured in A, sold to distributor in B, and sold to consumer by retailer in C White dicta in World-Wide Volkswagen (stream of commerce) – There is jurisdiction over mfg in C, if sale is “not simply an isolated occurrence, but arises from the efforts of the mfg or distributor to serve, directly or indirectly the market for its products” in C O’Connor plurality opinion in Asahi (1987) (stream of commerce plus) – Jurisdiction over mfg in C if White’s criteria satisfied AND “additional conduct of the defendant [indicates] an intent or purpose to serve the market” in C, e.g. Designing the product for C Advertising in C Establishing channels for providing regular advice to consumers in C Marketing product through distributor who has agreed to serve as the sales agent in the forum state – mfg has direct contractual relationship with retailer in state C? No majority opinion on stream of commerce in Asahi – Majority agreed that no jurisdiction in California over indemnity suit between foreign manufacturer and foreign part supplier, when California plaintiff had settled with foreign manufacturer, because inconsistent with “fair play and substantial justice,” even if purposeful availment could be satisfied.

13. 13 Introduction to Personal Jurisdiction (A-E) Personal jurisdiction is about which court can hear a case – If case is in state court, personal jurisdiction answers question “which state court?” California state court? Massachusetts state court? – If case is in federal court, personal jurisdiction answer question “federal court in which state?” Federal court in California? Federal court in Massachusetts? – Contrasts Subject matter jurisdiction. Federal or state court? Venue. Which court within a state – Los Angeles superior court or San Francisco superior court – C.D. of California (federal court in LA) or N.D. California (federal court in San Francisco)

14. 14 Long-Arm Statutes (A-E) Court must have statutory or rule authority AND statute or rule must be constitutional – Structure is similar to Service of Process. Need statutory/rule authority AND statute/rule must be constitutional Subject matter jurisdiction. Need statutory authority AND statute must be constitutional – State statutes are generally called “Long Arm Statutes” Enumerated Act statutes – E.g. statute says, State court has jurisdiction over defendant if it is a citizen of the state, if it committed a tort in the state, if it was a party to a contract to be performed in the state… To the Limit of the Constitution statutes (CA) – Federal rule is FRCP 4(k)(1)(A) Federal courts generally apply state long-arm statute applicable to court of “general jurisdiction – “Court of general jurisdiction” means non-specialized court with power to hear big cases (e.g. superior court), not family court, small claims court or other specialized court – Course will focus on constitutional limitations Due Process clause

15. 15 Rules before International Shoe (1945) (A-E) Pennoyer v Neff (1877) 3 bases for personal jurisdiction – In personam. If defendant is citizen or resident of state, or present in state, or consented to jurisdiction For individuals, extreme case was service of process in airplane over Arkansas. Grace v. MacArthur (1959) Corporations are citizens in state where incorporated (e.g. Delaware) Difficult to determine where corporation is “present” – Where headquartered. Clearly yes – Where has plant or office and lots of employees. Clearly yes – What if only has a few employees? Not clear – Where does business? Unclear what means to “do business” – In rem. In dispute about property, personal jurisdiction is proper where property is located – Quasi in rem. If suit is NOT about property, but defendant has property in state, plaintiff can sue in that state for whatever cause of action, but recovery is limited to value of property in state

16. 16 Nonmutual Collateral Estoppel I Traditionally, collateral estoppel applied only when parties were the same in first and second suit (like res judicata) Some court allow person not a party to the first suit to assert collateral estoppel, as long as person against whom c.e. asserted was in the first suit (and 4 other requirements satisfied) – Called nonmutual collateral estoppel 2 kinds of nonmutual collateral estoppel – Defensive – Offensive Defensive nonmutual collateral estoppel – Plaintiff sues defendant1 for patent infringement – Court decides that patent is invalid – Plaintiff sues defendant2 for patent infringement – Defendant2 can assert collateral estoppel against plaintiff Because plaintiff already litigated and lost on issue of patent validity – Now accepted in nearly all jurisdictions – “defensive” means asserted by defendant

17. 17 Nonmutual Collateral Estoppel II Offensive nonmutual collateral estoppel – Plaintiff1 sues defendant for poisoning water – Court decides that defendant poisoned the water – Plaintiff2 sues defendant for poisoning the water – Defendant may be estopped from arguing that did not poison the water – Very controversial If defendant loses one case (1 st or 2 nd or 99 th case), would mean that defendant loses all subsequent related cases – But if one plaintiff loses case, then later plaintiffs not bound by c.e Discourages joinder Defendant may not have had incentive to litigate hard in first case – Federal courts have discretion to apply c.e. offensively. – Factors from Parklane Has there been inconsistent litigation outcomes? Did plaintiff strategically wait (not join) so as to take advantage of offensive non-mutual collateral estoppel Did defendant have sufficient incentive to litigate issue aggressively in first case – “Offensive” means by plaintiff No estoppel if person against whom estoppel asserted was not a party in first case Yeazell pp. 764ff Qs 1c, 2a&b, 5a&b