Forum Non Conveniens

Agenda for 25th Class (F-J)
• Handouts
– Slides
– 2012 Exam (for Friday 12/5 review class)
– Court info
• Class schedule
– Today is last regular class
– M 11/24. Court visit (See handout)
– No class Monday 12/1
– Review class Friday 12/5 noon-1:50 in Rm 3
• Exam info
• Personal Jurisdiction
– Consent
– Challenging jurisdiction
– Review of Personal Jurisdiction
• Venue
• Forum non-conveniens
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Office Hours
• M. 11/24. May arrive late, because of F-J court visit
• T. 11/25. 10-11 (F-J) and 2-3 (A-E)
• M 12/1.
– 10-11. Open (A-E)
– 11-12. By appointment (A-E)
• Email me if you want to go over your answer to an old exam
– 2-3. Open (F-J)
– 3-4. By appointment (F-J)
• Email me if you want to go over your answer to an old exam
– 4-5. By appointment (A-E & F-J)
• Email me if you want to go over your answer to an old exam
• F 12/5
– 10-11. Open (A-E)
– 11-12. By appointment (A-E)
• Email me if you want to go over your answer to an old exam
– 2-3. Open (F-J)
– 3-4. By appointment (F-J)
• Email me if you want to go over your answer to an old exam
• Cannot answer questions after Friday 4PM
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Assignments
• For Monday M 11/24
– Read Court Info handout
– Read documents posted at top of class webpage
– No writing assignment
• For Friday 12/5 noon in Rm 3 (Review Class)
– 2012 Exam
– Your questions
– No mandatory writing
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Exam
• In class
– Tuesday, December 9, 9-12 (won’t need 3 hours)
– Multiple choice
– Can use calculator
– Open book
• Take home
– Essay or essays
– Any continuous 8-hour period during exam period (9AM 12/6- 5PM
12/19)
– Probably advisable to take Tuesday afternoon, December 9
– Open book, calculator
• Integrity
– You must do the exam alone
– You cannot share or discuss exam questions with those who take exam
later
– Cheating has not been a problem at USC Law
– If you cheat or help others to cheat, you can be expelled.
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Exam Studying Advice
• Study for exam as though it were an in-class, timed exam
– Don’t assume you can learn material during exam
• Outlining
– Do your own -- Benefit is making outline, not having one
– Compare outline to others’ outlines, after you are done
– Create one page mini-outline / list of topics & issues
• Do practice problems
– Glannon -- Don’t look at answers until you have tried to figure it out
yourself
– Blackboard questions (if haven’t already done)
• Do old exams
– Write out full answers BEFORE looking at model/discussing with others
– Don’t worry about time
– Compare your answer to others’ answers
– Compare your answer to model answer
• Be very critical – sentence by sentence
• Make sure you understand what you missed
• Even best exam misses 50%
– Make appointment to discuss exam with me AFTER you have looked5 at
model answer and made it the best you can make it
Exam Advice
• Read question carefully
• Outline answer before starting to write, so well structured
• Pay attention to genre
– Memo to partner different is different from appellate opinion
– Compare 1995 Question 2 model answer to 2013 model answer
• Include one or two-paragraph executive summary at the beginning
– Summarize key conclusions and reasons for those conclusions
– NOT just road map
• Use headings to separate issues
• Consider putting most important issues first
• Make sure you justify your conclusions with reference to facts in the question
• Take a break after completing your first draft
• Go over one page outline/list of topics & issues to make sure you didn’t miss
issues
• Re-read the question and go over one-page outline again
• Proofread and revise
• Take a break
• Reread question again, go over one-page outline again, revise again,
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proofread
Study Tools
• Old exams
– 1995-2002 on MyLaw Portal under “Exam Archives”
– Did not teach Civ Pro 2013-2010
– 2013 & 2014 on MyLaw Portal under “Secure Documents”
– 2011. Just handed out
– QII.4 is assignment for Monday (F-J) or Friday (A-E)
– You can do Qs II.1 & II.2 now
– You’ve already done II.3
– 2012. Assignment for Friday 12/5
– Particularly useful exams
• Recent exams: 2011, and 2013, 2014 (spring)
• Multiple choice: 2000 & 2013
• Other study tools
– Glannon
– Model answers. MyLaw Portal, “Secure Documents”
– Class recordings. MyLaw Portal, “Recorded Classes”
– Class slides, www.klerman.com
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Consent to Jurisdiction
• Consent was basis for in personam jurisdiction before Intl Shoe
• Consent continues to be basis for jurisdiction
• 3 kinds of consent
– Consent after sued in particular forum
– Failure to object / waiver
– Forum selection clause in contract
• Note difference from choice of law clause
• Carnival Cruise Lines
– Choice of law clauses generally enforceable
– Forum must be reasonable
– Forum can‘t be chosen just to inconvenience plaintiff
– Forum must have some relationship to dispute
• E.g. defendant's headquarters state
• Even if inconvenient to plaintiffs
• Strategy
– Almost always advantageous to include choice of forum and choice of
law clauses in contracts
– Mutually advantageous to reduce uncertainty
– Especially beneficial if your client has bargaining power to choose 8
advantageous law and forum
2 Ways to Challenge Jurisdiction
• In court where sued
– Make 12(b)(2) motion or state equivalent
– “Special appearance” means defendant appears in court solely to
challenge jurisdiction
• Otherwise, appearance in court could be construed as consent to
jurisdiction
• Collateral attack
– Only possible where defendant does not have assets in forum
• So plaintiff would have to enforce judgment in state where defendant
has assets
• Enforcing judgment in another state requires separate suit in that
state
– But Full Faith & Credit Clause of US Constitution requires state to
respect judgment of another state, IF THE STATE WHICH
RENDERED THE JUDGMENT HAD JURISDICTION
– Defendant does not appear in court where sued
– Default judgment is entered against defendant
– When plaintiff goes to enforce judgment in state where defendant has
assets, defendant raises lack of personal jurisdiction as defense
– Very risky, because if enforcing court decides the original court had 9
jurisdiction, defendant cannot then challenge judgment on merits
Review Jurisdiction & Internet
• Zippo
– Jurisdiction depends on how active the website was
– Note that Zippo was only district court decision
– Unclear theoretical basis
• Why should defamation be less likely to establish jurisdiction
where viewed if posting was by website owner on passive
website than if posting was by 3rd party on interactive website?
• Torts – defamation, trademark infringement (Revell, etc.)
– Factors that support jurisdiction
• Defendant knew that injured person resided in forum state
• Posting involved events in forum state
• Posting targeted to forum state or had wide viewership there
• Defendant had other related contacts with the forum state (e.g.
mailed letter there)
• No special jurisdictional doctrines for internet
– “Purposeful availment,” like other jurisdictional contexts
– Concern that posting material to web should not trigger world-wide
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jurisdiction
Review of Personal Jurisdiction
• “Purposeful availment” is key concept
• 5 categories
– Defendant or its employees entered the forum and conducted activity
• International Shoe
– Defendant entered into contractual relationships with forum residents
• Burger King, McGee
– Defendant’s products entered the forum through the "stream of
commerce“
• McIntyre
– Defendant’s out-of-state conduct caused an injurious "effect" in the forum
state
• Revell
– General jurisdiction
• Individuals – residence, domicile, consent, presence
• Corporations
– Definitely. Incorporation, principal place of business
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– Maybe. (large) factory/office, (many) employees, lots of business
Venue
• Venue means what court within a state
– Federal court: CD of Cal (LA) or SD of Cal (San Diego)
– State court: LA Superior Court of San Diego Superior Court
• Purely statutory matter. Not constitutional
• Each state has its own statute
• Federal statute is 28 USC 1391
• Map of federal districts
– http://www.uscourts.gov/uscourts/images/CircuitMap.pdf
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Venue: 28 USC 1391
• (b)(1). If all defendants reside in the same state, venue is proper in any
judicial district in which at least one defendant resides
– For individuals residing in US, residence = domicile. (c)(1)
• Confusing, because domicile is usually defined as residence + intent
to remain indefinitely
– Corporations are resident in any district in which they would be subject to
personal jurisdiction, if district were considered a state. (d)
• If reside in district, then reside in state in which district located
• (b)(2). Venue is proper in judicial district where event or omission giving rise
to claim occurred
• (b)(3). If no district satisfies (b)(1) or (b)(2), then venue is proper in any
district in which in which any defendant is subject to personal jurisdiction.
• (c)(3). Defendant not residing in US can be sued in any district
– Joinder of person not residing in US disregarded in determining venue
when multiple defendants
• IMPORTANT. Even if venue is proper, court still needs to have personal
jurisdiction over EACH AND EVERY defendant.
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Venue Questions
• Briefly Summarize Dee-K Enterprises
• P. 176 Q5; pp. 178ff Q1a, 2
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Moving Cases Around
• From one federal court to another
– 28 USC 1404 says cases may be transferred “to any other district ..
Where it might have been brought” “for the convenience of the parties
and witnesses, in the interest of justice.” Even if venue was proper in the
first place
• BUT transferee court follows choice of law rules of transferor court
– 28 USC 1406 says that court can transfer case if venue was improper in
the first place.
• Without statute, one might think that the court didn’t have power to do
anything
• No comparable ability to transfer case between judicial systems
– E.g. from one state court to a court in a different state or foreign country
– E.g. from federal court to court in foreign country
– If judge thinks that her court has jurisdiction, but that a court in a different
state or country would be better, the judge must dismiss the case
• Forum non conveniens
• No transfer or forum non-conveniens to move case from federal to state
court or vice versa
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– State to federal court. Removal; Federal to state. Abstention.
Forum Non Conveniens Questions
• Briefly summarize Piper Aircraft
– In your summary, please incorporate answers to pp. 186ff Qs1, 4,
• Suppose a chemical plant in India owned by an American company leaks
gas into the surrounding neighborhood and kills 16,000 people and injures
half a million. The victims sue in US court. Defendants move for dismissal on
the basis of forum non conveniens. The plaintiffs argue that dismissal is
inappropriate, because Indian courts require a filing fee equal to 5% of
damages claimed, which in this case could be billions of dollars. There are
long delays in Indian courts. Indian courts have very few tort precedents
and none relevant to mass torts. Discovery is usually very narrow, if allowed
at all. Should the court grant the forum non conveniens motion? If it does,
are there any conditions it should attach?
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