Law School Outline - Civil Procedure Outline Personal Jurisdiction

CIV PRO – PERSONAL JURISDICTION I. INTRODUCTION A. Why do litigants care about where litigation occurs?: 8/12/2008 1. Convenience: Distant litigation may make it more difficult to subpoena witnesses and make it more expensive to ship and store documents or other evidence. The lawyer “back home,” who may have counseled the party on the underlying transaction will probably not be a member of the bar in another state. Thus, the party will have to hire a new lawyer. Rebuttal: In an age of instant telecommunications and easy transportation, concerns about inconvenience sometimes seem like an unlikely explanation. 2. Bias: The litigant might believe that judges and juries in a particular location are more likely to be biased for or against them. Rebuttal: Constitution provides for diversity jurisdiction. 3. Choice of law: It is unconstitutional for a state with no connection to the transaction or parties to apply its law even if it has PJ. In such a case, the forum can adjudicate the dispute, but it would be required to apply the law of the state that has the requisite connection. However, the limits are modest. If the laws of several states can be applied, the forum state decides. B. Enforcement and “Full Faith and Credit”: Once the court exercises jurisdiction over the person of the D, it can enter a judgment that creates a personal obligation to pay money or perform some act. A court can enforce an in personam judgment either by attaching and selling any of the D‟s property or by ordering a D to perform some act. A valid in personam judgment in one state was entitled to full faith and credit in another state under Article IV, Section of the Constitution. C. Collateral and direct attacks on personal jurisdiction: 1. Direct attack: Direct attack allows a nonresident D to appear in a State A‟s court to challenge its PJ over him. The drawback of a direct attack is that it may require a D to hire a new attorney that is licensed in State A (due process argument). 2. Collateral attack: A collateral attack allows a default judgment to be entered against the D in State A‟s court. When the P tries to enforce State A‟s decision in State B (the state where she is domiciled or owns property) she can make a collateral attack claiming that State A‟s judgment is not entitled to FFC because it lacked PJ. A collateral attack is risky for two reasons: (a) Litigating in a distant forum: A P may enforce a judgment anywhere D has property; D may have to make a collateral attack in a distant forum. (b) No longer can contest on the merits: D can only contest PJ and not the merits of P‟s claim. If State B recognizes State A‟s jurisdiction, the default judgment holds. 3. Review via extraordinary writ: Some cases allow review for jurisdiction prior to judging the merits of the trial. Absent such an exception, a D can not appeal jurisdiction until after the merits of the trial are decided. She can then appeal both jurisdiction and the merits. 4. FFC of Collateral Judgment – if state A rules that the forum state (B) lacked personal jurisdiction, the π cannot go to a third state (C) to attempt to get a different ruling on the enforceability of B‟s judgment. This is b/c state A is the only court to rule on PJ and thus is entitled to FFC of the other states (state B made a judgment on the merits of the case but not on PJ b/c was waived through non-appearance of ∆) 1 of 21 CIV PRO – PERSONAL JURISDICTION 8/12/2008 LONG-ARM STATUTES D. Generally: PJ is not automatically conferred. Rather, each state must enact legislation allow its court to exercise PJ. E. Universal statutes: All states have a statute permitting in personam jurisdiction over persons served with process in the state and over domiciliaries. All states have a nonresident motorist statute. F. Two step test to determining if PJ is proper: 1. Does the case fall within the terms of a state statute?; AND 2. Is the jurisdiction constitutional? G. Coextensive statutes: California courts “may exercise jurisdiction on any basis not inconsistent with the Constitution of the this state or of the United States.” H. Interpretation: Each state is free to interpret its long-arm statute however it chooses, and sometime identical language is interpreted differently in different states. Example: Suppose that Valve Co. manufactures valves in State A. It sells the valves to Heater Co., a heater manufacturer in State B. Heater Co. incorporates the valves into its heaters, which it sells throughout a region of several states. One of the Valve Co. valves explodes in State X, injuring the P. P wants to sue Valve Co. in State X. Its long-arm statute grants jurisdiction over one who “commits a tortious act or omission in State X.” Does it apply to Valve Co? 1. In Illinois, jurisdiction was upheld. The court reasoned that an act or omission cannot become “tortious” until someone is injured. Because P was injured in Illinois, D committed a tortious act or omission there. 2. In New York, the court reached the opposite conclusion. The court emphasized the statutory words “act or omission,” and concluded that the statute could be met only if the D actually did (or omitted to do) something in NY. Where the negligent manufacture of the product took place in a different state, there was no tortious act or omission (and therefore no jurisdiction) in New York. 2 of 21 CIV PRO – PERSONAL JURISDICTION II. 8/12/2008 PRESENCE OF THE PERSON A. Traditional notions of in personam jurisdiction: Personal jurisdiction (PJ) doctrine originally rested on notions of sovereignty. A court cannot enter a valid judgment without jurisdiction. Jurisdiction was initially based on presence. 1. Presence in the forum state: Since each state had exclusive power over all persons within its borders, it could render binding judgments in any suits brought against the person. In personam jurisdiction was premised on the presence of the individual D at the time the action was commenced. Still valid, but subject to criticism. 2. Persons outside states borders: In personam jurisdiction was not allowed over persons outside the state borders because that would violate another state‟s sovereignty. Now based on minimum contacts test. B. Transient presence of an individual: Based on past and present practice, the DPC does not prohibit a state from exercising jurisdiction over a D based on the fact of in-state service of process, even if the D has no other contacts with the forum state. Still valid, but rationale is unsettled. 1. Contradicts Shaffer: In Shaffer, the Court held that “all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.” Here‟s how the Court tried to reconcile: (a) Shaffer was based on an absent D: Shaffer, like Shoe, concerns jurisdiction over an absent defendant, and stand for nothing more than the proposition that when the “minimum contact” that is a substitute for physical presence consists of property ownership it must, like other minimum contacts, be related to the litigation. (b) Tradition: Jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal systems that define the due process standard of “traditional notions of fair play and justice.” That standard was developed by analogy to “physical presence,” and it would be perverse to say it could now be turned against that touchstone of jurisdiction. (c) Permitted in every jurisdiction: If every state does it then it can‟t violate due process. (d) Reasonable to expect to be haled into court: A D voluntarily present in a particular state has a “reasonable expectation” that he is subject to suit there. This doctrine is upheld based on the notion of “tradition” not “fairness.” 2. Judgment in Burnham was not the opinion of the court: Here is what others had to say: (a) J. Brennan concurrence: Need to discuss contacts. Believes in Shaffer. “All assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and it progeny.” Must evaluate in contemporary notions of fairness and not tradition (what they were doing in 1868 when the 14th amendment was passed). Being in California is good enough. His contacts were “related” to the dispute. Within the minimum contacts context, fact of service only means you were once there; not a close relationship between the two. J. Brennan wants to reserve the right to use minimum contacts test but also wants to say the service is probably enough. (b) J. White concurrence: Presence is enough and not unfair; to require more would invite needless litigation. (c) J. Stevens concurrence: Other opinions had an unnecessarily broad reach. Should be concerned with deciding just this case. 3 of 21 CIV PRO – PERSONAL JURISDICTION 8/12/2008 C. Transient presence of a corporate agent: Jurisdiction over a corporation of one state cannot be acquired in another state or district in which it has no place of business and is not found, merely by serving process upon an executive officer temporarily therein, even if he is there on business of the company. James-Dickinson v. Harry. Still valid. D. Transient presence of a partner: Service on any partner confers jurisdiction over the partnership itself. First American v. Price Waterhouse. Still valid. E. Domicile: Jurisdiction may be exercised over an individual who is domiciled within the forum state, even if he is temporarily absent from the state. Milliken v. Meyer. Still valid. 1. Rationale: A state which accords privileges and affords protections to a person by virtue of his domicile may also exact reciprocal duties. 2. “Domicile” defined: Domicile is synonymous with citizenship. However, domicile is more limited than residence (an individual may have several residences but only one domicile.) For a person to be considered to be domiciled in the a state, (1) he must have physically moved there in; AND (2) he must mentally intend to make the state his fixed home. 3. Sufficient notice still required: The state must provide and employ a reasonable method for apprising such an absent party of the proceedings against him. F. Divorce: In personam jurisdiction is not necessary for a court to enter a valid divorce. The only jurisdictional prerequisite to a valid divorce is that at least one of the spouses be domiciled in the state which grants the divorce. Williams v. North Carolina. While in personam jurisdiction is not required for the divorce, it is required for a money judgment or alimony or child support. Examples: In each, assume that A resides in California and that B resides in Arizona. A sues B in a state court in California, claiming that A lent B $25,000, which B has failed to repay. A seeks judgment for $25,000. The ultimate question in each is whether the state court‟s assertion of jurisdiction is proper under the rules explicated in Pennoyer. 1. 2. B is served personally with process (summons and complaint) in Arizona. B appears in the California court and moves to dismiss for lack of personal jurisdiction. Is jurisdiction proper? No. B must be personally served in California not Arizona Same as #1, except B defaults in California. A then sues B on the default judgment in state court in Arizona. B appears in the Arizona suit and asserts that the California court did not have personal jurisdiction over her, and thus that the California judgment is not entitled to full faith and credit. Is jurisdiction proper? No. California judgment is invalid b/c B must be personally served in California not Arizona. B is served personally with process in California while there on vacation. B makes a special appearance in the California court and moves to dismiss for lack of personal jurisdiction. Is jurisdiction proper? Yes. B was personally served in the state where the claim is being brought. Same as #3, except B defaults in California. A then sues B on the default judgment in state court in Arizona. B appears in the Arizona suit and asserts that the California court did not have personal jurisdiction over her, and thus that the California judgment is not entitled to full faith and credit. (By the way, assume also that B has a canceled check showing that she actually did repay A. Does this help her?) Is jurisdiction proper? Yes. B was personally served in the state where the claim is being brought. Under FFC, Arizona must enforce California‟s valid judgment. Unless she wins a collateral attack, B has forgone her right to challenge the assertions of A in court. The canceled check should not matter B is served personally with process in the desert somewhere near the state line between California and Arizona. B was hiking through the desert, and it is not clear whether she was in California or Arizona at the time she was served. She thinks she was in Arizona. A thinks service was made in California. Assume that B has a canceled check showing that she did repay A. She wants advice on whether to make a direct or collateral attack. What do you tell her? A direct attack could allow B to contest personal jurisdiction in California before the merits are decided. If she wins, she can then litigate at home and save on travel expenses. If she loses or she can not contest jurisdiction before the trial, she can still fight the claim by showing the cancelled check. A collateral attack would be a very risky move given the uncertainty of the outcome. 3. 4. 5. 4 of 21 CIV PRO – PERSONAL JURISDICTION III. 8/12/2008 CONSENT A. Voluntary appearance: By making a general appearance in a court to contest the case on the merits, the D is deemed to have submitted himself to the jurisdiction of the court. This is true even if jurisdiction would not have been valid otherwise. Still valid. B. Consent through an agent: Consent to jurisdiction can be manifested by appoint an agent for service of process within the state. National Equip. Rental Ltd. v. Szukhent. In fact, most states today require out-of-state corporations seeking to do business within the state to register and appoint an in-state agent for service of process. Still valid. 1. Consent is to general jurisdiction (majority): Courts have held that service of an in-state agent for service of process is constitutionally sufficient to confer jurisdiction, even for claims unrelated to the corporation‟s in-state activities. Pennsylvania Fire v. Gold Issue Mining. 2. Consent is to specific jurisdiction (minority): A number of courts have interpreted the consent to extend only to suit arising out of the corporation‟s in-state activities. Pittock v. Otis Elevator. C. Consent through litigation conduct: Parties may also consent to jurisdiction by virtues of their conduct in litigation. Still valid. 1. Consent by filing action: The Supreme Court held that by filing a complaint, the P consented to the court‟s jurisdiction when a counterclaim was filed by the D against him. Adam v. Saenger. 2. Consent by sanction: In Insurance Corp. of Ireland, the D refused to produce documents to the P regarding a motion to dismiss for lack of personal jurisdiction. The court imposed the sanction of finding that the court has PJ over the D. By submitting to the jurisdiction of the court for the limited purpose of challenging jurisdiction, the D agrees to abide by the court‟s determination on the issue of jurisdiction. Also see Rule 37(b)(2)(A). D. Forum selection clauses (FSC): Sometimes parties to a contract agree to litigate only in a designated forum. Such provisions have been upheld even if it is burdensome for one party. Carnival Cruise Lines v. Shute. Still valid, but subject to heavy criticism.. 1. Rationale: A FSC can be enforced even if it is not the subject of a bargain. A reasonable FSC can be justified on several grounds: (a) Limiting fora: The party‟s special interest in limiting the fora in which it could be subject to suit (e.g., a cruise line). (b) Certainty: The clause dispels confusion about where suits may be brought, sparing expense to the litigants and to the judicial systems. (c) Reduced costs: Consumers enjoy the benefit of reduced prices reflecting in the savings that the party enjoys by limiting the fora in which it may be sued. 2. Must evaluate for “fundamental fairness”: FSC must also be examined for fundamental fairness. Two factors that suggest a clause was enacted in good faith: (a) Principle place of business: If the party has its place of business in the forum state and conducts most of its business there, the FSC is more likely to be deemed fair. (b) Lack of misconduct: Party cannot obtain assent by fraud or overreaching. 5 of 21 CIV PRO – PERSONAL JURISDICTION 3. Carnival Cruise Line opinion subject to heavy criticism: 8/12/2008 (a) Notice is often insufficient: (J. Stevens dissent) It can be difficult to make the statement that passengers are fully and fairly notified of a FSC, especially when is buried deep in the document. In addition, passengers would have to purchase the tickets before they actually had a chance to see it. Given that tickets are unrefundable, most passengers would accept the risk of litigation in Florida. (b) Naïve law and economics: Price of the ticket = (the cost for one person to take the cruise) + (the cost of litigating in another place other than the corporation‟s home state)*(probability of litigation). An example of cognitive bias: What would the Shutes pay for litigating at home? Who knows? Difficult to analyze. People tend to undervalue small risks of future harm. E. Nonresident motorist statutes: A state may require someone using a motor vehicle on its highways to appoint one of its officials as his agent for service of process. Notice to the D is made by registered mail. Hess v. Pawloski. 1. Public policy: As a matter of public policy, a state may regulate its highways to promote care among residents and nonresidents alike (increasing prevalence of interstate transportations). 2. Fiction of implied consent: The case recognizes the power of a state to exclude a nonresident until the formal appointment is made. Thus, having the power to exclude, the state may declare that the use of its highways is the equivalent of the appointment of the registrar as agent. 3. Police power: Modern courts have discarded implied consent in favor of a theory that the states have a right to use their police power and their court system to protect their citizens who are injured by an automobile, a dangerous object. 6 of 21 CIV PRO – PERSONAL JURISDICTION IV. 8/12/2008 INTERIM DEVELOPMENTS LEADING UP TO SHOE A. Corporations: The prevailing view in 18th and 19th century was that corporations could only be sued in personam in the state of incorporation. Industrialization brought with it significant multistate corporate activities and the need for states to be able to assert jurisdiction over out-of-state activities conducting in-state activities. 1. Initial solution was “implied consent”: States required corporations to appoint an agent for service of process as a condition for doing business in the state. However, by the early 20th century, the Commerce Clause was interpreted to prohibit states from excluding corporations engaged solely in interstate commerce, which precluded the need for consent to operate in the state. Still valid. 2. Move to jurisdiction based on where a corporation was “present”: The Supreme Court moved away from consent to close up loopholes and ruled that an out-of-state corporation need only be “present” for a state to assert PJ. Now based on minimum contacts test. B. Individuals: With increased travel, people were not always easy to locate for service of process. Moreover, the new mobility increased the ability of individuals to travel to distant locations and cause injuries which left victims who then had to travel to the D‟s state for any recourse. The following are some of the solutions for this problem: 1. Expansion of QIR type 2: QIR was expanded to included intangible “res” such as debt. As a result, a D was subject to QIR type 2 jurisdiction wherever his debtors were found. Now based on minimum contacts test. 2. Domicile: A D was also subject to suit in his domicile regardless of whether he is physically there. Must still be proper notice. Domicile is determined at time of filing. Still valid. 3. Consent statutes: States began to enact consent statutes for individuals that were similar to those used against corporations. Still valid. 7 of 21 CIV PRO – PERSONAL JURISDICTION V. 8/12/2008 MODERN ERA: MINIMUM CONTACTS A. Generally: For corporations, there was a move away from “consent” and “presence” to “doing business.” After Shoe, the standard became minimum contacts. B. Minimum contacts is now the standard: The Court in Shoe stated that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend „traditional notions of fair play and substantial justice.‟” C. “Minimum contacts “ are required: 1. Systematic and continuous activities + contacts give rise cause to cause of action: “Presence” in the state in this sense has never been doubted when the activities of the corporation there have not only been continuous and systematic, but also give rise to the liabilities sued on, even though no consent to be sued or authorization to an agent to accept service of process has been given. 2. Single or isolated activity + contacts do not give rise to cause of action: It has been generally recognized that the casual presence of the corporate agent or even his conduct of single or isolated items of activities in a state in the corporation‟s behalf are not enough to subject it to suit on causes of action unconnected with the activities there. 3. General jurisdiction: While it has been held that continuous activity of some sorts within a state is not enough to support the demand that the corporation be amenable to suits unrelated to that activity, there have been instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities. 4. Specific jurisdiction: Although the commission of some single or occasional acts of the corporate agent in a state sufficient to impose an obligation or liability on the corporation has not been thought to confer upon the state authority to enforce it, other such acts, because of their nature and quality and the circumstances of their commission, may be deemed sufficient to render the corporation liable to suit. D. “Traditional notions of fair play and justice” must not be offended: It must be reasonable to require the corporation to defend the particular suit which is brought there. 1. Inconvenience: An “estimate of the inconveniences” which would result to the corporation from a trial away from its “home” or principal place of business is relevant in this analysis. 2. Notice and hearing: A court cannot render a personal judgment against a defendant without notice and an opportunity to be heard. E. Notion of reciprocity: To the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of those privileges may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them is not undue. F. Applies to individuals: In 1978, Kulko v. Superior Court made clear that the “minimum contacts” test applies to individuals as well as corporations. Still valid. 8 of 21 CIV PRO – PERSONAL JURISDICTION Examples: 8/12/2008 1. An International Shoe delivery truck carrying shoes from Missouri to Washington drives through Colorado, where it hits a Colorado pedestrian. Can Pedestrian sue International Shoe in Colorado? Would it matter if the truck driver had not planned to go through Colorado but got lost and ended up there? If the company travels through Colorado as part of its regular delivery route (“systematic and continuous”), then it seems specific jurisdiction could be asserted since the cause of action arose out of its contacts. Since the court uses the Hess standard as part of its reasoning (implied consent due the nature of driving an automobile), it wouldn‟t seem to matter if the driver was lost at the time and wandered off his usual route into Colorado. Jurisdiction could still be asserted over the D due to the nature of its activity. 2. Could Pedestrian sue International Shoe in Washington? Maybe; the company has a systematic and continuous presence in the state, but the incident is unrelated. 3. Could Pedestrian sue International Shoe in Missouri, where the defendant‟s headquarters were located? Yes; although the incident is unrelated, a company can be sued in the state in which it‟s headquartered or incorporated (assumed by scholars) under personal jurisdiction. Perkins. 4. International Shoe‟s headquarters were located in St. Louis, Missouri, very close to Illinois. Suppose Pedestrian has a vacation home in Illinois and hence thinks it would be very convenient to litigate in Illinois. Can Pedestrian sue International Shoe in Illinois? No; the cause of action did not arise out contacts with that state nor does D have any apparent sufficient contacts with that state to begin with. State boundaries do still matter. 5. Suppose International Shoe operates retail shoe outlets in Washington. A customer buys a pair of shoes there, but the shoes are defective. Can the customer sue International Shoe in Washington? Probably yes; it seems that the company maintains a systematic and continuous presence in Washington, although the inconvenience to the D of litigating far away would be considered under the Shoe standard. 6. International Shoe operates retail outlets in Washington but not in Oregon. An Oregon citizen visits the Washington store and buys a pair of defective shoes which she takes back to Oregon. Can she sue International Shoe in Oregon? Probably not; the cause of action arose in Washington and there are no sufficient contacts in Oregon. If the company advertised in Oregon, then maybe (possible contacts and related). 7. Suppose that the Oregonian had seen the shoes at the Washington store but had returned home. She then contacted International Shoe directly and ordered a pair of shoes. The shoes were sent by International Shoe to the customer in Oregon. Could she sue International Shoe in Oregon? Maybe; unless the company has a history of selling shoes direct in Oregon, general jurisdiction can not apply in Oregon. (On the other hand, didn‟t the cause of action arise out of the contact with the state?). 8. Suppose that instead of having the shoes shipped to Oregon, the customer picked them up in Missouri while she was vacationing in St. Louis. At the time she picks up the shoes, the customer makes it very clear she is going to take the shoes back to Oregon. Can she sue in Oregon? Maybe; was there really a contact? 9. Suppose International Shoe makes shoe components such as heels and soles. International Shoe sells its heels to a Pennsylvania company. The Pennsylvania company incorporates the heels into its shoes which it then sells in Oregon. Can a person who buys the shoes in Oregon and is injured by a defective heel sue International Shoe in Oregon? Maybe; was there really contacts with the state? 9 of 21 CIV PRO – PERSONAL JURISDICTION VI. 8/12/2008 ESTABLISHING THE LIMITS OF “MINIMUM CONTACTS” A. Expanding the notion of minimum contacts: In McGee v. International Life, an insurance company sent a single reinsurance certificate into the state and received premiums mailed from within the state. Although there was not evidence that the company had ever solicited or done any insurance business in the state apart from this particular policy, the Supreme Court found that there was jurisdiction. 1. Applicability to contracts: A contract with substantial connections to the forum state may be enough for purposes of due process. However, Shoe asked if the defendant had a connection with the state, not a contract. The contract is evidence and should not be conclusive by its mere existence. Still valid. 2. Interest of the forum state: Establishes the notion that a state has a manifest interest in providing effective means of redress for its residents when the D is a non-resident. Still valid. B. Limiting the notion of minimum contacts: In Hanson v. Denckla, a dispute arose over a trust executed in Delaware (a Delaware company was name trustee at that time), but probated in Florida, where the decedent was domiciled. Florida‟s attempt to assert PJ over the trustee was denied by the Supreme Court. The Court noted that when the trust was created, there was no connection with Florida and the decedent‟s later move there was not sufficient to create jurisdiction. 1. Unilateral activity is not sufficient: The unilateral activity of those who claim some relationship with a nonresident D cannot satisfy the requirement of contact with forum state. 2. Must be purposeful availment: It is essential in each case that there be some act by which the D purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefit and protections of its laws. C. Old view on products liability: In Gray v. American Radiator, the P sued the D, an Ohio corporation, for injuries sustained from an exploding water heater that incorporated one of its safety valves. The P charged that the valve was negligently manufactured. The valve was manufactured in Ohio and incorporate into the water heater in Pennsylvania. The water heater “in the course of commerce” was sold to an Illinois consumer. The Supreme court upheld jurisdiction. [May not be invalid, may be able to reconcile with WWV paradigm.] 1. Direct contacts are not necessary: Even though a manufacturer does not deal directly with the consumers of the state, he still enjoys an indirect benefit from its laws. Therefore, it is reasonable that there is sufficient contact with the state. Now based on minimum contacts test. 2. Product sold in contemplation of use in another state is sufficient: As a general proposition, if a company elects to sell its products for ultimate use in another state, it can be subject to jurisdiction in that state. Inconvenience is no longer a significant factor. Now based on minimum contacts test. 3. “Stream of commerce”: Generally, products can enter the stream of commerce in two ways: as component parts or in the chain of distribution. 10 of 21 CIV PRO – PERSONAL JURISDICTION 8/12/2008 VII. THE “TWO PRONG” TEST (PRODUCTS LIABILITY CONTEXT) A. Products liability reconsidered: In World-Wide Volkswagen v. Woodson, that Court stated that the “foreseeability that is critical to the due process analysis is not the mere likelihood that a product would find its way into the forum state. Rather it is that the D‟s conduct and connection with the forum state is such that he should reasonably anticipate being haled into court there.” 1. Foreseeability alone is not sufficient: “Foreseeability” is not a sufficient benchmark for assertion of PJ. If foreseeability were the criterion, every seller of chattels would in effect appoint the chattel his agent for service of process. B. Development of two prong test: To satisfy minimum contacts, the first hurdle of “purpose availment” must be met before issues of “reasonableness” are considered. 1. First “purposeful availment”: The minimum contacts must represent a purposeful act directed at the forum state. The DPC does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations. (a) Predictability: A D should know in advance and be able to control where it will be subject to suit. When a corporation “purposefully avails itself of the privilege of conducting activities within the forum State,” has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the state. (b) Cannot be result of unilateral act: The main distinction is where the P bought the item. If he bought the item in the state, then it‟s a bilateral activity. If he bought the item outside of the state, then unilateral activity. (c) Must expect product will be purchased in forum state: In order to assert PJ, the forum state must show that the D delivers its product into the stream of commerce with the expectation that they will be purchased by consumers in the forum state. The sale of a product must arise from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in the forum state. (d) Marginal revenues from forum state not sufficient: In addition, financial benefits accruing to the D from a collateral relationship to the forum state will not support jurisdiction if they do not stem from a constitutionally recognized contact with that State. 2. Then “reasonableness”: Even if the corporation (or individual) has engaged in purposeful contacts, defendant‟s contacts with the forum State must be such that maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” The relationship between the D and the forum must be such that it is reasonable to require the corporation to defend the particular suit which is brought there. Reasonableness is determined by weighing the : (a) burden on the D; (b) forum state‟s interest in adjudicating the dispute; (c) P‟s interest in obtaining convenient and effective relief; (d) interstate judicial system‟s interest in obtaining the most efficient resolution of controversies; AND (e) shared interest of the several states in furthering fundamental substantive social policies. 11 of 21 CIV PRO – PERSONAL JURISDICTION 8/12/2008 C. Criticism of “two prong” test from WWV: (J. Brennan dissent) The dissent in WWV felt that the Court‟s majority focused too much on the existence of contacts and not enough on the weight of the forum State‟s interest in the case and whether there is any actual inconvenience to the D. He argued that minimum contacts must exist “among the parties, the contested transaction, and the forum State” to make the forum state a reasonable state in which to hold the trial. Examples: Consider the following variations on World-Wide Volkswagen. 1. When the Robinsons purchased their car, they explicitly and repeatedly told the salesman that they were planning to take the car to Oklahoma. Would the seller be subject to suit in Oklahoma? No; unilateral act, not delivered into the stream of commerce, mere foreseeability; less control. 2. In addition to (1) above, at the Robinsons‟ request, the seller arranged to have the car titled and tagged in Oklahoma. Would the seller be subject to suit in Oklahoma? Probably not; there seems to be no money; more control. 3. In addition to (1) and (2) above, the seller arranged to ship the car to Oklahoma for the Robinsons. Would the seller be subject to suit in Oklahoma? Probably yes; delivered into the stream of commerce, seems like more of a bilateral act; more control. D. Purposeful availment applies to individuals: In Kulko v. Superior Court, the father had custody of the children after a divorce. At their request, he send them California to live with their mother. On their arrival, the mother filed suit in California seeking child support from the father. The Supreme Court held that the father did not purposefully avail himself of the benefits and protections of California law. However, J. Brennan would say that there are sufficient contacts among the parties, the forum state and the litigation. 12 of 21 CIV PRO – PERSONAL JURISDICTION 8/12/2008 VIII. TORTIOUS OUT-OF-STATE CONDUCT A. “Tortious out-of-state conduct” with “effects” inside the forum state: In 1984, the Supreme Court addressed personal jurisdiction in two libel cases. 1. Keeton v. Hustler Magazine: The suit alleged defamation in one issue of Hustler magazine in New Hampshire and nationwide. Keeton was a citizen of New York, but brought her suit in New Hampshire due to the statute of limitations. Keeton sought damages for her injury to her reputation suffered in the forum state and nationwide. (a) PJ upheld for damages suffered both in NH and nationwide: Because, Hustler sold a substantial number of magazines in NH, the Court reasoned that NH had a substantial interest in cooperating with other states to provide a forum for efficiently litigating all issues and damages claims arising out of a libel in unitary proceeding. (b) Jurisdiction upheld despite minimal connection with the state: Hustler‟s activities in NH were not so substantial as to support jurisdiction over a cause of action unrelated to those activities. However, the Court ruled that they were sufficient to support jurisdiction when the cause of action arises out of the activity being conducted, in part, in NH. 2. Calder v. Jones and the “effects” test: The writer and editor, both citizens of Florida, where subject to jurisdiction in California for an allegedly defamatory article written about a California resident. (a) Harm suffered in the forum state: The Court reasoned that California was the focal point of both the story and of the harm suffered. Jurisdiction is based on the “effects” of their Florida conduct in California. Still valid. (b) Tortious conduct was intentionally and expressly aimed at forum state: Actions from outside the state that have foreseeable tortious effects inside the state can be a basis for asserting jurisdiction (e.g., a letter-bomb). The Ds should reasonably anticipate being haled into court there to answer for their actions. Still valid. 13 of 21 CIV PRO – PERSONAL JURISDICTION IX. 8/12/2008 CONTRACTUAL RELATIONSHIPS A. Contractual relationships: An individual‟s contract with an out-of-state party alone cannot automatically establish sufficient minimum contacts in the other party‟s home forum 1. Must look at purposeful contacts: A contract is just an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction. It is these factors – prior negotiations and contemplated future consequences, along with the terms of the contract and the parties‟ actual course of dealing – that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum. Still valid. 2. Contract has a substantial connection with forum state: With respect to interstate contractual obligations, parties that reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanction in the other state for the consequences of their activities. Still valid. 3. Limitations: PJ may not be grounded on a contract whose terms have been obtained through fraud, undue influence, or overweening bargaining power and whose application would render litigation so difficult and burdensome that a party for all practical purposes is deprived of his day in court. Still valid. Example: Suppose a West Virginia construction company orders an expensive piece of equipment from a manufacturer in Wisconsin. The contract calls for the equipment to be delivered “F.O.B. at the seller‟s plant in Wisconsin,” meaning the buyer takes title to and assumes the risk for the equipment at the seller‟s plant. When a dispute arises over payment, the Wisconsin seller sues the West Virginia buyer in Wisconsin. Is there jurisdiction? Would West Virginia have jurisdiction over the seller if the buyer brought suit there? Would your answer to either question change if the seller had arranged for the transportation of the equipment to West Virginia? Would your answer change if the item in question was a $300 tool purchased by a consumer from a catalogue? 1. For jurisdiction: The WV company reached in and negotiated a purposeful contact. Also accepted the equipment in Wisconsin. 2. Against jurisdiction: No long-term contract, no prior negotiations, isolated contact, really no argument for reasonableness. What if you were a consumer? Much less reasonable for consumer. Burden would be too great. 14 of 21 CIV PRO – PERSONAL JURISDICTION X. 8/12/2008 THE “STREAM OF COMMERCE” (PRODUCTS LIABILITY CONTEXT) A. Limiting the “stream of commerce”: In Asahi, the judgment of the Court was that the placement of a product into the stream of commerce, without more, is not an act of the D purposefully directed toward the forum state. 1. Conduct that may indicate products purposefully directed at forum state: Additional conduct of the D may indicate an intent or purpose to serve the market in the forum State, for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State. Still valid. 2. Mere awareness is not sufficient: D‟s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State. Still valid. B. Judgment in Asahi was not the opinion of the court: The judgment in Asahi was not the opinion of the court. Here is what other justices had to say: 1. J. Brennan concurrence: In WWV, the defective product was brought into the forum state through the unilateral activity of the consumer. Prefers the judgment of Gray, where the defective product reached the forum state through the chain of distribution. A D who has placed goods in the stream of commerce benefits economically from the retail sale of the final product in the forum state, and indirectly benefits from the State‟s laws that regulate and facilitate commercial activity. These benefits accrue regardless of whether that participant directly conducts business in the forum State, or engages in additional conduct directed toward that State. Accordingly, most courts and commentators have found that jurisdiction premised on the placement of a product into the stream of commerce is consistent with the DPC, and have not required a showing of additional conduct. [Justices concurring in this opinion no longer on the Court] 2. J. Stevens concurrence: There is no need for the course to define the test for purposeful availment here. But if we were to discuss this concept, then the amount and value of items sold into the forum state should be enough to make that case that Asahi has “purposefully availed” itself of the benefits and protections of California. C. Jurisdiction over an alien corporation: Assertion of jurisdiction over the alien D in Asahi was deemed unreasonable aside from the “contacts” factor for the following reasons: 1. Inconvenience: Unreasonable burden to defend on foreign soil. 2. Forum state’s interest is weak: Forum does not have a reasonable interest in adjudicating a dispute between two foreign companies over an claim that arose from an action that took place in Taiwan. In addition, P (Cheng Shin) is not a California resident. 3. No public policy issue: In addition, the dispute is about an indemnification claim and not safety. Therefore, no public policy argument. The pressure will fall on Asahi anyway as the purchasers of its valves are continually haled into court. 4. Foreign policy: Great care must be exercised when haling a foreign company into a U.S. court. Examples: The majority of the court agreed that California was a unreasonable forum Would the result concerning jurisdiction in California would have been different if: 1. Zurcher‟s claim against Cheng Shin had not settled? Probably; if Cheng Shin was still litigating there, one could make a case that Asahi should be there, too. 2. Zurcher had sued Asahi? Probably; California has an interest in protecting its residents. 3. Asahi were a New York corporation instead of a Japanese corporation? Probably; If Asahi is no longer a foreign P the burdens of litigation mentioned above are diminished. 15 of 21 CIV PRO – PERSONAL JURISDICTION XI. 8/12/2008 GENERAL JURISDICTION A. General jurisdiction defined: When a state exercises PJ over a D in a suit not arising out of or related to the D‟s contacts with the forum, the state has been said to be exercising “general jurisdiction” over the D. B. Compare to specific jurisdiction: When a state exercises PJ over a D in a suit arising out of or related to the D‟s contacts with the forum, the state is exercising “specific jurisdiction” over the D. C. How is general jurisdiction for corporations established?: Due process is not offended by a state‟s subjecting the corporation to its in personam jurisdiction when there are sufficient contacts between the state and the foreign corporation: 1. Principle place of business or state of incorporation: Perkins seems to suggest that the corporation needs to maintain a presence, have salaried employees, maintain a bank account, and perform company business in the forum state (i.e., general jurisdiction based on corporate headquarters). 2. These contacts alone are insufficient: A single trip by an executive; checks drawn from a back account in the forum state; training of employees in the forum state; purchases in the forum state and trips related to such purchases (even at regular intervals). 3. Lower court decisions finding general jurisdiction: (a) Hong Kong Corporation sold $35 million of products throughout U.S. and made no effort to limit distribution to particular states; courts found general jurisdiction in North Carolina. Hayes. (b) Finding general jurisdiction where D leased an office and employed sales agents and clerical staff. Bankhead Enterprises, Inc. (c) Finding general jurisdiction over foreign airline which maintained one and a half room office and employed several people. Bryant. 4. Lower court decisions finding no general jurisdiction: (a) D has 17 to 21 employees in the forum and annual sales there of $9 to $13 million; no general jurisdiction. Nichols. (b) Manufacturer‟s sales in products worth $250 million over 5 years to independent Texas dealers not sufficient for general jurisdiction in Texas. Bearry. (c) Noting that sales in New Hampshire of 10k to 15k copies per month of a magazine “may not be so substantial as to support jurisdiction over a cause of action unrelated to those activities.” Keeton. (d) Manufacturer sold products in Illinois through independent dealer and sponsored sales promotions in Illinois; dealer was required to perform warranty work on all of manufacturer‟s products and to make records and facilities available for manufacturer‟s inspection; court held manufacturer subject to general jurisdiction in Illinois. Braband. (e) Finding no general jurisdiction over Wal-Mart in Texas despite D‟s operating 264 large stores. Follette. D. Criticism of Asahi holding: (J. Brennan dissent) Standard for specific jurisdiction should be changed from “give rise to” to “related to.” The principle reason for jurisdiction should be “fairness” and “reasonableness.” 16 of 21 CIV PRO – PERSONAL JURISDICTION 8/12/2008 XII. IN-REM AND QUASI-IN-REM JURISDICTION: PRESENCE OF PROPERTY A. Old view on presence of property: The state also had sovereign power over all property within its borders and it was held that a state court could render a valid and enforceable judgment concerning the ownership of or title to in-state property, regardless of the whereabouts of the D owner. In an in rem case, the court‟s jurisdiction extends only to the property attached. 1. True in rem: True in rem cases are one which decide ownership as to the world. In a dispute over ownership of attached property, the one in possession could tender it to the court. The court, having jurisdiction over the property, has the power to determine who owns it, even if the other party is not served within the jurisdiction. 2. Quasi in-rem type 1: In these cases, In one the plaintiff is seeking to secure a pre-existing claim in the subject property and to extinguish or establish the nonexistence of similar interests of particular persons. 3. Quasi-in-rem type 2 (QIR): In these cases, the lawsuit is completely unrelated to the property and the P is merely seeking to apply what he concedes to be the property of the D to the satisfaction of a claim against him. The presence of the property is simply the basis upon which the court relied to assert jurisdiction in the case. 4. Pre-litigation attachment is necessary: In QIR cases, the property must be attached at the commencement of the action. This substantiated the state‟s claim to power and, by preventing the property from being moved or sold during the action, it ensured the enforceability of any judgment the P might obtain. Still valid as a means for enforcing judgments consistent with Shoe. 5. Notice: Substitute service plus attachment served as a sufficient means of notifying the D. 6. Limited recovery: Unlike in in personam cases, judgment is limited by the value of the property. B. Expansion of QIR: QIR jurisdiction allows a P to acquire jurisdiction wherever the D has property in the forum by simply attaching it. Debt is property attachable for purpose of QIR jurisdiction, and that the debt is located wherever the debtor is. Harris. C. Now must conform to “minimum contacts” framework: In order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising “jurisdiction over the interests of persons in a thing,” which is the minimum contacts standard. 1. Majority’s rationale: “„Traditional notions of fair play and justice‟ can be readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage.” 2. Presence of property alone is not a sufficient contact: Although the presence of the D‟s property in a state might suggest the existence of other ties among the D, the state, and the litigation, the presence of the property alone would not support the state‟s jurisdiction if it is completely unrelated to the P‟s cause of action. (a) Utility of QIR type 2 is diminished: With regards to the attachment of intangibles such as stocks, bank accounts, debt or insurance policies, PJ can only be met through the purposeful contacts and reasonableness. 3. Presence of the property is itself a significant contact: The presence of property in a state may bear on the existence of jurisdiction by providing contacts among the forum state, the D, and the litigation. 17 of 21 CIV PRO – PERSONAL JURISDICTION 8/12/2008 (a) Little effect on in-rem cases: When claims to the property itself are the source of the underlying controversy between the P and the D, it would be unusual for the state where the property is located not to have jurisdiction. In such cases, the D‟s claim to property located in the state would normally indicate that he expected to benefit from the state‟s protection of his interest. (b) State’s interest is important: The state‟s strong interests in assuring the marketability of property within its borders and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the state. (c) Certain QIR type 2 cases are not effected: The presence of property may also favor jurisdiction in cases, such as suits for injury suffered on the land of an absentee owner, where the D‟s ownership of the property is conceded but the cause of action is otherwise related to rights and duties growing out of that ownership. D. Other opinions in Shaffer: 1. J. Powell concurrence: The maintenance of real property should be good enough for QIR jurisdiction without any need to apply the Shoe test. Would maintain clarity and is likely to be fair. 2. J. Stevens concurrence: Purchase of stock organized under the laws of a foreign nation may be sufficient for an in rem proceeding. More focused on “fair warning.” Also agrees with J. Powell. 3. J. Brennan concurrence and dissent: Argues that a state has a sufficient enough interest to adjudicate shareholder derivative action centering on the conduct and policies of corporate directors and officers of a corporation chartered by the state without the need for minimum contacts. Examples: Hypos based on Shaffer. 1. Fred, a California citizen, owns real estate in Delaware. Fred doesn‟t make his mortgage payments. The bank which holds the mortgage wants to foreclose on the property. Is there personal jurisdiction for the bank to foreclose in Delaware? Yes. Cause of action arises out of Fred‟s property in Delaware (the property is the contact). 2. Fred owns property in Delaware. Someone trips and falls on his property. The injured person sues Fred in Delaware. Is there personal jurisdiction? Yes. Cause of action arises out of Fred‟s property in Delaware (the property is the contact). 3. Sally (a citizen of California) has a contract with Fred (also a citizen of California). The deal goes bad, and Sally sues Fred in California and wins. Fred refuses to pay the judgment. Sally goes to Delaware and enforces the judgment by attaching Fred‟s Delaware real estate. Is this permitted after Shaffer? Yes. Since California had valid jurisdiction, Sally can enforce the judgment against Fred‟s property in another state (FFC). 4. In Shaffer, the property attached was stock. Suppose that the directors had owned real estate in Delaware, and Heitner had attached that instead of the stock. Would that have changed the result? Would it have changed the result for Justices Powell or Stevens? Probably not. Heitner would probably still need to show other contacts. Powell and Stevens would disagree. 18 of 21 CIV PRO – PERSONAL JURISDICTION 8/12/2008 XIII. THE INTERNET A. Generally: The D must have intentionally interacted with the forum state via the website in order to show purposeful availment and, in turn, justify the existence of specific PJ B. Sliding scale of Internet contacts: The likelihood that PJ can be asserted is directly proportional to the nature and quality of commercial activity that an entity conducts over the Internet: 1. “Doing business”: If the D enters into contracts with the residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, PJ is proper. (a) Compuserve v. Patterson: Patterson, a Texas resident, entered into a contract to distribute shareware through Compuserve‟s Internet server located in Ohio. Jurisdiction was upheld on these contacts on the grounds that Patterson had purposefully directed his business activities toward Ohio by knowingly entering into a contract with an Ohio resident and then “deliberately and repeatedly” transmitted files to Ohio. (b) Maritz v. Cybergold: The D planned to charge advertisers and provide users with incentives to view the advertisements. Although the service was not yet operational, users were encouraged to add their address to a mailing list to receive updates about the service. The court rejected the defendant‟s contention that it operated a “passive Web site.” The court reasoned that the D‟s conduct amounted to “active solicitations” and “promotional activities” designed to “develop a mailing list of Internet users” and that the D “indiscriminately responded to every user” who accessed the site (c) Inset Systems v. Instruction Set: This case represents the outer limits of the exercise of PJ based on the Internet. In Inset Systems, the D‟s contacts with Connecticut consisted of posting a Web site that was accessible to approximately 10,000 Connecticut residents and maintaining a toll free number. The court exercised PJ, reasoning that advertising on the Internet constituted the purposeful doing of business in Connecticut because “unlike television and radio advertising, the advertisement is available continuously to any Internet user.” 2. Passive website: At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive website that does little more than make information available to those who are interested in it is not grounds for the exercise of PJ. The question of control is important here: It is difficult for a passive dot.com could do to keep people from signing up for its website. (a) Bensusan v. King: In Bensusan, the Internet Web site at issue contained general information about the defendant‟s club, a calendar of events and ticket information. However, the site was not interactive. The court refused to exercise jurisdiction based on the Web Site alone, reasoning that it did not rise to the level of purposeful availment of that jurisdiction‟s laws. The court distinguished the case from Compuserve, where the user had “„reached out‟ from Texas to Ohio and „originated and maintained‟ contacts with Ohio.” 3. Interactive websites: The middle ground is occupied by interactive websites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the website. C. Non-Internet activities are considered as well: The court also may also consider the D‟s non-Internet contacts with the forum state. Such contacts could include: purchasers from suppliers in the forum state; attendance at trade shows there; advertisements in publications; billing and collecting revenues from customers in the forum state. D. Consumers and the Internet: When a consumer logs onto a server in a foreign jurisdiction he is engaging in a fundamentally different type of contact than an entity that is using the Internet to sell or market products or services to residents of foreign jurisdictions. The Pres-Kap court specifically expressed concern over the implications of subjecting users of “on-line” services with contracts with out-of-state networks to suit in foreign jurisdictions. 19 of 21 CIV PRO – PERSONAL JURISDICTION 8/12/2008 E. QIR and the Internet: To combat “cybersquatting,” a statute was passed allowing a P to attach a domain name in a trademark action. Even though a domain name is data, it can be assigned as property in the situs where the registry is located. In addition, it is the underlying cause of action. Does this act square with Shaffer? Maybe you can get in rem not because it is not just related, it is the entire subject matter. Perhaps we just need to sue someone somewhere (jurisdiction by necessity). Maybe you need fewer contacts for in rem than for in personam (some courts say yes and some say no). Perhaps new rules are needed for the Internet. XIV. OTHER CONSIDERATIONS A. Personal jurisdiction in federal court: Is it possible to avoid the limits of PJ suing in federal court? 1. PJ in federal courts limited by state boundaries: In most situations, Rule 4(k)(1)(A) establishes that a federal court has jurisdiction only if the state in which it sits in would have jurisdiction. 2. Exception for foreign nationals: Rule 4(k)(2) provides for PJ in any federal court where: (1) the claim is based on federal law, (2) jurisdiction is constitutional, and (3) there is no state that would have personal jurisdiction. This rule could be applied in the case of a foreign national who does not fall under a state longarm statute. 3. Special legislation for nationwide service: Congress has authorized nationwide service of process in areas such as antitrust, securities, bankruptcy and interpleader. However, the courts are split on whether fairness or convenience must be considered when a D is subjected to nationwide jurisdiction. B. Impact of choice-of-law provisions: A choice-of-law provision should not be ignored in considering whether a D has “purposefully invoked the benefits and protections of a State‟s laws” for jurisdictional purposes. 1. Important factor: Although such a provision standing alone would be insufficient to confer jurisdiction, it might reinforce the D‟s deliberate affiliation with the forum state and the reasonable foreseeability of possible litigation there. 2. But not dispositive: In Hanson, the Court stated “the state does not acquire jurisdiction by being the „center of gravity‟ of the controversy, or the most convenient location for litigation. The issue is personal jurisdiction, not choice of law.” 20 of 21 CIV PRO – PERSONAL JURISDICTION 8/12/2008 XV. BRUSSELS CONVENTION A. General jurisdiction: The Convention provides for general jurisdiction in the D‟s domicile or, in the case of a business, in its PPB. B. Limitations: The Convention does not allow for transient jurisdiction. All of the limitations imposed by the Convention apply only to jurisdiction asserted over domiciliaries and nationals of signatory countries. The Convention does not limit assertions of jurisdiction over other foreigners. C. No requirement of “purposeful availment”: There is no requirement of purposeful availment. The courts have held that a tort suit can be filed either in the place of the damage or in the place of events giving rise to the damage. D. Brussels Convention, Title II, Section 2: 1. Article 5: A person domiciled (or having its place of business) in [an EU Country] may, in another [EU Country] be sued in matters relating to: (a) a contract, in the courts of the place of performance of the obligation in question; (b) to maintenance [e.g., child support and alimony], in the courts for the place where the maintenance creditor is domiciled or habitually resident; (c) tort, delicit or quasi-delicit in the courts for the place where the harmful event occurred. 2. Article 6: A person domiciled in [an EU Country] may also be sued: (a) where he is one of a number of Ds, in the courts for the place where any one of them is domiciled; (b) as a third party in an action on a warranty or guarantee or in any other third party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from jurisdiction of the court which would be competent in his case; (c) on a counter-claim arising from the same contract or facts on which the original claim is pending. E. Under Brussels Convention, consider these previous cases: 1. WWV: Would Seaway be subject to jurisdiction in Oklahoma? Yes. Related to a tort that occurred in Oklahoma. 2. Kulko: Father could be sued in California. 3. Burger King: If performance was maintaining the restaurant, no. If the payments to Florida are the performance, then yes. 4. Asahi: Could be sued on the tort in California. In a third party action for breach, you can be sued in the place where the original action took place. 5. Burham: Transient jurisdiction in not allowed, but jurisdiction may be allowed for child support. 21 of 21