Civil Procedure Class Notes 10/2/03


When will we have the make-up classes?  Monday, before this class?  Friday?  Saturday???


We left off in Piper.  Everything about this airplane crash happened in Scotland or England.  However, we have a lawsuit filed in California against two American manufacturers.


This case started in state court, then was removed to federal court, transferred to Pennsylvania federal court and then ultimately dismissed on the ground of forum non conveniens.


The test for forum non conveniens is the Gilbert test.  It’s pretty simple.  You just need to know and apply the factors to the facts of a given case.


Applying the Gilbert factors to Piper


The private factors are:


1.     Relative ease of access to proof

2.     Availability of witness subpoenas

3.     Cost of getting witnesses

4.     Possibility of view of premises if called for


The public factors are:


1.     Court congestion

2.     Local interest in having local controversies decided at “home”

3.     Forum familiarity with substantive law

4.     Unfairness of burdening citizens with jury duty for case unrelated to forum




How does choice of law apply?  Well, different law will apply to different defendants.  This could make things complicated for an American jury.


The Rule of Klaxon says that a federal court ordinarily must apply the choice-of-law rules of the state in which it sits.


There is exception to the rule for cases that are transferred.  When a case gets transferred, you apply the choice-of-law rules of the state from which it was transferred.  (This is called the Van Dursen & Ferens doctrine.)  The point is that a transfer should be no more and no less than a “change of courthouse”, but it shouldn’t change the law that is used.


On the facts of Piper, the Pennsylvania district court should be using California rules.  The court finds that under California rules, Pennsylvania law would likely govern the dispute against Piper.


There’s a problem, however, with respect to Hartzell.  What’s the matter?  Hartzell was an Ohio corporation that argued in California federal court that the federal court lacked personal jurisdiction over it.  Before that issue was resolved, the case was transferred to Pennsylvania.


If California has no jurisdiction over Hartzell, it would be inappropriate to apply California law because it has no power over that defendant.  So what does Pennsylvania’s district court do?  We can’t use California law, so we’re going to use our own!


The district court in Pennsylvania applied Pennsylvania choice-of-law rules (which constitute a significant contacts test).  This results in the decision that Scottish law shall apply to Hartzell.  Now we have a mess.  And this mess is just what the defendants wanted!  This was all a big, devious plan!!!!   MUHAHAHAHHAHAHAHHA!!!!  This problem will make the case very unattractive to try in the United States.


Even if personal jurisdiction, venue, notice and all that are good, a court can still dismiss a case for forum non conveniens.


Transfer of venue – 28 U.S.C. § 1404


You can only transfer a case to a district court that has personal jurisdiction and venue.  When Piper and Hartzell ask to be transferred to Pennsylvania, they were conceding that the Pennsylvania court had personal jurisdiction and venue over them.


This provision sort of “bootstraps” the venue statute: 28 U.S.C. § 1391.


The test in § 1404 is whether the current court is:


1.     Convenient to the parties

2.     Convenient to the witnesses

3.     “In the interest of justice”


This sounds a little bit like the Gilbert test.  This is sort of like an inter-court forum non conveniens.


Why do we haul everybody over to California when everybody’s already in Pennsylvania?


This is a soft test that allows the court a lot of discretion.  In a practical sense, what will happen with these litigants?


What do you argue if you’re Piper’s attorney?  You can say that “everything is in Pennsylvania”.  Is there inconvenience to the plaintiffs?  No, because they came all the way from Scotland!  In fact, Pennsylvania is closer than California.


Notice what’s happening here.  The defense is arguing to the judge in California that everything is in California, and then they argue to the Pennsylvania judge that everything is in Scotland.  They win both arguments!


Why in the world didn’t they argue to go to Scotland from the California court?  If California used its choice-of-law rules, both defendants might be subject to the same laws, and there wouldn’t be a forum non conveniens problem.


Could the state court in California dismiss for forum non conveniens straight to Scotland?


Another statute that was mentioned was 28 U.S.C. § 1406.  Basically, this says that if you mess up and file in the wrong venue, they can just transfer it over rather than dismiss the claim.


Also, under 28 U.S.C. § 1631, you can transfer for want of jurisdiction.


What does Piper mean?


Everything we have done in the course up to now can be trumped by a forum non conveniens motion.  You can say: I have power, there is proper notice, Due Process is satisfied.  However, I’m not going to try this case.  Courts have the power to do this.


It’s sort of like saying now that we’ve balanced everything, let’s balance again with an even mushier standard.


Remember Asahi?


This gave us a splintered opinion that confuses us about whether to apply stream of commerce or stream of commerce plus.  Asahi is a bad personal jurisdiction case, but it’s a good forum non conveniens case.


This case is “served up” to the Court as a personal jurisdiction case, but really it should have been a forum non conveniens case.  Independent of personal jurisdiction, there’s no reason this should be happening here.  Everything important is in Asia!


It’s time to turn a corner and say goodbye to our friends in personal jurisdiction.  We’ve addressed the question: Does any court in a state have power to hear a given case?


We’re now going to take up a new question: Which court, state or federal, has the power to hear this case?


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