Civil
Procedure Class Notes
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
This
case started in state court, then was removed to federal court, transferred to
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
Choice-of-law
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
There’s
a problem, however, with respect to Hartzell. What’s the matter? Hartzell was an
If
The
district court in
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
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
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
Notice
what’s happening here. The defense is
arguing to the judge in
Why
in the world didn’t they argue to go to
Could
the state court in
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
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?