Procedure Class Notes
When will we have the make-up classes? Monday, before this class? Friday? Saturday???
left off in Piper. Everything about this airplane crash happened
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
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.
the facts of Piper, the
a problem, however, with respect to Hartzell. What’s the matter? Hartzell was an
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
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.
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?
do you argue if you’re Piper’s attorney?
You can say that “everything is in
what’s happening here. The defense is
arguing to the judge in
in the world didn’t they argue to go to
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.
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.
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?