Civil
Procedure Class Notes
We left off solidly in Asahi. We’ll do Burger King tomorrow. Then we’ll get into Helicopterus
(?) and Washington Equipment Manufacturing.
We’ve
got the facts of Asahi down. We
were working on the ruling or lack thereof from the Court.
The
only thing all the justices agreed on was the facts of the case. Eight were for the fair play part; four were
for the stream of commerce part. Five
justices dissented from the minimum contracts business.
O’Connor
on fair play
What
do we do with the fair play and substantial justice part from World-Wide? O’Connor goes through the five factors, or at
least most of them. Therefore, this is
not new law.
·
The first factor is the defendant’s
burden. The defendant is Asahi. How does the court characterize the burden on
Asahi? It’s severe, because Asahi is a
Japanese company and it would be hard for the company to travel to
·
The second factor is the forum state’s
interest in resolving the dispute between Cheng Shin and Asahi. In other words, why would
·
The third factor is the plaintiff’s interest
in a convenient forum. It’s not shown
why Cheng Shin would want to try the case in
·
The fourth and fifth factors are the systemic and
efficiency interests of the various states and nations.
The
order in which the court considers these factors is almost a ranking.
Note
that Asahi is the
case that makes the five factor test law. In World-Wide, it’s only dicta.
Let’s
change the factual pattern: say Zurcher sues both
Cheng Shin and Asahi outright. How would
the court decide jurisdiction now? How
would the five factors go now?
1. Burden of defendant
– it will be the same as in the real case: severe!
2. The interest
of the state – the plaintiff is a
3. The plaintiff’s
interest in a convenient forum – it would be extremely burdensome for Zurcher to go to
4. and
5. Systemic and efficiency
interests – the “great care” aspect goes away, plus there’s a lot of stuff that
we need for trial (evidence and witnesses) that’s in
O’Connor
and “stream of commerce”
If
you only put something in the stream of commerce but don’t do any more, it’s
not an act of purposeful availment. The dissenters believe that putting something
in the stream of commerce does constitute purposeful availment.
What
would O’Connor want to meet her standard?
She needs additional conduct. She
needs “stream-of-commerce plus”.
For
example:
1. Designing a
product for a forum state
2. Advertising to
a forum state
3. Providing
customer service in the forum state
4. Marketing the
product through sales agents in the forum state
This
is not an exhaustive list, and it’s not the law of the land. These are just examples of things the
plurality wants in order to constitute “stream-of-commerce plus”.
The
dissenters
Brennan
and three others sign on to a concurring opinion that is of equal weight to the
plurality of O’Connor. These people
agree with White in World-Wide in that the minimum contacts requirement
is satisfied by putting products into the stream of commerce. However, they say there still should be no jurisdiction
due to the lack of fair play.
Stevens
and two others argue that a test for minimum contacts is not a necessary
threshold test. He thinks you can go
straight to fair play and substantial justice.
What
bugs us is Stevens’s comment that on the facts of the case, there are minimum
contacts. It makes us wonder why he didn’t
join the first concurring opinion and make a majority.
Next
time, we’ll talk about Scalia and see what courts of
appeal are doing with this opinion today.