Civil Procedure Class Notes 9/10/03


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 California to defend itself in the suit.  They would also be under the jurisdiction of a foreign country’s justice system.

·        The second factor is the forum state’s interest in resolving the dispute between Cheng Shin and Asahi.  In other words, why would California care as a government entity about the outcome of this dispute?  The court says that this interest is slight.

·        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 California as opposed to Japan or Taiwan.  Why would Cheng Shin want to litigate in California?  The lawsuit started already and stuff is happening.  They probably already have a lawyer in California.  However, overall, Cheng Shin’s interests are not so big.

·        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 California resident, so this interest would be greater than in the real case, because the state has an interest in defending its citizens.

3.     The plaintiff’s interest in a convenient forum – it would be extremely burdensome for Zurcher to go to Taiwan or Japan.  So this interest is very high, as it will be frequently when a resident of your home state has a personal injury.

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 California.  This cuts in favor for jurisdiction for California.


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.


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