Civil
Procedure Class Notes
Today,
we’ll finish Asahi
and start Burger King.
Note
3, page 136 – Volvo
There
are four parties: Volvo, Distributor, BrakeCo and the Dealer. Which ones will have the minimum contacts
necessary for personal jurisdiction in
What
about Volvo? What rule says that
What
about the national distributor? Under
what doctrine might
What
about the
The
tough one is BrakeCo. Does
So
everyone is subject to personal jurisdiction in
Only
four members of the Asahi
court are left. As a practical matter,
if another case came up, we’re not sure what would happen. The Supreme Court isn’t that interested in
writing about personal jurisdiction right now.
They had their fun in the 80’s.
Scalia!!!
He’s
the one non-“fair play” vote. We don’t
get his opinion because it’s not helpful for jurisdictional analysis. He argues that “fair play and substantial
justice” are not in the Constitution, thus he won’t participate in writing this
analysis.
How
the Circuit Courts of Appeals apply Asahi
We
know what the “fair play” test is. We
have options as to the “minimum contacts” test that are unsettled. We have some questions about the relationship
between the two.
The
First Circuit uses stream of commerce plus, while the Fifth and Eighth Circuits
use stream of commerce. Our Circuit, the
Sixth, goes on a case-by-case basis.
Burger King Corp. v. Rudzewicz
Gonna go back in tiiime! 1985!
Before Asahi!
Rudzewicz
and his partner decide to open a franchise in
Yeazell
implies that this is the flip-side of Asahi, where, in his opinion,
there are not contacts but it is fair.
What
are the contacts? There’s a contract. The contract was negotiated in
The
district court says that there is jurisdiction, and the trial on the merits goes
on to a Burger King victory amounting to millions. The Eleventh Circuit Court reverse the judgment
on the grounds that the district court did not properly exercise personal
jurisdiction. What does the Supreme
Court do? They reverse again, saying
that the
Is
this a two-part test? Is “minimum
contacts” a threshold question?
Brennan
states that it is, indeed, a two-part test.
You do minimum contacts first, and then you look at fair play. You can cite Burger King if you want
to prove there is a two-part test.
There
might be meager minimum contacts, but if fair play (based on the five factors) is
good enough, jurisdiction may still go forward.
“If it’s really, really fair to exercise jurisdiction, we can let it
slide by with less contacts than we normally would.” How does this fit together with the idea of minimum
contacts as a threshold test?
Brennan,
we’re confused! It’s sort of minimum
contacts, then fair play, then the caveat above.
The
court can waffle on this, but for our purposes, we may think about this as a
two-part test.
There
are always some areas where the court is not clear.
When
judges use their authority to make pronouncements, we strive to use the most
recent ruling. We also must vote count
when we have multiple opinions.