Civil Procedure Class Notes 9/11/03


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 Florida?


What about Volvo?  What rule says that Florida has jurisdiction?  Did Volvo purposefully avail itself of the protection of Florida law?  It put a good into the stream of commerce plus it marketed in Florida.  What case would we cite in particular?  We could cite World-Wide, except neither Audi nor VW was before the court.  It might make more sense to cite Asahi instead.


What about the national distributor?  Under what doctrine might Florida have jurisdiction?  It is part of the stream of commerce.  You could also look at World-Wide and cite the fact that VW was going to be subject to jurisdiction as a national marketer of goods.


What about the Florida dealer?  Florida would have general jurisdiction.  The dealer is located in Florida; Florida is its home state.


The tough one is BrakeCo.  Does Florida have jurisdiction?  Do they put products into the stream of commerce?  Sure.  Is it foreseeable that their brakes would end up in cars in Florida?  Yeah, sure.  How is this different from Asahi’s tire valve assembly?  BrakeCo is from Illinois, while Asahi is from Japan.  We can’t answer this question definitively.  Under stream of commerce, minimum contacts are established.  Under stream of commerce plus, then we need to look at the four factors, e.g. did the brake company advertise in Florida?  Did they have sales agents in Florida?


So everyone is subject to personal jurisdiction in Florida except BrakeCo which is maybe, maybe not.


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.




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 Michigan.  Burger King is located in Florida.  Burger King sues to terminate the franchise in Florida.  The issue is whether the district court in Florida has personal jurisdiction over the Michigan defendants.


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 Michigan.  They also negotiated and bought equipment.  MacShara went to Burger King training in Florida.


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 Florida district court does have jurisdiction.  Why?


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.


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