Civil Procedure Class Notes 9/16/03


We will make some final comments about Burger King, look at Washington Equipment, and then cover Helicopteros.




Stevens’s dissent argues that there should have been a greater focus on fairness in the Burger King ruling.


Could a consumer contract cause an individual to be subjected to personal jurisdiction in a faraway state?  Stevens is worried about this.


The majority try to calm Stevens by stating that jurisdiction will not be grounded on a fraudulent contract.  This is something to think about, though there doesn’t seem to be a clear answer.


Rule 4(k)


Rule 4 is a big long rule with many details.  We will focus on subsection (k).


A federal court can hale a defendant if state courts in the state where the federal court is located also have personal jurisdiction over that defendant.  In other words, the federal court’s jurisdictional reach is equal to that of a trial court (a court of general jurisdiction) in that state.  So, for example, the Federal District Court for the Southern District of Ohio could summon defendants who could be summoned by a trial court anywhere in Ohio.


The FRCP are promulgated by the Supreme Court and approved by Congress.  Think of them as being statutes.  There aren’t two different rules for figuring out personal jurisdiction for federal courts versus state courts.


When the FRCP refers to “a court of general jurisdiction”, it’s referring to a place where you can bring any kind of lawsuit, or in other words, where there is no limitation on the subject matter.


Rule 4(k)(1)(B) is the “Hundred-Mile Bubble Rule”!  Forget this until Civil Procedure 2.  This exists to get people in New Jersey when you sue them in New York City.


Rule 4(k)(1)(C) has to do with interpleaders.  Interpleaders have no interest in “the pot”.  They have an obligation, but they don’t know who they’re obligated to.  This is something that insurance companies do frequently.  They know they have to pay out some money, but they don’t know who they have to pay it to.  They more or less give the court some money and let them sort it out.


This is a modern procedural device.


There are two types of interpleaders:


1.     “Rule” Interpleader under FRCP 22

2.     “Statutory” Interpleader under 28 U.S.C. § 1335


We’ll do more on this when we get to subject matter jurisdiction.


The statute tells us that in a civil action of interpleader, a district court may issue process to all claimants and restrain them from keep any other lawsuits from being filed.  This is for the sake of convenience.


Rule 4(k)(1)(D) says federal courts can haul in anybody else that statutes say they can.  For example, federal court can bring in securities fraud defendants from lots of places under 15 U.S.C. § 77.


The thing that really interests Fairman is:


Rule 4(k)(2)


If you’ve got minimum contacts and fair play, then you can summon or take a waiver of service from somebody who can’t be brought into any state’s trial court (court of general jurisdiction).


This is how you could sue Noriega or something.  Maybe this would also be the way to get someone in Washington, D.C. into federal court.


There could be foreign defendants, let’s say businesses, that aren’t subject to the general jurisdiction of a specific state court.  That means it lacks minimum contacts with any one state.  However, maybe you have minimum contacts with the country overall.  That’s the point of this part of the rule.


This is a weird rule!


It posits an exception to our usual territorial concept of personal jurisdiction.  Has this ever been tested?


This would then go to the venue statute, which would establish where you could actually bring the lawsuit.


It’s a weird thing.


What else is Fairman interested in?


Personal jurisdiction & the Internet – Zippo


The “Zippo” test has been adopted by most courts of appeal.  Zippo does to Internet cases what other cases have done to other industries.  You might use “stream of commerce” for manufacturing; with Internet stuff, you use Zippo.


Zippo proposes that there is a spectrum of websites from “passive” to “active”.  Active websites sell things, while passive websites just show you stuff.  There’s no personal jurisdiction if a site is passive.  There is personal jurisdiction if the site is active.  However, in reality, everything is intermediate and you must do a factual analysis as to the level of interactivity of the site and the jurisdictional consequences that follow.


Does the Zippo test relate to “purposeful availment” or the “seeks to serve” standard or “stream of commerce”?  A passive website is tantamount to a lack of “purposeful availment”; you don’t “seek to serve”.  The rule shouldn’t be that you have jurisdiction over any website anywhere in the world that you can see where you are.


The Courts of Appeal are happy with this right now and the Supreme Court doesn’t care.


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