Civil Procedure Class Notes 9/18/03


We left off almost completing Helicopteros.


In this case, the Supreme Court gives us its only statement on the distinction between general and specific jurisdiction.  We knew that in Perkins there were enough contacts, while in Rosenberg there were not enough contacts.  In Helicopteros, the four contacts mentioned are not enough for jurisdiction.


The problem area is what comes inbetween these cases.


Are specific and general jurisdiction different things or part of the same continuum?  Recall our diagram…(finish it later)


Text Box: Level of Defendant’s State-directed Activity


For specific jurisdiction, we have minimum contacts and fair play.  For general jurisdiction, we continuous and systematic contacts, but is there a parallel fair play standard in general jurisdiction?  You should argue the fair play aspect even when dealing with general jurisdiction.


Arguing more is never going to hurt you.”


D-I-V-O-R-C-E…Fairman is extremely proud of himself.


Burnham v. Superior Court


What’s going on?  There’s a divorce.  The Burnhams had lived in New Jersey with their kids when they got divorced.  The wife moves to California with her kids.  They agree that she will file for divorce on the basis of “irreconcilable differences”.  Mr. Burnham instead files for divorce on the grounds of “desertion”.  This is slimy!  This will have an impact on the standing of the parties later.


Why isn’t the divorce tried in New Jersey?  Mr. Burnham never serves Mrs. Burnham.


Mrs. Burnham files for divorce in California under “irreconcilable differences”, as planned.


Mr. Burnham goes to visit California and Mrs. Burnham serves him process.  He is the first person served in the divorce suit.  It goes to California trial court.  They find that California has jurisdiction because he was personally served process in California.


Can the state of California exercise personal jurisdiction over an out-of-state defendant based on personal service in California?  Yes.  But why?


There aren’t five votes for anything here except the judgment.  They agree that the state of California can exercise jurisdiction, but they’re so divided that they can’t write a single majority opinion on the reason why.  They get four votes at the most.


This is a good review of everything we’ve looked at up to this point in jurisdiction.  Yeazell views this as the “end case” of jurisdiction.


We have one new justice from the Asahi court, Justice Kennedy.


The first opinion is Scalia’s.  It appears to be the opinion of the Court, however, it doesn’t get five votes.


The first four sections get four votes from Scalia, Rehnquist, Kennedy, and White.


The “Shaffer” and “Slam Brennan” parts of the opinion only get Scalia, Rehnquist, and Kennedy but not White.


Brennan writes a concurring opinion, and O’Connor, Marshall, and Blackmun sign on.


Then we get separate opinions from Stevens and White.


What do we make of this?


The rule is eazy.  If we serve you in our state, we gotcha.


Why does Scalia believe that California has jurisdiction?  He looks at historical precedent.  Physical presence constitutes jurisdiction going all the way back to English law.


It’s tradition!


It’s always been this way, so it must still be this way.  Scalia also gives legal arguments.  Scalia says that minimum contacts analysis only applies to absent defendants.  Scalia claims that this is clear from the wording of the Shoe standard.


We can go back to Pennoyer.  What else?


Isn’t it true that “Shoe Rules Everything Around Me” from Shaffer? That’s the case that said “we’re going to do in rem actions according to Shoe.”  But Scalia says that “all” does not really mean “all”.  Scalia claims Shaffer only applied to quasi in rem.


White disagrees with this statement about Shaffer, and he doesn’t like the harsh language used to attack Brennan.  He says that it’s not that Shaffer doesn’t apply, it’s just that if they were to apply Shaffer they would get the same result.


What about Brennan and his droogs?  He says we should use Shoe and Shaffer.  He says “we meant what we said in Shoe and Shaffer.”  He wants to apply minimum contacts and fair play.


Then he gets on shaky ground.  It doesn’t seem unfair to subject the husband to jurisdiction, but the contacts part is troubling.


Brennan says that he avails himself of the protection of the state’s emergency services.  He also is free to travel in California.  He might have also bought stuff there.  Whatever your concept of “minimum” is, you probably can’t get any more minimal than that.


Scalia says that if we take these to be contacts, pretty much anything could be contacts.  Thus, he says, it’s easier to just use a black-and-white rule.


What’s the problem with applying contacts analysis?  If the contacts cited are this weak, it would be easy to find the same kind of contacts for an out-of-state defendant.  If we used this sort of analysis with Asahi, you would probably find that California has jurisdiction.


Maybe Brennan wanted to preserve the rule but bent it in this case to get a result he thought was just.  If Burnham never came to California, it would be really hard to get jurisdiction over him.


Why didn’t the Court consider the relatedness of Burnham’s contacts to the claim?  What business was he attending to in California?


What if we had applied Rosenberg here?  There were a lot more contacts in Rosenberg, but no jurisdiction.


So Scalia doesn’t like the minimum contacts test.


The Court has an idea of what’s fair and unfair, but they can’t decide how to justify it.


Stevens agrees with everybody and says it’s an easy case.


The rule is: if you’re temporarily in the forum, and I can serve you, I gotcha!


If the president of a business is in my state, I can serve him and get jurisdiction, but I wouldn’t necessarily have jurisdiction over his company.


Burnham doesn’t answer the question of whether you can get at a corporation through one of their executives.


On Monday, we’ll look at notes on airplanes and fraud.


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