Civil Procedure Class Notes 9/8/03


We’re going to try to finish World-Wide today.  We’ll get to Asahi tomorrow.




In World-Wide, the family that gets into a car accident in Oklahoma sues everybody.


The key to the case: Does the test of minimum contacts a one-part test or a two-part test?


The two functions of the Shoe test


Justice West says that the main functions of the Shoe test are:


1.     To protect the defendant against having to litigate in far-off lands

2.     To keep the states’ power in line


These ideas come right out of Pennoyer.  Defendants ought not be subject to unfair burdens, and state power must be constrained.


The first function is known as the “convenience” prong of Shoe.  The second function is known as the “sovereignty” prong.


The “convenience” prong


White says that the “fair play” test speaks to the convenience of a particular forum.  He spells out in detail what he perceives to be the factors one ought to consider on this prong.  He says how we will do “fair play” and “substantive justice” from now on.


White’s factors:


1.     Burden on the defendant – burdens on corporate defendants tend to be diluted as compared to burdens on individual defendants.

2.     The state’s interest – what interests does the forum have in having that litigation in that state as far as protecting its citizens and corporations?

3.     The plaintiff’s interest – everyone would prefer to sue in their own forum.

4.     Interstate efficiency interest – is this forum better, more efficient, more expedient, or cheaper than any other forum?[1]  It is rare that jurisdiction in a case turns on efficiency, because it can usually be argued both ways.

5.     Interstate policy interest – this would be a stretch.  The Courts of Appeals these days tend to lump this and efficiency together.


On an exam, know and go through all five prongs.  However, the big three are the first three, where the defendant’s burden is primary.


We’ll be seeing these all week.


Note that these factors have nothing to do with minimum contacts, but rather with “traditional notions of fair play & substantial justice”.


Does the court apply these five factors in the case of Seaway and World-Wide?  No, and what does that tell us?  He takes a lot of time to develop these factors, yet he doesn’t apply them.  What conclusion do we draw?  He implies that “minimum contacts is the threshold, and thus if you don’t have contacts, you never get to fair play.


So there are two prongs, and two parts.  The parts are (1) minimum contacts, and (2) fair play, as detailed by White.


The Supreme Court reverses the ruling of the Oklahoma Supreme Court, and thus Oklahoma has no jurisdiction over the defendants.


Minimum Contacts in World-Wide


If this case is not decided on fair play, it must be decided on contacts.  What do we look at for contacts?


Is foreseeability the test?  NO!  White explicitly rejects this as the test.  It’s conceivable that everything every manufacturer makes could find its way to Oklahoma.


What about foreseeing being sued in a jurisdiction?  You might decide to get insurance.


Remember to reread your brief before class, especially if it’s been a long time since you looked at the case.


White gives us other suggestions.  How about “purposeful availment”?  Well, that gives the defendant clear notice that they can get sued in the state where they solicit business.  But Seaway and World-Wide don’t solicit business in Oklahoma and in no way seek the legal protection of that state.


What about the “seeks to serve” standard?  If you market in other states, and try to get business there, it’s reasonable to think it’s possible you can get sued there.


The court never gives us a clear definition of “minimum contacts”.


So purposeful availment and the “seeks to serve” standards apply to minimum contacts, while the five convenience factors above relate to fair play.




Say we have an Audi dealer in Camden.  The dealer advertises in Pennsylvania.  Could Pennsylvania have jurisdiction?  How much did they advertise and in what venues?  Did they broadcast, and if so, where?  Did they advertise on Pennsylvania TV?  The content of the advertisement might be important as well.  How many cars did they sell in Philadelphia and how many in New Jersey?


Another example: consider Seaway.  Instead of just buying the car, you go in to have your brakes done and then you end up in a wreck in Oklahoma due to those faulty brakes.  Will Oklahoma have jurisdiction in this case?  What distinguishes this case from World-Wide?  What if Seaway has notice?  What has changed about the contacts if Seaway is put on notice?  That’s not going to make a difference.  There must be more than notice to create contacts.


Two forgotten defendants: Audi and VW


Initially, Audi didn’t object to jurisdiction and VW conceded to jurisdiction after a short fight.  What does White tell us about jurisdiction over these two parties?


He says if the defendants introduce their products into the “stream of commerce” in a jurisdiction, they will be subject to the jurisdiction of that forum.  Aren’t Seaway and World-Wide putting products into the stream of commerce too?  What’s different?


We’ll pick up here tomorrow.  Stream of commerce segues into Asahi, which we will begin tomorrow.


Back to Class Notes

[1] For example, what argument could you make that it would be more efficient to have this issue litigated in Oklahoma than to have it litigated in New York or elsewhere?  What do we need to prove at trial?  We need to show damages, and the doctors who can testify will be in Oklahoma, as will the other driver in the accident.  Why would it be more efficient to be in New York or some other forum?  You could look at more cars there.