Procedure Class Notes
We left off with World-Wide, where the Court continues to struggle with just how the standards that Shoe clearly articulated in 1945 ought to be applied.
The Court gives us some guidelines on “fair play”, but is less clear on helping us sort out minimum contacts.
In World-Wide, Brennan dissents because he is concerned that states’ interests are being neglected.
Justice White characterizes such ties as merely “collateral relations”.
Forum shopping and other tactics
the heck did the lawyers in World-Wide think it was worth getting to the
Supreme Court? What interests did they
have? The plaintiff’s lawyers are forum
shopping. They want to be in a
particularly plaintiff-friendly county in
this is a tactical move. The Robinsons,
it will be argued, are still
Therefore, this lawsuit cannot be removed to federal court. “Very smart plaintiffs’ lawyers: They designed their litigation package to keep it in the form that they want—at least temporarily.”
the case was
the case was
If it went to federal court, but you successfully argue that it must go back to state court (“fraudulent removal”), it will get remanded back to state court. It’s a good strategy to remove a case to federal court if you can at all, even if you get remanded again, because you get a six month delay before you relitigate in state court. These are superunderhanded tactics!
So if Seaway and World-Wide get taken off of the case, it becomes a removable case. That’s what happens after the Supreme Court’s opinion in World-Wide. Right after the Supreme Court rules, VW and Audi will have the case removed to federal court. Long story, but they ultimately get nothing in 1996. The Robinsons are big losers.
World-Wide = convenience factor test + two factor test where minimum contacts is the first threshold.
are the real parties here? It’s Asahi,
has a blowout on his motorcycle and he’s seriously injured, while his wife
dies. He sued everybody he can,
including Cheng Shin, who make tires.
Zurcher sues in
What does Cheng Shin say by way of argument about liability? They say it wasn’t their fault, they say it was Asahi’s fault for making bad valves. So they file a third-party claim for indemnification against Asahi. In other words: “If I am liable to Zurcher, any liability really belongs to Asahi because it really isn’t my fault.”
does Zurcher do? He settles with
everybody. He’s out of the picture. What’s left of our lawsuit? It’s Cheng Shin (
When we bring together parties and claims, some of those parties and claims will go away, but if they don’t all go away, the court still has to deal with the remaining parties and claims. It must settle the remaining disputes somehow.
does the trial court say in regard to jurisdiction over Asahi? They say
is the holding of the United States Supreme Court? The Court finds that
Does the Supreme Court hold that putting something in the stream of commerce, without more, will subject you to personal jurisdiction? The Supreme Court doesn’t hold this, even though Justice O’Connor wrote the part of the opinion that says this.
We have to count votes. Part I was unanimous. Part II-B was 8-1, and Parts II-A and III are 4-5. Only Part I and Part II-B are precedent.
Part I is merely the facts!
Part II-A and III is the stream of commerce stuff plus other stuff. Why does O’Connor get to write the opinion if she only has four votes? The Chief Justice assigns the opinions, and the Chief is on O’Connor’s side.
Part II-B is the part about fair play and substantial justice. Everybody’s for it except Scalia. Why in the world?
We’re almost there. All we know is that this isn’t fair, but the way that it will fit into our jurisdictional analysis is uncertain: in the previous case, we found contacts is the first test, and you only move on to fair play if there are minimum contacts.
The Court will do this a lot where different people sign on to different parts.
Who dissents? Brennan, White, Marshall, and Blackmun disagree with Part II-A. Stevens, White, and Blackmun disagree with Part II-A, but for different reasons. Because they split their opinions, there are two four-judge opinions and a three-judge opinion. If there had been a five-judge opinion, it would have been clear and the Chief would have had to assign the opinion to one of those five judges.
Five judges agree = holding.
In order for there to be a dissent, there must be a majority opinion to dissent from. There isn’t technically any dissent in this case.
Fairman will try to argue that we can put the five “dissenting” justices together and get some idea about minimum contacts. However, four of those five are now gone and Stevens is really old.
This vote-counting is what you must do with Supreme Court cases that come down today. The Supreme Court today is even more divided on cases that are even more politicized than those of the Asahi court. It’s super zany!
Where do these counts line up? What do these votes mean as far as the law of personal jurisdiction?
 Fairman goes for the jugular, though, to his credit he previously announced that it would be tough.