Civil
Procedure Class Notes
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
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
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
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.