Civil
Procedure Class Notes
We
left off with Burnham.
If
there’s no majority opinion in Burnham,
how does it help us understand jurisdiction?
There is lots of stuff that we can take from Burnham and apply to
jurisdictional analysis.
The
court is unanimous in the judgment.
In-state service on a defendant will be sufficient to get jurisdiction. But what’s the reasoning?
The
Scalia four say the rationale is tradition.
We’re always done this, thus we must continue to do so.
The
Brennan four say minimum contacts analysis gets us to the same place.
Justice
Stevens says, “Whateva. I do what I
want! I do what I want!”
Grace
v. MacArthur
This
is the ultimate in gotcha jurisdiction.
Someone is served on a plane over
It
makes a difference which route you take, Scalia’s or Brennan’s.
What
if someone is brought to another state fraudulently? The Second Circuit and the Eastern District
of Michigan have held that if you’re induced to a jurisdiction by fraud, the
forum doesn’t have personal jurisdiction over you.
Carnival Cruise Lines, Inc. v. Shute
Let’s
say we include a clause in a contract that says you appoint someone to accept
service of process. This is a “consent
to jurisdiction clause”. This was
discussed in Shoe.
What
about a clause that says “all litigation arising from this argument will be
governed by the law of such and such a forum”?
That’s a choice of law clause, like the one in Burger King.
There’s
also “cognovit” which is apparently constitutionally permissible, and is
a way of agreeing to confess judgment, thus shifting the burden from the plaintiff
to you.
What
if there’s a clause that says “all litigation will take place in such and such
a forum”? That’s a forum selection
clause, and that’s what we have in Carnival.
What’s
happening in Carnival? What are the facts? The Shutes bought cruise tickets from an
agent in
What
happened on the cruise? The wife slipped
on the boat! The boat is in
international waters when it happens.
The
Shutes sue Carnival in
Say
there’s no forum selection clause. Say
we’re going to analyze the situation based on the principles of personal
jurisdiction we’ve covered up to this point.
What happens?
We
could get general jurisdiction in
Could
we get specific jurisdiction over Carnival in
What
about purposeful availment? Yes,
Carnival advertises in
We
have contacts! Now, we proceed to fair
play, where we ask the five questions.
1. The burden on
the defendant
2. The interest
of the forum state
3. The plaintiff’s
interest in a convenient forum
4. Interstate
efficiency
5. Interstate
policy
The
state has an interest in protecting its citizens.
It’s
as efficient to have the trial in
In
summary, we get fair play, and there would be jurisdiction in
The
Shutes conceded that they had notice of the forum selection clause. If the Shutes had argued that they had no
idea what the contract said, they might have had a case based on the question
of notice.
Stevens
is critical of the fact that the Court doesn’t consider the notice issue. He says the contract may be a “contract of
adhesion”, or a “take it or leave it” contract.
Why
does the majority decide that forum selection clauses are okay in this
context? They give three reasons, all in
one category: policy, or making it work right from a systemic
standpoint.
What
are the cruise line’s interests in the enforcement of the clause?
1. The cruise
line carries passengers from everywhere, but they don’t want to be subject to
suit everywhere. But why will we allow
them to limit where they’re liable? We’re
okay with allowing people to be liable if their goods go into the stream of
commerce pretty much everywhere.
2. Also, the
judicial system has an interest in settling the jurisdiction question ahead of
time. In other words, it is efficient to
have forum selection clauses.
3. Passengers
benefit from lower costs. Fairman
suggests that the Shutes probably weren’t sophisticated enough to make an
informed economic calculation about the costs and risks of choosing a cruise
line that would subject them to suit in a foreign forum.
The
ultimate question is one of “fundamental fairness”. We won’t allow the cruise line to select a
forum with the purpose of discouraging legitimate lawsuits.
What
if it was conceded that the plaintiffs did not have notice? Is that part of fundamental fairness? Sure.
Interesting
procedural points in Carnival
We
started out in
Which
of the cases that we’ve talked about already could have been settled with a forum
selection clause? How about in Asahi? Could they have included a forum selection
clause in their contract that they would settle their disputes in
“Basically,
forum selection clauses are good law.”
Tomorrow,
we’ll finish this up and then go on to Mullane, where notice is not
assumed.