You can have your "Fun Ship" and forum selection clause, too!

In apparent preparation for the day when I'd teach Carnival Cruise Lines, Inc. v. Shute, we took a Carnival Cruise in 2003.

Here's the Carnival Legend. It's a beautiful ship and we had a great time.

I remember the trip very well, but I can't say I recall much about the forum selection clause.

Categories: Personal jurisdiction k-pj

What kind of case is Rosenberg?

What kind of personal jurisdiction case is Rosenberg (text below, citations removed)? Specific? General? Both? Neither? Note the Supreme Court's references to this case in International Shoe and Helicopteros.

In any case, would the result in Rosenberg be reached after Burger King?

ROSENBERG BROS. & CO. v. CURTIS BROWN CO.
260 U.S. 516 (1923)

Mr. Justice BRANDEIS delivered the opinion of the Court.

Rosenberg Bros. & Co., Inc., a New York corporation, brought this suit in the Supreme Court of that state against Curtis Brown Company, an Oklahoma corporation. The only service of process made was by delivery of a summons to defendant's president while he was temporarily in New York. Defendant appeared specially; moved to quash the summons on the ground that the corporation was not found within the state, and, after evidence was taken but before hearing on the motion, removed the case to the federal court for the Western District of New York. There the motion to quash was granted, upon the ground that the defendant was not amenable to the process of the state court at the time of the service of the summons. A writ of error was sued out under section 238 of the Judicial Code (Comp. St. 1215), and the question of jurisdiction was duly certified. The order entered below, although in form an order to quash the summons, and not a dismissal of the suit, is a final judgment, and the case is properly here.

The sole question for decision is whether, at the time of the service of process, defendant was doing business within the state of New York in such manner and to such extent as to warrant the inference that it was present there. The District Court found that it was not. That decision was clearly correct. The Curtis Brown Company is a small retail dealer in men's clothing and furnishings at Tulsa, Okl. It never applied, under the foreign corporation laws, for a license to do business in New York; nor did it at any time authorize suit to be brought against it there. It never had an established place of business in New York; nor did it, without having such established place, regularly carry on business there. It had no property in New York, and had no officer, agent, or stockholder resident there. Its only connection with New York appears to have been the purchase there from time to time of a large part of the merchandise to be sold at its store in Tulsa. The purchases were made, sometimes by correspondence, sometimes, through visits to New York of one of its officers. Whether, at the time its president was served with process, he was in New York on business or for pleasure, whether he was then authorized to transact any business there, and to what extent he did transact business while there, are questions on which much evidence was introduced, and some of it is conflicting.

But the issues so raised are not of legal significance. The only business alleged to have been transacted by the company in New York, either then or theretofore, related to such purchases of goods by officers of a foreign corporation. Visits on such business, even if occurring at regular intervals, would not warrant the inference that the corporation was present within the jurisdiction of the state. And as it was not found there, the fact that the alleged cause of action arose in New York is immaterial.

Affirmed.

Categories: Personal jurisdiction k-pj

Helicopteros and Rosenberg and more on specific jurisdiction

As noted in class, we'll continue discussion of Helicopteros on Wednesday before moving on to the next section. At the end of class today I posed several questions. Here they are with some additional food for thought:

1) After Helicopteros, what level of a defendant's contacts will suffice for general jurisdiction? Compare the approach taken in Helicopteros with the language in Shoe (p. 713). What does it mean for contacts to be "continuous and systematic"? What does it mean for contacts to be "continuous" and "substantial"? Are all of these conditions needed?

2) Where does Rosenberg -- discussed on p. 823 -- stand as a specific jurisdiction case after Helicopteros? Compare Shoe, p. 714 (citing Rosenberg with approval), with Helicopteros, p. 823 n. 12 (declining to decide the "continuing validity" of Rosenberg in the specific jurisdiction context). Why might Rosenberg's continuing validity be an issue?

Categories: Personal jurisdiction k-pj

Helicopteros and specific jurisdiction?

As we’ll discuss in class, in Helicopteros Nacionales de Columbia, S.A. v. Hall, the Supreme Court concluded that defendant Helicol’s conduct did not rise to the level where general jurisdiction was appropriate. But from the facts – and from Justice Brennan’s dissent – one may wonder why the Court refused to address specific jurisdiction.

Your casebook includes the Court’s conclusion that “All parties to the present case concede that respondents’ claims against Helicol did not ‘arise out of,’ and are not related to, Helicol’s activities within Texas.” (Emphasis added.) In dissent, Justice Brennan analyzed the issue anyway, arguing that even if the lawsuit did not “arise out of” defendant’s contacts, the suit was nonetheless “directly and significantly related to” the contacts, and that this would be enough for specific jurisdiction.

Did the parties actually “concede” that there was no specific jurisdiction? And does the majority express any opinion on whether – for purposes of specific jurisdiction – the suit need only “relate to” the defendant’s contacts rather than “arise out of” the contacts? Your analysis might be aided by the majority’s FN 10, omitted from the casebook. The FN appears at the end of the majority's "concede" conclusion quoted above (citations omitted):

10. See Brief for Respondents 14; Tr. of Oral Arg. 26-27, 30-31. Because the parties have not argued any relationship between the cause of action and Helicol’s contacts with the State of Texas, we, contrary to the dissent’s implication, assert no “view” with respect to that issue.

The dissent suggests that we have erred in drawing no distinction between controversies that “relate to” a defendant’s contacts with a forum and those that “arise out of” such contacts. This criticism is somewhat puzzling, for the dissent goes on to urge that, for purposes of determining the constitutional validity of an assertion of specific jurisdiction, there really should be no distinction between the two.

We do not address the validity or consequences of such a distinction because the issue has not been presented in this case. Respondents have made no argument that their cause of action either arose out of or is related to Helicol’s contacts with the State of Texas. Absent any briefing on the issue, we decline to reach the questions (1) whether the terms “arising out of” and “related to” describe different connections between a cause of action and a defendant’s contacts with a forum, and (2) what sort of tie between a cause of action and a defendant’s contacts with a forum is necessary to a determination that either connection exists. Nor do we reach the question whether, if the two types of relationship differ, a forum’s exercise of personal jurisdiction in a situation where the cause of action “relates to,” but does not “arise out of,” the defendant’s contacts with the forum should be analyzed as an assertion of specific jurisdiction.

After reading it, ask: does the majority mean that the plaintiffs expressly conceded that the suit did not “arise out of” or “relate to” Helicol’s activities? Or did the majority mean that the plaintiffs failed to raise the issue and in doing so waived any specific jurisdiction argument?

Also consider, if Justice Brennan is on to something, then how attenuated would a contact have to be before it is simply not a contact that would go to specific jurisdiction? Does Shaffer provide any guidance as to when a contact is too remote to be relevant to establishing specific jurisdiction?

Categories: Personal jurisdiction k-pj

It just doesn't matter. It just doesn't matter. . . . Or does it?

In Shaffer v. Heitner, Justice Marshall stated that the minimum contacts test should apply to all in rem and quasi-in-rem disputes. He seemed to go even further, declaring that "all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny." (Emphasis added.)

The applicability of Shaffer beyond the dispute at hand in that case is debatable. First, in Burnham v. Superior Court, the Court split over the applicability of Shaffer’s “all assertions” language in the context of transient jurisdiction. Second, the dispute in Shaffer was narrow, concerning an assertion of quasi-in-rem jurisdiction over property owned by out-of-state defendants that was unrelated to the suit (a “Type II.B” case). Even in Shaffer, several concurring Justices expressed concern over Shaffer’s applicability to real estate. These two facts could be read to suggest that the Court may at some point construe Shaffer narrowly.

But for purposes of analysis, let's assume that the Court meant what it said and said what it meant regarding in rem and quasi-in-rem cases. The question becomes: can we conclude "It Just Doesn't Matter?" Put differently, does it matter whether one asserts in personam or in rem/quasi-in-rem jurisdiction? It does, and here’s a few reasons why.

1. Sometimes the only basis for jurisdiction will be in rem or quasi-in-rem jurisdiction. There will remain cases where in personam jurisdiction is lacking but there is in rem or quasi-in-rem jurisdiction. In such cases, Justice Marshall's analysis may be helpful.

Example 1: In Pennsylvania, D (a Pennsylvania domiciliary) promises to sell P her stamp collection, worth $10, for $10. D fails to perform and instead sends the stamps to Ohio. P files suit in Ohio for specific performance. Assuming D has no relevant contacts with Ohio, there would be no in personam jurisdiction and the only basis for jurisdiction would be quasi-in-rem. Under Marshall's framework, where ownership of the property was the subject matter of the suit (Type I), even under a minimum contacts analysis, it would be "unusual" for the forum state to lack quasi-in-rem jurisdiction. Thus, even where in personam jurisdiction is lacking, there would likely be quasi-in-rem jurisdiction.

2. Minimum contacts can lead to different results. Shaffer itself showed that applying a minimum contacts analysis to a quasi-in-rem suit changed the result. Under the traditional rule, there could have been quasi-in-rem jurisdiction in Shaffer. But under the minimum contacts approach, the property was unrelated to the subject matter of the suit and there were no other relevant contacts. Accordingly, there was no jurisdiction, quasi-in-rem or otherwise.

3. Full faith and credit. A valid judgment in personam will be afforded full faith and credit for the full amount of the judgment. A judgment in rem or quasi-in-rem, however, is limited to the value of the property. Let's take a look at a variation of Example 1.

Example 2: In Pennsylvania, D (a Pennsylvania domiciliary) promises to sell P her stamp collection, worth $10, for $10. P contracts separately with T to make a mural based on the stamps, which T promises to buy for $1000. D fails to perform and instead sends the stamps to Ohio. Since P can’t make the mural, T cancels the contract. P sues D for specific performance (to get the stamps) and for $990 (the profit he expected to make).

The place of suit will determine the type of judgment, and in turn, its scope and applicability:

If suit filed in PA: If P sues in Pennsylvania, he will have in personam jurisdiction over D. If he wins, he should be able to use full faith & credit take the judgment to Ohio and get the stamps. He will also be able to execute the judgment anywhere D’s property can be found for the $990.

If suit filed in OH: if P sues in Ohio, his only basis for jurisdiction will be quasi-in-rem regarding the stamps. His recovery will be limited to the stamps. His judgment will have no value beyond the stamps, and he cannot use full faith and credit to use this judgment to obtain his desired $990 damages elsewhere.

Categories: Issue & claim preclusion, Judgments, Personal jurisdiction k-icp k-jj k-pj

Justice Field[s] Forever

What do the Beatles have to do with Pennoyer v. Neff? Nothing, I suppose. I have little doubt, though, that many new to the study of law would find John Lennon's words in Strawberry Fields Forever to be clearer, and surely closer to home, than those of Justice Stephen B. Field (additional background here), the author of the landmark (and after careful reading, ultimately scrutable) opinion in Pennoyer.

Strawberry Fields Forever:
I think a "No" will mean a "Yes," but it's all wrong.
That is I think I disagree.

Didn't know Lennon went to law school. And I can't believe it's been almost 25 years since his untimely death.

1Ls: Time goes fast. Keep things in perspective and take time to live, even if it seems hard to do during law school. And In The End, as you know, most things -- including Pennoyer (but not everything, see, e.g., Lennon's murder) -- eventually make sense.

Categories: General, Law school, Personal jurisdiction k-g k-ls k-pj

Welcome to the Legal Process blog

Greetings! This blog is intended primarily for my Legal Process class, Section A, at the University of Pittsburgh School of Law. The course description states:

This course develops the student’s understanding of the underlying assumptions of law, its processes and institutions, and the nature of legal rules and concepts. We will examine how the work of lawyers is affected by the varying sources of legal rights, the differing roles of courts and legislatures, and the division of authority between state and federal governments. Specific topics to be addressed include personal jurisdiction, subject matter jurisdiction, venue, and federalism-based limits on the choice of law in federal court (known as the “Erie” doctrine). Our goals extend beyond learning the principles of law regarding these topics to considering the tactical functions and strategic goals of these principles in application by lawyers.

Having previously used the course page and email to communicate with our class, I thought it might be useful to provide an additional and more interactive forum for certain subjects. Think of it as a virtual extension of my office hours.

Welcome!

Categories: General, Law School k-g k-ls