Civil Procedure Commons^™

Categorical Confusion In Personal Jurisdiction Law, Todd Peterson

Washington and Lee Law Review

In Part I, the Article discusses the history of the U.S. Supreme Court’s substantive due process limitations on personal jurisdiction and, in particular, the standards for corporate-activities-based jurisdiction before the Court’s recent cases on that issue. Part II discusses the Court’s failure to provide a convincing theoretical justification for imposing substantive due process limitations on personal jurisdiction. It also discusses the consequences of that failure in three doctrinal areas of personal jurisdiction law, the traditional basis of service on an individual in the forum state, specific jurisdiction and corporate-activities-based jurisdiction. Part III then analyzes in detail the four recent Supreme …

If The Shoe Fits: Rethinking Minimum Contacts And The Fsia Commercial Activity Exception, Jacqueline M. Fitch

Washington and Lee Law Review Online

The question explored in this Note is whether, under the direct effect clause of the Foreign Sovereign Immunities Act commercial activities exception, a foreign sovereign must have minimum contacts with the United States in order for a U.S. court to assert personal jurisdiction over the entity. Examining personal jurisdiction over foreign states under the direct effect clause requires exploring the interaction between constitutional law and principles of international law. The minimum contacts analysis highlights the tension between applying constitutional due process protection to a foreign state, while simultaneously asserting jurisdiction over its commercial activities. Denying jurisdiction over a foreign sovereign …

Has Shoe Run Its Course?, David W. Ichel

Faculty Scholarship

No abstract provided.

Guidelines And Best Practices For Large And Mass-Tort Mdls (Second Edition), Bolch Judicial Institute

Bolch Judicial Institute Publications

Mass-tort MDLs dominate the federal civil docket, yet they present enormous challenges to transferee judges assigned to manage them. There is little official guidance and no rules specific to the management of mass-tort MDLs, often requiring the transferee judge to develop procedures out of whole cloth.

Beginning in 2013, the Bolch Judicial Institute (then the Center for Judicial Studies) sought to address this issue through a series of annual bench-bar conferences. From these conferences came the Guidelines and Best Practices for Large and Mass-Tort MDLs document — now in its Second Edition — which is designed to help judges and …

Southworth V. Eighth Judicial Dist. Court, 134 Nev. Adv. Op. 20 (Mar. 29, 2018), Lucy Crow

Nevada Supreme Court Summaries

The court determined that Justice Court Rule of Civil Procedure 98 requiring appeals in small claims court to be filed within five days was jurisdictional and mandatory. The district court cannot use its discretion to expand the time to appeal.

National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack

Public Land & Resources Law Review

In an attempt to provide consistency to the interpretation and application of the statutory phrase “waters of the United States,” as used in the Clean Water Act, the EPA and Army Corps of Engineers together passed the WOTUS Rule. Unfortunately, the Rule has created more confusion than clarity, resulting in a number of lawsuits challenging substantive portions of the Rule’s language. National Association of Manufacturers v. Department of Defense did not address those substantive challenges, but instead determined whether those claims challenging the Rule must be filed in federal district courts or federal courts of appeals. In its decision, the …

Personal Jurisdiction And The Web, Joseph S. Burns, Richard A. Bales

Maine Law Review

Courts have struggled in determining precisely when a defendant should be subject to suit in a particular forum based on his or her Web activity. Although most jurisdictions have applied some form of the “minimum contacts” test, the test has been applied inconsistently. A new standard is needed to resolve personal jurisdiction disputes arising out of Web activity. This Article examines the ways in which modern courts have attempted to resolve personal jurisdiction issues based on Web activity, as well as the inconsistencies that have resulted from the inherent difficulty in conceptualizing the Web.

Hogan Vs. Gawker Ii: A Statutory Solution To Fraudulent Joinder, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

This Article will first review the intersection of federal jurisdiction and litigation strategy by examining the requirements for diversity jurisdiction in federal court as well as the circumstances that must be present to allow a defendant to remove a case from state court to federal court. The Article will then review the history of the court-created doctrine of fraudulent joinder, and will examine the various tests currently in use by the lower federal courts. The Article will then address whether it makes more sense to create a statutory solution, and will examine and analyze the Fraudulent Joinder Prevention Act of …

Rethinking Removal And "Relates To": International Arbitration Disputes And The N.Y. Convention, Holly Wilson

University of Richmond Law Review

Part I explores the historical roots of the Convention,

discusses the evolution of its removal provisions, and explains how

it functions in the district courts today. Part II addresses the arguments

in favor of reverting to the Ruhrgas standard. This article

demonstrates that the current judicial interpretation of the Convention's

removal provisions under Beiser is too broad and that the

stricter construction under Ruhrgas should be re-adopted. Part II

examines three key reasons why the current Beiser standard is unworkable:

the current standard (1) leads to absurd results, (2) disrespects

notions of federalism and strains comity, and (3) in conjunction …

The Erie Doctrine: A Flowchart, Michael S. Green

Faculty Publications

No abstract provided.

A New Guard At The Courthouse Door: Corporate Personal Jurisdiction In Complex Litigation After The Supreme Court’S Decision Quartet, David W. Ichel

Faculty Scholarship

In a quartet of recent decisions, the Supreme Court substantially reshaped the analysis of due process limits for a state's exercise of personal jurisdiction over corporations for the first time since its groundbreaking 1945 decision in International Shoe Co. v. Washington. The Court's decision quartet recasts the International Shoe continuum of corporate contacts for which it would be "reasonable" for the state to exercise jurisdiction based on "traditional notions of fair play and substantial justice" into a more rigid bright-line dichotomy between "general" and "specific" jurisdiction: for a state to exercise general (or all-purpose) jurisdiction over any suit, regardless of …

One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns an aspect of Article III standing that has played a role in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one …

The Cessation Of Innovation: An Inquiry Into Whether Congress Can And Should Strip The Supreme Court Of Its Appellate Jurisdiction To Entertain Patent Cases, Catherine Taylor

Chicago-Kent Law Review

No abstract provided.

The Case For Restricting Diversity Jurisdiction: The Undeveloped Arguments, From The Race To The Bottom To The Substitution Effect, David Crump

Maine Law Review

Diversity jurisdiction is an idea whose time has come--and gone. In its present form, it serves its alleged purpose so inconsistently that its benefits are minimal, if they exist at all. And the costs that it imposes are significant. The traditional arguments for and against diversity are well known, but the traditional arguments against it actually understate its disadvantages. Therefore, the purpose of this Article is to construct the arguments against diversity that traditional scholarship has left underdeveloped. These include the proposition that today, in the twenty-first century, there are more reasons than ever to authorize diversity jurisdiction more selectively. …

Emerging From Daimler's Shadow: Registration Statutes As A Means To General Jurisdiction Over Foreign Corporations, Nicholas D'Angelo

St. John's Law Review

(Excerpt)

This Note argues for the increased exercise of general jurisdiction based on registration statutes. Carefully drafted state statutes, explicitly stating that corporations registering to do business in a state thereby consent to general jurisdiction, not only solve the consequences of Daimler, but also fully comport with traditional values of fairness.

Part I outlines the jurisprudential history related to general jurisdiction. Section A begins with the concept of territoriality introduced in Pennoyer and the minimum contacts analysis in International Shoe, then discusses the modern doctrine in Perkins, Helicopteros, and Goodyear, culminating with Daimler. Section …

In Re Davis Family Heritage Trust, 133 Nev. Adv. Op. 26 (May 25, 2017)., Ping Chang

Nevada Supreme Court Summaries

No abstract provided.

Dueling Grants: Reimagining Cafa’S Jurisdictional Provisions, Tanya Pierce

Georgia State University Law Review

More than a decade after Congress passed the Class Action Fairness Act of 2005 (CAFA), courts continue to disagree as to its application and meaning in a variety of situations, many of which have wide-ranging effects. This article considers a fundamental issue that arises after a certification decision is reached: whether a court’s subject matter jurisdiction under CAFA depends on a class being certified. Specifically, the article considers what happens when a federal court’s subject matter jurisdiction derives solely from CAFA’s minimal diversity jurisdiction provision and a request for class certification under Federal Rule of Civil Procedure 23 (Rule 23) …

When Is It Necessary For Corporations To Be Essentially At Home?: An Exploration Of Exceptional Cases, Priscilla Heinz

University of Richmond Law Review

No abstract provided.

Cross-Border Evidence Gathering In Transnational Criminal Investigation: Is The Microsoft Ireland Case The 'Next Frontier'?, Robert Currie

Articles, Book Chapters, & Popular Press

A recent and prominent American appeals court case has revived a controversial international law question: can a state compel a person on its territory to obtain and produce material which the person owns or controls, but which is stored on the territory of a foreign state? The case involved, United States v. Microsoft, features electronic data stored offshore which was sought in the context of a criminal prosecution. It highlights the current legal complexity surrounding the cross-border gathering of electronic evidence, which has produced friction and divergent state practice. The author here contends that the problems involved are best understood—and …

Fixing Forum Selling, Brian L. Frye, Christopher J. Ryan Jr.

Law Faculty Scholarly Articles

"Forum selling” is jurisdictional competition intended to attract litigants. While consensual forum selling may be beneficial, non-consensual forum selling is harmful because it encourages jurisdictions to adopt an inefficient pro-plaintiff bias. In the last 20 years, the Eastern District of Texas has adopted an aggressive and remarkably successful policy of non-consensual forum selling in patent infringement actions. In 2016, 44% of all patent infringement actions were filed in the Eastern District of Texas, and 93% of them were filed by patent assertion entities or “patent trolls.”

In December 2016, the Supreme Court granted certiorari in TC Heartland v. Kraft, …

When Torts Met Civil Procedure: A Curricular Coupling, Laura G. Dooley, Brigham A. Fordham, Ann E. Woodley

Scholarly Works

Law students must become adept at understanding how various bodies of law interact-supporting, balancing, and even conflicting with each other. This article describes an attempt to achieve these goals by merging two canonical first-year courses, civil procedure and torts, into an integrated class titled ‘Introduction to Civil Litigation’. Our most pressing motivation was concern that students who study civil procedure and torts in isolation develop a skewed, unrealistic view of how law works in the real world. By combining these courses, we hoped to teach students early in their careers to approach problems more like practicing lawyers, who must deal …

Brief Of Professor Stephen E. Sachs As Amicus Curiae, Bnsf Railway Co. V. Tyrrell, Stephen E. Sachs

Faculty Scholarship

[This brief was filed in support of the petitioner in No. 16-405 (U.S., cert. granted Jan. 13, 2017).]

BNSF Railway Co. should win this case, but on statutory grounds alone. BNSF makes three arguments:

1) That Daimler AG v. Bauman forbids Montana’s exercise of general personal jurisdiction here;

2) That Congress has not sought to license the state’s exercise of jurisdiction; and

3) That such a license would be void under the Fourteenth Amendment.

BNSF’s first two arguments are fully persuasive and decide the case. As a result, the Court should decline to reach the third argument. Not only is …

Foreign Judgments In Florida Bankruptcy Courts: Choice Of Law, Statutes Of Limitations, And Other Unresolved Issues, Michael Raudebaugh

Barry Law Review

No abstract provided.

The Preliminary Injunction Standard In Diversity: A Typical Unguided Erie Choice, David E. Shipley

Scholarly Works

The standard for granting preliminary injunctions in some states is not the same as the preliminary injunction standard that is followed in the federal district courts in the federal circuit where the state is located. For example, the interlocutory injunction standard in Georgia’s superior courts is not as demanding as the preliminary injunction standard in Georgia’s federal courts. Although state and federal courts in Georgia consider four similar factors in deciding whether to grant or deny provisional injunctive relief, a balancing or sliding scale approach can be used in Georgia’s courts; the moving party need not prove all four of …

Judicial Recusation In The Federal Republic Of Germany, Sigmund A. Cohn

Georgia Journal of International & Comparative Law

No abstract provided.

Examining Universal Jurisdiction, Sondra Anton

Washington University Undergraduate Law Review

This article considers the heightened debate over the role of universal jurisdiction within international law, and concludes it should not be judged based on the appropriateness or foundation set by remote precedents. Given the clear disregard for physical integrity rights repeatedly demonstrated by even the most “democratic” of modern governments, it is more pressing than ever to develop universal jurisdiction and ensure the norm’s institutionalization in practice.

Submerged Precedent, Elizabeth Mccuskey

Faculty Scholarship

Numerous studies have pointed to the skewed picture of trial courts' workload, management, and disposition of cases that exists from examining Westlaw and Lexis opinions alone, akin to navigating the iceberg from its tip.⁴ But submerged precedent pushes docketology in an uncharted direction by identifying a mass of reasoned opinions-putative precedent and not mere evidence of decision-making-that exist only on dockets. Submerged precedent thus raises the specter that docket-based research may be necessary in some areas to ascertain an accurate picture of the law itself not just trial courts' administration of it.

The existence of a submerged body …

What Remains Of Vicarious Jurisdiction For Establishing General Jurisdiction Over Corporate Defendants After Daimler Ag V. Bauman?, Keri Martin

Seton Hall Circuit Review

No abstract provided.

The Necessary Narrowing Of General Personal Jurisdiction, William Grayson Lambert

Marquette Law Review

General personal jurisdiction allows a court to issue a binding judgment against a defendant in any case, even if the facts giving rise to the case are unrelated to that forum. In the six decades after International Shoe v. Washington, courts held that general jurisdiction existed whenever a defendant had substantial continuous and systemic contacts with the forum. This rule was narrowed significantly in 2011, however, when the Supreme Court in Goodyear Dunlop Tires Operations, S.A. v. Brown held that general jurisdiction was properly exercised only when a defendant had sufficient contacts to be “at home” in the forum.

Paterno V. Laser Spine Institute: Did The New York Court Of Appeals' Misapplication Of Unjustified Policy Fears Lead To A Miscarriage Of Justice And The Creation Of Inadequate Precedent For The Proper Use Of The Empire State’S Long-Arm Statute?, Jay C. Carlisle, Christine M. Murphy, Kiersten M. Schramek, Marley Strauss

Elisabeth Haub School of Law Faculty Publications

This article discusses CPLR section 302(a)(1) as applied by the New York State Court of Appeals in Paterno v. Laser Spine Institute. The Paterno Court failed to properly apply a statutory jurisdictional analysis by conflating it with a due process inquiry. Also, the Court unnecessarily balanced the interests of the Empire State's citizens in having a forum for access to justice with unjustified policy fears of potential costs to the state from assertions of in personam jurisdiction. Furthermore, the Court's policy focus4 on the protection of medical doctors from lawsuits and the prevention of “floodgate” litigation which would adversely affect …