CIVIL PROCEDURE CLASS 32

1. CIVIL PROCEDURE CLASS 32 Professor Fischer Columbus School of Law The Catholic University of America November 7, 2003

2. WORLD-WIDE VOLKSWAGEN V. WOODSON • Who are the plaintiffs? Where are plaintiffs resident at the time of the accident? • Where were the plaintiffs citizens for the purposes of diversity at the time of filing the lawsuit?

3. WORLD-WIDE VOLKSWAGEN • Who are the defendants? • Which Ds challenge personal jurisdiction? • Where is each D who contests jurisdiction incorporated at the time of filing the action? • Where does each such Defendant have its principal place of business at the time of filing the action?

4. WORLD-WIDE VOLKSWAGEN: PLAINTIFFS’ CLAIMS • Where do plaintiffs file their action against defendants? • What claim(s) do plaintiffs make against defendants? • Why do plaintiffs choose this forum?

5. World-Wide Volkswagen: Flow Chart

6. Who’s Woodson? • A puzzle: Charles S. Woodson is a respondent in the U.S. Supreme Court, but he is not a defendant. Please explain.

7. Another Puzzle • Why didn’t the plaintiffs sue Lloyd Hull, the drunk driver of the vehicle that hit their car?

8. WORLD-WIDE VOLKSWAGEN: CLAIMED BASIS FOR JURISDICTION • What is the legal basis for plaintiffs’ claimed assertion of jurisdiction over defendants?

9. Oklahoma Long-Arm Statute, Tit. 12 §1701.03(a)(4)(1971) • A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action or claim for relief arising from the person’s . . causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state . . . “

10. BACK TO WORLD-WIDE VOLKSWAGEN • How does the Oklahoma Supreme Court rule on the writ of prohibition? • What is the legal issue for decision by the U.S. Supreme Court? • How does the U.S. Supreme Court rule?

11. REASONING OF U.S. SUPREME COURT MAJORITY OPINION IN WORLD-WIDE VOLKSWAGEN • The U.S. Supreme Court endorses the “minimum contacts” test set out in International Shoe • According to Justice White (1962-93), who delivers the Court’s opinion, what are the two functions of the minimum contacts test?

12. Justice White’s Majority Opinion in WWVW • According to Justice White, which prong of the International Shoe test should be examined first?

13. APPLYING THE MINIMUM CONTACTS TEST TO THE FACTS OF WWVW • How does Justice White apply the International Shoe test to the facts of World--Wide Volkswagen? • Is it relevant that the NY defendants arguably could foresee that the Audi would enter Oklahoma? • Is the concept of “purposeful availment” important to Justice White? Why or why not?

14. WORLD-WIDE: DISSENTS • Please explain the basis for Justice Marshall’s (1967-91) dissent.

15. World-Wide Dissents • Please explain the basis for Justice Brennan’s (1957-90) dissent.

16. World-Wide Dissents • Please explain the basis for Justice Blackmun’s (1970-94) dissent • Do you agree with the majority or with any of the dissents? Why?

17. Justice Blackmun’s puzzlement • What about this case caused Justice Blackmun to be puzzled? • Could you dispel his confusion?

18. HYPOS ON “STREAM OF COMMERCE” • Change the facts of World-Wide. What if the Robinsons were from Oklahoma but were temporarily in New York, where they purchased an Audi from Seaway, informing Seaway that they planned to return to Oklahoma. Should Seaway have foreseen being sued in Oklahoma and thus be subject to suit there? • What if the facts were basically the same as the real case except that the Robinsons were from NY and had their accident in NJ?

19. “ANOTHER HYPO • Assume the driver of the car that hit the Robinsons’ Audi was from Texas and had no contacts with Oklahoma other than driving into the state and getting into an accident. Could an Oklahoma court have exercised personal jurisdiction over the driver for a claim in negligence brought by the Robinsons?

20. WWVW • Case indicates that to exercise pj over a non-resident D, the court must find purposeful conduct either by direct acts of the D in the forum or by conduct outside the state that the D could have foreseen could result in suit being brought in the state

21. WWV: The Aftermath • Audi and VWA removed case to federal district court for Northern District of Oklahoma – is this possible now (case filed 1978)? • Case tried to a jury who found for defense • Appeal to 10th Circuit, which reversed and remanded for a new trial against VWA • VWA is granted summary judgment • Grant of summary judgment is affirmed by 10th Circuit 9 years after accident occurs! • Cont’d on next slide

22. WWV: The Aftermath Continued • New AZ lawyer moves for a rehearing in 10th Circuit; motion is denied • New suit filed in AZ, against different defendants – Volkswagen of Germany (parent co.) and previous attorneys. Sep. action filed in which moved to reopen judgment under FRCP 60(b)(3). • Audi lawyers respond with 12(b)(2) and 12(b)(6) motions. Denial of 12(b)(6) motion but order of transfer from AZ to OK. • Unsuccessful appeal of denial of 12( b)(6) motion under “death knell doctrine”

23. WWV: The Aftermath Continued • Bench trial of fraud claims, product claims, and Rule 60(b) motion • Judge (same judge as in original trial) acknowledged that based on evidence, memo was admissible. But he denies Rule 60(b) motion and fraud claims, as well as products claim. • 10th Circuit affirms in May, 1995 • U.S. Supreme Court denies certiorari in Jan. 8, 1996, 19 years after the accident took place

24. Academic Controversy • Compare Martin H. Redish, Due Process, Federalism, and Personal Jurisdiction: A Theoretical Evaluation, 75 NW. U. L. Rev. 1112 (1981) with Allen R. Kamp, Beyond Minimum Contacts: The Supreme Court’s New Jurisdictional Theory, 15 Ga. L. Rev. 19 (1980) • Insurance Corp. of Ireland, 456 U.S. 694 (1982)

25. Calder v. Jones: Personal Jurisdiction in Libel Actions • Libel action in California over 1979 National Enquirer article that claimed that actress Shirley Jones had a drinking problem.

26. Calder v. Jones • Which defendants contested the jurisdiction of the California court? Why? • Did the Supreme Court find that here was jurisdiction over them? • Why or why not? • What test was used? Was it different from that of World Wide Volkswagen?

27. Asahi v. Superior Court, 480 U.S. 102 (1987) • Another “stream of commerce” case • What is the issue that the Supreme Court must decide in Asahi?

28. Asahi- A Badly Divided Court: Count the Votes • Part I - unanimous • Part IIA • Minimum contacts lacking 4 (O’Connor) Rehnquist, Powell, Scalia) • Part IIB • “Reasonableness” prong not met: Fairness 8 (all but Scalia) • Part III (O’Connor, Rehnquist, Powell, Scalia)

29. Asahi • Asahi status is uncertain given that there is no majority opinion on the issue of minimum contacts • Court found no jurisdiction based on due process alone (separate from minimum contacts analysis) • How often will defendants have minimum contacts with a forum but the exercise of personal jurisdiction will offend notions of fair play and substantial justice?

30. Asahi on Minimum Contacts • Is some “additional” conduct required other than placing goods in the stream of commerce and being that the goods will end up in the forum state (such as advertising, marketing) • O’Connor – yes (says World-Wide court held mere foreseeability not enough) • Brennan – no (says World-Wide court carefully limited its holding to situation where consumer took goods to state)