Agenda for 35th Class

1. Agenda for 35th Class • Slide handout • Friday. Rescheduled class. • 1:20-2:35, Rm. 101 • Review Class • 10-11:15, Rm. 7 • Review of Internet J • Review of Personal Jurisdiction • Review of Venue • Forum non conveniens • Res Judicata

2. Assignment for Next Class • Yeazell 749-67 • Questions to think about / Optional Writing Assignment • No mandatory writing assignment • Yeazell p. 750 Qs 1-3 • Yeazell p. 753 Q 2 • Yeazell p. 756 Qs 1-4 • Briefly summarize Parklane • Yeazell pp. 764ff Qs 1c, 2a&b, 5a&b • Optional. Glannon Chapters 28 and 29

3. Review Jurisdiction & Internet • Zippo • Jurisdiction depends on how active the website was • Note that Zippo was only district court decision • Unclear theoretical basis • Why should defamation be less likely to establish jurisdiction where viewed if posting was by website owner on passive website than if posting was by 3rd party on interactive website? • Torts – defamation, trademark infringement (Revell, etc.) • Factors that support jurisdiction • Defendant knew that injured person resided in forum state • Posting involved events in forum state • Posting targeted to forum state or had wide viewership there • Defendant had other related contacts with the forum state (e.g. mailed letter there) • No special jurisdictional doctrines for internet • “Purposeful availment,” like other jurisdictional contexts • Concern that posting material to web should not trigger world-wide jurisdiction

4. Review of Personal Jurisdiction Modern Supreme Court has focused on “purposeful availment” 4 categories of purposeful availment (Ides. Internet handout p. 7 n.1) Defendant or its employees entered the forum and conducted activity International Shoe Defendant entered into contractual relationships with forum residents Burger King, McGee Defendant’s products entered the forum through the "stream of commerce“ McIntyre Defendant’s out-of-state conduct caused an injurious "effect" in the forum state Revell General or specific jurisdiction All cases we have read deal with specific jurisdiction Contacts related to dispute General jurisdiction Individuals – residence, domicile, consent, presence Corporations Definitely. Incorporation, principal place of business Maybe. (large) factory/office, (many) employees, lots of business 4

5. Venue -- 28 USC 1391 • (b)(1). If all defendants reside in the same state, venue is proper in any judicial district in which at least one defendant resides • For individuals residing in US, residence = domicile. (c)(1) • Confusing, because domicile is usually defined as residence + intent to remain indefinitely • If you currently reside where you intent to remain, then your current residence is your domicile • If you currently reside where in a place you do NOT intend to remain, then your domicile is the last place you resided with intent to remain indefinitely • Corporations are resident in any district in which they would be subject to personal jurisdiction, if district were considered a state. (d) • If reside in district, then reside in state in which district located • (b)(2). Venue is proper in judicial district where event or omission giving rise to claim occurred • (b)(3). If no district satisfies (b)(1) or (b)(2), then venue is proper in any district in which in which any defendant is subject to personal jurisdiction. • IMPORTANT. Even if venue is proper, court still needs to have personal jurisdiction over EACH AND EVERY defendant.

6. Dee-K Enterprises • Plaintiffs sued Malaysian, Indonesian, Thai, and US corporations in the ED of VA alleging conspiracy to fix rubber thread prices. • Defendants challenged venue. • 1391(d) (now 1391(c)(3)) says that non-residents may be sued in any district. • The US defendants reside in different states and the relevant actions and omissions took place outside the US, so venue was proper “in a judicial district in which any defendant may be found.” (This is no longer in 1391). • It isn’t clear whether any defendant can be “found” in ED of VA, so the court ordered the plaintiff to show that at least one has a connection to EDVA in order for venue to be proper. • As a result of recent revisions, one no longer need to ask where a defendant can “be found” (which was completely unhelpful), • But now one must ask where one of the US defendants “is subject to the court’s personal jurisdiction.” 1391(b)(3) • Foreign defendants are ignored in determining venue, if there is at least one US defendant. 1391(c)(3)

7. Moving Cases Around • From one federal court to another • 28 USC 1404 says cases may be transferred “to any other district .. Where it might have been brought” “for the convenience of the parties and witnesses, in the interest of justice.” Even if venue was proper in the first place • BUT transferee court follows choice of law rules of transferor court • 28 USC 1406 says that court can transfer case if venue was improper in the first place. • Without statute, one might think that the court didn’t have power to do anything • No comparable ability to transfer case between judicial systems • E.g. from one state court to a court in a different state or foreign country • E.g. from federal court to court in foreign country • If judge thinks that her court has jurisdiction, but that a court in a different state or country would be better, the judge must dismiss the case • Forum non conveniens • No transfer or forum non-conveniens to move case from federal to state court or vice versa • State to federal court. Removal; Federal to state. Abstention.

8. Forum Non Conveniens Questions • Briefly summarize Piper Aircraft • In your summary, please incorporate answers to pp. 186ff Qs1, 4, • Suppose a chemical plant in India owned by an American company leaks gas into the surrounding neighborhood and kills 16,000 people and injures half a million. The victims sue in US court. Defendants move for dismissal on the basis of forum non conveniens. The plaintiffs argue that dismissal is inappropriate, because Indian courts require a filing fee equal to 5% of damages claimed, which in this case could be billions of dollars. There are long delays in Indian courts. Indian courts have very few tort precedents and none relevant to mass torts. Discovery is usually very narrow, if allowed at all. Should the court grant the forum non conveniens motion? If it does, are there any conditions it should attach?

9. Introduction to Former Adjudication • 2 concepts • Res judicata / claim preclusion • Collateral estoppel / issue preclusion • Res judicata • Cannot litigate same claim several times • Sometimes bars related claim, even if not litigated before • Collateral estoppel • If issue resolved in one case, cannot relitigate that issue in subsequent case • Both doctrines motivated by similar policies • Finality • Save litigation costs • Avoid inconsistent judgments or verdicts

10. 4 Requirements for Res Judicata • Same claim • Federal court. Claim arising out of the same transaction or occurrence • Even if claim in second suit not actually raised or litigated in first suit • Some state courts may apply narrower rules • E.g. claim in second suit arises out of “same evidence” • Judgment on the Merits • Trial, summary judgment, default judgment • 12(b)(6), but not equivalent dismissals in some states courts • NOT dismissal for lack of jurisdiction or venue • Final judgment • Judgment entered on all claims • In federal court, still final if appeal pending; not in some state courts • Same parties • Except judgment against former real property owner bars subsequent owner • Perhaps other exceptions when interests of parties are very closely aligned • But exception narrowed by Taylor v. Sturgell • Res judicata and choice of law • Apply res judicata rules of court which rendered judgment • Fed ct applies IL res judicata rules when deciding whether IL judgment bars federal litigation. Frier

11. Frierv. City of Vindalia • City towed Frier’s cars • Frier sued city in in state court seeking replevin to get cars back • City won • Frier sued city in federal court alleging Due Process violation, because city did not give him a hearing before or after it took his cars • District court found for city on merits • 7th Circuit found for city on res judicata • Note that city defended appeal on grounds that raised, but lost in district court • Since 1st judgment was rendered by IL court, need to apply IL rules for res judicata, even though 2nd case in federal court • IL rules are narrower than federal rules • “same evidence” rather than “same transaction or occurrence” • Majority and concurrence differ in application • Yeazell p. 727 Q1

12. Collateral Estoppel Requirements • 1. Same issue • 2. Actually litigated. No C.E. if party admitted issue in first suit • 3. Actually decided. No C.E. if court resolved case without deciding issue • Can be hard to tell if jury verdict • 4. Necessarily decided / Essential to judgment • If changing result on issue would not change outcome of case, then no C.E. • If court decides negligence case by finding duty, but no negligence • No C.E. on duty • CE would not be fair to defendant, because could not have appealed finding of duty • If court decides contract case by deciding that there was no contract and that, even if there was a contract, there was no breach • Some courts follow Restatement 2nd • C.E. applies neither to “no contract” nor to “no breach” • Court may not have thought carefully about • Plaintiff may have thought appeal futile • Unless issue squarely decided on appeal • Other courts follow 1st Restatement and apply C.E. to both • Like res judicata, apply collateral estoppel rules of court which rendered first judgment

13. Nonmutual Collateral Estoppel I • Traditionally, collateral estoppel applied only when parties were the same in first and second suit (like res judicata) • Some court allow person not a party to the first suit to assert collateral estoppel, as long as person against whom c.e. asserted was in the first suit (and 4 other requirements satisfied) • Called nonmutual collateral estoppel • 2 kinds of nonmutualcolleral estoppel • Defensive • Offensive • Defensive nonmutual collateral estoppel • Plaintiff sues defendant1 for patent infringement • Court decides that patent is invalid • Plaintiff sues defendant2 for patent infringement • Defendant2 can assert collateral estoppel against plaintiff • Because plaintiff already litigated and lost on issue of patent validity • Now accepted in nearly all jurisdictions • “defensive” means asserted by defendant

14. Nonmutual Collateral Estoppel II • Offensive nonmutual collateral estoppel • Plaintiff1 sues defendant for poisoning water • Court decides that defendant poisoned the water • Plaintiff2 sues defendant for poisoning the water • Defendant may be estopped from arguing that did not poison the water • Very controversial • If defendant loses one case (1st or 2nd or 99thcase), would mean that defendant loses all subsequent related cases • But if one plaintiff loses case, then later plaintiffs not bound by c.e • Discourages joinder • Defendant may not have had incentive to litigate hard in first case • Federal courts have discretion to apply c.e. offensively. Factors: • Has there been inconsistent litigation outcomes? • Did plaintiff strategically wait (not join) so as to take advantage of offensive non-mutual collateral estoppel • Did defendant have sufficient incentive to litigate issue aggressively in first case • “Offensive” means by plaintiff