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Suspended for marijuana without hearing, claimed due process deprivation but no actual damages b/c would have been suspended anyway

H - Due process is an absolute right for which you can get only nominal damages ($1) in absence of other harm

Notes:

TRO is quicker, PI takes time

Rule 65, TRO and PI

P filed a claim with no facts and mostly legal conclusions, did not indicate how claim related to the D.

H - Pleading was not sufficient to show a cause of action because it lacked facts.

U.S. filed claim against two oil refiners for dumping into Delaware River between such and such date.  Refiners motioned for more detail.

H - Only appropriate if complaint suffers from unintelligibility rather than want of detail; no fishing expeditions.  Denied.

Rule 12(e) motion for more definite statement

Afr. Americans, 2 unions, one for whites one for blacks.  Unions tried to dismiss for failure to state a claim.

H - Stands for relaxed pleading.  ". . . complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts to support his claim . . ."

Judge tried to get settlement pre-trial; settled after one day of trial for amt judge mentioned.  Judge sanctioned D only.

H - it was improper to sanction only the D for not settling.  May  not coerce settlement.

Workplace non-smoker sought injunction to protect himself from smoke due to health probs. 

H - P has a right to prove his case for an injunction, because if we can give an equitable remedy and prevent harm it's better than money damages after harm has occurred.

Contingent fee vs. attorney's fees awarded by the ct.

H - statutory attorney fee awards don't exclude separate contingent fee arrangements.

Notes:

Lodestar method - hours worked * r&c attny rate
% method - percent total award

Exceptions to the American rule: contracts, fee shifting statutes, civil rights cases

1600 Ps sued 100 Ds alleging injuries due to uranium mining.  Ct asked for more specificity - i.e., what injuries?  what materials caused?  which mines?  Ps submitted single statement from an expert listing general maladies and that each P had exposure, ct dismissed.

H - P must have some info re:nature of injuries, cause, and basis for believing Ds were cause.

Drunk driver/dram shop act claim, or other guy was negligent claim.  Mutually exclusive claims.

H - It is ok to plead in the alternative, esp. when the info about which is correct is not within your advance info.  This allows single action to bring about justice.  B/c star witness (driver) was dead, this was the only way.

Polish immigrant woman sued Hilton for fraud.  Obv. she had no idea, but her son-in-law Irving Brilliant, Harvard Law grad, was the source of her info, and that was enough.

H - not a "sham pleading" because the record showed the charges were based on reasonable belief and careful investigation.

The psychologist wanted his tapes back from his old employer.  D filed Rule11(c)(2) sanctions and 28 USCA 1927 sanctions b/c P's attny did not reasonably investigate facts or law.

H - Rule 11 sanctions ok, 1927 not ok b/c no bad faith.  Also, sanctions too severe, revisit.

Notes:

28 U.S.C.A. sec 1927 also allows sanctions for being vexatious, i.e. bad faith.

Rule 11 was relaxed in an amendment, b/c lawyers became afraid of dropping weak claims as cases went on lest they be sanctioned.

Can get sanctioned for no investigation even if claim ends up appropriate - discourages lazy lawyering.

Remember Safe Harbor.

Woman injured by drugs as a girl.  She'd had 3 docs, one was now dead.  Lawyers sued the pharma companies used by the 2 living docs, and also Upjohn, assuming because it had a big market share that it was likely that the third doc used Upjohn (statute of limitations was running).  Sanctioned.

H - no likelihood add'l med records would be found, shouldn't have included Upjohn.

Sherman says - should've hired a P.I. to show they did all they could to find those records.

P said he was fired due to national origin.  After D's witnesses contradicted that notion, trial ct found Rule 11 violation.

H - appeals ct said attny not in violation, information in particular control of D, who wasn't going to share with P pre-trial.

Shot in the face, not on D's property but D knew of the danger.  Attny should have pleaded a new reading of the invitee protection rule saying this was the D's premises b/c D used it, but did not.  Should have amended complaint, but instead chose to appeal.  Used a legal conclusion in the complaint.

H - 12(b)(6) dismissal was proper

Investors brought a securities fraud class action against a corp. and its CEO, who published info that their flagship product was still selling strong when not, did channel stuffing, other bad acts.  Ct dismissed - failed to establish CEO's scienter (had to say w/particularity some facts that give rise to a strong inference of scienter.)  Shareholders amended to add 27 statements of others to CEO's state of mind, ct dismissed again.  Appeal granted, reasonable person standard.  Certiorari granted.

H - Ginsburg: reasonable person not appropriate, b/c fails to take into account competing inferences.  Must plead facts to show scienter is at least as likely as not.
Scalia's concurrence is that inference of scienter should be more plausible than the inference of innocence.
Stevens's dissent says we don't need to look at competing inference, just is this probable?

Notes:

In alleging fraud or mistake, must be specific about circumstances constituting fraud or mistake, but can infer scienter.  Must be a "strong inference."  This is to prevent allegations of fraud by hindsight - i.e., every time your stock drops.

Private Securities Litigation Reform Act was enacted in 1995 to put a higher standard on the specificity required in the pleadings under the SEC Act, to protect companies from the costs of discovery etc, when they are Ds.

Sw. claimed he lost his job due to age and race.  Dismissed b/c he didn't follow evidentiary standard of McDonnell Douglas.  Ct says didn't adequately allege circumstances that support inference of discrimination.

H - Reversed - emp. discrimination cases only need short and plain statement showing P is entitled to relief.  McDonnell Douglas is an evidentiary standard, not a pleading standard.  Rule 9(b) does not apply to empment discr. cases.

McDonnell Douglas:
1. protected group
2. qualification for job
3. adverse empment action
4. circumstances to support inference of discr.

Don't want to lose notice pleading!

Co. marketed Dalkon Shield for contraception, which was dangerous.  Ps asserted that the Ds knew it was dangerous and didn't withdraw it, thus exposing itself to tort claims and their investment to decline.  Plaintiffs did not plead specifically any facts that gave rise to this assertion of Ds knowledge, and their claim was dismissed.

Baby Bells, allegedly agreed not to let competitors use their networks and not to compete w/one another, CEO said competing w/other Baby Bells might make money, but wouldn't be right.  Customers alleged conspiracy in restraint of commerce due to parallel activity and CEO's comment.  Sherman Anti-Trust Act.

H - Souter - Proper standard for pleading antitrust is "plausibility to infer an agreement."  "Does not impose probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement."   Parallel legal activity is not enough to cross the line from conceivable to plausible.

Notes:
Wants to protect companies from expensive discovery. 

This is a heightened pleading standard, though they say otherwise.

Dissent says it too quickly dispenses with Conley.

Since Twombly, some people think it is the apocalyptic end of notice pleading, others don't find it so different.

Cited in Twombly dissent - another conspiracy for restraint of trade case.  Japanese manufacturers fixed high prices for tvs in Japan, and low ones in America.  After years of discovery, Ds got summary judgment.

H - Raising a mere "metaphysical doubt" as to the legality of the Ds conduct is not sufficient.  However, note that this got past pleading and was decided on SJ.  Twombly dissent agreed that facts pleaded would not be sufficient to survive SJ, but that the Ds should have at least had to answer.

P sued county and 2 municipal corporations saying K'stal rights were violated.  Lower ct dismissed under heightened pleading standard, saying he hadn't plead that these rights were violated due to official policy, custom, or practice.

H - no heightened pleading standard applies here.

Securities fraud action, co. inflated value of stock due to misrepresentations.  Stock lost value after co. announced earnings were lower than expected.  Shareholders claim dismissed.

H - They didn't show cause - that the misrepresentations caused their loss in value.  Not a heightened pleading requirement, but a simple 8(a)(2) deficiency - no relief can be granted if no cause.

Helps to clarify plausibility rules.  Nobody knew whether to only apply Twombly to anti trust cases or others?  Iqbal was an Arab Muslim arrested and detained cruelly after 9/11.  Then released for no evidence.  Sued Ashcroft, saying he was treated solely due to his race and religion, but no direct evidence of this.

H - Apply plausibility across the board, not just antitrust.  It was not plausible that Iqbal was held due solely to his race and religion, b/c it was equally likely that the reasons for detention were not discriminatory.  STRONG DISSENT, who said all the govt knew about him was his race and religion, so how could they have held him for any other reason?

Padilla imprisoned, Yoo was a lawyer who said harsh interrogation techniques were legal.  Not dismissed, due to Padilla showing Yoo had purposefully misconstrued the Geneva Convention (Yoo had said such things publicly.)  So, ergo, plausible, and pleading survived.

Screwed up answer, missed deadline, blamed it on secretary. 

H - 3 factor test, drawn from United Coin:
1. P prejudiced?
2. D has meritorious defense?
3. D’s culpable conduct, intent to thwart court?

No intent to thwart.  Don't want to throw out P's claim because his lawyer bites.  However, may sanction lawyer for being sloppy.

Shredder case.  Ds weren't allowed to amend their answer, which had said they didn't have enough info to answer on this allegation, and thus they were deemed to have admitted.

H - if the info. you claim you don't know was peculiarly in your control, can't say you don't know.

Plaintiff sued Philly Piers (PPI) for injury on pier from forklift.  Defendant made general allegation.  Prob - PPI had transferred operation of pier to CCI, and this fact didn't surface til statute of limitations ran. 

H - PPI estopped to deny that it ran the pier at the time of the injury both because its answer failed to alert P to the problem, and also b/c it could have denied more specifically.  Ruled this way despite no finding of bad faith.

P sued for prevention from free speech on meetings on 9-8 and 10-13.  D asserted counterclaim about libel in press conference on 12-3, where P talked about claim being filed and about union being dominated by mafia.  P motioned to dismiss counter on lack of subject matter jdx.

H - using the Bose test of same evidence, this claim fails b/c totally different day and issue.  Thus, b/c no supplemental jdxn, must be filed in a state ct.

Crompton wanted to amend answer re:shredder.  Amendments allowed if justice requires - but would it be prejudicial to P?

H - not permitted to amend, b/c statute of limitations had run and would prevent P from suing the right party

P injured on waterslide, sued Aquaslide (the alleged mfctr).  3 insurance agents investigated and said it was an Aquaslide slide (D, water park, P's employer who held the event).  Amendment allowed, even though statute of limitations had run.

H - D relied on conclusions of 3 insurance companies, so mistake was ok.

Goodman wasn't paid, sued Praxair.  Should have sued Praxair, Inc.  Wanted to amend and his amendment to relate back.

H - tests to allow relating back of party name:
1 - if claim is same, and just party name changes
2 - new party had received notice of claim and so would not be prejudiced
3 - new party should have known it was a case of mistaken ID

Notes:
Didn't want to disturb Maryland's statute of limitations, wants to protect D repose and stale evidence prob.  But not the case here, b/c co. knew mistake.

Anonymous Plaintiffs suing big Dallas law for discrimination against women, didn't want to use their names b/c then would be ostracized fr/legal community.  Wanted to remain anonymous. 

H - Failed b/c didn't meet one of these tests:

1. challenging govt activity
2. disclose intimate info (sexual abuse)
3. whether P has to admit s/he committed a crime
4. risk suffering injury if identified
5. whether opposite party would be prejudiced

Permissive Joinder of Parties
Is 15 months of police brutality to 8 members of the same family "the same transaction or occurrence or series of such"?

H - it may be.  We need to allow discovery to be sure.  Dismissal request by Ds fails.

Notes:
Convenient trial package.
Same evidence.

Permissive Joinder, three former smokers.

H - permissive joinder not allowed, not same evidence, not common question of law or fact, not convenient trial package, b/c each of the three had vastly different histories.  Weren't showing a consistent pattern of conspiracy in the tobacco cos.

Compulsory Joinder.  Was Underwood necessary and indispensible? (w/o pty, relief cannot be granted.  OR missing pty has interest which would be impeded in absence OR risk inconsistent allegations.)

H - Relief could be granted in Underwood's absence.  Underwood didn't have an interest, b/c federal outcome would not be precedent for ongoing state litigation against Underwood. (Issue preclusion must be reasonably likely as a result, not just possible, and usually only occurs if parties are in privity, i.e. have some right of control). 

Notes: Joint tortfeasors who may have to pay full amt if their co-feasor is not brought in is not "inconsistent allegations," b/c you know this at the start when you agree to a joint venture.  Thus, Shepard Niles is SOL if Underwood isn't found liable in the state thing, even though they're joint tortfeasors.

Like Janney, similar suits pending in state and federal ct.  Co-beneficiaries of a trust, necessary parties in the federal suit brought by another beneficiary against the trustee. Came out differently - due to the fact that it was a complicated large doc, rather than (in Janney) an oral joint venture.

Assoc. hired repo co. to take unpaid for tractor.  P sued Assoc., the loan co., b/c of broken leg and property damage that arose from the repo.  Assoc. impleaded the repo. co they had hired on indemnity.  P and repo co. (Clark) appealed.

H - this was appropriate, good trial package, derivative liability.

P was in a cult.  Parents hired deprogrammer, P sued deprogrammer for violating K'stal rights.  D wanted to implead the church, saying church and P had a conspiracy against him, etc.

H - no causal connection betw the claims.  The first claim was during the deprogramming, proposed impled claim was after the filing of the main lawsuit.  Would complicate the case.

P got trichinosis, sued pork cooker co.  Pork cooker co wanted to implead her school cafeteria, saying that she'd caught the trichinosis from school and not from cooking at home on their cooker.

H - not allowed - not derivative liability. 

Rule and statutory interpleader!  Must have a res, a limited fund.  Greyhound couldn't interplead, for example, because their liability was unlimited. 

Bus crash, State Farm wanted everyone to sue at once b/c $20,000 cap on insurance policy.  Proper, but could not get an injunction against all other claims against other Ds, tail wagging the dog.

H - interpleader succeeds on only the insurance policy, all other claims arising out of the accident couldn't be enjoined from continuing in other fora.

Π suing Δ b/c wants Δ to prepare environmental impact statements before issues licenses to have uranium mills; potential license recipients want to intervene.

H - allowed.  "Interest" cannot be too general or abstract. Doesn't have to relate directly to the prob. at hand, but can be affected by the outcome.  Must be "significantly protectable".   Because Kerr-McGee and American Mining Congress have specific, economic interests at stake, and may have to do statements themselves, they can intervene.

Environmental groups wanted to protect living birds in a case regarding feathers in Indian artifacts.

H- movant's interest is general and abstract, not permitted.

Defining "interest" in intervention.

El Paso acquired Pacific, this violated anti-trust.  As court considered divestiture, 3 parties intervened:

1. California, which wanted to restore Pacific as competition for El Paso
2. Southern California Edison, large user of natural gas that had an interest in competition
3. Cascade, who used Pacific as its sole supplier and would have to use its successor after the divestiture.

H - interventions allowed, implied broad interest

Taxpayer's tax returns investigated.  IRS summoned his work records from his employer - he tried to intervene on the resulting enforcement order.

H - not permitted, these records belong to the business and his only interest was to keep them from IRS for tax purposes.

Labor Secretary set aside a union election for violating a statute.  Union member permitted to intervene.

Local utility challenged its natural gas supplier for rate increase.  New Orleans not allowed to intervene on behalf of itself and rate-paying customers.

H - "the only interest asserted . . . is a purely economic interest" and that isn't enough.

PP challenged city ordinance not allowing construction of abortion facilities.  Anti-abortion group sought to intervene.

H - allowed b/c they lived near the proposed site, thus their property values were at stake.  NOT BASED ON IDEOLOGICAL BELIEFS.

Black family sued to move into white neighborhood.  Ct said they were bound by previous class action (Burke).  Appealed.

H - previous class action did not represent all landowners, only ones who wanted the covenant enforced.  Did not bind others, because they weren't proper members of the class.

IRS case, deported w/o hearing. 

H - class properly certified despite differences in their individual criminal cases, allowed.  Esp. since seeking injunctive relief, rather than damages.

Class of 30  million suing tobacco co. for negligent misrepresentation (when they knew tobacco was harmful.)

H - common questions of law or fact could not predominate because 30 million people have diff. reliance on tobacco co’s false statements

attorney work product found not to be privileged, because it was pre-litigation and they weren’t his clients.  However, the court didn’t force Fortenbaugh to produce them, because his work product and notes on his thoughts shouldn’t be given over to “the enemy.”  Case created, by common law, the quasi privilege of Attorney Work Product.  If people could get at attorney work product, people would be lazy.  Must show necessity to get this. 

This discovery is ridiculous.

Some discovery items not permitted (D's net worth, attorney billings, names of other complainers).  Privacy, don't want to call attorney to the stand, and didn't show necessity.

Others permitted (P's psychiatric records, since she claimed mental anguish.)

Coca Cola formula, not privileged, not secret, can be discovered, but lots of protective orders in place.  Only certain # lawyers can see, cannot reveal, etc.  The sanctions they would face if they broke these secrecy requirements would be great.  Needed to continue the suit.

P burned by pjs.  Asked for records of all complaints and communications concerning personal injuries or death from the burning of kids' pjs sold by Sears.

Sears said - our records aren't organized that way, but are done by complainant's last name.  Feel free to look through yourself.

Ct says - nope.  Sears must compile.  Can't profit from lazy recordkeeping.

Sexual harrassment case, wanted to discover old emails that may pertain to it.  V. expensive to pull off backup tapes.

Ct ruled do one year and see what you get, will decide if further from there.  Ended up not going further, not worth it.

Same holding as McPeek, only this time the initial search was fruitful.  Judge ordered remainder restored, and made P pay 25% of the cost.

P white school teacher went to lunchroom w/ Black students in MS – said conspiracy to arrest her b/c she was w/ Blacks; D motion for SJ granted at District Court.  b/c Δ moved for SJ, had burden of showing absence of genuine issue of fact – on review evidence must be viewed in the light most favorable to the opposing party.

H - b/c moving party, the D, failed to provide evidence that there was no policeman in the store, a reasonable jury could have found there was one there.  Did not shift the burden.

*BURDEN OF PRODUCTION, NOT PERSUASION - COULD a reasonable finder of fact find for you?*

NOT DESIGNED TO MODIFY BURDEN OF MOVING PARTY TO SHOW INITIALLY ABSENCE OF GENUINE ISSUE OF MATERIAL FACT
Moving party has burden of preponderance of the evidence – b/c MADE MOTION has BURDEN and needs to show evidence to SHIFT BURDEN BACK (must produce affirmative evidence)
When evidence in support of motion does not establish absence of genuine issue, motion must be denied even if no opposing evidentiary matter is presented
Non-movant only needs to come forward w/ opposing information when movant meets original burden

Moving party has the burden of proving that there is no issue of material fact; must establish truth of his position in order to get other pty to respond.

Movant who does not have at trial burden of proof should have a reduced burden for SJ.  Must support motion w/ some evidence to at least  show nonexistence of essential element of opposing party’s case (initial burden) [if fails to discharge burden, motion fails…if succeeds, burden should shift to opposing party to respond].  Can obtain preview of opponent’s evidence on an essential element and contend that evidence is insufficient to discharge opponent’s production burden (good when direct proof lacking, but is burdensome and costly).  Can preview own proof in attempt to show nonexistence of essential element asserted by opposing party

If evidence in ct would demand a directed verdict, only then can motion for SJ.  No burden on moving party – just make the motion…don’t need to show evidence, burden IMMEDIATELY shifts to non moving party upon motion

P alleged death of husband from asbestos – named 15 companies – 1 says not so fast, you have no proof I killed your husband – I’m moving for SJ.

H - no affirmative duty for D to come forward with evidence.  Non-moving party may not rely only on its pleadings once the burden has been shifted, but moving party does not have to bring affirmative evidence.  Evidence things put in rule and such are for the purpose of making a respondent to an SJ motion rely on more than just pleadings.

Crazy case about Cole Porter songs.  Although P's affidavits were ridiculous, case not proper for SJ b/c Porter could have heard his songs by other means.

H - slightest doubt test.

* this standard has been made tougher since 1946, no longer applies.

slander case, P refused to take depositions and lost his opportunity to countervail sworn affidavits. He tried to rely on demeanor evidence (i.e. the jury will see when they take the stand that they are lying)

Fox sued Beacon to get declaratory and injunctive relief; Beacon has legal counterclaim (so…does it go to a jury or not?)

H - If one party would be entitled to a jury trial, it cannot be deprived of that right merely b/c another party took the advantage of the availability of equitable relief and sued first.  If there are legal AND equitable issues (and they overlap), MUST TRY LEGAL ISSUE FIRST (judge in equity will be bound by jury’s finding on remaining issues)

DQ sues Wood franchisee for temporary and permanent injunction, accounting to determine $ lost, and injunction pending the accounting – equitable on its face (REALLY legal b/c want $)

Right to a jury trial is preserved in cases involving both legal & equitable claims

Notes:

The Equitable Clean Up Doctrine – if you invoke equity, can “clean-up” all legal issues that are “incidental” to the equitable issues

P is crazy and was in Army during WWI – wants to prove was disabled by insanity from time was in Army through trial

H - Right to jury trial means that the jury is allowed to make a reasonable inference from facts proven in evidence – Π has large gaps in time which is too large of an inference for jury to make

RR death in the night - gash in back of head.  Could have been hit by mail hook on train, or killed by bum.

H - All evidence is circumstantial and consistent w/ 2 theories  jury to decide – not up to court to determine which of explanations is more plausible, so cannot DV

Π changing tire which exploded in face; Π thought it was one type of tire, yet the person who “rescued” the tire after explosion said was another type of tire which was defective

H - DV not proper in this case b/c no reason why jury should not be able to readily resolve the problem in dispute – whether evidence is authentic is a jury question.  P could have just forgotten b/c trauma of evidence – not unreasonable for jurors to think that

Minimum contacts

DE Corporation w/ PPB in MO that has “independent agents” in WA – can be sued in WA?

H - Rather than looking at Pennoyer’s conception of presence, due process requires that if he isn’t present in the forum, must have certain MINIMUM CONTACTS w/ the forum such that the maintenance of the suit does not offend the “traditional notice of fair play and substantial justice”

Notes:
How do you determine if there are MINIMUM CONTACTS?
(1) Systematic & continuous activities in forum state
(2) Volume of business/activity in forum state
(3) Benefits and protections of forum state
(4) Claim arising out of those systematic & continuous activities

P has life ins. policy w/ D and P committed suicide; D bought by TX company which asked P by mail if wanted to keep policy; CA had statute which made corporations subject to suit in CA on insurance contracts

H - A single act can constitute minimum contacts as long as case is from those contacts if state has interest

Notes:

ADDS A FIFTH FACTOR:  state interest in adjudication of disputes

Water heater mfctr in PA.  Exploded and injured person in Illinois.  She sued heater maker, and Titan, maker of valves, in Ohio.

H - stream of commerce theory: if commercial actor puts its products into the stream of commerce with the expectation that they will be marketed in the forum, it may be sued in the forum for injuries resulting there.

Complicated case - but basically, purposeful availment (not unilateral activity).

Bought a car in NY.  Moved to Arizona.  While passing through OK, in a car accident.  Brought products liability action in OK.

H - no minimum contacts.  Stream of commerce not sufficient - didn't sell cars in OK or solicit business there.  Must have purposeful availment; i.e., reasonably foresee you could be sued there.

Also, reasonability of jdx: burden on D, interests of P, state’s interest, several state’s interest

P injured by exploding Buckeye boiler in CA.  Buckeye sells lots of boilers in CA, but it was clear this one hadn't been sold in CA and nobody knew how it got there.  However, jdx still applied. 

H - sufficiency of economic activity in CA, it should've known it could be haled in ct there.

National Enquirer published story about P, an entertainer who lives in CA that alleged unseemly activities by P
U
pheld jdx b/c w/ libelous stories – it is reasonable that where the Π lives is where the impact of the case is
H - CA is focal point of THE ACT and THE HARM, jdx is proper b/c “effects” are felt in CA

Notes:
*With LIBEL CASES, court will typically look to where the P lives and is affected by the libel b/c most of the harm would impact the P…it is reasonable for the D to foresee that its libelous conduct would impact the P wherever they are**

Effects test controversial, not just limited to defamation

P sued Hustler in OH, where they were incorporated.  Dismissed, statute of limitations.  She found the only state where statute hadn't run, NJ, and sued there.  B/c paper distributed 10-15,000 copies of its magazine there, jdx upheld, even though P had no contacts there.

Notes:

state's interest were in its residents not being misled about woman who was libeled.

Note, in Gordy v. Daily News, 15-18 copies circulated in CA were enough, b/c P lived in CA.

Indy Colts sued for trademark violation of Baltimore people in Indiana.  Upheld b/c effects of the trademark violation were felt in IN.

Purposeful availment + reasonableness

BK wants to sue in FL against franchisees who live in MI – have choice of law clause (all of our Ks will be governed by FL law), but no forum selection clause – FL is proper jdx

Has there been purposeful availment?  (franchisees availed selves to benefits/protections of FL law)

Did the D enter into a long-term relationship w/ the forum state?  Like through a K? yes, D reached out to forum by signing franchise K

Was the D put on adequate notice that could be subject to suit in forum state?
o Purposeful availment gives Ds fair warning that a particular activity may subject them to jdx in a foreign state
o Even if there IS purposeful availment, does it pass the REASONABLENESS test – would assertion of pjdx comport w/ “fair play and substantial justice”?
1 - Burden on Δ to defend in forum
2 - Forum state’s interest in adjudicating the dispute
3 - P’s interest in obtaining convenient & effective relief – burden on P to go elsewhere
4 - Interstate judicial system’s interest in obtaining the most efficient resolution of the controversy
5 - Shared interest of the several states in furthering fundamental substantive social policies
o Claims related to the forum contacts that satisfy the purposeful availment requirement = specific jdx

Stream of Commerce PLUS

P sues Cheng who has 3rd party against Asahi – P settles, so Cheng and Asahi are fighting for contribution

D must purposefully avail actions toward forum state & have substantial connection

What is purposeful availment?  Sandra Day says:  stream of commerce + purposeful conduct for targeting the state - Look at Four Factors:
• Designing the product for the market in the forum state
• Advertising in the forum
• Channels to customers
• Marketing through a distributor

FIVE (majority) justices say stream of commerce is enough -
• Brennan:  benefiting economically from retail sales of product in the forum state – regular and anticipated flow of products from manufacturer to distributor to sale
• Stevens:  meeting first prong of WWVW of purposeful availment is determined by volume, value, and hazardous character of product

o All justices say need to meet reasonableness

Mr. Mas = citizen of France; Married Mrs. Mas, who is from MS; both are grad students in LA – want to sue LA landlord; complaint met amount in controversy, but jury verdict did not – fed jdx proper?

Diverse citizenship must be diverse when the complaint is filed

Must be both a citizen of the US and domiciliary of state to be citizen of state (not just a resident of the state)
• “Domicile” = true, fixed, and permanent home…only changes if take up residence in different domicile w/ intention to remain there
o Until you acquire a new domicile, you remain a domiciliary and citizen of state
o Amount in controversy:  determined by amount claimed by the P in good faith; Federal jdx not lost b/c judgment of less than that amount is awarded

Well-pleaded complaint: can't anticipate federal question in the answer.

Train case, denied use of train tickets 4 life which they got in a previous post-accident settlement b/c of new federal law.  Not allowed to anticipate the "b/c of new federal law" answer and try to bring in fed ct. 

Tellabs
Twombly
Ross
Dura Pharma
Leatherman
Matsushita
Swierkiewicz
Acuna
Iqbal
Padilla
Board of Harbor Comm.

Moore
Louis
Currie
Celotex
Dyer
Matsushita
Adickes
Arnstein

Janney
Pulitzer
Insolia
Kedra

Natural Resources
Planned Parenthood
NOPSI
Donaldson
Trbovich
Cascade
Allard

Uy v. Bronx Hospital
Albright v. Upjohn
Zuk

Clark
Augenti
Klotz

International Shoe
McGee
Gray v. Amer. Radiator
Hanson v. Denckla
WWVW
Buckeye
Calder v. Jones
Keeton v. Hustler
Colts
Burger King
Asahi
Mas
Louisville and Nashville RR

David v. Crompton
Zielinski
Shepard v. Darrah
Beeck v. Aquaslide
Goodman v. Praxair

Beacon Theatres
Dairy Queen
Galloway
Lavender
Guenther

Hansberry
Walters
Castano

Hickman
In Re Convergent Tech
Davis v. Ross
Coca Cola
Sears
McPeek
Zubulake

Amendment
Class Action
Compulsory Counter
Discovery
Impleader
Interpleader
Invervention
Joinder
JNOV
Jurisdiction
Pleading
Sanctions
Summary Judgment

ACDC
3I
3J
PS2