7. P sues D in New Jersey state court for $40,000 in damages under Utah battery law. P’s suit concerns a brawl that occurred between P and D in Utah. At the initiation of the suit, P has a 30-acre empty parcel of property owned by D worth $30,000 attached by the New Jersey state court. D, a citizen of California, inherited the property from his great aunt several years before and has made 3 one-day trips to inspect the property since then. Other than that, D has only driven through New Jersey a few times when taking trips to Pennsylvania from New York City. D is provided with legally sufficient service. In his answer, D admits liability but makes a motion to dismiss on the basis of a lack of jurisdiction over him. The court denies D’s motion because it considers D’s owning property in New Jersey sufficient to establish jurisdiction over D. The court then renders a judgment for P of $40,000. Which of the following is most accurate?
A. In the light of Shaffer v. Heitner, the New Jersey state court’s assertion of quasi in rem jurisdiction is in violation of the 14th Amendment.
Wrong. This cannot be a quasi in rem action because the judgment was for more than the amount of the property attached. Quasi in rem actions cannot be brought for more than the property establishing personal jurisdiction. Therefore it must be an in personam action. See answer C. 42 of you chose this anyway.
B. The New Jersey state court’s assertion of quasi in rem jurisdiction is compatible with the 14th Amendment, even in the light of Shaffer v. Heitner.
Once again, this is not a quasi in rem action. It is an in personam action. See answers A and C. 42 of you chose this anyway.
C. The New Jersey state court’s assertion of in personam jurisdiction is in keeping with the standard required under International Shoe.
Correct. This is an in personam action because D’s entire liability is at issue, not merely the value of the property attached. The standard for in personam actions (as well as quasi in rem actions, in the light of Shaffer) is Int’l Shoe. Ownership of property is a strong Int’l Shoe connection, so it is most accurate to say that Int’l Shoe is satisfied, especially given the fact that the other answers are wrong. Only 9 of you chose this. (Nevertheless, the students who did better on the exam were more likely to choose it and those who did worse were less likely, so I have kept it despite the fact that so few got it right.)
D. Because D admitted liability, D may not challenge the New Jersey court’s jurisdiction over him.
Wrong. That’s not so. Even if you admit liability, you can still challenge personal jurisdiction. 8 of you chose this anyway.
E. The New Jersey state court cannot apply Utah state law if the source of jurisdiction over D is his property in New Jersey.
Wrong. This is gibberish. 2 of you chose it anyway.
12. The D Corp. (hereinafter “D”), which is incorporated in California, manufacturers travel kits in California and distributes them primarily to airports and bus stations in California and Nevada. While traveling in California, P purchased a $4 travel kit manufactured and distributed by D. While back home in D.C., P suffered harm from a faultily designed toothbrush from the travel kit. During the time between P’s accident and P's decision to bring suit, D expanded its operations to Pennsylvania, where it opened up a manufacturing plant for travel kits. The Pennsylvania kits are distributed in Pennsylvania, Delaware and New Jersey. Which of the following is most accurate? (Ignore state and D.C. long-arm statutes and state constitutions for the purpose of this question.)
A. Assume that the president of D is in D.C. on a trip to explore the expansion of D’s operations there. If P sued D in the Federal District Court for the Eastern District of Pennsylvania and D is served by serving D’s president in hand with process during his business trip in D.C., then a motion to dismiss for lack of personal jurisdiction by D should be denied.
Correct. General personal jurisdiction over the D Corp. by a Pennsylvania court would be possible on the basis of the D Corp. having a factory in Pennsylvania. The fact that the factory was established after the cause of action arose is irrelevant. If the contact with the forum state is sufficient to give rise to general personal jurisdiction, the cause of action need not be related to the activities in the forum state. Since a Pennsylvania state court would have personal jurisdiction, the federal court in Pennsylvania will as well under R. 4(k). 42 of you chose this.
B. Assume that P chooses to sue D in the Federal District Court for the Eastern District of Pennsylvania. A motion to dismiss for lack of personal jurisdiction by D should be granted, because the activities of D in Pennsylvania on the basis of which personal jurisdiction could be established occurred after P bought his travel kit.
Wrong. See answer A. 13 of you chose this anyway.
C. Assume that the president of D is in D.C. on a trip to explore the expansion of D’s operations there. If P sued D in the Federal District Court for the District of the District of Columbia and D is served by serving D’s president in hand with process during his business trip there, then a motion to dismiss for lack of personal jurisdiction made by D would be denied, because of Burnham v. Superior Court.
Wrong. Personal jurisdiction over a corporation cannot be accomplished simply through tagging an officer in the forum state, the way you can get PJ over an individual through tagging. The corporation as a whole must have sufficient Int’l Shoe contacts with the state. Therefore Burnham does not apply. In this case the Int’l Shoe contacts are insufficient. 33 of you chose this anyway.
D. Assume that P chooses to sue D in the Federal District Court for the District of the District of Columbia. If D is served by serving D’s president in hand with process in Delaware, which is within 100 miles of the courthouse in D.C., then a motion to dismiss for lack of personal jurisdiction by D would be denied, provided that D has sufficient International Shoe contacts with the state of Delaware such that there would have been personal jurisdiction in Delaware if the suit had been brought in state court there.
Wrong. The 100 mile bulge applies only to joinder of parties under Rules 14 and 19. 3 of you chose this anyway.
E. Assume that P chooses to sue D in the Federal District Court for the District of the District of Columbia. If D is served by serving D’s president in hand with process in Pennsylvania, a motion to dismiss for lack of personal jurisdiction by D would be denied, because it was foreseeable that D’s products would be taken to D.C. They were, after all, sold to travelers in airports and bus stations.
Wrong. Foreseeability that the product would end up in the forum state is insufficient to establish PJ in that state. See Worldwide VW. 11 of you chose this anyway.
1. A Federal District Court’s power to create common-law procedural rules is less extensive in diversity cases than in federal question cases.
A. True.
B. False.
True. As Erie cases like York and Byrd show, there are limits on a federal court’s ability to create common law procedural rules in diversity cases. These limits have their source in the purposes behind the diversity statute. The same limitations do not exist in connection with federal question cases. 62 chose true, 40 false.
2. Assume Congress has passed a statute allowing any state-law case (including one between non-diverse parties) in which the defendant introduces a federal defense in his answer to be removable by the defendant to the Federal District Court for the District of the District of Columbia. Yes or No, is the statute constitutional?
A. Yes.
B. No.
Yes, the statute would be constitutional. Federal defenses are sufficient to create “arising under” subject matter jurisdiction under Article III. Furthermore, if there is personal jurisdiction in any state court under the 14th Amendment, there would be personal jurisdiction in a United States court under the 5th Amendment wherever the federal court was located, even if all actions had to be brought in DC. 56 chose yes, 46 no.
questions provided by Professor Green - here is his webpage - http://msgre2.people.wm.edu/
He is a law prof at William and Mary Law School - Williamsburg, VA. second oldest university in U.S. - Thomas Jefferson studied there.
Which of the following is most accurate?
a. Assume that there is a federal choice-of-law statute that specifies that the law that applies to breach of contract actions brought in federal court is the law of the place of contracting. P brings a diversity action against D in federal court. This statute should not be applied to the action. The choice of law rules of the state where the federal court is located control.
Wrong. Choice of law is surely rationally classifiable as procedural. For example, a state court will use its own choice of law rules to determine what substantive law applies. The fact that forum choice-of-law rules apply is one reason to consider choice of law procedural. So, according to Hanna, choice of law is something that Congress could regulate by statute, even in diversity actions. And remember, it does not matter that choice of law is also rationally classifiable as substantive. If it is rationally classifiable as procedural as well, then Congress can regulate it.
It is true that currently the choice of law decisions made by a federal court sitting in diversity are determined by the law of the state where the federal court sits. But that is the result of the federal common law Erie analysis that occurred in Klaxon. There was no choice-of-law statute at issue in Klaxon. (22 of you chose this.)
b. Assume that Fed. R. Civ. P. 4X states that the statute of limitations for all actions in which the limitations period is not otherwise set by federal statute should be 2 years. P brings an action under federal law against D in federal court. Rule 4X should not be applied to the action.
This is the best answer. The Supreme Court has the power to create Federal Rules of Civil Procedure because it was given that power by Congress in the Rules Enabling Act. A Rule is invalid (which would mean that it is invalid totally – in federal question as well as diversity actions) if it is contrary to the restrictions in the Act. According to the Act,
(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive right. . . .
Now there is not much information out there about what it means to abridge, enlarge or modify a substantive right. But it is at least arguable that a Rule that sets limitations for when actions can be brought abridges or modifies substantive rights. (There is, of course, no such Rule currently and none has even been suggested.) After all, such a Rule says, after a certain point, that the substantive rights cannot be sued upon.
In answering this question, you had to compare this answer to the others that are available. The final answer – e – is straightforwardly wrong. There is also a reason to choose b over c and d. All three answers involve the issue of whether Rule is contrary to the restrictions in the Rules Enabling Act. But to choose c or d you had to conclude that a Rule that currently exists and is constantly used (Rule 56 or Rule 13(a)) is in fact invalid. That’s a big step. If you choose b, you claim that a Rule that does not currently exist is invalid. What is more, a Rule that determines the time limitations for vindicating substantive rights seems more intrusive into those substantive rights than Rules concerning summary judgment and joinder.
What about answer a? Which is more accurate, that choice of law is not rationally classifiable as procedural, or that an FRCP that limits the time period for when actions can be brought abridges or modifies substantive rights? The second is more accurate because the Rules Enabling Act standard is the more restrictive one – the one more easily violated. One reason is that it simply sounds more restrictive. But there is another reason to think that the “not rationally classifiable as procedural” standard is the less restrictive one. It is the constitutional limitation on Congress’s power to regulate procedure. The Rules Enabling Act limitation is a further limitation that Congress created when it delegated its constitutional power to regulate procedure to the Supreme Court. So logically, it should be more restrictive.
Only 3 of you chose this answer. But those who chose it were more likely to do better on the rest of the exam, something that was not true of any of the other answers to this question. Indeed, the three people who chose this were among the highest scorers on the rest of the multiple choice exam.
c. Assume that the New York state constitution has been amended to include a provision stating that that the right to a jury trial is of great importance to the people of New York and that summary judgment is therefore forbidden. P brings a diversity action against D in federal court in New York. The New York constitutional provision should be applied to the action. Neither P nor D can make a motion for summary judgment.
Wrong. There is a FRCP on point – Rule 56 – which governs summary judgment. We know from Hanna that the only way that Rule 56 is not going to apply, even in a diversity action, is if it is contrary to the restrictions in the Rules Enabling Act. Does Rule 56 abridge, enlarge, or modify a substantive right? Perhaps there are arguments that it does. But you have a strong reason to believe that it does not, namely the fact that Rule 56 is currently in use and has not been struck down on these grounds.
Notice that the question is whether Rule 56 abridges, enlarges or modifies a substantive right – that is the right that is being sued on (tort, contract, etc.). The question is not whether it abridges, enlarges or modifies procedural rights that a state thinks important. So the NY state constitution is irrelevant. (13 of you chose this.)
d. Assume that there is no compulsory counterclaim rule in New York’s rules of civil procedure. P brings a diversity action against D in federal court in New York. This New York approach should be applied to the action, releasing D of any obligation to bring compulsory counterclaims against P.
Wrong. There is a FRCP on point – Rule 13(a) – which governs compulsory counterclaims. We know from Hanna that the only way that Rule 13(a) is not going to apply, even in a diversity action, is if it is contrary to the restrictions in the Rules Enabling Act. Does Rule 13(a) abridge, enlarge, or modify a substantive right? Perhaps there are arguments that it does. But you have a strong reason to believe that it does not, namely the fact that Rule 13(a) is currently in use and has not been struck down on these grounds. (1 of you chose this.
e. Assume that there is no Fed. R. Civ. P. governing service. But there is a federal common law rule according to which service must always be in-hand upon the defendant. P brings a diversity action against D in federal court. This rule should not be applied to P’s diversity action. The service rules of the state where the federal court is located control.
Wrong. Hanna explicitly stated that if there were no FRCP governing service and the matter were instead covered by federal common law, this federal common law would apply in a diversity case. After all, differences in service rules as one moves between state court and federal court is unlikely to motivate forum shopping. (31 of you chose this.)
In which of the following cases is personal jurisdiction over the defendant least appropriate?
a. A federal civil rights action concerning the defendant’s arrest of the plaintiff in Buffalo (in the Northern District of New York). Defendant lives in Pennsylvania and is served there. The action is brought in the Federal District Court for the Southern District of New York.
Wrong. A New York state court would clearly have specific personal jurisdiction over the defendant under Int’l Shoe standards. The defendant’s actions in New York gave rise to the cause of action. Since a New York state court would have PJ, under FRCP 4(k)(1)(A), a federal court in New York would too. (2 of you chose this.)
b. A California state-law product liability action brought as a diversity action by a California plaintiff against a corporation incorporated in Delaware with its principal place of business in Tennessee. The defendant corporation has a large factory in Buffalo, New York (in the Northern District of New York), but the plaintiff at no time has this asset of the corporation attached by the federal court. The defendant corporation is served (through service on its Chief Legal Officer) in Tennessee. The action is brought in the Federal District Court for the Southern District of New York.
Wrong. A New York state court would clearly have general personal jurisdiction over the defendant under Int’l Shoe standards. The defendant engages in substantial continuous activities in the state of New York, by virtue of having a large factory in that state. It can be sued in New York on any cause of action. Since a New York state court would have PJ, under FRCP 4(k)(1)(A), a federal court in New York would too.
Attachment is irrelevant. It is relevant (if at all) only in cases of in rem and quasi in rem personal jurisdiction, not general personal jurisdiction. (3 of you chose this.)
c. A California state-law diversity action concerning a brawl between the plaintiff and the defendant in California. The plaintiff is a citizen of California and the defendant a citizen of New York. The defendant is served while on a business trip in California. The action is brought in the Federal District Court for the Southern District of New York.
Wrong. The defendant is a citizen of New York and so is domiciled there. Domicile is a clear source of general personal jurisdiction. Since a New York state court would have PJ, under FRCP 4(k)(1)(A), a federal court in New York would too. (3 of you chose this.)
d. An action by a New York citizen against a California citizen for violation of a federal antiterrorism act. The defendant’s alleged violations of the federal act were all committed in Iraq. The defendant has no contacts with the state of New York. The action is brought in the Federal District Court for the Southern District of New York.
Correct. There would be no PJ in a state court in New York. There are no Int’l Shoe connections with the state of New York. Those who thought there was PJ might be thinking of FRCP 4(k)(2), which would allow for PJ even if a New York state court would not have PJ. But that provision would allow for PJ only if the defendant “is not subject to the jurisdiction of the courts of general jurisdiction of any state.” This defendant is a California citizen and so would clearly be subject to general PJ in California state courts. (51 of you chose this.)
e. An action by a New York plaintiff against a German defendant for breach of German contract law concerning a contract signed in Germany with performance in Germany. At the initiation of the suit the American plaintiff had the federal court attach the assets of a trust that had been created by the German’s mother with the German as the beneficiary. The assets of the trust and the trustee are located in New York City. Defendant is served in Germany. The action is brought in the Federal District Court for the Southern District of New York.
Wrong. It is true that PJ in this case is somewhat suspect. This is a quasi in rem action. The property that is the source of PJ is the defendant’s New York financial assets (namely the corpus of a trust in his name). In the light of Shaffer, quasi in rem actions should be viewed with skepticism. But, as I mentioned often in class, they are often still brought, and the connection between the property and the forum in this case is clearer than it was in Shaffer (which involved shares that were considered to be located in Delaware under Delaware law because the corporation was incorporated in Delaware). Furthermore the exercise in PJ is more reasonably foreseeable in this case than in Shaffer. It is not surprising that one’s financial assets in New York might be seized for a quasi-in-rem action in New York. But most importantly PJ in this case is only debatable. In answer d the exercise of PJ is clearly wrong. So d is the correct answer. (11 of you chose this.)
Essay Question 1. [45 points – 54 minutes]
P bought a blender at the X appliance store in her hometown of Lexington, Kentucky in 2004. That day she tried to make a smoothie. The blade on the blender immediately flew off and hit P in both eyes. Her vision was cloudy as a result of the accident. She complained to the D Corp., the manufacturer of the blender. The D Corp. paid for P to visit a doctor in Kentucky, who recommended that she visit an eye treatment facility located in Richmond, Virginia. Since P was retired, she decided to sell her house in Kentucky and rent an apartment in Richmond. She had few belongings and decided to bring all of them with her to Virginia. Another reason she decided to go to Virginia is that if she remained permanently disabled, living in Virginia would be a good idea, since it has a better state-financed disability benefit program than Kentucky. She planned to go back to Kentucky, however, if she recovered from the eye injury or if she got enough in compensation in a civil suit against the D Corp. to live comfortably even with Kentucky’s lower disability benefits. Unfortunately, in Virginia the condition of P’s right eye deteriorated further and she became blind in that eye. This occurred in 2006. It was then that she decided to finally bring suit against the D Corp.
The D Corp. is incorporated in Delaware. Currently it sells only blenders. These have always been manufactured at two plants, one in Kentucky and the other in Ohio. Most officers of the corporation work in offices in Cincinnati, Ohio, although most of them (including the Chief Executive Officer and the Chief Legal Officer) live in suburbs of Cincinnati located across the Ohio River in Kentucky. The D Corp.’s only shareholders are the members of the Y family, all of whom live in Louisville, Kentucky.
Currently the D Corp. sells its blenders in Kentucky, Ohio and Michigan. All of its sales are through a distributor (Z). Z makes its own choices about where to sell the blenders, but the D Corp. is aware that at this point Z’s blender sales are only in those three states. The D Corp. regularly advertises concerning its blenders in newspapers in Kentucky, Ohio and Michigan. This includes advertisements in newspapers in towns in Kentucky that are near the Virginia border. These newspapers have distribution in some smaller towns in the western part of Virginia. The D Corp. knows that its blender ads extend to Virginia, although it has no blender sales in Virginia stores. Z however is planning on extending sales of the D Corp.’s blenders to Virginia and has recently begun advertising the blenders in papers in Virginia. (The D Corp. is aware of these ads.)
Around the time of P’s accident, in 2004, the D Corp. was in the middle of a plan to expand into food processors. In 2003, it established a plant in Richmond, Virginia to manufacture the processors. It also advertised the processors and sold them in Virginia and Kentucky from 2003-05. The project was a commercial disaster, however, and by the end of 2005, the D Corp. had sold its plant in Virginia and ended all sales of the food processors.
P decides to sue the D Corp. in the Federal District Court for the Eastern District of Virginia (in Richmond, Virginia). After filing her complaint there, P had a process server serve the D Corp.’s Chief Legal Officer (CLO) while the CLO was transferring between flights at the Richmond airport. P’s suit is under Kentucky product liability law. In a pre-answer motion, the D Corp. asks that P’s action be dismissed for lack of personal jurisdiction, lack of subject matter jurisdiction and improper venue. Should the D Corp.’s motions succeed?
SMJ
Let’s begin with Subject Matter Jurisdiction, which was fairly easy. The only possible source of federal subject matter jurisdiction for this case is diversity. There is no problem with the jurisdictional minimum, given the injuries suffered by P. All we need for federal subject matter jurisdiction, therefore, is that P’s state of citizenship is different from the states of citizenship of the D Corp. (hereinafter D).
What is P’s state of citizenship – Kentucky or Virginia? Citizenship of an individual is determined by that person’s domicile. At the time of the injury, P clearly had a Kentucky domicile. But what is relevant for diversity purposes is citizenship at the time that the suit was filed. Were the criteria for the establishment of a Virginia domicile satisfied by the time of the filing of the suit? She clearly had physical presence in Virginia. Did she also have the intent to remain in Virginia for the indefinite future? (See Baker v. Keck.)
This is obviously a fact-intensive question and we don’t have all the information that might be relevant to a court making this determination. A good deal could be said about this one way or the other. But we do have two important facts.
First of all, we know that she intended to return to Kentucky if she recovered sufficiently from her eye injury. If she is just in Virginia for treatment – even for lengthy treatment – the case might look like World Wide Volkswagen, where the plaintiffs’ remaining in Oklahoma for treatment after a car accident was insufficient to give them an Oklahoma domicile. On the other hand, P eventually went blind in one eye, which suggests that she is never going to recover. This could indicate a Virginia domicile.
The second important fact is that P intends to stay in Virginia to take advantage of Virginia’s generous disability benefits, unless she recovers enough from her suit against D. In Baker v Keck, the fact that the plaintiff might return to Illinois at the end of the litigation was considered compatible with his having an Oklahoma domicile. One might say the same thing here. On the other hand, one might also argue that her intention to stay in Virginia is at this point too contingent (since it depends upon the outcome of the suit) to establish domicile there.
I did not really care how you decided, as long as you addressed the relevant considerations.
What about the citizenship of D? It is clearly a citizen of Delaware (its state of incorporation). But it is also a citizen of its principal state of business. What is that state? Once again, what is relevant is citizenship at the time of the filing of the suit. The food processor factory in Virginia, which no longer exists, would not be relevant.
D has two factories (one in Ohio and one in Kentucky) and its financial and administrative activities are primarily in Ohio. The domicile of the people who engage in these financial and administrative activities is irrelevant. True, they might work at home at times, but we already know that most of their financial and administrative activities are in Ohio. The domicile of the corporation’s shareholders is also irrelevant. We have no reason to believe that these shareholders actually run the corporation – much less that they do so from the state of their domicile, Kentucky.
Using the “nerve center” test for principal place of business would therefore place it in Ohio. But the same result would occur if one used the “muscle” test. We have no reason to believe that the manufacturing is not evenly divided between Ohio and Kentucky. In situations, like the American Airlines case, where muscle is distributed evenly or widely, nerve center activities tend to be decisive.
So we probably have a diversity case. If P is domiciled in Virginia, we have no problem whether D’s principal place of business is Ohio or Kentucky. But even if P is domiciled in Kentucky, we probably have no problem because D’s principal place of business is likely Ohio.
Most of you handled this part of the essay question fine. Things changed when you moved to personal jurisdiction.
PJ
It’s worth mentioning that what is relevant (according to FRCP 4(k)(1)(A)) is whether a Virginia state court would have personal jurisdiction over D. The primary problem is whether a Virginia state court’s assertion of PJ over D would be compatible with the 14th Amendment. But it is worth saying that even if the 14th Amendment were satisfied, the Virginia state constitution and Virginia’s long-arm statute (about which you were not required to know anything) might cause a problem.
Most of you recognized that PJ over D is not possible simply through tagging an officer of D in Virginia. That would work only if the officer were sued personally or if the officer were an agent for service of process for the corporation (and nothing in the question indicates that this is so). Notice that the fact that service on the officer is adequate as service on the corporation (under 4(h)) does not mean that it creates personal jurisdiction.
There also seems to be no property of D in Virginia, so quasi in rem jurisdiction is unavailable.
Once we’ve set these aside, there are really only two arguments for PJ over D. The first is that D has such substantial and continuous contacts with Virginia that there would be general jurisdiction over it, that is, jurisdiction for any cause of action, no matter how unrelated it is to D’s activities in Virginia.
When assessing whether there is general jurisdiction, discussion of cases that deal with specific jurisdiction (such as Asahi or World-Wide Volkswagen) were irrelevant and showed serious confusion on your part. The case that we read that dealt with general jurisdiction was Perkins (plus we discussed the Helicopteros case briefly).
The problem with finding general jurisdiction over D is that the contact with Virginia that could best support such jurisdiction – namely its food processor factory – no longer exists. As we discussed in class, the contacts between a corporation and a state used for general jurisdiction generally have to be current contacts. The past contacts with Virginia could, of course, give rise to specific jurisdiction – for example, for causes of action arising from the manufacture of the food processors in that state. But P’s is not such a cause of action.
Once one concentrates on current in-state activities it is impossible to find general jurisdiction. One cannot plausibly say that D could be sued on any cause of action in Virginia simply because it sends a few advertisements into some small towns in the western part of the state. Nor does it help to add that Z, D’s distributor, plans to market blenders in Virginia and has begun advertising there. Even if all that activity had been engaged in by D itself (which it was not) there still would not be general jurisdiction.
So the only possibility is specific jurisdiction. But there is a substantial hurdle to finding specific jurisdiction. P’s cause of action concerns an accident in Kentucky involving a blender purchased in Kentucky that was manufactured either in Kentucky or Ohio. There are no Virginia activities that are being sued upon here.
Many of you blithely discussed D’s blender ads in Virginia (or Z’s blender ads and plans to market blenders in Virginia) as grounds for specific jurisdiction, often in conjunction with specific jurisdiction cases like Asahi. It was a big mistake to do this without noting the massive difference between specific jurisdiction cases like Asahi and P’s case. In the specific jurisdiction cases we read there were always activities in the forum state that were the subject matter of the suit. In Asahi, for example, it was the blow-out of the tire with an Asahi valve. To be sure, there were worries about whether Asahi’s contacts with California were sufficient for specific PJ. But there was at least something that occurred in the forum that was the subject matter of the suit.
The fact D advertises a bit in the western part of Virginia would clearly be relevant to specific jurisdiction over D for causes of action brought by Virginians who buy blenders in response to those ads. But P is not such a person. Of course, it is worth noting that D’s blender ads are sort of related to P’s cause of action – since they both concern blenders. But such relatedness is minimal. It is nothing like the relatedness that occurred in cases like McGee, Asahi or even World-Wide Volkswagen (where no specific jurisdiction was found). For in all those cases, the activities used to support PJ were the very activities that were being sued upon.
For example, in McGee the reinsurance contract that was sent into California was the very contract that the plaintiff was suing the defendant under. The plaintiff did not point to the fact that the defendant had sent a reinsurance contract into California in order to get PJ over the defendant concerning the breach of a reinsurance contract that the defendant had not sent into California.
Even in World-Wide Volkswagen, the plaintiffs argued that the fact that Seaway sold cars that ended up in Oklahoma supported PJ in Oklahoma for an accident concerning one of those cars that ended up in Oklahoma. They did not use the fact that Seaway sold cars that ended up in Oklahoma to support PJ in Oklahoma for an accident concerning a car that did not end up in Oklahoma.
That’s why the best arguments for specific PJ pointed to the fact that P moved to Virginia on the recommendation of a doctor who was paid by D. That is at least an action by D that reached out to the state of Virginia and was actually related to the very activities concerning which P was suing D. Part of P’s damages manifested themselves in Virginia due to D’s actions (because P was in Virginia due to D's actions). I’m not saying that this argument should work, but discussion of it was rewarded, because it showed comprehension of the idea of specific jurisdiction.
I did not even penalize those who argued that there should be PJ over D in Virginia as a result of the blender ads in Western Virginia or Z's ads in the state (even though this is fairly clearly wrong), provided that it was recognized that the argument had a big hurdle to overcome, since P did not buy the blender in response to those ads.
Finally, it is worth noting the McGee factors arguing for PJ are the inconvenience of P having to return to Kentucky to sue (given her injuries), the ease of D defending in Virginia, and Virginia’s manifest interest in recovery for disabled residents. McGee factors arguing against PJ are the fact that many of the witnesses would be in Kentucky – the place of injury and perhaps the place of manufacture.
Venue
One reason there would be venue in the E.D. Va. Is if it is a district where D resides. See 28 USC 1391(a)(1). According to 1391(c), a corporation “shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.” Since we have concluded that D is not subject to PJ in Virginia, however, we would have to conclude that it does not reside in the E.D. Va.
The second reason for venue in the E.D. Va. is if a “substantial part of the events or omissions giving rise to the claim occurred” in that district. See 28 USC 1391(a)(2). One might argue that the fact that P went blind in one eye is a substantial part of the events giving rise to the claim. After all, the claim includes damages and the blindness that occurred in Virginia increased these damages. One can argue that there is venue on this ground without arguing that the fact that the blindness occurred in Virginia is a source of PJ over D.
It is worth noting, finally, that because there is clearly venue in Kentucky, 1391(a)(3) is irrelevant.
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