Civil Procedure Cases And Materials 11th Edition Jack Friedenthal, Arthur Miller, John Sexton, Helen Hershkoff - Solutions

1. Rule 4(f)(1) provides that “any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents” may be used to effect service on those outside the United
2. Could the court reasonably have reached the same result by finding that the claims adjuster was an agent authorized by appointment to receive process? In FASHION PAGE, LTD. v. ZURICH INS. CO., 50 N.Y.2d 265, 269–73, 428 N.Y.S.2d 890, 892–94, 406 N.E.2d 747, 749–51 (1980), the
1. Is the court’s willingness to disregard labels and conclusory terms such as “general”and “managing” agent consistent with the clear requirements of Rule 4(h)(1)(B)? Should the court have held that the claims adjuster could be regarded as a “managing agent” of the defendant? In
2. Since Szukhent, e-commerce has generated new forms of agreement with such interesting names as “shrinkwrap,” “clickwrap,” and “browsewrap,” in which waivers of jurisdiction, notice, and service of process objections may be embedded and assented to through the click of a mouse. Would
1. Why did the majority look to contract principles and not to the Due Process Clause in assessing the propriety of the waiver provision? Would it matter if the farmers had received actual notice? Would a failure to transmit notice be fatal? Why?
4. If a plaintiff is confronting a statute of limitations deadline in a state in which the statute continues to run until a defendant is served, would formal service be the wisest course of action? Why?
3. What is the time period if the waiver is sent to a defendant outside the United States?See Federal Rule 4(d)(1)(F).218
2. What forms of transmittal are permitted in addition to first-class mail? The Advisory Committee Notes to the 1993 amendment specifically approved the use of “electronic means.”Should transmittal by Facebook or some other social media satisfy Rule 4(d)? See p. 231, infra.
1. What steps must be taken for waiver of service to be effective?
15. A party may waive receiving notice in advance of litigation or after litigation has commenced. In D.H. OVERMYER CO. v. FRICK, 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124(1972), the Supreme Court considered the constitutionality of a cognovit note by which a debtor may empower the creditor or an
14. Whether a notice provides enough information for the recipient to mount a response is a question that implicates the administration of a broad range of government programs.For example, before terminating public benefits, the government must provide notice that explains the reasons for its
13. Due process concerns not only the form and timing of notice, but also the content of the information provided. In AGUCHAK v. MONTGOMERY WARD CO., 520 P.2d 1352(Alaska 1974), a department store sold a snowmobile and freezer to the Aguchaks, which they took to a remote area where they lived. When
12. How should active military service affect the adequacy of notice? At least since the Civil War, Congress has recognized the inability of active-duty servicemembers to discharge their civil legal obligations in the same ways as civilians. Among other things, a servicemember cannot obtain leave
11. Another requirement of due process is that the recipient of notice must be given adequate time to respond to the threatened adverse action. In ROLLER v. HOLLY, 176 U.S.398, 20 S.Ct. 410, 44 L.Ed. 520 (1900), defendant was required to defend an action in Texas five days after he received service
10. If personal service is impossible or impractical, what methods of service become reasonable? In DOBKIN v. CHAPMAN, 21 N.Y.2d 490, 289 N.Y.S.2d 161, 236 N.E.2d 451(1968), the New York Court of Appeals upheld court-ordered service in three automobile accident cases by ordinary mail to the
9. In COVEY v. TOWN OF SOMERS, 351 U.S. 141, 146–47, 76 S.Ct. 724, 727, 100 L.Ed.1021, 1026 (1956), the Court held that notice by mail of a foreclosure proceeding for delinquent property taxes on real property, although ordinarily sufficient, would not satisfy due process when it was mailed to
8. When does service by mail provide constitutionally sufficient notice? If the notice is returned, marked “Addressee Unknown,” does due process require the government to take additional steps to notify defendant?
7. DUSENBERY v. UNITED STATES, 534 U.S. 161, 122 S.Ct. 694, 151 L.Ed.2d 597(2002), involved the adequacy of notice given to a prisoner by the Federal Bureau of Investigation prior to forfeiting property seized under the Controlled Substances Act, 21 U.S.C. § 801. The property consisted of about
6. In GREENE v. LINDSEY, 456 U.S. 444, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982), the Court addressed the constitutionality of eviction notices posted on apartment doors in public housing. The tenants claimed never to have seen the notices, and to have first learned of their eviction when served with
5. The Court has held repeatedly that constructive notice does not satisfy Mullane’s due process mandate if defendant’s name and address are known or available from public records.For example, the Court has held that notice by publication in a local newspaper does not meet due process
4. What role ought the historic distinctions of in personam, quasi in rem, and in rem jurisdiction play in assessing the adequacy of notice to defendant? Mullanestates that attachment of a chattel or real estate, together with publication, may provide adequate notice, under the theory that property
3. WUCHTER v. PIZZUTTI, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446 (1928), concerned the constitutionality of a nonresident-motorist statute similar to the one involved in Hess v.Pawloski, p. 87, supra. The statute authorized in-state service on the Secretary of State and did not expressly require
2. In McDONALD v. MABEE, 243 U.S. 90, 92, 37 S.Ct. 343, 344, 61 L.Ed. 608, 609–10(1917), suit was brought against Mabee, a domiciliary of Texas, upon a promissory note.Although his family was residing in the state, he had left Texas to establish a domicile elsewhere. Service was attempted through
1. Mullane seems to require notice that is reasonably calculated to succeed. Does this mean that the method most likely to succeed is not required? How does Mullane justify this approach? What role should cost play in determining what is reasonable?Does Mullanejustify applying different notice
5. Recall that in McIntyre, p. 133, supra, Justice Kennedy’s plurality opinion raised the possibility of Congress authorizing jurisdiction over a foreign defendant on the basis of national contacts. Congress has enacted nationwide service of process provisions in numerous but not all federal
4. How does Rule 4(n) differ from the other service rules so far discussed? Under what circumstances may the federal court piggy-back on a state law authorizing jurisdiction on the seizure of assets? Does the service rule also apply to intangible property? In Office Depot, Inc. v. Zuccarini, 596
3. Service under Federal Rule 4(k)(2) generally is said to call for a two-step inquiry. At step one, the inquiry is whether defendant is subject to personal jurisdiction in any one of the fifty states; at step two, the inquiry is whether defendant’s contacts with the nation satisfy due process.
2. Rule 4(k)(1)(B), the so-called “bulge” provision, was promulgated in order “to allow complicated controversies to be ended by a single lawsuit if all the necessary third parties could be found within 100 miles of the courthouse.” Coleman v. American Export Isbrandsten Lines, Inc., 405
1. When may process be served under Rule 4(k)(1)(A)? What is the constitutional test for determining whether a defendant so served is amenable to suit?
6. Is in-state service upon a corporation by delivering process to a corporate officer who happens to be present in the state at the time of service an effective way to establish jurisdiction? See 4A Wright & Miller, Federal Practice and Procedure: Civil 3d § 1102.
5. Is a “virtual” contact evidence of transient presence for jurisdictional purposes? How should a court determine where a virtual contact is located?
4. Are special factors presented in a case brought against a foreign defendant that would argue in favor of adopting Justice Brennan’s, rather than Justice Scalia’s, approach?See Hay, Transient Jurisdiction, Especially Over International Defendants: Critical Comments onBurnham v. Superior Court
3. Does Justice Scalia’s opinion in Burnham support the plurality’s or dissent’s theory of jurisdiction in McIntyre? Why? Is it significant that a traditional basis of power may be exercised without any separate inquiry as to its reasonableness?
2. How did Justice Scalia interpret the word “traditional” in the passage “traditional notions of fair play and substantial justice”? Are other definitions plausible? See Greenberger, Justice Scalia’s Due Process Traditionalism Applied to Territorial Jurisdiction:The Illusion of
1. The Justices agreed on the result in Burnham, but could not agree on its theoretical underpinnings. Which opinion states the law of transient personal jurisdiction as it now stands? Which approach do you find to be more persuasive?
4. Why would a plaintiff ever rely on quasi in rem jurisdiction if its exercise is subject to the same constitutional standard as that of in personam jurisdiction?
3. In RUSH v. SAVCHUK, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980), the Supreme Court settled the question of whether an insurance obligation can be attached to effect quasi in rem jurisdiction. In finding such an attachment unconstitutional, the Court separated the contacts of the defendant
2. How does Shaffer affect a court’s power to enter a judgment in an action in which the cause of action relates to property that defendant owns and is located in the forum state?
1. Within thirteen days after the decision in Shaffer, the Delaware legislature amended its laws to provide that every nonresident who is elected or appointed a director of a Delaware corporation after September 1, 1977, shall “be deemed” to have consented to the appointment of the
4. In MAVRIX PHOTO, INC. v. BRAND TECH, INC., 647 F.3d 1218, 1230 (9th Cir. 2011), a Florida “celebrity photo” company brought a copyright infringement action in California against an Ohio company for allegedly posting plaintiff’s photographs on a website that had a substantial viewer base in
3. In BE2 LLC v. IVANOV, 642 F.3d 555 (7th Cir.2011), an online dating service brought a trademark infringement action in Illinois against a New Jersey businessman, alleging defendant deliberately misled customers by using a domain name “confusingly similar” to“be2.” Evidence that twenty
2. One of the first cases to deal with the question of personal jurisdiction and the Internet was INSET SYSTEMS, INC. v. INSTRUCTION SET, INC., 937 F.Supp. 161 (D. Conn. 1996), which concerned a trademark infringement action by a Connecticut corporation against a Massachusetts corporation. The
1. The Sixth Circuit reversed the District Court’s judgment, stating in part:In response to requests from their out-of-state customers, the Defendants supplied them with passwords to access online banking. The Defendants granted these passwords only after processing the customers’ applications,
6. Should general and specific jurisdiction be viewed as two separate categories or as two ends of a continuum? Professor Richman has urged replacing the binary distinction with a“sliding scale model” that looks at “the extent of the defendant’s forum contacts on the one hand and the
5. Goodyear did not resolve whether general jurisdiction may be exercised over a foreign corporation based on the fact that a corporate subsidiary performs services or sells goods in the foreign state. See Bauman v. Daimler-Chrysler AG, 644 F.3d 909 (9th Cir. 2011), certiorari granted ___ S.Ct.
4. In METROPOLITAN LIFE INSURANCE CO. v. ROBERTSON-CECO CORP., 84 F.3d 560 (2d Cir.), certiorari denied 519 U.S. 1006, 117 S.Ct. 508, 136 L.Ed.2d 398 (1996), the Second Circuit held that the exercise of general jurisdiction was unreasonable in light of the five-factor test endorsed in Asahi and
3. Is the standard for exercising general jurisdiction over an individual different from that for a corporation? Certainly an individual’s domicile is her “home” and the place where general jurisdiction may be exercised. But can a158court exercise general jurisdiction over an individual based
2. In Helicopteros, also discussed in Goodyear, the Court held that general jurisdiction could not be exercised in a wrongful death action despite defendant’s business trip to the forum state for a negotiation session, more than four million dollars of purchases from an instate company, receipt
1. After Perkins, discussed in Goodyear, lower courts remained uncertain as to when contacts with the forum were so “continuous and systematic” and “sufficiently substantial”as to support jurisdiction on a cause of action that did not arise out of defendant’s in-state activity. At least
9. After McIntyre, what advice would you give to a foreign company that sells component parts in the United States market about its amenability to150suit in a state court in which the end-product causes injury? Does your advice differ depending on the company’s mode of distribution? What if the
8. Does the Calder “effects test,” see p. 120, supra, meet the standard articulated by Justice Kennedy’s plurality? See Washington Shoe Co. v. A–Z Sporting Goods Inc., 704 F.3d 668 (9th Cir. 2012), upholding the exercise of jurisdiction against a retailer who allegedly sold “knock-off”
7. Does the plurality’s opinion make you question the result in McGee or Burger King?
6. Justice Kennedy suggests that Congress could pass a long-arm statute for the federal courts authorizing the exercise of jurisdiction based on contacts with the United States as a whole. Is this suggestion consistent with the plurality’s theory of jurisdiction as an incident of sovereignty and
5. On what basis do Justices Breyer and Alito concur?
4. What are the major points of disagreement between Justice Ginsburg’s dissenting opinion and that of the plurality? Is her view that a manufacturer that markets its product nationwide ought to be amenable to suit in the state where the product is sold and causes injury consistent with
3. Does Justice Kennedy’s plurality opinion endorse a “stream-of-commerce-plus” theory?Recall the activities that might count as “plus” factors. Didn’t Justice O’Connor’s plurality opinion in Asahi specifically mention “marketing the product through a distributor who has agreed to
2. All of the opinions in McIntyre claim fidelity to the requirement of purposeful availment, but they differ significantly on what plaintiff must show to meet her burden.Which of the opinions in McIntyre would support the constitutionality of the exercise of specific jurisdiction by a court in
1. McIntyre marks the Court’s return to questions left open by Asahi and not addressed since 1987. Which opinion speaks for the Court? See Note 1, p. 132, supra. Would lower courts be justified in giving McIntyrelimited weight? For a comparison of the three opinions, see Steinman, The Lay of the
4. Does the reasoning in Justice O’Connor’s plurality opinion support the exercise of jurisdiction in Gray, p. 97, supra? In Calder, p. 120, supra?
3. Should the approach taken by Justice O’Connor apply only to foreign defendants? Does it affect your view that some United States bases of jurisdiction are regarded abroad as“exorbitant”? See Clermont & Palmer, Exorbitant Jurisdiction, 58 Me. L. Rev. 474 (2006).Doesn’t a United States
2. The Supreme Court did not disturb the California court’s finding that “Asahi knew that some of the valve assemblies sold to Cheng Shin would be incorporated into tire tubes sold in California.” Asahi Metal Industry Co., Ltd. v. Superior Court, 39 Cal.3d 35, 53, 216 Cal.Rptr.385, 392
1. Given the division among the Justices, which opinion states the law as it stood after the Asahidecision? How does Justice O’Connor’s plurality opinion differ from the opinions filed by Justices Brennan and Stevens? Notice that Justice Scalia did not join Part II-B of the opinion. Why is that
4. In KEETON v. HUSTLER MAGAZINE, INC., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), Kathy Keeton, a resident of New York, brought a libel suit in federal district court in New Hampshire against Hustler Magazine, an Ohio corporation. The jurisdictional reach of the federal court was limited
3. How might World-Wide Volkswagen have been decided if the Robinsons had been Oklahoma residents and purchased the ill-fated car while in New York on vacation? Would the Justices in the majority have given more weight to plaintiff’s foreseeability argument?What if the driver of the other car
2. In the course of its World-Wide Volkswagenopinion, the Court employed notions of sovereignty and of convenience. Is there a tension between these two notions? Is the Court promulgating a two-part test with a “sovereignty branch” and a “convenience branch”? Is this a new test or a
1. At the time the suit was filed, Kay Robinson and her two children, Sam and Eva, were hospitalized with severe burns:Since Kay Robinson had been trapped in the burning car the longest, her burns were the most horrible of all. She had burns on forty-eight percent of her body thirty-five percent of
4. In their opinions in Hanson, the Chief Justice and Justice Black agreed that the question whether a court may apply its own law to a controversy is to be decided by a standard that differs from that used to decide the question whether the court can adjudicate the controversy at all. That is, the
3. Could the Hanson decision be justified on the ground that Delaware, as the state where the trust was validly established (at least under Delaware law), had a stronger interest in the disposition of the trust’s funds than Florida? Delaware’s interest certainly is sufficient to support
2. Does Hanson support the exercise of jurisdiction in Gray?
1. Donner’s estate plan appeared to have divided her property in three shares. Under the last appointment of trust beneficiaries, the children of Donner’s third daughter, Elizabeth, received about $400,000. Donner’s other two daughters, the residual legatees under the will, received over
2. How does the long-arm statute in McGee differ from the Illinois statute discussed in Gray? Does McGeesupport the Illinois court’s exercise of power in Gray?
1. The Court said in McGee that improvements in transportation and communication make it less burdensome for out-of-state litigants to defend suits. Did the McGee Court modify the International Shoetest? Is McGee consistent with International Shoe?
3. In Gray, assuming the same facts, could the state court exercise personal jurisdiction if the applicable long-arm statute were that of New York or California? What are the policy arguments for having a state adopt one kind of long-arm statute rather than another?See McFarland, Dictum Run Wild:
2. Twenty of the fifty states have enacted long-arm statutes that authorize the exercise of jurisdiction to the full extent of the Due Process Clause; the other thirty states have adopted enumerated-acts statutes that permit the exercise of only a portion of their permissible authority under the
1. In GREEN v. ADVANCE ROSS ELECTRONICS CORP., 86 Ill.2d 431, 427 N.E.2d 1203(1981), Advance Ross, a Delaware corporation with headquarters in Illinois, sued Green for breach of fiduciary duty. Green was a Texas resident who had worked as president of two of plaintiff’s affiliates. All of
2. International Shoe uses contacts with the forum in two different ways. First, a defendant may have sufficient contacts with the forum to warrant asserting jurisdiction over it for all matters. This form of power now is termed “general jurisdiction,” and we will return to study it in more
1. In its argument before the Supreme Court, International Shoe argued, “It would be manifestly impolitic to uphold service upon a salesman in a case not involving a sale. It would require of mere soliciting salesmen, notoriously happy-go-lucky fellows, good mixers, a higher degree of judgment
7. Justice Field characterized territoriality as a “general, if not universal, law” that limits a state’s exercise of jurisdiction. Despite that statement, the rules governing adjudicatory jurisdiction differ in legal systems around the world. Although defendant’s presence was the
6. Suppose a plaintiff brings suit in a forum with which she has no other connection.Should that forum be able to entertain a suit against plaintiff if defendant asserts the claim as a part of the same proceeding? Consider the Court’s analysis in ADAM v. SAENGER, 303 U.S. 59, 67–68, 58 S.Ct.
5. Can a court assert jurisdiction over a citizen who is absent from the country?In BLACKMER v. UNITED STATES, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932), petitioner, a United States citizen, was convicted of contempt after refusing to comply with a subpoena issued by the Supreme Court of the
4. According to the territorial principle identified in Pennoyer, does defendant’s length of time in the forum state affect the court’s power to assert in personam jurisdiction? Does the reason for the person’s presence in the forum affect your answer to this question? In GRACE v. MACARTHUR,
3. The concepts of jurisdiction found in the Pennoyeropinion were derived from nineteenth-century international law. In the traditional international model, a citizen of Country A might have been injured by a citizen of Country B in Country A. The citizen of Country A seeking relief had three
2. Traditional analysis distinguishes three types of jurisdiction. In a proceeding in personam, the court exercises its power to render a judgment for or against a person by virtue of his presence within the state’s territory or his citizenship there. In a proceeding in rem, the court exercises
1. The colorful characters and scandalous facts surrounding Pennoyer v. Neff have been chronicled by Professor Perdue:Our story begins with a young man, Marcus Neff, heading across the country by covered wagon train, presumably to seek his fortune. Neff left Iowa in early 1848 * * * [and] was one
5. When a court has rendered a judgment in a contested action, the current view is that a judgment, otherwise valid and final, generally precludes the parties from litigating the question of the court’s subject-matter jurisdiction in a subsequent suit unless the court’s exercise of power was
4. Since it is clear in the principal case that in the suit before the Court there was no diversity of citizenship and the writ of error was to the Supreme Court of Iowa, what was the basis for appellate jurisdiction in the United States Supreme Court?
3. Suppose that the issue of jurisdiction is raised in a case and erroneously decided. Is this a factor arguing for or against the application of res judicata in a second action?
2. Was the fact that the question of jurisdiction was a doubtful one at the time the first Homestead Company case arose relevant to the Supreme Court’s decision in the second case?
1. Was it critical to the Court’s opinion in Des Moines that the first case had been heard and determined by the Supreme Court itself? Would the case have been decided differently if no review had been sought in the first action at all?
3. Should the standard of review be the same for findings of fact based on demeanor evidence as for documentary evidence? In ANDERSON v. CITY OF BESSEMER CITY, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), the Supreme Court rejected the view that an appellate court “may exercise de novo
2. Is the question whether certain conduct is negligent one of law or of fact? Legal scholars have long debated the issue without resolution. In any event, the issue ordinarily is left to the jury. Why? Are the reasons for giving the issue to the jury any less persuasive when the finder of fact is
1. Would the Court of Appeals have reached the same result if the judgment appealed from had been based on the verdict of a jury rather than the findings of a judge? Why is there any difference between the two standards?
3. When Lavender is remanded to the Missouri Supreme Court, what should that court do? In this connection, do you agree with the United States Supreme Court that it was unnecessary to determine whether evidence of the statement of the unknown switchman was improperly admitted?
2. In PENNSYLVANIA R. CO. v. CHAMBERLAIN, 288 U.S. 333, 339, 53 S.Ct. 391, 393, 77 L.Ed. 819, 822–23 (1933), the Supreme Court, in approving a directed verdict for defendant, said:* * * At most there was an inference to that effect drawn from observed facts which gave equal support to the
1. Why does a trial judge or an appellate court have the power to take a case away from the jury or to set aside its verdict? Does the existence of this power necessarily mean that a jury cannot properly refer to its members’ own knowledge? See Texas Employers’ Ins. Ass’n v. Price, p. 56,
2. The issue of jury misconduct is complicated by the doctrine, recognized in most jurisdictions but enforced with varying strictness, that a jury verdict may not be impeached by evidence that comes from the jurors themselves. In Kilgore v. Greyhound Corp., 30 F.R.D.385, 388 (E.D. Tenn. 1962), in
1. Why is it misconduct for a juror “to relate to the other jurors his own personal experience as original evidence of material facts to be considered in their deliberation”?In HEAD v. HARGRAVE, 105 U.S. (15 Otto) 45, 49–50, 26 L.Ed. 1028, 1030 (1881), a case involving the value of legal
6. ALLEN v. UNITED STATES, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), which the trial court in Diniero quoted to the jury, involved a variation on what has come to be called the “dynamite charge,” an instruction that is sometimes given in the principal charge but more frequently is given
5. The use of special verdicts and general verdicts with interrogatories is sometimes criticized as atomizing the jury’s deliberations and making a unanimous result more difficult to reach. Assume that in an ordinary automobile accident case, three members of the jury believe that defendant was
4. Do you think the judge’s explanation of the interrogatory was clear? Read it again very carefully before you decide. Then reflect upon the fact that it was delivered orally to the jurors, even though the interrogatories themselves were in writing. When the jury is asked to return a general

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Civil Procedure Cases And Materials 11th Edition Jack Friedenthal, Arthur Miller, John Sexton, Helen Hershkoff - Solutions

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