CIVIL PROCEDURE CLASS 28

Professor FischerColumbus School of LawThe Catholic University of AmericaNovember 29, 2001

ANNOUNCEMENTS

Another review class will be held on Wednesday, December 5 at the usual class meeting time (6:20 to 8:10) in Room 211.

WRAP-UP OF LAST CLASS

We finished our study of personal jurisdiction by discussing a case applying International Shoe’s minimum contacts test, World Wide Volkswagen v. Woodson (1980)

WHAT WILL WE DO TODAY?

Learn about the venue requirement and the the federal venue statuteLearn about the common law doctrine of forum non conveniensLearn about the transfer provisions in 28 U.S.C. 1404 and 1406.Hear oral argument on Practice Exercise 31Time permitting, do some review problems.

Venue

What is venue and why is it required?

VENUE REQUIREMENTS ARE PURELY STATUTORY

What is the general federal venue statute?

VENUE IN FEDERAL DIVERSITY ACTIONS

Under 28 U.S.C. §1391, where can venue lie in a federal diversity action where the defendant(s) is/are natural person(s)?

MEANING OF RESIDENCE

Should “residence” for venue purposes be equated with domicile or citizenship for diversity purposes?Compare ex parte Shaw, 145 U.S. 444, 447 (892) (dictum) with convenience rationale for venue

VENUE IN FEDERAL QUESTION ACTIONS

Under 28 U.S.C. §1391, where can venue lie in a federal question action where the defendant(s)s is/are natural person(s)?How do the venue rules for federal question actions differ from diversity actions?

VENUE FOR CORPORATIONS

Where does venue lie if a defendant is a corporation?What if the state, like Virginia or New York, but unlike Maryland, has more than one judicial district?

VENUE FOR ALIENS

Where does venue lie for alien defendants?

FORUM SELECTION CLAUSES

Parties may select a venue that is not a statutory venue by including a forum selection clause in a contract.In Bremen v. Zapata, 407 U.S. 1, 15 (1972), Supreme Court held that federal courts sitting in admiralty should enforce such clauses absent showing that doing so “would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching”Non-negotiable forum selection clauses have been enforced by the Supreme Court.

PIPER AIRCRAFT CO. V. REYNO (1981)

Landmark decisionWho is the plaintiff?Who is plaintiff suing?What is the cause of action?Where does plaintiff bring the action?Why does plaintiff choose that forum?

Piper Aircraft Co. v. ReynoWrongful death suit originally brought in Superior Court of California by Gaynell Reyno on behalf of 5 Scottish passengersDefendants were Piper Aircraft Co. (aircraft mfr) (PA) and Hartzell Propeller Inc. (OH) (propeller mfr)

DEFENDANTS’ MOTIONS

Explain the strategies and procedural moves of defendants Piper and Hartzell. How did the case get from the state court in CA (where filed) to the federal court in PA?

FORUM NON CONVENIENS

What is forum non conveniens?

FNC: For transfer to Foreign Forum or between state judicial systems

28 U.S.C. § 1406(a) permits court to dismiss if venue has improperly been laid “or if it be in the interest of justice, transfer [the] case to any district or division in which it could have been brought”

IN THE U.S. SUPREME COURT

How does the majority rule in the U.S. Supreme Court? Describe Justice Marshall’s reasoning in his majority opinion.

SIGNIFICANCE OF PIPER v. REYNO

This case extends to doctrine of forum non conveniens for use in an international context by adopting a lower threshold and by decreasing its deference to foreign plaintiffs choice of forum (takes nationality into consideration)The foundation for any modern forum non conveniens analysis in an international context. Decision has prompted continuing criticism

Scottish Legal System

See student webpage on my Spring 2001 Comparative Law site: http://law.cua.edu/classes/comparative_law/grant/See also Kevin F. Crombie’s useful site: http://www.scottishlaw.org.uk/

PIPER Test

In applying the doctrine of forum non conveniens to a foreign plaintiff, Supreme Court essentially follows two steps it had articulated in Gilbert. 1. Requires a suitable forum in another country2. Considers 4 factors or interests to determine which forum would best serve private and public interestsUnfavorable choice of law alone should not bar dismissal

LORD DENNING

Famous and long-lived English judge“As a moth is drawn to the light, so is a litigant drawn to the United States.”

Attractions of U.S. Legal System For Foreign Plaintiffs

Encouragement by U.S. plaintiffs’ bar for litigants to bring suit in U.S.contingency fee arrangementsextensive pre-trial discoveryadvantageous substantive lawavailability of trial by jurytendency for large jury awards

PRACTICE EXERCISE 31

CB p. 829Oral argument on motion to dismiss for lack of subject matter jurisdiction by McGill’s Garage and Dale McGill

EXAM TIPS

Read questions carefully and remember to answer the question askedUse IRAC form for each issue in questionAnswer every question; manage your time carefullyGet sufficient sleep the night before the exam.

FOR REVIEW CLASS - VERY-CLEAN HYPO

CB p. 834Please prepare to discuss this hypothetical at the December 5 review class.