Beruflich Dokumente
Kultur Dokumente
Due Process under the Constitution to deprive of Liberty (force you to move) and
Property (If lose suit).
Respect Sovereignty of Foreign States
Old/Classic
In Personam: Court determines rights of persons
In Rem: Courts determine rights of property
Quasi in Rem: Court seizes property to reach person(1)/General People(2)
Pennoyer States Cant extend powers beyond boarders to bring foreign into State.
Harris Changed Pennoyer so can serve notice outside of state
Hess Cars are dangerous so give consent to be sued whatever State you dive car in
New PJ
I.
II.
III.
Noonan Even though intentional tort in magazine, not enough volume of distribution
and is only fortuitous that magazine got to Paris => No PJ
Asahi International Tort. OConnor Stream of Commerce + vs. Brennan Stream of
Commerce. No Contacts by Stream+ because didnt intend tire valve to get to California
and not even fair because burden and foreign policy. Stream Reg meets min contacts, but
not fair.
Burger King Minimum contact established by Contract, but burden on has to be
unconstitutionally inconvenient. Fairness factors are sliding scale
McIntyre Only looked at Minimum contacts for foreign manufacturer that had national
distributor and did not specifically advertise/focus on NJ market. Purposeful availment
not met because by stream+ need actions (not expectations). Dissent says only need more
than random/fortuitous contact to meet stream+
SERVICE = NOTICE
Policy: Minimum efforts must be given to so that has ability to contest/fight suit
Rule 4
Mullane Notice must be 1) reasonable under circumstances; and 2) Comport with Due
Process. Notice by publication: Bad for known Beneficiaries, Ok for unknown
Beneficiaries (Jurisdiction By Necessity).
VENUE, TRANSFER AND FORUM NON CONVENIENS (FNC): SPECIFIC DISTRICT IN STATE
Policy: Focus on Microlocational convenience of party once know what state youre
within
Venue Clarification Act 2011:
Can only transfer to other venues that have proper PJ and Venue
Both Parties can agree to transfer
If one party want to move, then have to motion for transfer => But by judges
discretion to stop forum shopping
Based on convenience of parties and witnesses
FNC: Lets party change venue where grossly, manifestly inconvenient for and
therefore Constitutionally Unfair.
Good for international suits => Basically saying cant have venue in entire
Sovereign because inconvenient
Hard to do because of Burger King and American system says parties have to pay
suit fees => Need more than this
Dismisses case => Have to re-file
Might go away with PJ fairness factors
Piper Dont want to allow forum shopping for substantive law in international suits.
Can do FNC if: 1) heavy burden on and 2) doesnt have good reason for venue.
Except if alternative forums substantive law sooooo inadequate that would afford
basically no remedy at all.
What must Moving Party Show: 1) Point to/Cite absence of evidence in discovery for
claim/defense (dont have to prove a negative)
What Must Opposing Party Show: Cite/submit evidence and explain/demonstrate why
1) do meet burden of production or 2) Not material dispute. Can also Ask for more time
for discovery!
Moving Party Counter: Materials submitted/Arguments 1) Dont show genuine dispute;
2) Cant produce evidence that could become admissible in court
What Materials Can be used to Support/Oppose:
1. Affidavits and Written Documents
2. Evidence doesnt need to be admissible trial form, but has to be capable of being
in admissible trial form
3. Specific Evidence > General
4. Positive evidence > Negative Evidence
5. Cant use pleadings
R.56 Summary Judgment
Motion for Summary/Partial Summary Judgment: Moving party IDs claim that want
SJ. Court shall grant if
1) No genuine dispute of material fact;
2) Movant entitled to SJ as matter of law. Court then gives reasons for
granting/denying
Time to File Motion: Anytime until 30days after close of all discovery, Unless different
time set
Supporting Factual Positions Have to support absence/presence of dispute of fact by
(A) Citing Materials in record; OR
(B) Showing that cited materials dont show absence/presence because not admissible
as evidence
Materials not cited Dont look at
When Facts Unavailable to Nonmovant: Court can
1) Defer/deny SJ motion
2) allow nonmovant more time
3) Do other things
Failing to Properly Support/Address Fact: Court can do above options or Grant SJ
Judgment Independent of Motion: After giving notice and time to respond court may
do what they want like 1) grant SJ for nonmovant; 2) Grant SJ for their own reasons; 3)
Consider SJ for IMF they find.
Bad Faith Sanction: Expenses, contempt, or other sanctions listed in R.11
Dont want jury to make incorrect inferences/Biases vs. Judge Biases and court as
a play that citizens can engage in
Same as SJ
Number of Witnesses: If witnesses give clashing testimony => Up to Jury (not judge) who
to believe
Number of witnesses doesnt usually matter except when would bias jury
Evidence: Look at ALL evidence and inferences can draw from them in light most
favorable to non-movant
(2) Motion. A motion for judgment as a matter of law may be made at any time before the
case is submitted to the jury. The motion must specify the judgment sought and the law
and facts that entitle the movant to the judgment.
(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court
does not grant a motion for judgment as a matter of law made under Rule 50(a), the court
is considered to have submitted the action to the jury subject to the court's later deciding
the legal questions raised by the motion. No later than 28 days after the entry of judgment
or if the motion addresses a jury issue not decided by a verdict, no later than 28 days
after the jury was dischargedthe movant may file a renewed motion for judgment as a
matter of law and may include an alternative or joint request for a new trial under Rule
59. In ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law. Etc.
R.59 New Trials and Amendments of Judgments => Looks at both Adequacy of
Evidence and Process
a)(1) In general: The court may . . . Grant a new trial. . .
(A) in an action in which there has been a trial by jury, for any of the reasons for which
new trials have heretofore been granted in actions at law in the courts of the United
States; and
(B) in an action tried without a jury, for any of the reasons for which rehearings have
heretofore been granted in suits in equity in the courts of the United States.
Reasons New Trials Have been Granted
verdict against the weight of the evidence
excessive or insufficient verdict
-Remittitur?
newly discovered evidence
-Consider also R. 60
conduct of counsel that tainted the case
jury misconduct
verdict based on false testimony
unfair surprise
substantial errors in the admission/rejection of evidence
giving or failure to give jury instructions
Guenther Tire explosion at mechanic. Conflicts in witness testimony resolved by Jury.
Probabilistic evidence must be strong (75-80% sure) to be brought to Jury. Conflicting
Testimony between and his witnesses is not enough for SJ
Boeing JNW takes into account both sides of argument, but in light most favorable to
non-movant. Need conflict of substantial interest to make jury question.
Galloway Cannot allow juries to speculate. Inferences bridge gaps, but they cant go
too far to replace proof with speculation
Rules about Juries:
1. Juries should not be given cases where the plaintiff contradicts his own witness.
Guenther
2. Juries should not be given cases that involve inferring negligence or causation
from statistics because statistics address a generic state of affairs rather than a
specific fact. Guenther; Agent Orange
3. On a case-by-case basis, there are cases in which the inferential gap will lead to
speculation and the possibility of a non-rational verdict. Gallagher
4. The number of witnesses per side shouldnt matter but sometimes it does.
Chamberlain
5. It is for the judge to decide, as a question of law, whether the burden of
production has been met. Schwarzer