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| The Data point in which a relationship is created b/w the citizen and the soveregin which has mutuality; citizen must pay taxes and perform jury duty; citizen gets protection and services. |
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| Subject matter jurisdiction is the power to hear a type of case and Jurisdiction over the parties goes to person or property. |
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3 types of domicile: Origin (where born), Choice (choose to live), and Operation of Law (law attributes independant of choice)
Domicle at birth = Parents; continues until abandoned or aquistion of new domicile in a different place.
Acquisition of new domicile must be completely perfected and must be a concurrence of fact of removal and intent to remain in the new locality.
Domicile of wife and kinds - used to be husband's and now wife is an individual |
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| Declaration of change of domicile isn't enough there must be a concurrent act. |
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Property is regarded by the law and the place of the situs and personalty goes to domicile.
The law of the state with the predominate interest in protection and regulation of rights of the person controls. |
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Definition
| Can only have 1 domicile but can have multiple residences |
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Term
| Rodriguez-Diaz v. Sierra-Martinez |
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Definition
Federal courts have to apply choice of law rules of the forum to deterimne the substantive law in diversity cases, the determination of litigant's state citizenship for section 1332(a)(1) is controlled by federal common law not the law of any state.
Federal courts are of limited jurisdiction (limited to federl questions).
In federal divesity of citizenship cases the federal court can construe their own statutes as to the citizenship of the parties, but to decide who is at fault in the case the federal court must use the state substantive law (state where the court sits). |
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Definition
1. SMJ (power of the court to hear a case)
2. Personal Jurisdiction (general, specific, in rem/quasi in rem)
3. Notice (due process) |
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Term
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Definition
Power Based Jurisdiction: getting served in the jurisdiction (has nothing to do w/ the domicile of D, maybe venue argument)
Specific Jurisdiction: must be a relationship b/w the contacts, the cause of action, and fundamental fairness. |
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Term
| Alvord & Alvord v. Patenorte |
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Definition
The existing domicile continues until another one is acquired.
For service of process and jurisdiction over the person.
Domicile = Jurisdiction
Don't have to mention minimum contacts when there is general jurisdiction. |
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| TN: Denny v. Sumner County |
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Definition
Domicile: importing a legal relation existing b/w a person and a particular place based on actual residence, plus a concurrent intention there to remain.
Need 3 things for change of domicile: (a) actual residence in a new place, (b) an intention to abandon the old domicile, and (c) an intention of acquiring a new domicile at the other place.
Intent to change is the key.
May be infered from the circumstances contrary to the actual intention of the parties. |
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Domicile: place where person has actual home and enjoyment of fortunes, does not intent to leave permenatly.
Jurisdiction exists if 1 or both parties have the same domicile.
Property in Mississippi - court can affect the personal property but cannot affect the title to real property; TN court can order husband to turn over deed and arrest if he doesn't comply. |
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Will probated in the county where the testator had his usual place of residence (domicile); SMJ is being referred to.
To prove domicile the must be an act harmonizing w/ intent. |
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| Taxing statute makes a distinction b/w transfers from residents and non-residents. In the latter, the statute provides that an inheritance tax is leived upon real property of a non-resident which is situated w/i the state and upon tangible personal property which has actual situs w/i the state (resdidence means domicile here). |
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| Domicile of minor child is controlled by parents or person charged w/ legal care and custody of him. |
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| TN: In re Estate of Clayton |
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Definition
An action for appointment of a conservator may be brought in the county of residence of the alleged disabled person.
Venue is jurisdictional. If not in the right venue the court doesn't have SMJ.
Person who is meantally incopetent cannot voluntarily change domicile b/c he or she doesn't have the requsite intent either to abandon the old domicile or to acquire a new one. Guardian appointed by the court can apply to change domicile, must be approved by the court |
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Term
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Definition
| Proper notice is important for jurisdiction. |
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Term
| In State Service of Process:Barell v. Benjamin |
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Definition
Personal contacts are said to have no sit us or locality but follow the debtor (be careful here).
Power theory of in state service of process, allowing jurisdiction on the basis of in state jurisdiction, general jurisdiction b/c in state and got served and the cause of action does not have to relate to anything that happened in the state.
Procedural law of the court were suit was filed, substantive law depends on the states conflicts statute. |
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Term
| In State Service of Process:Burnham v. Superior Court of CA |
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Definition
State court's assertion of personal jurisdiction satisfies due process if it doesn't violate the traditional notions of fair play and substantial justice.
Question is whether due process requires a similar connection b/w the litigation and the D's contacts w/ the state in cases were the D is physically present in the state at the time served.
Bright line rule: if served in state, power base jurisdiction exists as far as personal jurisdiction goes. |
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Term
Domicile, Residence, and Nationality
Apparent and Consent in Advance
Dooley v. Dooley |
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Definition
Before an appearance will be found by implication, it must be shown from the D seeking, taking, or agreeing to some step or proceeding in cause beneficial to himself or detrimental to the P other than one contesting only the jurisdiction of the court or by reason of some act or proceeding recognizing the case as being in court.
TN has said that the making or resisting of any motion, or the making of any agreement w/ the P or attorney relative to any proceeding in a cause, or any other act in the cause, b/w the fileing of the complaint and rendition of the final decree, whereby pendency of the suit is recognized, either expressly or impliedly' will, if there is record evidence of the fact, constitutes a general and unlimited appearance, unless limited by express declaration or by necessary implication.
No basis for specific jurisdiction until D makes the appearance in court by implication. |
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Term
Domicile, Residence, and Nationality
Apparent and Consent in Advance
Landers v. Jones |
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Definition
Court must have subject matter jurisdiction and personal jurisdiction to adjudicate a claim.
SMJ relates to the nature of the cause of action and the relief sought and is controlled by the sovereign authority which organizes the court. Differs fundamentally from PJ in that the latter can be conferred by express or implied consent. SMJ cannot be waived but a court's lack of PJ may be waived by a D. One method of waiver is making a voluntary general appearance before the court in order to defend the suit on the merits, rather than a special appearance for the purposes of contesting PJ.
Challenge jurisdiction: special appearance or take default judgment. |
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Term
Statutes Created in Response to International Shoe - Specific Jurisdiction
TCA 20-2-222: Personal jurisdiction based upon enduring relationship |
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Definition
A court may exercise personal jurisdiction over: (1) A person domiciled in, organized under the laws of, or maintaining the person's principal place of business in, the state as to any claim for relief; or (2) A person who is a party to an action of divorce, annulment or separate maintenance when the parties have lived in the marital relationship within this state, notwithstanding one party's subsequent departure from this state, as to all obligations arising for alimony, custody, child support, child visitation, or marital dissolution agreement, if the other party to the marital relationship continues to reside in this state.
Power Based Jurisdiction
General Jurisdiction |
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Term
Statutes Created in Response to International Shoe - Specific Jurisdiction
TCA 20-2-223: Personal jurisdiction based on conduct |
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Definition
(a) A court may exercise personal jurisdiction over a person, who acts directly or indirectly, as to a claim for relief arising from the person’s: (1) Transacting any business in this state; (2) Contracting to supply services or things in this state; (3) Causing tortuous injury by an act or omission in this state; (4) Causing tortuous injury in this state by an act or omission outside this state of the person who regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; (5) Having an interest in, using, or possessing real property in this state; (6) Contracting to insure any person, property, or risk located within this state at the time of contracting; or (7) Conduct as a director or officer of a domestic corporation or the conduct of a domestic corporation while the person held office as a director or officer.
(b) When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against that person.
Specific Jurisdiction
Must be plead and show proof that events happened in TN that match up w/ the statute that is the basis of the claim.
Could apply to in and out of state D. |
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Term
Statutes Created in Response to International Shoe - Specific Jurisdiction
TCA 20-2-225 |
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Definition
A court of this state may exercise jurisdiction: On any other basis authorized by law; or (2) Any basis not inconsistent with the constitution of this state or of the United States.
Catch all provision |
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Term
Statutes Created in Response to International Shoe - Specific Jurisdiction
TCA 20-2-214 |
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Definition
Persons who are nonresidents of Tennessee and residents of Tennessee who are outside the state and cannot be personally served with process within the state are subject to the jurisdiction of the courts of this state as to any action or claim for relief arising from: (1) The transaction of any business within the state; (2) Any tortious act or omission within this state; (3) The ownership or possession of any interest in property located within this state; (4) Entering into any contract of insurance, indemnity, or guaranty covering any person, property, or risk located within this state at the time of contracting; (5) Entering into a contract for services to be rendered or for materials to be furnished in this state; (6) Any basis not inconsistent with the constitution of this state or of the United States; (7) Any action of divorce, annulment or separate maintenance where the parties lived in the marital relationship within this state, notwithstanding one party's subsequent departure from this state, as to all obligations arising for alimony, custody, child support, or marital dissolution agreement, if the other party to the marital relationship continues to reside in this state. (b) "Person," as used herein, includes corporations and all other entities which would be subject to service of process if present in this state. (c) Any such person shall be deemed to have submitted to the jurisdiction of this state who acts in the manner above described through an agent or personal representative.
Applies to non-residents
Specific Jurisdiction
Use w/ cases that try to explain how TN can exercise personal, specific jurisdiction over non-resident for doing something or effecting TN.
Long Arm Statute - TN broad and some states conduct based. |
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Term
Statutes Created in Response to International Shoe - Specific Jurisdiction
TCA 16-10-113 |
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Definition
| Notwithstanding any law to the contrary, contracts for goods or services between individuals, partnerships, associations, corporations, governmental entities, or limited liability companies are enforceable in either circuit or chancery court in the county where: (1) The defendant may be found (2) The contract was executed (3) The goods were provided or were to be provided or (4) Services were rendered or were to be rendered. |
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Term
Statutes Created in Response to International Shoe - Specific Jurisdiction
TCA 16-11-115 |
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Definition
| Notwithstanding any law to the contrary, contracts for goods or services between individuals, partnerships, associations, corporations, governmental entities, or limited liability companies are enforceable in either chancery or circuit court in the county where: (1) The defendant may be found (2) The contract was executed (3) The goods were provided or were to be provided; or (4) Services were rendered or were to be rendered. |
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Term
Statutes Created in Response to International Shoe - Specific Jurisdiction
TCA 20-4-101 Transitory Actions |
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Definition
| In all civil actions of a transitory nature, unless venue is otherwise expressly provided for, the action may be brought in the county where the cause of action arose or in the county where the defendant resides or is found (b) If, however, the plaintiff and defendant both reside in the same county in this state, then the action shall be brought either in the county where the cause of action arose or in the county of their residence. |
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| In Search of New Jurisdictional Standards: The Era of International Shoe, Minimum Contacts, and Fairness |
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Definition
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| International Shoe v. Washington |
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Definition
Due process requires only that in order to subject a D to a judgment in personam, if he be not present w/in the territory of the forum he have certain minimum contacts w/ it such that the maintenance of the suit doesn't offend traditional notions of fair play and substantial justice (must have both).
General jurisdiction - principle place of business or place of incorporation.
Presence isn't doubted when the corp activities are continuous or systematic but also give rise to liabilities sued on.
Whether state authority is conferred based on acts in the state is determined by their nature and quality and the circumstances of their commission.
The test to determine whether a state can exercise jurisdiction over a foreign person or corp for due process purposes depends upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which is the purpose of the due process clause to insure.
The extent that a corp exercises the privilege of conducting activities w/in the state, the exercise of that privilege may give rise to obligations, so far as those obligations arise out of or are connected w/ the activities w/in the state.
Common Law Basis for Jurisdiction prior to International: in state service, consent, appearance, domicile, nationality
5th Amendment Federal and 14 Amendment State Due process
Minimum contacts test: nature, quality, and circumstances of contacts in relation to the cause of action.
Long arm jurisdiction/statute gives the court PJ, dependant upon D minimum contacts w/ the state - quality and nature of contacts in relationship to whether fair to have D respond AND the cause of action has to arise out of the contacts (specific jurisdiction). |
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| McGee v. International Life Insurance Co |
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Definition
Suit is based on a contract which had substantial connection with the state and California has a manifest interest in providing a court for redress for its residents.
Focus in McGee is on the plaintiff. Orderly administration of justice focus; Calf. Manifest interest in providing a court; Severe disadvantage to plaintiff to find defendant in another state; Critical witnesses located in CA
Contract originally entered in Calf. D did not sale policy in CA, bought out other company – does the CA court have in personam jurisdiction based on the state statute (passed after contract was entered into)
Suit is in TX because after CA judgment was entered and P could not get the judgment satisfied |
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Definition
There are consequences of territorial limitations on the powers of the states. A defendant may not be called upon to defend unless he had “minimal contacts” with a state which is a prerequisite to the exercise of power.
Unilateral activity of those who claim some relationship with a non resident defendant cannot satisfy the requirement of contact. Unilateral conduct of the P cannot create personal jurisdiction over the trustee.
Jurisdiction depends on the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities in the state.
Center of gravity of the controversy does not establish jurisdiction but may determine the substantive law. Two different determinations. Jurisdiction and the applicable substantive law. |
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| In re Trust under Will of Frumkin v. Frumkin |
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Definition
| Hanson relied on and TN has adopted the same principle |
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Term
| Southern Machine Co v. Mohasco |
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Definition
The in personam jurisdictional reach of a federal district court that is located in Tennessee is determined by the law of Tennessee in diversity actions; IN DIVERSITY OF CITIZENSHIP
Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice”.
Three criteria emerge for determining the present outer limits of in personam jurisdiction based on a single act. First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant's activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable
“General Fairness to the defendant”
For the purposes of that standard, business is transacted in a state when obligations created by the defendant or business operations set in motion by the defendant have a realistic impact on the commerce of that state; and the defendant has purposefully availed himself of the opportunity of acting there and if he should have reasonably foreseen that the transaction would have consequences in that state. There can be little doubt that both of these tests are satisfied in this case. |
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Definition
To be subject to jurisdiction, a nonresident must do some act by which he ‘purposefully avails itself of the privilege of conducting activities within the foreign State, thus invoking the benefits and protection of its laws.
In an ordinary, single, retail sale transaction, where the purchaser never enters the State of Tennessee until the purchase contract has been consummated, and thereafter his only connection with the State of Tennessee is the acceptance of the delivery by an agent in Tennessee, is this a purposeful availing of the privilege of conducting activities in Tennessee and is it an invocation of the benefits and protection of its laws? The question answers itself in the negative. What are the activities that are not interstate? Where are the benefits? |
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| Nicholstone Book Bindery v. Chelsea |
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Definition
What is not necessary: 1.Physical Presence of the defendant or its agent, 2.Defendant didn’t solicit the business, 3.Technicalities of the contract execution, 4.Law choice, 5.Forum choice
The crucial factor is that the subsequent conduct of the defendant shows that it purposefully availed itself of the privilege of carrying on the activities . . .
Specialized products solicitation
The Mohasco test follows as a matter of course. It is clear that the cause of action here arose from the business transacted in Tennessee, i.e.; no cause of action would have arisen had plaintiff not manufactured the products in question. The second part of the Mohasco test is satisfied when it can be shown that "many of the operative facts" of the controversy arose from the contract "and from acts performed under that agreement." As to the final part of the Mohasco test, "when the contract is with a resident of Tennessee, the State's interest in resolving a suit based on the contract and brought by that resident cannot be doubted." |
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Term
| Masada Investment Corp v. Allen |
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Definition
A three-pronged test had been developed to determine the outer limits of personal jurisdiction based on a single act: the defendant must purposefully avail himself of the privilege of acting in or causing a consequence in the forum State; the cause of action must arise from the defendant's activities there; and defendant's acts or consequences must have a substantial connection with the forum to make the exercise of jurisdiction reasonable.
Three primary factors are to be considered in determining whether the requisite minimum contacts were present: the quantity of the contacts, their nature and quality, and the source and connection of the cause of action with those contacts. Two lesser factors to be considered are the interest of the forum State and convenience. The phrase “fair play and substantial justice” must be viewed in terms of whether it is fair and substantially just to both parties to have the case tried in the state where the plaintiff has chosen to bring the action. In each case, the quality and nature of those activities in relation to the fair and orderly administration of the law must be weighed.
D in CA calls P in TN about an Ebay deal and over phone makes representations about deal that are wrong, P acts on, P injured – P can sue D in CA about whatever the contact was about AND P can sue in TN because of Masada Test. |
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| World Wide Volkswagen v. Woodson |
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Definition
A state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist ‘‘minimum contacts’’ between the defendant and the forum.
The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system. The protection against inconvenient litigation is typically described in terms of “reasonableness” or “fairness.”
Factors in determining fairness or reasonableness in exercising jurisdiction: (a) burden of D, (b) forums state’s interest in adjudicating, (c) P’s interest in convenient and effective relief, (d) interstate judicial system’s interest-efficient resolution, (e) shared interest of several state’s interest in fundamental substantive policy
Even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment. OK law will apply to this case (law choice is not at issue).
The foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being hailed into court there… The Due Process Clause, by ensuring the ‘‘orderly administration of the laws,’’ gives a degree of predictability. . .
The forum state does not exceed its power under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state. Stream of commerce jurisdiction, if benefit from product in marketplace should know that liable for damages and should be subject to suit were injured. |
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Term
| Keeton v. Hustler Magazine |
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Definition
The ‘‘single publication rule,’’ New Hampshire’s unusually long statute of limitations, and plaintiff’s lack of contacts with the forum State do not defeat jurisdiction otherwise proper under both New Hampshire law and the Due Process Clause. In judging minimum contacts, a court properly focuses on ‘‘the relationship among the defendant, the forum, and the litigation.’’ It does not matter were the plaintiff is from; concerned with Ds contacts with the state.
Strictly speaking, however, any potential unfairness in applying New Hampshire’s statute of limitations to all aspects of this nationwide suit has nothing to do with the jurisdiction of the court to adjudicate the claims. ‘‘The issue is personal jurisdiction, not choice of law.’’
Plaintiff’s residence or lack of residence in the forum will not defeat jurisdiction. |
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Term
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Definition
Calder set forth the concept of "the effects of the D’s conduct out of state on the state exercising JD." – only in intentional torts of libel cases. Calder v. Jones talks about the “Effects Test.” TN does not follow Calder.
Matters if the impact is in the Ps state it is good enough for minimum contacts even if the D has never been there. |
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Term
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Definition
| This court has repeatedly employed three criteria to make this determination: First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state (Hansen v. Denckla). Second, the cause of action must arise from the defendant's activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum to make the exercise of jurisdiction over the defendant reasonable. Remember Mohasco 3 part test. |
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Term
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Definition
At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.
Intention tort “effect” not directed at Tennessee by the posting? |
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Term
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Definition
Where individuals ‘‘purposefully derive benefit’’ from their interstate activities it may well be unfair to allow them to escape having to account in other States for consequences that arise proximately from such activities; the Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed.
Once Defendant purposefully established minimum contacts with the forum state, these factors are to be considered to determine whether assertion of personal jurisdiction comport with “fair play and substantial justice”: The burden on the defendant, The state’s interest in adjudicating, The Plaintiff’s interest-convenient and effective relief, Judicial system’s interest in obtaining resolution, Shared interest of the several states social policy
Choice-of-law provisions are a factor that may be considered for jurisdictional purposes but the court does not tell us how they can be considered. |
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Term
| Asahi Metal Industry Co, Ltd v. Superior Court of CA |
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Definition
The “substantial connection”. . . Between the defendant and the forum state necessary for a finding of minimum contacts must come about by an act of the defendant purposefully directed toward the forum state.
As long as a participant in the process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise. Nor will the litigation present a burden for which there is no corresponding benefit.
Purposefully directed factors for stream of commerce personal jurisdiction: Designing the product for the market in forum, Advertising in the forum, Establishing channels for providing advice to customers in the forum, Marketing the product through a distributor in the forum state.
Factors; Burden on defendant, interest of the forum, plaintiff’s interest, interstate judicial system’s interest and shared interest of the several states.
Manufacturer » Distributor » Wholesaler » Retailers » Consumers: If design something to meet the particular needs of an area should be foreseeable that be subject to suit in that market; Have to not know where the product is going to purposely avail |
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Term
| Davis Kidd Booksellers v. Day-Impex |
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Definition
The minimum contacts test has two steps. First, it requires the court to identify the contacts between the non-resident and the forum. Second, it requires the court to determine whether exercising personal jurisdiction based on these contacts is consistent with traditional notions of fair play and substantial justice. Both steps call for a careful, not mechanical, analysis of the facts of each case with particular focus on the defendant, the forum, and the nature of the litigation.
The minimum contacts required for the exercise of personal jurisdiction can be established by showing that the defendant has “purposely directed his activities toward citizens of the forum state and litigation results from injuries arising out of or relating to those activities.”
Decline stream of commerce jurisdiction.
Enough contact through the stream of commerce to establish long arm jurisdiction. Cause of action must arise out or relate to the contacts. |
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Term
| Mullins v. Harley-Davidson Yamaha BMW of Memphis |
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Definition
| Purposefully directed factors: Designing the product for the market in forum, Advertising in the forum, Establishing channels for providing advice to customers in the forum, Marketing the product through a distributor in the forum state. |
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Term
| Paylovich v. Superior Court |
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Definition
| Courts have applied the effects test to other intentional torts, including business torts. . . Courts have ‘‘struggled somewhat with Calder’s import, recognizing that the case cannot stand for the broad proposition that a foreign act with foreseeable effects in the forum state always gives rise to specific jurisdiction.’’ |
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Term
| Mokimac River Expeditions v. Drugg – “relate to” |
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Definition
Substantive Relevance/Proximate Cause. This requires forum-related contacts to be substantively relevant, or even necessary, to prove the claim. Here purposeful contact that is a proximate cause of injury.
“Sliding Scale” This approach examines the relationship between forum contacts and the litigation along a continuum. As forum contact goes up, the degree of relatedness to the litigation necessary for specific jurisdiction goes down.
Substantial connection to operative facts. The forum contact are a critical step in the chain of events that led to injury. Adopted by this court.
Cause of death is the negligence of the guides – (1) minimum contacts and (2) cause of action arises out of or relates to the contacts in the state (issue here).
Always state in pleadings that the cause of action arises out of the contacts of the state (don’t say relates). |
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Term
| Federal Court Personal Jurisdiction |
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Definition
Federal Rule of Procedure 4(k)(1)(A) provides that federal district courts have personal jurisdiction over a defendant ‘‘who could be subjected to the jurisdiction of a court of general
A fair number of federal statutes authorize either ‘‘nationwide’’ or even ‘‘worldwide’’ service of process, by which Congress apparently means to allow personal jurisdiction over defendants in certain cases without regard to state boundaries. |
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Term
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Definition
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Term
| Perkins v. Benguet Consolidated Mining Co |
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Definition
It held that the activities in Ohio were sufficiently ‘‘continuous and systematic’’ so that Ohio could, consistently with due process, (1) entertain the cause of action if it wished to do so, even though was unrelated to the Ohio activities, or (2) refuse to hear the case, if that was its own local rule or policy.
Looking at the Corp being subject to general jurisdiction – Corp moved situs because of WWII. |
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Term
| Helicopteros Nacionales De Columbia, S.A. v. Hall |
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Definition
Mere purchases, even if occurring at regular intervals, are not enough to warrant a State’s assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions.
General Jurisdiction – Corp has general jurisdiction where they are incorporated or have their principle place of business.
Specific Jurisdiction – contacts; here the Ds concede that there is no specific jurisdiction; could have a case for specific jurisdiction if they had shown pilots were trained in TX, helicopter made in TX, maintenance in TX (must show the crash resulted from these contacts). |
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Term
| United Agriculture Services, Inc v. Scherer |
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Definition
However, the Court finds that, after the parties continued their discussion about the disagreement on the payment of that underlying contract, the Defendant had communications with the Plaintiff in this cause knowing that the Plaintiff was here in Tennessee, and the Defendant asked the Plaintiff, who was here in Tennessee, to prepare the underlying document that is before the Court today, the promissory note. He knew that that document would be prepared in Tennessee, and it would be sent to him for his signature, which he did. He, therefore, in this Court's opinion, had such contact with the state of Tennessee under those circumstances that were at least minimal contacts such that would reasonably place him on notice that by taking that extra act of creating this document to be in the free flow of commerce that it was one that would reasonably cause it to be haled into the state of Tennessee.
However, the trial court also found that subsequent to the initial interaction, the parties entered into a contract whereby Scherer knew Ag Services was located in Tennessee, and knew the promissory note would be prepared in Tennessee. These factors, the trial court found, were sufficient to satisfy the minimum contacts requirement, and give Tennessee courts jurisdiction over Scherer.
The cause of action is about the note which gives TN jurisdiction; if the cause of action was about the work TN would not have jurisdiction. |
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Term
| Davenport v. State Farm Insurance Co |
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Definition
| Corporation registered to do business in Tenn. General Jurisdiction exists – the cause of the action does not have to arise or relate to contacts in TN. Sue where incorporated, where principle place of business it, or in TN if registered to do business. (State Farm can be sued in TN for something that happened in IL). |
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| Walker v. Nationwide Insurance Co |
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Definition
| Nothing happens in TN in this case – sue over insurance contract (56-2-504) commissioner of commerce and insurance can accept service of process but the cause of action must arise in TN or since Nationwide is incorporated in TN, have the registered agent of Nationwide served pursuant to the TCRP. |
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| Under [this] doctrine, when (1) two or more individuals conspire to do something, (2) that they could reasonably expect to lead to consequences in a particular forum, if (3) one co-conspirator commits overt acts in furtherance of the conspiracy, and (4) those acts are of a type which, if committed by a non-resident, would subject the non-resident to personal jurisdiction under the long-arm statute of the forum state, then those overt acts are attributable to the other co-conspirators, who thus become subject to personal jurisdiction in the forum, even if they have no direct contacts with the forum. |
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| Michigan Trust Co v. Ferry |
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Definition
When power exists and is asserted by service at the beginning of a cause, or if the party submits to the jurisdiction in whatever form may be required, we dispense with the necessity of maintaining the physical power and attribute the same force to the judgment or decree whether the party remain within the jurisdiction or not.
Jurisdiction attaches in a criminal case upon the swearing of the jury
Jurisdiction can attach by status – association in the military is status and that status gives jurisdiction or domestic relationships like the status of marriage, adoption
Once the court obtains jurisdiction it retains that jurisdiction, so moving or going away does not change that jurisdiction.
File suit in CA and D files a counterclaim, P dismisses suit but still continuing jurisdiction to resolve counter complaint |
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| Personal jurisdiction in money judgments |
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Definition
Auto accident in Nashville – someone from GA hits me and goes back to GA – sue them on a tort theory – have jurisdiction over the D in TN – case is tried in TN and get a $100,000 judgment, D goes back to GA and does not pay – want GA to give FFC to the TN Judgment (action in GA to enforce the judgment)
Once a judgment has been entered the cause of action goes away and merges into the remedy of the action – want another state to recognize the FFC of the judgment
Jurisdiction over things (in rem jurisdiction)
Pure in rem jurisdiction is very rare – trying to determine the right as to all the world not to a specific individual
Quasi in rem jurisdiction 1 – bought car and paying by the week and paid for 2 years, miss one payment and car lot goes and files attaches to the truck; the SM of the dispute is the truck
Quasi in rem jurisdiction 2 – easy loan provided money for truck, later went out a bought furniture with same loan company and stopped making furniture payments, easy loan attaches to the pickup truck; the SM of dispute has nothing to do with the property
Attachment – property was the equivalent of personal presence, company would lure the person being sued into another state and get jurisdiction |
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The court is empowered to enforce its decrees awarding child support by contempt proceedings; also T.C.A. s 36-822 empowers the court to take judgment against appellee for the arrears due for child support. The divorce statute does not in terms require notice of a subsequent petition, but it is to be assumed that any court would require it if deemed appropriate to the ends of fairness.
Continuing Action v. New Action |
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Tenn. Code Ann. 37-1-159 governs appeals from juvenile court: 1. Appeals from final judgment of delinquency-Criminal Court-de novo. 2. Appeals from final judgment of dependent and neglect (unruly child)-Circuit-de novo. 3. All other civil matters governed by Tenn. Rules of Appellate Procedure-Ct. of Appeals
Tenn. Code Ann. 37-1-103 Juvenile Courts have “exclusive original jurisdiction” in proceeding in which a child is alleged to be “delinquent, unruly” or “dependent and neglected” or “have committed a juvenile traffic offense”
This exclusive jurisdiction continues until the juvenile court takes certain actions
When a juvenile court acquires jurisdiction from a dependency and neglect proceeding, its exclusive original jurisdiction continues until one of following events occur: (1) the case is dismissed; (2) the custody determination is transferred to another court; (3) a petition for adoption is filed; or (4) the child reaches the age of eighteen. |
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| Estate of Trivette v. Trivette |
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Definition
It is a well established point of law that a court of one state is without jurisdiction to pass title to lands lying wholly in another state.
Lack of power of jurisdiction to change the title to property in a different state because of the location of the res
Court can make the parties execute a deed from A to B, if don’t put in pokey until they do OR if the property is located in the state the court can divest the property from A and give it to B |
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| The final decree of divorce which attempted to vest and divest title to the real estate in Florida was beyond the jurisdiction of the court. Therefore, you cannot have a contempt because you do not have a valid order. |
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The issue is jurisdiction of the res, land, or the debt, which requires personal jurisdiction of the creditor. The determination of valid jurisdiction will determine the extra territorial effect of the judgment for full faith and credit purposes.
The judgment rendered by Arkansas would be obligatory on the creditors in so far as it released their lien upon the land in that state. But, when the court (Arkansas) undertook to grand additional relief strictly in personam, it transgressed its jurisdiction so as to render such unauthorized additional relief of not effect
What if the Kentucky creditors went to Arkansas and sued on the debt would the Arkansas judgment be enforceable in Kentucky? Yes
What if the Arkansas party was properly served in Kentucky and a valid judgment was obtained first, would such a judgment be enforceable in Arkansas? Yes How about after the judgment in Arkansas? Yes
If the creditor had obtained a money judgment that judgment would be transferable to any court that has jurisdiction over the D
Since this is a dispute over property the judgment cannot be transferred because there is no personal jurisdiction and the property is in rem |
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Maryland having obtained jurisdiction over Harris debt by personal service by Epstein, the judgment must be given full faith and credit in North Carolina even if they would not come to the same conclusion in the under-lying case.
Why would this be an invalid decision today? Quasi in rem 2 because the debt in question is not really the debt at dispute |
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Important because it does away with quasi in rem 2 jurisdiction that was abused because it lured people in
Accordingly, they urge that the ‘‘traditional notions of fair play and substantial justice’’ that govern a State’s power to adjudicate in personam should also govern its power to adjudicate personal rights to property located in the State.
For the type of quasi in rem action typified by Harris v. Balk [p. 146, supra] and the present case, however, accepting the proposed analysis would result in significant change. These are cases where the property which now serves as the basis for state court jurisdiction is completely unrelated to the plaintiff’s cause of action. (Therefore, no quasi in rem jurisdiction.)
We therefore conclude that all assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny. The res must relate to the cause of action.
Shaffer says both types of jurisdiction (quasi in rem 1 and quasi in rem 2) must be measure by the same standard – need minimum contacts (International Shoe)
If have an opportunity to sue someone on the basis of quasi in rem 1 (limited to judgment of the total value of res in the state) also have personal jurisdiction over the D. In personam jurisdiction is importable and can be taken somewhere else to be satisfied
Easy ride sells a car and liens the title (pay weekly) person fails to pay – Easy Ride attaches the car – quasi in rem 1 because property is the subject of the suit
Pay Day loan makes a loan to D and takes a security interest in furniture, loan is not paid – Pay Day attaches the truck – quasi in rem 2 and not valid, property is not the subject of the suit and no minimum contacts |
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| Competence of Court and Notice |
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On the whole, we think it clear that the jurisdiction of the court by which a judgment is rendered in any State may be questioned in a collateral proceeding in another State, notwithstanding the provision of the fourth article of the Constitution and the law of 1790, and notwithstanding the averments contained in the record of the judgment itself.
Take this with a grain of salt. This was a quasi in rem action and jurisdiction was not tested in N.J. There was not competent jurisdiction in NJ so NY will not give FFC. |
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| Mullane v. Central Hanover Bank and Trust Co |
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Definition
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections The notice must be of such nature as reasonably to convey the required information and it must afford a reasonable time for those interested to make their appearance. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied. HEART BEAT OF THE LAW!
Due process is one of the most fundamental processes in the law and permeates the legal system: Due process is dependent on the right that is being deprived. Must have notice and a reasonable opportunity to respond (underlined above). Right taken away in this case is the accounting (closes opportunity to raise claims). State action so this is 14th Amendment DP. Personal service is always good for due process even if the service takes place outside of the state by process server (usually not effective outside of TN) |
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Definition
The Due Process Clause of the Fourteenth Amendment of the United States Constitution requires that “deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing.
The Notice required . . . Is that which is “reasonably calculated, under all then circumstances, to apprise interested parties of the Pendency of the action and afford them an opportunity to object.
Where the names and post office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.”)
Basically adopt Mullane v. Hanover in this case – TN is in line with that case
Think about September 11th and the money available to the families of the victims: Publication for potential heirs and unknown people is probably okay; people who are known to have died (have addresses) need something more than publication (best is personal service) |
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The general rule that emerges from the Mullane case is that notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable and whose legally protected interests are directly affected by the proceedings in question. ‘Where the names and post office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.
For a judgment to be given finality due process must be met. |
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| Volkswagenwerk Aktiengesellschaft v. Schlunk. |
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Definition
The Convention is the supreme law of the land because of its treaty status but it is drafted in such a way as to detail how service is to be effected, not whether there is a need for service abroad.
Rare it will be to have effective service on a subsidiary to bind a parent corporation.
VGA and VW are linked on an agency basis because they have common directors (alter ego theory).
If truly trying to reach foreign corporation then going to have to meet the standards of the Hague Convention. |
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| Limitations of the Exercise of Jurisdiction |
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Definition
Forum selection clause and Law selection clause
Can have one or both in same document
Remember the fact that have a forum selection clause doesn’t mean that there is a law selection clause – measuring validity is about the same but different in other aspects
Forum selection clause selecting TN to hear case involving event in AL; AL substantive law would control the obligations of the parties; TN law would apply to the procedures; AL would apply to rule of the decision
Prorogation. The conferral of jurisdiction by means of a contractual choice-of-court clause. Jurisdiction over the person (can’t confer SMJ). Parties agree to confer personal jurisdiction in a contract.
Derogation. The enforcement of a choice of- court contract by a court which has jurisdiction but refrains from exercising it. |
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| Limitations Imposed by Contract |
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| M/S Bremen v. Zapata Off-Shore Co. |
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Definition
These clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘‘unreasonable’’ under the circumstances. High burden on those who resist.
Forum selection clauses will normally be upheld unless unreasonable. Test of reasonableness: unaffected by fraud, undue influence, or overreaching bargaining power.
This case involves business professionals, this is a case in admiralty under federal law (exclusive jurisdiction), contracts are given a great deal of sanctity in the courts.
Not sure whether London or US substantive law to apply – looks like London all the way but not clear |
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| Carnival Cruise Lines v. Shute |
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Definition
This case is one in admiralty and federal law governs the enforceability of the forum-selection clause.
Including a reasonable forum clause in a form contract of this kind well may be permissible for several reasons.
Why businesses want to use forum selection clauses: A. Limits fora. B. Dispelling confusion about where suits must be brought. C. Reduces the cost of fares
Respondents do not claim lack of notice of the forum clause and fail to meet “heavy burden of proof.”
Such clauses are subject of judicial scrutiny for fundamental fairness. Such as bad faith, fraud or overreaching |
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| Chaffin v. Norwegian Cruise Lines LTD |
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Definition
Enforceability of forum selection clause in a maritime contract doesn’t require P’s claims to be maritime. Maritime law governs the enforceability of forum selection clauses.
Enforceability is determined by unreasonableness under the circumstances.
As in Shute, no dispute exists before this Court as to whether Plaintiffs had sufficient notice of the pertinent forum selection clauses before entering into their respective cruise contracts. Therefore, consistent with the Supreme Court's reasoning in Shute, we find that Plaintiffs in the instant case have not satisfied "the 'heavy burden of proof' required to set aside the clause" and that each defendant's forum selection clause would, thus far, be valid and enforceable.
In this case, whether the forum selection clauses can be enforced (for claims that arose from an act committed during trade or commerce in part or wholly within Tennessee) depends upon whether the substantive rights and remedies afforded under the TCPA and asserted and/or sought in this case can similarly be asserted and/or sought in the selected forum.
Accordingly, they find that enforcement of the forum selection clauses will not limit or waive Plaintiffs' substantive rights and remedies afforded under the TCPA and will not contravene the TCPA's purpose. As such, they conclude that enforcement of the forum selection clauses will not "contravene a strong public policy," and that the clauses are enforceable. |
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| Dyersburg v. Rentenback Engineering Co. |
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Definition
Courts which recognize the validity of forum selection clauses generally, nevertheless, have refused to enforce them against third parties who did not agree to the contract containing such clause and are not parties to the agreement. This issue is not reached in this case however.
In determining whether to enforce a forum selection clause Tenn. Courts should consider: (1) the plaintiff cannot secure effective relief in the other state; (2) the other state would be a substantially less convenient place for the trial of the action than this state; (3) the agreement as to the place of the action was obtained by misrepresentation, duress, abuse of economic power, or other unconscionable means; (4) or it would for some other reason be unfair or unreasonable to enforce the agreement
TN generally follows MS Brennan – forum selection clause is valid and resisting party bears the burden of invalidating
If enforced litigated in KY but TN substantive law would apply because sell of a TN business with no choice of law clause |
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| Fraud, Force, and Privilege |
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Luring a defendant into the jurisdiction by fraud or deceit in order that he may be served… the service is ineffective.
The court has jurisdiction but will not exercise it. Has general jurisdiction because served in the state but declines to exercise it because of the circumstances.
Tenn. Code Ann. 24-2-105 not allowed to serve |
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Definition
Tenn. Code Ann. 24-2-105, the statute applies to witnesses and parties.
The protection extends to corporation and prohibits service on officers while a witness or against them individually while acting as witnesses.
Number of statutes that apply to going to court in another state: criminal Ds extradited to another state, going to another state to testify |
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Always applicable in state courts – a way cases can be moved between states
After tile 28 1404: no more forum non convenience in diversity of citizenship cases. Only kind allowed is between 2 different countries. Available in federal district courts only for Foreign Cases
Must have 2 courts with jurisdiction; allows the P to change jurisdiction
Determined by the discretion of the court and it is exercised by looking at private and public factors and weighing those
Private factors: A. the relative ease of access to sources of proof, B. availability of compulsory process for attendance of unwilling, C. the cost of obtaining attendance of willing witnesses, D. possibility of view of premises, if view would be appropriate to the action, E. all other practical problems that make trial of a case easy
Public factors: A. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin, B. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation, In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only, D. There is a local interest in having localized controversies decided at home, E. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself. |
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| Gulf Oil Corp. v. Gilbert – Need to know this case |
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Definition
Adopts for the first time in the United States the theory of Forum Non Conveniens (Adopted in 1947 and Title 28 1404 came after this case)
Prerequisite to this principal is the requirement that two forums exist where the defendant is amenable to process jurisdiction.
Discretion of the court. Requires the weighing of interest of the plaintiffs and the defendant that are both private and public in nature.
Private interest of litigants are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy.
Public factors. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself
Not a judgment on the merits so not barred by res judicata |
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Reason for filing in U.S. Is the laws regarding liability, capacity of sue and damages are more favorable. Dismissed in trial court on forum non conveniens grounds.
The possibility of change in substantive law should not be given conclusive or even substantial weight in the forum non conveniens inquiry
When the plaintiff is foreign, however, this assumption is much less reasonable… a foreign plaintiff’s choice deserves less deference
Forum non-convenience applies to cases between foreign countries and this is by statute; it is codified in federal district court; cannot use for transfer between districts, must use 28 USCA 1404(a) |
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| 28 U.S.C.A. 1404(a) Change of Venue |
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Definition
(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
This code section does away with forum non conveniens motions in Federal court within the United States and its territories. Forum non conveniens would still be applicable in international litigation in the Federal court.
The courts substantive law goes to the new venue
If have a 1406 transfer use the substantive law of the court of new venue – P filed in the wrong venue and suit goes to appropriate venue so that venue’s law should have been used in the 1st place. |
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| In re Union Carbide Corporation Gas Plant Disaster at Bhopal, India in December, 1984 |
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Definition
It is appropriate to require as a condition of dismissal the moving party to consent to the jurisdiction of the court in India and waive a defense of the statute of limitations.
Also made a condition in this case, unchallenged by the D, was the condition that D submit to the foreign JD and waive all statute of limitations defenses. This condition has almost become part and parcel with a dismissal on forum non conveniens grounds. So long as the court is convinced that the interests of both sides will be respected, such a dismissal will be granted. Due process defenses can be raised in any subsequent action to enforce the judgment in US courts. |
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Must apply the doctrine to both citizens and nonresidents on the same basis-privileges and immunities requirement.
If P is from TN and D is from another state or if both are from another state it does not matter as far as forum non-convenience (law says treat the same)
In Tennessee courts of general jurisdiction have inherent power to apply the doctrine as a ground for refusal to exercise jurisdiction.
The doctrine presupposes that the court has jurisdiction of both parties and subject-matter jurisdiction. Also that another court has the same.
Tennessee adopts the Gulf Oil Corp. v. Gilbert factors for the court to consider.
The fact that the cause of action arose outside the state is not a factor nor is the fact that the parties are from out of state. The fact that the law of the decision will come from a different state is not a factor. |
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Forum non conveniens is not applicable to intrastate actions in TN.
Some few states do apply the concept to intrastate actions. Illinois and Oklahoma |
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| Other Limitations Imposed by the Forum |
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Definition
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| Package Express Ctr. V. Snider Foods. |
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Definition
If the requirements of Zurick and Gulf Oil are met, Forum Non Conveniens may defeat a forum selection clause..
Only case Daniel has ever seen that allows FNC to defeat a properly executed contract with a forum selection clause – very narrow rule and probably not valid
Venue selection and law selection clauses are too different things - CL says the substantive law of a contract is where the contract is signed (you might have a venue selection clause with no law selection clause) |
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Term
| A judgment must be looked at for what they are |
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Definition
Race to judgment – parties in controversy may find it is better to hurry and get a judgment and cut off the other party from getting their remedy – cases may be started at the same time
Federal system looks to whoever 1st filed and see if they can stay in the court (jurisdiction, venue, ect)
State systems use prior suit pending – case started first is the one that is used
Some state might try to enjoin another state from adjudicating a case – there is no jurisdiction of the issuing court over the court of a sister state – can possibly enjoin one of the parties if that party is in front of the issuing court. |
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| United States v. First National City Bank |
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Definition
It is no longer open to doubt that a federal court has the power to require the production of documents located in foreign countries if the court has in personam jurisdiction of the person in possession or control of the material.
The decision to exercise the power and impact on a foreign jurisdiction is a balancing test of the interest of each of the laws and the hardship on the parties, here, the bank will suffer.
What if cause person to commit a crime in another country? Still not relieved on the order to produce the documents |
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| Slater v. Mexican National R. Co. |
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Definition
Vested rights theory of choice of law.
The dissimilarities between Texas law and Mexico too great to permit an action in the Texas
Mexico law does not have extra territorial effect. (law used is determined by where the injury/death took place) |
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| Limitations Imposed by the State of the Transaction |
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Definition
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| Buttron v. El Paso Northeastern Ry. Co. |
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Definition
Here the New Mexico territory has created a number of barriers to other states hearing a claim based on events in New Mexico. This is a form of declaratory judgment law.
Here the sister state give full faith and credit to the decision and this has the effect of defeating local state court jurisdiction |
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| States cannot limit the application of the federal law |
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Definition
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| Tennessee Coal, Iron & Railroad Co. v. George |
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Definition
The courts of the sister State trying the case would be bound to give such faith and credit to all those substantial provisions of the statute which inhered in the cause of action or which name conditions on which the right to sue depend. But venue is no part of the right; and a State cannot create a transitory cause of action and at the same time destroy the right to sue on that transitory cause of action in any court having jurisdiction.
Cause of action (transitory) and law limits it to AL – court says no it can be heard any where that has jurisdiction over the parties. |
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| Effect of Interstate Commerce |
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Definition
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| J.C. Penny National Bank v. Johnson |
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Definition
For state taxes to be valid they must meet the requirements of both the Due Process clause and the Commerce clause.
In other words, if the contacts were sufficient to subject the corporation to personal jurisdiction in the forum state, then imposition of use tax on the corporations business in the state would be sustained for due process purposes.
Commerce Clause expressly authorizes Congress to “regulate Commerce with foreign Nations and among the several states”. The grant of power implies the “dormant” Commerce Clause that serves to prohibit state actions that interfere with the interstate commerce. (several states, foreign nations, and Indian tribes)
In order to meet Commerce Clause permissibility a four part test must be met for a state tax on an out-of-state seller. 1. The “tax” must be applied to an activity with a substantial nexus with the taxing state. 2. Fairly apportioned 3. Does not discriminate against interstate commerce and 4. Is fairly related to the services provided by the state.
Here since no physical presence, no nexus. |
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Foreign Judgments
Policies Underlying the Recognition and Enforcement of Foreign Judgments |
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Definition
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| Hilton v. Guyot – Starts Judgment Cases |
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Definition
The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call ‘‘the comity of nations.’’
In order to be entitled to any effect, must have been rendered by a court having jurisdiction of the cause, and upon regular proceedings and due notice.
There would not be reexamination today – must be due process and notice |
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Definition
Whether the judgment of the Quebec Court is valid in the NY Court merely prima facie proof of liability, against which any defense which could have been asserted at the trial in the Quebec Court is available to defeat recovery here, or is it conclusive, subject to judgment? No
The general rule in this state is settled as follows: a judgment recovered in a foreign country, when sued upon in the courts of this state, is conclusive so far as to preclude a retrial of the merits of the case, subject, however, to certain well recognized exceptions, namely, where the judgment is tainted with fraud, or with an offense against the public policy of the state, or foreign court had no jurisdiction. . |
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Definition
Tennessee recognizes and gives effect by way of comity foreign judgments.
Comity,’ in the legal sense, is neither a matter of absolute obligation on the one hand, nor of mere courtesy and good will upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws .
Most states don’t recognize foreign divorces |
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Recognition and Enforcement in General
In Personam Jurisdiction |
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Definition
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Definition
To give it the force of a judgment in another State, it must be made a judgment there; and can only be executed in the latter as its laws may permit.
Provision for bond is in the nature of execution and has no extraterritorial operation
For a judgment to get effect in the other state it must be a “sure enough judgment” – some domestic relations cases are not final and subject to later modification |
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Definition
The judgment of a court of record, having jurisdiction of the parties and the cause, is conclusive in the courts of every other state and of the United States, no matter how erroneous in law or in fact that judgment may be.
Want to know how to enforce a judgment – get certified judgment from rendering state, carry to state want enforced in, and file to have the judgment recognized. Federal statute about enforcing judgments and most states have a statute about enforcing judgments |
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| Judgments based on Jurisdiction over Things or Over Status |
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Definition
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| Harnischfefer Sales Corp. v. Sternberg Dredging Co. |
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Definition
In Louisiana S defended and presented proof in both the in rem claim and the personal judgment claim on breach of warranty as to both claims and lost. Louisiana Supreme Court concluded that the trial court did not have jurisdiction of the personal judgment claim.
In second case H has personal jurisdiction and S relies on fraud but Mississippi concludes that the res judicata effect of the Louisiana decree concluded and adjudged this defense and it cannot be raised again.
The effect of the estoppel by final decree is to be determined by the law of the state where the decree was rendered.
Revisiting the issue of in rem jurisdiction (location of dredge) and in personam jurisdiction (where P was trying to find D to file suit) |
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Term
Particular Effects
Persons Affected |
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Definition
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| Riley v. New York Trust Co. |
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Definition
Full faith and credit give res judicata affect to state court decisions and compels that controversies be stilled, so that, where a state court has jurisdiction of the parties and subject matter, its judgment controls in other states to the same extent as it does in the state where rendered.
It may be assumed that the judgment of probate and domicile is a judgment in rem. But this does not bar litigation anew by a stranger, of facts upon which the decree in rem is based. While the Georgia judgment is to have the same faith and credit in Delaware as it does in Georgia, that requirement does not give the Georgia judgment extraterritorial effect upon assets in other states. |
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Term
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Definition
S.Ct. disapproves of the doctrine of suit preclusion by “virtual representation” in FOIA litigation.
Preclusive effect of a federal-court judgment is determined by federal common law.
Preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as “res judicata.
A person who was not a party to a suit generally has not had a “full and fair opportunity to litigate” the claims and issues settled in that suit. Claims and issue preclusion as to nonparties thus runs against tradition.
Exception to non-party preclusion: 1. Party agrees to be bound by determination of issues in action by others. 2. Preexisting “substantive legal relationships” between the parties. 3. Non party bound by judgment when the non-party was adequately represented by someone with the same interest who was a party. 4. Party bound if they “assumed control over the litigation in which judgment rendered. 5. Re-litigation by a proxy. 6. Special statutory scheme “expressly forecloses”.
Virtual representation is not accepted by the court |
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| Kremer v. Chemical Construction Corp. |
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Definition
The Federal court has to give the same preclusive effect to the state court judgment that would be given in state court.
The state action was based on New York law and the second action on Federal law.
Our previous decisions have not specified the source or defined the content of the requirement that the first adjudication offer a full and fair opportunity to litigate. But for present purposes, where we are bound by the prior state proceeding it need do no more that satisfy the minimum procedural requirements of the 14th Due Process Clause in order to qualify for the FFC. Federal court must use the state res judicata judgment effect rather than Federal res judicata effect |
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| Marrese v. American Academy of Ortho. Surgeons |
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Federal courts have exclusive jurisdiction to decide antitrust actions. The preclusive effect of a state court judgment in a subsequent federal lawsuit is determined by state law.
Most state preclusion law includes the requirement of prior jurisdictional competency before the judgment has preclusive effect. |
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The doctrine of res judicata is that an existing final judgment rendered upon the merits by a court of competent jurisdiction is conclusive of the rights, questions and facts in issue as to the parties and their privies in the same action in other judicial tribunals of concurrent jurisdiction. This doctrine is distinguished from the doctrine of collateral estoppel which precludes further litigation of the particular facts on which the jury or court necessarily made findings in the former action.
A cause of action has been defined to be “Every fact which it would be necessary for the plaintiff to prove if traversed, in order to support his right to the judgment of the court.” But in determining whether the causes of action in the two actions are the same for the purposes of estoppel or bar, it is necessary to consider their essential elements rather than the identity of the facts which may have been pleaded or proved as evidencing those elements.
Collateral Estoppel precludes re-litigation of issues between the parties or their privies in different causes of action provided resolution of the issue was necessary to the decision.
Privity in the traditional sense means mutual or successive relationships to the same rights of property.
In Tennessee privity as used in the context of res judicata does not embrace relationships between persons or entities but rather to the subject matter. |
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| Res judicata/collateral estoppel |
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Defense
Methods of closing the courts availability to resolve disputes
Direct estoppel – prohibits the same parties/issue from being re-litigated (the classic do over)
States differ – TN is conservative (see Philips v. GMC); almost like res judicata with very strict rules
Collateral estoppel – cause of action merges into a judgment – look at the facts and issues in each case |
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| The doctrine of collateral estoppel or estoppel by judgment is an extension of the principle of res judicata, and is generally held to be applicable only when it affirmatively appears that the issue involved in the case under consideration has already been litigated in a prior suit between the same parties, even though based upon a different cause of action, if the determination of such issue in the former action was necessary to the judgment. |
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| Hart v. American Airlines |
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| How other states apply offensive collateral estoppel |
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The familiar rule is that where the two causes of action are different, the judgment in the first suit is binding as an estoppel only as to those matters in issue, the inquiry being what point or question was actually litigated and determined in the original action, not what might have been litigated and determined.
The doctrine does not apply unless the determination of the issue in the prior suit was necessary to the decision. |
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The party seeking to rely on the doctrine of collateral estoppel has the burden of proof.
To invoke the doctrine successfully, the party must demonstrate: 1. that the issue sought to be precluded is identical to the issue decided in the earlier suit; 2. that the issue sought to be precluded was actually litigated and decided on its merits in the earlier suit; 3. that the judgment in the earlier suit has become final; 4. that the party against whom collateral estoppel is asserted was a party or is in privity with a party to the earlier suit; 5. that the party against whom collateral estoppel is asserted had a full and fair opportunity in the earlier suit to litigate the issue now sought to be precluded.
At common law collateral estoppel required mutuality (here meaning same parties) of parties and could only be used defensively.
Difference between “mutual offensive collateral estoppel” and “non-mutual offensive collateral estoppel”
Tennessee courts may permit the use of mutual offensive collateral estoppel in proper circumstances. The decision is discretionary.
Factors to consider (1) whether the plaintiff could have joined the former suit but decided instead to adopt a “wait and see” attitude, (2) whether the defendant had an incentive to defend the former suit vigorously, and (3) whether the judgment on which the plaintiff seeks to rely is itself inconsistent with previous judgments against the defendant.
It is almost impossible to meet the standards of the test, probably won’t see this type of case in TN
Res judicata prohibits 2nd action from a final judgment on the same cause of action and collateral estoppel focuses on facts and issue that are being re-litigated on different causes of action |
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| Limitations on Full Faith and Credit |
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Washington state commissioner deed to Nebraska land is invalid. Court decree awarding land in Washington also invalid.
Blackacre is awarded to wife and if property is in TN just record the deed and move on (in jurisdiction); the Washington court does not have jurisdiction to divest the title to property that is in Nebraska
WA does not have JD over NE land. However, they can order them to sign the deed if they have personal JD over the D. They can hold them in civil contempt of court until they sign the deed.
Before FFC must have jurisdiction |
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| Baker v. General Motors Corp. |
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FFC requires receiving state to give the judgment of another state its effect even if the forum would not be required to entertain the suit.
FFC does not compel a state to substitute the statutes of another state for its own statutes dealing with a subject matter concerning which it is competent to legislate
Supreme Court decisions do not support a roving “public policy exception” to FFC.
Equity decrees are not outside the FFC domain.
The Michigan agreed judgment merged the claim for tort and contract to a judgment and is a bar between those parties to the action.
Michigan decree cannot determine evidentiary issues in a lawsuit brought by parties who were not subject to the jurisdiction of the Michigan court.
Michigan decree could be used in another state to prevent Elwell from volunteering as a witness.
Equitable judgments are entitled FFC just as money judgments are (must be the same parties)
The Michigan judgment was a settlement – it is entitled to FFC (consent judgment or tried judgment it doesn’t matter; a judgment is a judgment) |
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| James v. Grand Trunk Western R.R. |
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From a sister state, extraterritorial injunctions are not given FFC b/c it would interfere with the integrity of the judicial system of that forum.
Does that mean that it’s invalid as to the parties? No |
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FFC bars the action here but look at Stone’s dissent. He thinks that it is res judicata in Ga. For what happened there but not for events that occur thereafter in S.C.
The GA decree did release the father and it did comply with GA law. SC did not have JD over the father in this situation. Georgia judgment was entitled to FFC. Forum 2 may not alter terms of divorce decree by Forum 1.
We have a merger of the cause of action into a judgment, creating a debtor situation against the D.
What does the D do? He pays the judgment—he satisfies it—this extinguishes the claim. He is no longer a debtor. Here, the court points out that each state is a separate sovereign, and these sovereigns have interests that they are entitled to protect. |
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Right of election – if TN worker files for WC in another state, it is an election/bar for any other claim in this state
Cases following have this subject matter – use them for FFC analysis and Res Judicata principles (the WC rules applied don’t work in TN) |
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| Magnolia Petroleum Co. v. Hunt |
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Each state has a right to make its own law with respect to persons and events within its borders and FFC does not require it to substitute for its own law conflicting laws of another state.
Where a court must make a choice of one of two conflicting state statutes as to a cause of action, there can be not res judicata plea or FFC plea
Once a judgment exists, the FFC places a judgment on a different footing from a statute of one state. The judgment must be recognized. It is a “nationally untifying force”. |
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| Industrial Commission of Wisconsin v. McCartin |
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If the Illinois award was intended to be final and conclusive it would be res judicata.
Here the language of the judgment evidenced that the employee was free to ask for additional compensation in Wisconsin.
IL statute is unique and the parties conduct – issue is reserved and the party can get more mone |
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| Thomas v. Washington Gas Light Co. |
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Full faith and credit must be given to the determination that the Virginia Commission had the authority to make; but by a parity of reasoning, full faith and credit need not be given to determinations that it had no power to make. Since it was not requested, and had no authority, to pass on petitioner’s rights under District of Columbia law, there can be no constitutional objection to a fresh adjudication of those rights.
Administrative agency get FFC – if the state gives the agency preclusion effect (same as a judgment) then sister states must recognize the judgment |
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Tennessee gives FFC to equitable decrees, divorce decrees and the obligation to maintain a certain beneficiary.
The VA policy is controlled by Federal law which is clear that the insured shall have the right to designate the beneficiary within designated classes at all times and the right to change those beneficiaries.
When have federal law involved in state matters like pensions – court orders are ineffective as to choices b/w the parties; must be filed out according to federal law. |
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| Seiller & Handmaker, LLP v. Finnel |
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“Tennessee courts are not obligated to give full faith and credit to any judgment of a state which we hold to be volatile of Tennessee's public policy or the Federal Constitution.” A party who invokes the public policy exception must identify the public policy that is offended by the foreign judgment and has a “‘stern and heavy’ burden.
Tennessee public policy is found in its “constitution, statutes, judicial decisions, and common law.
This Court has previously held that “a state court must give full faith and credit to a monetary judgment rendered in a court of another state, even though the enforcing forum might not recognize the underlying cause of action
PP argument goes away once there is a judgment. Predicate for a judgment is jurisdiction and notice.
FFC is national in scope – makes state judgments national in scope in recognition and enforcement of judgments |
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Absent a contractual choice of law provision, Tennessee courts apply the lex loci rule to contract causes of action. Accordingly, the substantive law of the state in which the contract was executed governs disputes arising from the contract. An exception to this general rule is often made when the contract is to be performed in another state and the parties envision performance in accordance with that state's laws. The primary consideration to be made in determining whether the exception applies is whether the contract was made “in good faith with reference to the law of some other state,” or “with [a] view to” the other state.
In Tennessee antenuptial agreements are enforceable as contracts if they have been entered into “freely, knowledgeably and in good faith without duress or undue influence. Florida no knowledgeable requirement and valid in probate when they might not be in marriage dissolution.
Such agreement violates Tn. Public policy and is not enforceable. Note this is not a judgment but what law applies.
CL rule for where to get the substantive law for contracts
There is not a judgment in this case and that makes it different from Seiller; each state has the authority to make its own PP; TN will not give effect to something that is against our PP as established by the legislature; If had started the case in FL and got a judgment TN would enforce it and it would be like Seiller |
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Defenses
Nature of the Original Proceedings |
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The Constitution and a statute of the United States which commands that such faith and credit shall be given by every court to the California proceedings ‘‘as they have by law or usage’’ of that state. And since the existence of the federal right turns on the meaning and effect of the California statute, the decision of the Texas court on that point, whether of law or of fact, is reviewable here.
Who is entitled to be the final arbiter in this case? The US SC. This is not a matter of state law, it is a matter of whether TX is failing to follow the US Constitution (FFC) |
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Lack of jurisdiction in rendering court – no FFC.
Not a violation of FFC to attack jurisdiction – the court has the underlying decision making power must have jurisdiction
Have 2 situations that can occur: Don’t want to submit to state for determination – let court take default action and once try to enforce in another state try to collaterally attack jurisdiction. If go into TC and contest jurisdiction – must stay in the court system and exhaust remedy to attack on a constitutional basis |
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| Treinies v. Sunshine Mining Co. |
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In competing judgments last in time prevails unless you appeal and ultimately seek intervention in the Federal court.
Competing judgments – have 2 different state judgments that are inconsistent b/w the same parties and the same issues; if fail to get res judicata for the 1st judgment, then the 2nd judgment will replace the 1st
Rule – last in time will get FFC
Restatement 2nd Conflict of Laws: Inconsistent judgments. A judgment rendered in a state of the US will not be recognized or enforced in sister states if an inconsistent but valid judgment is subsequently rendered in another action between the parties and if the earlier judgment is superseded by the later judgment under the local law of the state where the later judgment was rendered |
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| First Tenn. Bank v. Smith |
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FFC must be given in Federal courts to state judgments.
When conflicting judgments are entered in two states, each of which would otherwise be entitled to FFC in the federal court, it is the second judgment which must control. This is based not only on principles of comity and need for finality, but upon the obligation of the litigants to exercise all due diligence in the presentation of their controversy. |
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The question in this old case is whether the judgment for past due alimony is capable of retroactive revision or amendment. One point of view is that if it is capable of modification, no FFC. Have to look at the rendering state law not the receiving state law.
Concurring view is now the law. FFC even if capable of being modified. |
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Here the N.J. decree is both prospectively and retroactively modifiable. We are not constitutionally bound to enforce it nor are we bound not to. So they enforce.
If modification occurs in a sister state, that modification can be given FFC.
When decree is registered and made a decree of Calf. Either party can litigate those issues. |
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Judgment procured by fraud in rendering state is given FFC here and the court says that the remedy is to be sought from the rendering court..
However, it appears that the receiving court should be able to apply the relief remedies that would exist in the rendering court.
The state that is trying to give full effect to the judgment of the rendering state is not going to give more or less effect than the rendering state – give the same effect Maryland (rendering state) would give to the judgment |
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| Nature of Original Cause of Action |
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The question of whether due faith and credit is denied to a judgment of a sister state is a Federal question of which the Supreme Court has jurisdiction
The courts of no country will execute the penal laws of another.
Penal law is one denoted to punish and is one enforced by the state. They also include extraordinary liability to which the law subjects a wrongdoer in favor of the person wronged.
This court, in order to determine, on writ of error, whether the highest court of the latter state has given full faith and credit to the judgment, must determine for itself whether the original cause of action is penal in the international sense.
Tax cases – if someone is sued for taxes and get judgment; then they run off to AL can AL give FFC to the tax judgment? Yep
case |
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Here Mississippi law prohibits this cause of action both in the civil and criminal law.
The Missouri court misapplied the contract law of Mississippi. The decision is wrong but final.
Whether the decision is right or wrong, there can be no question that the judgment was conclusive in Missouri on the validity of the cause of action and must be given FFC
Have a decision Mississippi must give FFC – power of the FFC of article 4
This case applies only to judgments |
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This is an equal protection claim as opposed to a FFC; If a state tried to treat citizens different from citizens of another state it is an equal protection claim
The statute in question bars suits only if the plaintiff cannot revive his judgment in the state where it was originally obtained.
McDonald case: each time judgment of sister state is registered in becomes the judgment of the registering state; it can then go back the original state |
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Here a state statute has outlawed the cause of action for alienation of affection.
What is Tenn. Public policy? Here a N.C. judgment on such a cause of action must be given FFC.
Judgment creditor against a judgment debtor – register judgment in TN and use their enforcement to collect the judgment
Gambling is against TN PP – if someone from TN went gambling in Vegas and take a loan from the house and don’t pay – Vegas can bring suit, have SMJ (power of court to hear case), J over P (bring suit their), J over D (minimum contacts – cause of action relates to the conduct in the state); to enforce the judgment they could file an action to domesticate the judgment in TN (judgment so TN must give FFC) |
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| Lack of a Competent Court |
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| Kenney v. Supreme Lodge of the World, Loyal Order of Moose |
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Illinois statute provides that no action should be brought or prosecuted in the state for damages occasioned by death occurring in another state in consequence of wrongful conduct.
Can Illinois fail to give FFC to Alabama Judgment? No. A state cannot escape its constitutional obligation to FFC by denying jurisdiction to such cases to its own courts.
IL is being presented with the enforcement of the AL judgment – court cannot look at the underlying cause of action because it goes away and merges with the judgment; thus now have a creditor and debtor situation |
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| Application of the Substantive Law |
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| Supremacy Clause – federal law trumps state law and constitution trumps all other federal laws and rules |
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The Impact of the Constitution
The Obligation to Provide or to Refuse a Forum |
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Can Wisconsin close the doors of its courts to the cause of action created by the Illinois wrongful death act?
FFC does not automatically compel a state to subordinate its own statutory policy to a conflicting public act of another state.
Where such conflict exists it is for S.Ct. to choose between the competing public policies that are in conflict.
FFC goes to public acts but it doesn’t stand on the same foot as a judgment – the judgment trumps
Unless there is a law selection in a contract the law of the place of the contract controls – Davis v. Davis |
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| Home Insurance Co. v. Dick |
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Contract of insurance entered into and to be performed outside of Texas. The contract terms limit the time for claim to one year. Texas statute prohibits limitations of the time of claim shorter than two years.
14th amendment due process prohibits the forum from applying its law to the action unless there is a relationship between the parties and the transaction to the forum state.
Quasi in rem 2 – probably wouldn’t hold up today
Learning Point: Before a forum state can apply its substantive law there has to be a relationship b/w the parties and the transaction to the forum |
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| Order of United Commercial Travelers v. Wolfe |
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This Court consistently has upheld, on the basis of evaluated public policy, the law of the state of incorporation of a fraternal benefit society as the law that should control the validity of the terms of membership in that corporation. The weight of public policy behind the general statute of South Dakota, which seeks to avoid certain provisions in ordinary contracts, does not equal that which makes necessary the recognition of the same terms of membership for members of fraternal benefit societies wherever their beneficiaries may be.
Wherever the FO is incorporated and has its charter those laws control – deals w/ the uniformity of the FO (limited to unique fraternal orders cases)
Alaska Packers Association: The conflict to be resolved, not by giving automatic effect to the FFC clause, compelling the courts of each state to subordinate its own statutes to those of the other, but by appraising the governmental interests of each jurisdiction, and turning the scale of decision according to their weight. Only if it appears that, in the conflict of interests which have found expression in conflicting statutes, the interest of Alaska is superior to that of CA, is there a rational basis for denying to the courts of CA the right to apply the laws of their own state. |
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| Pacific Employers Insurance Co. v. Industrial Accident Commission |
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The very nature of the federal union of states, to which are reserved some of the attributes of sovereignty, precludes resort to the full faith and credit clause as the means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.
This Court must determine for itself how far the full faith and credit clause compels the qualification or denial of rights asserted under the laws of one state, that of the forum, by the statute of another state. But there would seem to be little room for the exercise of that function when the statute of the forum is the expression of domestic policy, in terms declared to be exclusive in its application to persons and events within the state. |
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Issue is the common law remedy at place of injury is not barred by the exclusive provisions of Arkansas WC but is by Mo. WC which is the home state of the plaintiff.
The State where the injury occurs need not be a vassal to the home State and allow only that remedy which the home State has marked as the exclusive one. Her interests are large and considerable and are to be weighed not only in the light of the facts of this case but by the kind of situation presented. For we write not only for this case and this day alone, but for this type of case. The State where the tort occurs certainly has a concern in the problems following in the wake of the injury. The problems of medical care and of possible dependents are among these. Arkansas therefore has a legitimate interest in opening her courts to suits of this nature, even though in this case Carroll’s injury may have cast no burden on her or on her institutions.
If an employee is working for an employer and there is WC – that is the exclusive remedies b/w those parties; if the injury is caused by an outside source the employee can sue the outside source; WC carried can them claim subrogation from the judgment (Rule in TN). |
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| Clay v. Sun Insurance Office, Limited |
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Issue is whether consistently with due process, Florida could apply its 5 yr statute of limitations to the Ill. Insurance contract.
Normally, a state having jurisdiction over a claim deriving from an out-of-state employment contract need not substitute the conflicting statute of the other state where the employee was injured in its state. Same with insurance as the defendant does business in Fla. And knew the insured property was in Fla.
Wherever the real estate is, that is the law that applies. Here the property is movable and everyone knows it and getting premiums – so FL law applies. |
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| Allstate Insurance Co. v. Hague |
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In deciding constitutional choice-of-law questions, whether they violated The Due Process Clause or the FFC clause, this court has traditionally examined the contacts of the state, whose law was applied with the parties and with the occurrence or transaction giving rise to litigation.
Where a state has only an insignificant contact with the parties and the occurrence or transaction, application of its law is unconstitutional. Nominal residence (Dick). Post occurrence change of residence (Yates) not constitutional to apply that states law.
For a state’s substantive law to be selected in a constitutionally permissible manner, that state must have a significant contact or significant aggregation of contacts, creating state interest, such that choice of its law is neither arbitrary nor fundamentally unfair. |
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| Phillips Petroleum Co. v. Shutts |
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Nationwide class action. Kansas has jurisdiction but what substantive law applies to the leases?
Allstate must be applied and Kansas must have a “significant contact or aggregation of contacts creating state interests” in order to apply their law to all claims.
Before you get to this problem there must be a conflict.
Jurisdiction in not the problem, the problem is whose law is going to be applied – damage calculations are different for each state
Can go to trial on all the cases at the same time and have the judge decide each case according to the applicable state law |
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| use the law of the forum and substantive problem look elsewhere (Allstate contacts test and where took place) |
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| Franchise Tax Board of CA v. Hyatt |
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Our precedent differentiates the credit owed to laws (legislation and common law) and to judgments. FFC command is exacting w/ respect to final judgments. FFC doesn’t compel a state to substitute the statutes of our own statutes dealing w/ a subject matter it is competent to legislate.
We have in the past decided these issues by a balancing approach which proved unsatisfactory and we abandoned the balancing of interest test invoking FFC to resolve the conflicts b/w states interest. Allstate.
The constitution doesn’t confer sovereign immunity on state in the courts of sister states. |
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| State Farm Mutual Automobile Insurance Co. V. Campbell |
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Lawful out-of–state conduct may be probative when it demonstrates the deliberateness and culpability of the defendant’s action in the state where it is tortious, but that conduct must have a nexus to the specific harm suffered by the plaintiff. A jury must be instructed, that it may not use evidence of out-of-state conduct to punish a defendant for action that was lawful where it occurred.
A basis principle of federalism is that each state may make its own reasoned judgment about what conduct is permitted or proscribed within its borders, and each state alone can determine what measure of punishment, if any, to impose on a defendant who acts within its jurisdiction. |
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| When choice of law anaylsis selects a foreign law, under what circumstances should the court/adjudicating agency (forum)_ reject that law? |
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| Court can say the foreign law might be right – so go over there and try the case (not on merits so no res judicata): When and how it should the forum take notice of a foreign law? When is choice of law analysis unnecessary because the issue is procedural? When should the forum refer to the choice of law rules of another jurisdiction? |
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Threshold Problems of the Forum in Choice of Law
Admitting or Rejecting the Action or Defense |
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| Loucks v. Standard Oil Co. of New York |
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Issue is that even though the statute is not penal, it differs from our own. We must determine whether the difference is a sufficient reason for declining jurisdiction.
Courts are not free to refuse to enforce a foreign right. They do not close their doors unless help would violate some fundamental principle of justice.
Public policy does not prohibit the courts enforcing the cause of action but not the damage limitation. |
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Parties are from NY and the accident is in Conn. Where a wife can sue a husband for negligence. Action in NY. Where such suits are prohibited.
The law of the forum determines the jurisdiction of the court, the capacity of the parties to sue or to be sued, the remedies which are available to the parties and the procedure to be followed.
The cause of action created by a sister state may be brought but are subject to forum remedies and subject to forum limitations. |
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| Intercontinental Hotels Corp. v. Golden |
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Issue is whether the court may refuse to enforce a foreign right, though valid where acquired, on the ground that its enforcement is contrary to the public policy of the forum.
Foreign based rights should be enforced unless the judicial enforcement would be the approval of a transaction which is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense.
The law of PR applies b/c it is a contractual debt and the contract was made in PR
FFC of sister state statutes – don’t have to b/c each state has the right to make their own PP.
FFC judgment of sister state – NY would have to accept it even though it violates their PP. |
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| Notice and Proof of Foreign Law |
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| Walton v. Arabian American Oil Co. |
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In a diversity of citizenship case the trial court must apply the substantive law of the place where it sits and in this case where the alleged tort occurred.
How do you determine foreign law? – A. The law has to be proven by the party asserting it. – B. Judicial notice of the law. – C. Where the place is uncivilized, apply the law of the country most connected with the parties and their conduct. |
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Should the trial court have dismissed the action because the plaintiff did not pled or prove the law of France where the note was made?
Common presumptions – A. Common law prevails in the foreign jurisdiction. – B. The foreign law is the same as the forums. – C. Fundamental principles of law exist in all jurisdictions (who ever borrows money must pay it back). – D. Apply the forum law as the only law available. |
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The validity of a conveyance of a (real) property interest is governed by the law of the place where the property is located. (This is flawed thought process as you should first look to see if both laws are the same. If so there is no problem.)
Punitive damages law may be that of another jurisdiction as the object of punitive damages is to punish the wrongdoing which could have occurred in more than one place. This court says that you make that choice by “looking to the law of the jurisdiction with the strongest interest in the resolution of the particular issue presented.”
1st look at the splitting of the issues, this is where the courts apply 2 sets of laws (will see again later)
Need to look at other states laws to see if there is a conflict – if there is no conflict this is an unjustified exercise |
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| Tennessee Rule of Evidence 202 – RULE 202. JUDICIAL NOTICE OF LAW |
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Definition
(a) Mandatory Judicial Notice of Law. The court shall take judicial notice of (1) the common law, (2) the constitutions and statutes of the United States and of every state, territory, and other jurisdiction of the United States, (3) all rules adopted by the United States Supreme Court or by the Tennessee Supreme Court, and (4) any rule or regulation of which a statute of the United States or Tennessee mandates judicial notice.
(b) Optional Judicial Notice of Law. Upon reasonable notice to adverse parties, a party may request that the court take, the court may take, judicial notice of (1) all other duly adopted federal and state rules of court, (2) all duly published regulations of federal and state agencies and proclamations of the Tennessee Wildlife Resources Agency, (3) all duly enacted ordinances of municipalities or other governmental subdivisions, (4) any matter of law which would fall within the scope of this subsection or subsection (a) of this rule but for the fact that it has been replaced, superseded, or otherwise rendered no longer in force, and (5) treaties, conventions, the laws of foreign countries, international law, and maritime law.
(c) Determination by Court. All determinations of law made pursuant to this rule shall be made by the court and not by the jury. In making its determination the court is not bound by the rules of evidence except those with respect to privileges. |
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Term
| Tenn. Code Ann. 24-6-207 Foreign Law |
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Definition
| It is not necessary, in a case carried from an inferior to an appellate court, to have the statutes of a state read as evidence in the inferior court, transcribed into the record, except where it is directed to be done by the inferior court; but the appellate court may take judicial notice of such laws and statutes. |
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Term
Use of The Forum’s “Procedural” Rules
Introduction- Qualification of Damages |
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Definition
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Term
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Definition
Accident in Australia where damages are limited. Lawsuit in England where more damages are permitted. Which law applies?
English statute say presumption that the law of the place of injury governs unless it is “substantially more appropriate” to apply some other law.
Statutory provisions limiting liability are prima facie substantive but the true construction of the statute may negative this view.
Here “issues relating to the quantum or measure of damages” are governed by the lex fori. Damages procedural so use English law. |
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| Presumptions and Burden of Proof |
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Definition
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Term
| Shaps v. Provident Life & Accident Insurance Co. |
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Definition
Burden of proof is procedural. The plaintiff has successfully changed the proof standard by moving and initiating the case in a separate state because of the “substantive-procedural” rules.
Changes the law by moving – not a good policy issue; characterization type issue – the forum gets to use its own procedural rules and this includes the burden of proof, probably the situation here was that the policy itself didn’t say it had to be proven this way, it was the CL rules of one state verses another. |
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Term
| Rules of Evidence: Privilege |
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Definition
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Term
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Definition
Action is filed in a Pennsylvania Federal District court. Want to depose Doctors in Ohio who are alleged to have made defamatory statements there and in W.Va.
Rule 501 of the Federal Rules of Evidence requires a district court exercising diversity jurisdiction to apply the law of privilege which would be applied by the courts of the state in which it sits.
No precise Penn. Precedent exist so the court must predict how Penn. courts would rule. Penn. State conflicts law uses a “interest analysis” approach to conflict-of-law questions. Under that approach “ we should apply the law of the predominantly concerned jurisdiction, measuring the depth and breadth of the concern by the relevant contacts each affected jurisdiction had with the policies and interest underlying the particular issue before the court.”
Here that appears to be Ohio. (See contacts on bottom of page 440). However, the statute that gives the protection was not enacted until subsequent to the plaintiff’s filing.
Ohio constitution prohibits retroactive application of a statute only if it is substantive. Here this is procedural
Evidentiary rules are procedural here
Diversity of Citizenship – Erie says use the substantive law of the state where the DC is sitting, trying to get consistent rules in state and federal courts
In state court systems SOL are procedural, in the federal court system (diversity of citizenship) b/c of Erie SOL will be substantive
Locality rule – TN rule of who can be a witness in a med mal prac case |
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Term
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Definition
Common law conflicts analysis characterizes statutes of limitations as procedural
There are two exceptions to this procedural treatment of limitations. – A. The statute exception is the “borrowing statute” – B. Judge made exception.
SOL is a policy statement that closes the courthouse door to the P – after period of time state court system will not dissolve the issue; It doesn’t terminate the claim – has no effect on viability of the claim
SOR is the outer most cap on a lawsuit and closes the right from being advanced, extinguishes the right
Forum will use SOL b/c it is procedural unless: borrowing statue (legislative pronouncement that tries to use the SOL of another state being tried in the forum) and judge made exception (consturtion of claim base to incluse requirement on time limitation) |
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Term
| Bournias v. Atlantic Maritime Co. Limited |
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Definition
Where the rights are grounded upon the law of jurisdictions other than the forum, its is a well settled conflict-of-law rule that the forum will apply the foreign substantive law, but will follow its own rules of procedure.
S/L are procedural and the forum uses its own. Two excepts to this rule exit. Where the forum has a borrowing statute and a court made exception that interprets the statutory cause.
A borrowing statute is a forum state statute that requires the courts of the forum to apply the statute of limitations of another jurisdiction, often where the cause of action arose.
Court-made exception, and the one concerned here, is that where the foreign statute of limitations is regarded as barring the foreign right sued upon, and not merely the remedy, it is treated as a condition of the right.
Filed in US Federal Court so they must use their own SOL under Jones Act. D says time barred under Panama Law not US.
Court made exception is used – intent of Panama statute was the right and remedy of SOL are so interwoven w/ such claim that they cannot be segregated. Interval part of right is that it must be brought timely … might say it. If legislature creates the right it doesn’t have the power to legislate extraterritorially |
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Term
| Tenn. Code Ann. 28-1-112 Foreign statutes; effect |
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Definition
Where the statute of limitations of another state or government has created a bar to an action upon a cause accruing therein, while the party to be charged was a resident in such state or such government, the bar is equally effectual in this state.
Borrowing statute only kicks in when perfected by the D
Usually only applies in TN when a person moves to TN and files suit
Most of the time the forum will use its own procedural rules |
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Term
| Sun Oil Company v. Wortman – KNOW THIS CASE |
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Definition
The Constitution does not bar application of the forum state’s statute of limitations to claims that in their substance are and must be governed by the law of a different State.
The petitioner wants SL determined in same manner as choice of substantive law in diversity of citizenship cases and contents that there should be a constitutional choice of law rule.
There is no more reason to consider re-characterizing statutes of limitations as substantive under the FFC than there is to consider re-characterizing a host of other matters generally treated as procedural under conflict of laws ie. Remedies available, burden of proof, burden of production, sufficiency of evidence and privileges
If current conditions render it desirable that forum states no longer treat a particular issue as procedural for conflict of laws purposes, those states can themselves adopt a rule to that effect.
To constitute a violation of the FFC or the Due Process Clause, it is not enough that a state court misconstrue the law of another state. Rather the misconstruction must contradict clearly established state law that has been brought to the court’s attention
There is no constitutional complaint about the forum using its own statute of limitations – due process or FFC
Forum will use SOL of state where sits (substantive and conflicts law if it says look to the land) in diversity of citizenship case |
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Term
| Restatement section 142 Statute of Limitations |
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Definition
The Constitution does not bar application of the forum state’s statute of limitations to claims that in their substance are and must be governed by the law of a different State.
The petitioner wants SL determined in same manner as choice of substantive law in diversity of citizenship cases and contents that there should be a constitutional choice of law rule.
There is no more reason to consider re-characterizing statutes of limitations as substantive under the FFC than there is to consider re-characterizing a host of other matters generally treated as procedural under conflict of laws ie. Remedies available, burden of proof, burden of production, sufficiency of evidence and privileges
If current conditions render it desirable that forum states no longer treat a particular issue as procedural for conflict of laws purposes, those states can themselves adopt a rule to that effect.
To constitute a violation of the FFC or the Due Process Clause, it is not enough that a state court misconstrue the law of another state. Rather the misconstruction must contradict clearly established state law that has been brought to the court’s attention
There is no constitutional complaint about the forum using its own statute of limitations – due process or FFC
Forum will use SOL of state where sits (substantive and conflicts law if it says look to the land) in diversity of citizenship case |
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Term
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Definition
Issue is which state S/L will apply. Texas were the injury occurred or Mass. were the suit is timely filed.
Section 142, principals of §6, the forum state generally will apply its own statute of limitations to permit a claim unless “(a) maintenance of the claim would serve no substantial interest of the forum and (b) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence”.
Texas is where the negligence occurred, injuries suffered, defendant operates there, employee is located, Plaintiffs went there.
Deviates from the principle that the forum gets to use its SOL as a general rule |
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Term
| Cropp v. Interstate Distributor Co. |
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Definition
This is a case in which the court is construing its own statute “the Uniform Conflict of Laws- Limitations Act” that ties the S/L issue to the substantive law choice.
Ask does the state have an interest? Check each state and see if they have a statutory SOL |
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Term
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Definition
This case illustrates the problem caused by borrowing statues that are construed to be applicable based on the location of the incident.
Here all parties are from Mo. and the claim is not based on the Illinois law that requires “willful and wanton misconduct” but on the Mo. Wrongful death claim, however the court determines it to be barred. |
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Term
| Reference to the Choice-of-Law Rules of Another Jurisdiction |
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Definition
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Term
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Definition
This is a classic case of a court referring to the choice-of-law rules of another jurisdiction and the problem of renvoi.
The author’s resolution is to judge the domicile of the decease in acquiring the foreign domicile under the laws of England. Then under French municipal law the issue is resolved by English law.
The author concludes the problem by deciding that the French court would accept the reference back to apply French municipal law and limit the distribution to 1/3.
If the reference is to another sovereign’s law is it to the rule of decision or to the entire law (conflicts law applies here)
Domicile determines jurisdiction and the distribution of personal property |
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Term
| § 6. Choice-of-Law Principles |
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Definition
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied. |
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Term
| § 145. The General Principle |
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Definition
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue. |
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Term
| § 187. Law of the State Chosen by the Parties |
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Definition
(1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.
(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either
(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or
(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.
(3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law. |
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Term
| § 188. Law Governing in Absence of Effective Choice by the Parties |
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Definition
(1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6.
(2) In the absence of an effective choice of law by the parties (see§ 187), the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place of contracting,
(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the contract, and
(e) the domicile, residence, nationality, place of incorporation and place of business of the parties.
These contacts are to be evaluated according to their relative importance with respect to the particular issue. |
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Term
Choosing the Rule of Decision
Section 1 - The Received System and Tradition
Territoriality and the Jurisdiction - Selection Process
Examples of the System in Operation
Unilateral Multilateral Approaches
Traditional Rules |
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Definition
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Term
| Alabama Great So. RR Co. v. Carroll |
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Definition
This is a refinement of lex loci because the act of negligence and the damage or in two different states.
Court says no extra territorial application of the statute. Better approach would be to look at the purpose of the statute.
Where actual damages occur comes to fruition in Mississippi and therefore P losses
Restatement section 6: (1) First point would look to AL law b/c in that state, (a) doesn’t apply, (b) look at the relative policies, (c) interest Mississippi has (none, fact that happened their gratuitous), and rest of list
Restatement section 145: (a) place injury occurred – Mississippi, (b) conduct occurred in AL, and rest of list |
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Definition
Court finds that the Mexico law that provides for liability without fault on the automobile owner was in opposition to the public policy of Calf. When a Calf. Statute provided liability to the owner for a negligent user of the auto. Also damage limitation to that of place of the event.
The Restatement sections would provide a different result – section 145 (2) (a),(c), (d): all fall on the side of CA |
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Term
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Definition
Both Penn. and Mass have a statute that express a public interest or policy. The alienation occurred in both states. This is a diversity jurisdiction case in Mass. and must determine which law to apply.
In determining which policy to pursue, the court looks to the policy of the recover in tort to same extent as that of punishment for this misconduct in Mass. and is to be implemented.
Place of injury to marriage is Penn.21
Mass substantive law and conflicts law should be applied – diversity of citizenship case in federal DC so use law of the place where it sits
Under section 6 there is no statutory directive; divorce isn’t relevant
Mass has no interest in this case b/c it occurred in another state |
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Term
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Definition
This is a more functional approach to choice of law in contract than the place were the contract is signed. It moves to where the contract comes into being-the advancement of credit.
This is an evaluation of interest of the forums and the interest of validation as opposed to invalidation.
When have choice of Law clause use Section 187: (1) choice of law associated w/ construction , (2) validity of the K, (3) defeat renvoi
No choice of Law in K use Section 188 |
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Term
| Usury – Restatement 203 (TN hasn’t adopted the section but has adopted the language) |
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Definition
The validity of a K will be sustained against a charge of usury if it provides for a rate of interest that is permissible in a state to which the K has a substantial relationship and is not greatly in excess of the applicable law under section 188.
Expectations of the parties associated w/ parties to the K will be attempted to be enforced by courts and is reflected in restatement 203
203 envisions ratification – if interest has not be exceeded 2 much then the court is encouraged to ratify transactions even if forum is not the state where the relationship existed |
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Term
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Definition
The descent of real property and interest of surviving spouse are determined by the law where the real property is located.
The domicile theory would make difficult, even impossible, the tracing of title to land. |
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Term
| Toledo Society for Crippled Children v. Hickok |
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Definition
Here the devise to the charity is valid under the situs of the real estate and invalid under the law of domicile of the testator.
Litigation is in Texas who has a rule that a nonresident who dies seized with Texas land, the devise is controlled by Texas law not that of the domicile of the deceased.
Equitable conversion not valid in a conflict between law of domicile and situs. If there is EC it becomes personalty which makes the law of the domicile control and not the law of the state where the land is located.
If there is a contractual relationship, the personal property is going to be determined by the domicile of the decedent. But if it realty, it is going to be the law of the state where the real estate is situated.
Signed K to sell property – transfer A has received proceeds – until the deed is signed it is still real estate and the law where the real estate is located applies (situs law) |
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Term
Escape Devices
Characterization
Substance v. Procedure |
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Definition
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Term
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Definition
In actions on torts occurring abroad, the courts of this state determine the substantive matters inherent in the cause of action by adopting as their own the law of the place where the tortious acts occurred, unless it is contrary to the public policy of this state.
The forum does not adopt the procedural law of the place where the tort occurred. 20131
The court found that the survivability issues was procedural not substantive. Use the forums law when the issue is procedural.
Section 145 section (c) and (d) support this decision |
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Term
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Definition
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Term
| Haumschild v. Continental Casualty Co. |
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Definition
W sues H for tort that occurred in California, where she has no cause of action against her H. Suit is brought in Wisconsin which is the forum and domicile of both parties. What law applies?
Characterization. When a court of this state is confronted with a conflict of laws that governs capacity of spouse to sue you apply the law of state of domicile. (Here the issue is re-characterized to the nature of the problem)
Incapacity to sue between spouses is a family law issue rather than a tort law issue.
The question of interspousal immunity was characterized her as a family law problem rather than a tort so as to justify reference to the law of the spouses’ domicile rather than to the law of the place of injury.
Section 145: (2) (a) and (b) go to CA; however, the real issue is the claim of negligence thus 2 (c) and (d) go to WI |
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Term
| GARZA V. GREYHOUND LINES, INC. |
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Definition
Texas state court, accident in Mexico with personal injuries. Texas will not take jurisdiction of the case because law of Mexico is so dissimilar to that of Texas.
Plaintiff sues on contract theory of implied contract of safe passage. Contract entered in Texas and Court accepts this jurisdiction basis. |
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Term
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Definition
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Term
| American Motorists Ins. Co. v. ARTRA Group, Inc. |
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Definition
It is suggested that the forum accept the reference to its own law, refer no further, and apply its own law. This is the practice of most jurisdictions that do employ renvoi.
The limited renvoi exception which we adopt today will allow Maryland courts to avoid the irony of applying the law of a foreign jurisdiction when that jurisdiction’s conflict of law rules would apply Maryland law. Under this exception, Maryland courts should apply Maryland substantive law to contracts entered into in foreign states’ jurisdictions in spite of the doctrine of lex loci contractus when: 1) Maryland has the most significant relationship, or, at least, a substantial relationship with respect to the contract issue presented; and 2) The state where the contract was entered into would not apply its own substantive law, but instead would apply
This is dealing w/ an insurance policy and real estate – all of this is situs in Maryland
Most significant relationship – product of restatement language |
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Term
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Definition
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Term
| Kilberg v. Northeast Airlines, Inc. |
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Definition
Both Mass and N.Y. authorize wrongful death suits, the controversy is as to damages.
Forum law control procedures and remedies.
N.Y. strong public policy prohibit limitation on damages. So this court says that it will apply Mass. cause of action and N.Y. damages.
Courts are trying to get away from lex loci delicti |
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Term
Property: Equitable Conversion and the Contract -
Conveyance Distinction |
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Definition
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Term
Section 3 - The New Era
The Choice-of-Law “Revolultion”
Restatement, Second, Conflict of Laws (1971) (§ 6) (§ 145) |
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Definition
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Term
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Definition
In contract choice of law most of the cases rely upon the generally accepted rules that ‘‘All matters bearing upon the execution, the interpretation and the validity of contracts are determined by the law of the place where the contract is made’’, while ‘‘all matters connected with its performance are regulated by the law of the place where the contract, by its terms, is to be performed.’’ What constitutes a breach of the contract and what circumstances excuse a breach are considered matters of performance, governable, within this rule, by the law of the place of performance.
Many cases appear to treat these rules as conclusive. Others consider controlling the intention of the parties and treat the general rules merely as presumptions or guideposts, to be considered along with all the other circumstances. And still other decisions, including the most recent one in this court, have resorted to a method—first employed to rationalize the results achieved by the courts in decided cases, see Barber Co. v. Hughes, 223 Ind. 570, 586, 63 N.E.2d 417,—which has come to be called the ‘‘center of gravity’’ or the ‘‘grouping of contacts’’ theory of the conflict of laws. Under this theory, the courts, instead of regarding as conclusive the parties’ intention or the place of making or performance, lay emphasis rather upon the law of the place ‘‘which has the most significant contacts with the matter in dispute’’.
TN CL says when no written K and law selection provision says substantive law of place of execution of K is the law that is to apply – exception performance is somewhere else
Center of gravity – what kind of dispute? Deals w/ grouping of contacts (domestic dispute center around break up, kids, ect). Look at the most significant contact w/ the matter in dispute – totality of all of the contacts |
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Term
| § 6. Choice-of-Law Principles |
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Definition
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied. |
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Term
| § 145. The General Principle |
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Definition
1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 determine the law applicable to an issue include:
– (a) the place where the injury occurred,
– (b) the place where the conduct causing the injury occurred,
– (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue. |
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Term
| Adopting New Choice-of-Law Rules |
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Definition
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Term
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Definition
The choice of law issue is to be determined on the basis of the Auten “center of gravity” or “grouping of contacts” to the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue.
Canada’s only interest is the regulation of conduct. (driving)
In conclusion, there is no reason why all issues arising out of a tort claim must be resolved by reference to the law of the same jurisdiction.
“Rule regulating” (conduct regulation at the place where the event occurred; speed limit; would use Ontario law) and “loss allocation” (policy of Canada germane as to a lawsuit incited b/w NY citizens and NY court; Canada really has no interest in this litigation) in the categories.
Here using Restatement section 6 (b) and (c): looking at the relatives policies of the forum and the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue
Depecage – splitting of the issues; this is appropriate; can use different state laws for different issues in a case |
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Term
| Duncan v. Cessna Aircraft Co. |
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Definition
Lex loci is replaced by the most significant relationship approach set forth in 6 and 145 of the Restatement of Conflicts.
Contract release. In apply the most significant relationship under the general principals of 6 we must first identify the state contact. The number of contacts is not determinative. Some contacts are more important than others because they implicate state policies underlying the particular substantive issue.
The beginning point for evaluating these contacts is the identification of the policies or “governmental interests” of each state.
Significant Relationship Test you look at the parties, the issues, and the forum – defaults to Restatement 6 or 145. THIS IS HOW YOU ANSWER IT ON THE TEST.
Section 6: Relevant policies of the forum and the relevant interests of other interested states; protection of justified expectation (K entered into in TX); basic policies underlying field of law; certainty, predictability, and uniformity of result
Depecage: This is the principle that under a contacts analysis such as the ‘most significant relationship’ approach, the court must apply a separate choice-of-law analysis to each issue in the case. The Restatement, Second reflects that there is a lot of controversy over whether this is necessary. J. Daniel seems to take it as a given.
Choice-of-Law Agreements: Of course we know these are favored in the law of contracts, but can the parties in a tort action stipulate to the law that will apply? If the claim sounds in tort but actually arises from a contractual relationship, the answer is likely yes. In general, however, it is still an open question. If had a choice of law for TX this case would have been resolved. |
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Term
| § 187. Law of the State Chosen by the Parties |
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Definition
(1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue. (Deals w/ construction of the K)
(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either (Deals w/ validity of the K)
– (a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or
– (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.
(3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law. (Renvoi) |
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Term
| § 188. Law Governing in Absence of Effective Choice by the Parties |
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Definition
(1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6.
(2) In the absence of an effective choice of law by the parties (see § 187), the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
– (a) the place of contracting,
– (b) the place of negotiation of the contract,
– (c) the place of performance,
– (d) the location of the subject matter of the contract, and
– (e) the domicile, residence, nationality, place of incorporation and place of business of the parties.
These contacts are to be evaluated according to their relative importance with respect to the particular issue. |
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Term
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Definition
Land is located in Mass. all owners or interested parties in NY.
Confidential relationship may be found in NY for conveyance between close family members but not in Mass.
On law choice Mass. has rejected a single test for a more functional approach.
In making the law choice Mass. Should examine the interests of both concerned jurisdictions and the “interest of our interstate system”.
Interest to be examined include, the interest of the situs in land transactions to protect bona fide purchasers or other persons. Mass. Has an interest in upholding its statutes of frauds, and establishing obligations of family members.
NY has an interest as all parties domiciled there. Party expectation when transfer occurred. Both jurisdictions are not opposed to constructive trust
This case is more related to determining the parties’ obligations to each other than it is to the land itself. Consequently, a ‘functional approach’ which takes into consideration the contacts and underlying policy interests is the more appropriate resolution.
The policy issue articulated and convince the court that the true issue is whether or not the conveyance is product of the trust (Restatement Section 6 – more appropriate law) |
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Term
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Definition
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Term
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Definition
NY is struggling with the application of Babcock and its departure from lex loci.
These are rules of general applicability, promising a fair level of predictability
The rules that are put forward are to help determine the application of guest – passengers statutes in conflict situations.
The only difference from Babcock is that someone is from Canada; Babcock dealt w/ a specific issue (loss allocation), Neumeir is dealing w/ the same thing (here have Canadian person and accident there) |
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Term
| Schultz v. Boy Scouts of America, Inc. |
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Definition
| The court focuses on additional criteria of conduct-regulating (place of the event) versus loss-allocation rules of law (common domicile). |
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| Cooney v. Osgood Machinery, Inc. |
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Definition
A clear conflict exists between the law of Mo. and NY. It does not appear fair to apply either law and creates a dilemma for the new method of law selection in NY.
Interest analysis is attempted as to each state and appears to be a tie that is broken by the court concluding that Mo. Law provided a reasonable expectation of immunity that must be enforced.
Court says both states have an interest; they use loss allocation to say domicile should be used and NJ law applies; NY has an interest in protecting kids w/in its boards; |
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| “Most Significant Relationship” analysis should not turn on the number of contacts any state has to the case but more importantly should turn on the qualitative nature of those contacts. No set formula to determine significance of a contact. |
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| Peugeot Motors of America, Inc. v. Eastern Auto Dist. |
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Definition
This is a contract dispute. Peugeot is a Delaware corporation with principal palace of business in N.J. and the Distributor is a Va. Corporation. The written contract has a termination clause and a law selection clause that chooses N.Y. law. Declaratory judgment action is filed in Fed. Court on diversity jurisdiction grounds.
N.Y. common law enforces unrestricted termination clauses in written contracts but N.Y. statutory law prevents franchise termination except for good cause. Does the law choice clause choose only common law are all law, including statutory?
Trial court sitting in Va. Concludes that Va. Substantive law would enforce the law selection and apply only the common law as the statutory law is geographically limited. |
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Problems Emerged and Emerging
Predictability |
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Plaintiff and defendant N.Y. residents who are students in Colo. The guest passenger plaintiff sues defendant in N.Y. but does not claim “willful and wanton disregard” as required in Colo. guest passages statute.
Following Babcock court isolates the issue, identifies the policies embraced in the laws, evaluates the contacts of the respective jurisdictions and reaches a conclusion distinguishing Babcock as it only dealt with N.Y. participants. Here the accident involves a Colo. car and determines that it must apply Colo. Law to prevent neglect of imaginary interest in the jurisdiction where the accident occurred.
Dissent points out that Babcock was not a rule of legal certainty. |
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| DeSantis v. Wackenhut Corporation |
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Definition
However, the parties’ freedom to choose what jurisdiction’s law will apply to their agreement cannot be unlimited. They cannot require that their contract be governed by the law of a jurisdiction which has no relation whatever to them or their agreement. And they cannot by agreement thwart or offend the public policy of the state the law of which ought otherwise to apply.
Probably an inaccurate interpretation of section 187 – expectations of the parties, here the parties contracted for their expectation of what law applies; TX says no this violates out PP
A court may disregard a choice of law clause if it undermines a fundamental policy of another state having a more significant relationship to the contract. |
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Here neither jurisdiction interest are clearly more important than those of the other. In such cases the forum enforces its own law.
In cases decided using a choice-of-law analysis, where the contacts and state interests truly conflict and one does not outweigh the other, the forum may choose to advance its own state’s interests by applying its own state law |
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| Casey v. Manson Construction & Engineering Co. and Osberg Construction Co. |
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Definition
| Oregon adopts “most significant relationship with the occurrence and the parties” for law choice and immediately make a strained interpretation to the detriment of their own citizens. |
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| Bernhard v. Harrah’s Club |
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Definition
A true conflict exists. Competing interests – use comparative impairment approach
Calf. uses a governmental interest analysis in such cases examining each state interest.
The ‘‘comparative impairment’’ approach to the resolution of such conflict seeks to determine which state’s interest would be more impaired if its policy were subordinated to the policy of the other state. This analysis proceeds on the principle that true conflicts should be resolved by applying the law of the state whose interest would be the more impaired if its law were not applied. Exponents of this process of analysis emphasize that it is very different from a weighing process. The court does not ‘‘ ‘weigh’ the conflicting governmental interests in the sense of determining which conflicting law manifested the ‘better’ or the ‘worthier’ social policy on the specific issue.
Get jurisdiction here through minimum contacts – Harrah’s advertises in CA |
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Definition
The plaintiff has moved to the forum and filed the lawsuit. As to whether Calf. should apply her law the court says that the fact that the plaintiff now resides and is domiciled in Calf. does not give this state any interest in applying its law. It has no interest in applying its law on behalf of the defendant.
Evaluate interest? Identify issue? Look at states policies?
J. Daniel says that this case reflects the way courts typically handle cases involving whether to apply a loss allocation rule.
The issue is just one of compensation not the conduct of the parties. The MO limitation is designed to protect citizens from excessive financial burdens. Since the financial burden cannot fall on a MO resident, that interest has no application. Thus OH is the only state with an interest to compensate for injuries sustained by its citizens. |
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Defendants move subsequent to accident.
Maine statute that limits liability in wrongful death claims has as its purpose the protection of its residents from excessive judgments. This purpose cannot be defeated by N.Y. applying its law as no party is a resident of Maine. N.Y. has a fairness interest in full consideration.
Can’t change residence to change the law – change in circumstances shouldn’t change the law
When evaluating policies look to the time of trial and not when the event occurred
Fairness |
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Definition
This being a diversity case the court will use the choice of law rules of the forum, N.Y.
Mass. Policy so “absurd and unjust” that the N.Y. policy outweighs any interest Mass. has in keeping down recovery. Fairness.
Long arm statute works here b/c the doctor was internationally known |
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| ROWE V. HOFFMAN-LAROCHE, INC. |
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Definition
FDA bars action based on inadequacy of warning in Mich. but is only a rebuttable presumption in New Jersey. Governmental interest analysis. Both statutes limit tort recoveries.
To allow a life-long Mich. resident who received a FDA drug in Mich. and was injured in Mich. To obtain compensation would completely undercut Mich. Interest and overvalue N.J. interest
Here a sister state enforces another states PP – this is rare |
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Complex Litigation
Depecage |
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Definition
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| Ruiz v. Blentech Corporation |
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Definition
Illinois has adopted the Second Restatement method of law selection which is constructed around the principle that the state with the most significant contacts to an issue provides the law governing that issue. A court therefore conducts a separate choiceof law analysis for each issue in a case, attempting to determine which state has the most significant contacts with that issue. The Second Restatement enumerates specific factors that identify the state with the most significant contacts to an issue, and the relevant factors differ according to the area of substantive law governing the issue and according to the nature of the issue itself. To properly apply the Second Restatement method, a court must begin its choice-of-law analysis with a characterization of the issue at hand in terms of substantive law. By prescribing this analytical approach, the Second Restatement follows the principle of depecage which has been long applied in connection with various methods for choice of law. THIS IS THE RECIPE FOR DEALING W/ THESE ISSUES
The trial court should have analyzed each issue separately, tort and corporate law of successor liability. c.
When characterizing this issue may be using lawyer skill and re-characterizing the issue. |
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| KEARNEY V. SALOMON SMITH BARNEY, INC. |
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Definition
Calf. First determines that a true conflict exist between Calf. And Ga. Law. When a true conflict exist, the court analyzes the jurisdiction's respective interest to determine which interest would be more severely impaired.
Calf. Interest is greater impaired if not applied so the court fashions a special remedy allowing the plaintiff to have an injunction requiring compliance with state law for future conduct but applying Ga. Law for past conduct & damages. |
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Additional Problems
Admiralty |
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Larsen, a Danish seaman signs on in N.Y. with a Danish ship, agreed to Danish law and was negligently injured in Cuba. Whose law applies.
U.S. Supreme Court in 1953 says that the decision is based on the review of several factors; 1. Place of the Wrongful Act., 2. Law of the flag., 3. Allegiance or Domicile of the Injured., 4. Allegiance of the Defendant Ship owner., 5. Place of Contract, 6. Inaccessibility of Foreign Forum, 7. The law of the Forum |
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Tennessee Choice of Law
Torts |
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Definition
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Today we announce a new rule-the “most significant relationship” approach of the Restatement (Second) of Conflict of Laws for law choice in tort.
Conflict in law exist in negligence standard and measure of damages. TN has a very conservative wrongful death statute.
A majority of states abandoning lex loci have adopted the approach of the Restatement (Second) of Conflict of Laws (1971). Under this approach, a court applies the “law of the state where the injury occurred ••• unless, with respect to the particular issue, some other state has a more significant relationship ••• to the occurrence and the parties.” Restatement (Second), §§ 146 and 175.
The approach primarily advocates a governmental interest analysis, but many courts have merely counted contacts rather than engaging in an analysis of the interests and policies listed in the Restatement.
Accordingly, we adopt the “most significant relationship” approach of §§ 6, 145, 146, and 175 of the Restatement (Second) of Conflict of Laws (1971), which provides:
§ 145. The General Principle (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state, which with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
§ 6. Choice-of-Law Principles (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability, and uniformity of result, and (g) ease in the determination and application of the law to be applied. (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.
146. Personal Injuries In an action for personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.
§ 175. Right of Action for Death In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.
Only adopted the restatement in Tort in TN
ALWAYS LOOK TO THESE SECTIONS OF THE RESTATEMENT WHEN DECIDING AN ISSUE
Look to the 2 states and see if there is a conflict in the Substantive Law |
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Issue one is whose law, Ga. or Tenn., Determines on sovereign immunity as it relates to insurance policy limits..
Court finds that a conflict exist between the state’s laws and recognizes that the court is not bound to decide all issues under the local law of a single state.
The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6 factors.
Contacts to be taken into account in applying the principles of § 6 include: (a) place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile of the business or parties, (d) the place where the relationship between the parties is centered.
Restatement of Conflicts § 146 provides that in an action for personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.
Restatement of Conflicts 175 states In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.
In this case is the issue one of Rule regulation or of loss allocation? Rule Regulating is who has the red light and what the speed limit is. Dealing with how and why party is responsible it will be almost always were the injury occured, regulating the conduct parties. This suit is about loss allocation, how much there should be in recovery.
Renvoi? Get out of this w/ restatement section 187. Don't apply the whole law, apply the rule of decision and not the whole conflict law.
Contacts: Ga. Bus driver, children, school district location and relationship to the children. Tn. Accident occurred here, medical care, train personnel from Tn.
TN procedural law is applied - SOL and capacity and evidence (unless federal)
Different from Hataway - dealing w/ immunity concept and limitation of exposure of damages.
Does TN have to give FFC to the GA sovereign immunity by the GA statute? TN has the right to have their own policy dealing w/ sovereign immunity. One state does not have to extend another states sovereign immunity. |
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| Question about wreck w/ TN and NC citizens that is removed to federal courts |
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Definition
(1) Joe and ZZZ cannot contest removal due to Erie
(2) TN or NC SOL applies: TN SOL would be applied. Under Erie the FDC must use the substantive law of the state in which it sits and under Klaxton it must use the conflicts rule where it sits; the court will use federal rules of Civil Procedure; under Guaranty SOL are procedural in the federal court; in Sun Oil the court says there is no basis in constitutional grounds of due process or equal protection to prevent the forum state from using its SOL.
(3) Government Tort Immunity, TN or NC: Need to id the conflict (we don't know if there is a conflict) if there is no conflict TN law applies. Each sovereign has the right to create a PP on the issue. If there is a difference in conflict rules go to Hataway and use the process identified by the court (restatement).
Case could have been filed in NC b/c court would have SMJ (authority to hear the case) and specific jurisdiction under the long arm statute (go back to international shoe for the answer - must arise out of the contacts). |
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| MacDonald v. General Motors Corp. |
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Definition
The issue here is damages and whether they are subject to the limitation. Once id issue then go to the anaylsis. Center of relationship does not do much here b/c GM is everywhere. In damage limitations area: domicile will be the most important factor (restatement 178). Need to memorize and understand the factors.
Tennessee has adopted the “most significant relationship” approach of the Restatement (Second) of Section 178 of the Restatement explains that “the law selected by an application of the rule of §175 determines the measure of damages in an action for wrongful death.”
Restatement of Conflicts 2d Section 178. Damages The law selected by application of the rule of § 175 determines the measure of damages in an action for wrongful death.
In the present case, the parties agree that the law of Tennessee, the state where the injury occurred, should not be applied because the location of the accident there was fortuitous. Thus, section 175 of the Restatement requires that we determine, with respect to the issue of damages, which other state has the most significant relationship to the occurrence and the parties. We do this by examining the contacts set forth in section 145 of the Restatement: (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation and place of business of the parties; and (4) the place where the relationship between the parties is centered. |
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| § 175. Right of Action for Death. |
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Definition
| In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied. |
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| § 6. Choice-of-Law Principles. |
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Definition
| . (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. |
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| § 145. The General Principle |
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Definition
| (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6. (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue. |
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| Ohio Cas. Ins. Co. v. Travelers Indem. Co. |
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Definition
It is a familiar rule in Tennessee that the construction and validity of a contract are governed by the law of the place where the contract is made.
A contract is presumed to be made with reference to the law of the place where it was entered into unless it appears it was entered into in good faith with reference to the law of some other state
If have 1 K in TN and 1 K in KY: can put in the K a choice of law provision. |
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Definition
| Absent a contractual choice of law provision, Tennessee courts apply the lex loci rule to contract causes of action. Accordingly, the substantive law of the state in which the contract was executed governs disputes arising from the contract. An exception to this general rule is often made when the contract is to be performed in another state and the parties envision performance in accordance with that state's laws. The primary consideration to be made in determining whether the exception applies is whether the contract was made “in good faith with reference to the law of some other state,” or “with [a] view to” the other state. |
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| Goodwin Bros. Leasing Inc. v. H & B, Inc. |
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Definition
The settled law of Tennessee that parties ordinarily are free to contract that the law of some jurisdiction other than that of the place of making will govern their relationship. In previous cases such a stipulation has been sustained when made in good faith and when the other state had some material connection with the transaction. This means the other state has some direct and relevant connection and not a sham.
The “good faith” requirement has now been distilled by statute into a requirement that foreign law must have a “reasonable relation” to the transaction.
Tennessee, like many other states, has long recognized a choice of law principle unique in usury cases that parties are presumed to have chosen that law which will uphold the legality of their bargain. That law which will lend greatest validity to the transaction will be applied if it is otherwise logically relevant.
Affirmation - if 1 state law will affirm/validate the transaction it is good in both places (usury cases) - contrary to R 182.
If enter into a K and sophisticated business man the K should be upheld
TN encourages law selection clauses, be careful about language in exams forum selection and law selection are different things |
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| Solomon v. FloWarr Mgmt., Inc. |
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Definition
Release signed in Ala. The conflict is whose law applies to the release.
Whose law applies? Is the construction of the employment contract or the release? This is a characterization issue. Looking at the release here.
The Tennessee Supreme Court has declined to join with the significant number of states that have adopted the “center of gravity” approach embodied in Restatement (Second) of Conflict of Laws § 188(2) (1969). Thus, we are left to apply as best we can the traditional lex loci contractus rule-the construction and validity of a contract are governed by the law of the place where the contract was made.
The Tennessee Supreme Court has carved out two exceptions to the general rule which are not applicable in this case. First, the Court has recognized that parties can choose to be governed by the law of a state other than the state where the contract is made. Second, it has held that in certain situations, the law of the place of performance will be applied instead of the traditional rule.
The law of the place of contracting governs in determining whether a contract is void or voidable because of duress. The release was negotiated in Ala. And Ala. Law governs the issue of performance and duress associated with rescission. Therefore, tender, is required. |
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| Carefree Vacations, Inc., v. Brunner |
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Definition
This contract has a venue selection and a law selection clause. This is a diversity of citizenship case filed in Tenn.
Courts are split on whether the enforceability of forum selection clauses in diversity cases is a matter that federal law governs or state law governs. Here Tenn. and Federal law arguably the same.
The law of Tennessee as well as federal decisional law acknowledges that forum selection clauses are prima facie valid and should be enforced unless the party resisting application of the clause can clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.
The fraud and overreaching is not made out so the court goes to the unreasonable and unjust prong.
Courts have narrowly construed what is unreasonable or unfair, holding that “an agreement is unreasonable only where its enforcement would under all circumstances existing at the time of litigation seriously impair plaintiff's ability to pursue his cause of action. Factors considered by courts in examination of the reasonableness of contractual venue provisions include: (1) which state law governs the contract; (2) the residence of the parties and witnesses; (3) place of execution and/or performance of the contract; (4) public policy; (5) availability of remedies in the selected forum; and (6) inconvenience or injustice.
In a multi-state transaction, the contracting parties' choice-of-law provision is valid absent contravention of public policy of the forum state or a showing that the selected forum does not bear a reasonable relationship to the transaction. Plaintiff pointed to the Uniform Commercial Code of Texas, Tennessee and Illinois to substantiate that the choice-of-law forum must have a substantial relationship to the transaction in order for the provisions to be enforceable.
Court finds that the law choice provision is unenforceable because of a lack of substantial relationship to the transaction and applies Tennessee law as the place where the contract was |
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