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Add. Info: International Service—The Hague Convention sets out specific procedures for
service of process. For example:
Article 2-6: Through the country’s central authority
Article 8: Through Diplomatic channels
Article 19: By any means acceptable in the country where service is to be made.
In Bankston v. Toyota Motor, the 8th Circuit held that service by registered mail from the U.S. to
Japan violated the Hague Convention. Service had to be made through the Japanese central
authority (in Japanese).
RELATIONS BETWEEN THE COURT SYSTEMS—There are disputes that can only be
resolved in the state courts, disputes that can only be resolved in the federal courts, and disputes
that can be resolved in either the federal or the state court systems.
Exclusive Jurisdiction—Federal courts have exclusive jurisdiction over disputes involving
federal crimes, bankruptcy, patents, and copyrights. State courts have exclusive jurisdiction over
such disputes as divorce and other matters under state law. The court hearing the case—whether
federal or state—applies its procedural rules and follow its substantive law.
Concurrent Jurisdiction—When both federal and state systems have the power to hear a case,
concurrent jurisdiction exists. As Exhibit 2.6 illustrates, both systems have jurisdiction when:
(1) there is diversity of citizenship (and the amount in controversy exceeds $75,000); or
(2) the dispute involves a federal question and Congress has not conferred exclusive jurisdiction
on the federal courts.
Federal Question Jurisdiction—The state and federal courts may hear a federal questions case
except when Congress has stated “explicitly or implicitly” that state courts may not have
jurisdiction over a particular matter of federal law. In explicit cases, Congress provides by statute
that the federal courts have exclusive jurisdiction. In implicit cases, Congress provides exclusive
jurisdiction “by unmistakable implication from the legislative history, or by a clear
incompatibility between state-court jurisdiction and federal interests.” Such cases must be heard
in federal court.
Add. Case: Elliott v. Tilton (5th Cir., 1995)--Robert Tilton founded and operated the Word of
Faith, a TV ministry in Dallas that broadcast nationwide. Elliott, who had contemplated suicide,
saw Tilton on TV in Florida and thought that he was speaking to her. She called, pledged money,
and made a video testimony about how Tilton helped her. Later she asked that the testimony not
be shown, but it was. She sued Tilton in federal district court for fraud, breach of contract,
infliction of emotional distress, and conspiracy. The jury awarded her $1.5 million; Tilton
appealed.
Decision: Reversed. “The plaintiffs ... stated in their complaint that federal jurisdiction was
based on diversity of citizenship.” They were Florida residents, Tilton was in Texas. “However,
‘in order for a federal court to assert diversity jurisdiction, diversity must be complete; the
Add. Case: U.S. v. Denalli (11th Cir., 1996)--Denalli was convicted on 21 counts of an
indictment, “all of which sprang from indignities, outrages, and fraudulent acts committed by
Denalli.” The victims were the Federles, his next-door neighbors [he did everything imaginable
to the Federles, including burning down their house]. Denalli appealed his conviction under
Count 21, a federal arson statute.
Decision: Reversed. Under the standard from the Lopez case (115 S.Ct. 1624), the government
must “prove that the destruction of the Federles’ private residence had a substantial effect on
Concurrent Jurisdiction and Removal—In cases where concurrent jurisdiction exists, if the
plaintiff chooses the state court system, the defendant has a right to have the case “removed”
from state court to a federal court. The court requires the plaintiff to show that a defendant is a
real and substantial party to the lawsuit. The plaintiff is not allowed to name a defendant simply
to destroy the federal court’s diversity jurisdiction over the case.
Add. Case: Thornton v. Holloway (8th Cir., 1995)--Thornton sued Holloway in state court in
Arkansas for defamation for claiming that Thornton violated federal law against sex
discrimination in employment. Holloway removed the case to federal district court. That court
remanded the case to the state court on the ground of lack of jurisdiction (only state-law claims
were involved). Holloway appealed to the federal court of appeal that the case should be in
federal district court (a petition for write of mandamus).
Decision: Affirmed. “We have no jurisdiction to review this holding, by appeal or otherwise.
[Federal law] expressly provides ... that ‘an order remanding a case to the State court from
Add. Info: A federal court may refrain from exercising removal jurisdiction under the Abstention
Doctrine. The court may assert that an issue in the case revolves around a question of state law
that is uncertain. The court will generally assert that the state court should resolve that question
and then it either remand the entire case to the state court, or retain jurisdiction but wait until
the state court has decided just that particular question.
Applying the Appropriate Law in Federal Court—Under the Erie Doctrine, federal courts in
diversity cases are required to apply the appropriate state's statutory and common law. The
federal court may follow its own procedural law.
CASE: Erie Railroad v. Tompkins (S.Ct.)—Tompkins, a Pennsylvania citizen, was injured at
night when hit by a train owned by Erie, a New York corporation. Tompkins sued in New York
federal district court. Under the old ruling in Swift v. Tyson, the court was to apply federal
common law, which meant that Erie would be liable for Tompkins’ injuries. Under Pennsylvania
common law, Erie would not be liable since Tompkins was a trespasser. The federal district and
appellate courts found for Tompkins. Erie appealed to the Supreme Court.
Decision: Reversed and Swift is overturned. Federal courts in diversity cases are required to
apply the appropriate state's statutory and common law. Since the accident occurred in
Questions: 1. Why had the decision in Swift v. Tyson prevented uniformity in the administration
of the law of the state?
The rule meant that federal courts could develop their own common law standards that could be
different from the common law in a state. This could mean that identical cases, one tried in a
2. After Erie, which court’s procedural law must be applied in a diversity-of-citizenship case?
Under Erie, if a court has jurisdiction over the parties in a dispute, then the procedural and
Applying the Appropriate Law in State Court—When a dispute is brought in a state court
involving incidents that have taken place in more than one state, a conflict-of-law may rise.
Traditional conflict-of-law rules are gradually being replaced by significant interest tests. The
court examines the various state interests in need of consideration and then determines which
state has the more significant interest. That state’s law would then apply in the resolution of the
dispute.
Add. Case: Williamson Pounders Architects v. Tuncia Co. (5th Cir., 2010)—Tuncia County, MS,
hired Williamson (WPA), a Tennessee company, to design and construct a park. Later, Tuncia
personnel approved an expansion of the project but then refused to pay WPA because the County
Board had not approved the expansion. WPA sued in federal court in Mississippi for breach of
contract. The contract stated that TN law would govern; Tuncia argued that MS law should.
District court dismissed suit. WPA appealed.
Decision: Generally a choice of law provision is upheld. However, state public policy cannot be
avoided by such. Under MS law, a county Board must approve any changes to a contract. That is
Add. Case: Miller v. Pilgrim’s Pride (8th Cir. 2004)—Applewhite, a Texas resident and an
employee of Simmons, a Texas company, was killed when working construction at a Pilgrim’s
Pride plant in Arkansas. Simmons gave Applewhite’s heir, Miller, what was owed under Texas
workers’ compensation law. Miller sued Pilgrim’s, claiming it was negligent. Pilgrim’s paid an
out-of-court settlement and then sued Simmons in federal court in Arkansas for indemnification
of the payment. The court held that Texas law governed and it prohibited such repayment.
Pilgrim’s appealed, contending that Arkansas law should govern.
Decision: Affirmed. Arkansas uses a five factor test: predictability of results, maintenance of
interstate and international order, simplification of the judicial task, advancement of the forum’s
governmental interests, and application of the better rule of law. This case turns on the fourth
Add. Case: Hughes v. Wal-Mart (8th Cir., 2001). Background: Hughes’ daughter was burned
when he used a fuel container, bought at a Wal-Mart in Louisiana, to burn stumps on his
property and the container exploded. He sued Wal-Mart for product liability in federal court in
Arkansas (Wal-Mart HQ), contending that Arkansas law applied–which was more favorable to
him than LA law. The district court held that LA law governed and that there could be no
recovery. Hughes appealed.
Decision: Affirmed. The 8th Circuit applied Arkansas law to determine which law would apply.
Maintenance of interstate order, one factor, points to Louisiana because Wal-Mart sold the
Add. Case: Jacobson v. Mailboxes (Sup. Jud. Ct., Mass., 1995)--Jacobson executed a franchise
agreement with Mailboxes (MB) to operate a Mailbox in Massachusetts. The business failed.
Jacobson sued, claiming that MB used deceit to induce her to sign the franchise agreement and
that it violated the franchise agreement. MB moved for summary judgment--the franchise
agreement contained a forum selection clause: “Venue and Jurisdiction for all actions enforcing
this agreement are agreed to be in the City of San Diego, County of San Diego, California. ...[the
agreement] is to be construed under and governed by the laws of the State of California.” The
trial court refused to grant summary judgment; MB appealed.
Decision: Remanded. The forum selection clause was to be upheld. California law should govern
and “all actions enforcing this agreement” would be brought in California. However, the claim
VENUE—On the basis of fairness, state statutes provide that a lawsuit must be brought in a
court located in the district where either the defendant or the plaintiff lives.
Add. Case: Mylle v. American Cyanamid (4th Cir., 1995)--Mylle, a PA resident, was killed while
crop dusting in SC. His widow sued in federal court in PA, claiming wrongful death. Finding that
venue was improper, the court transferred case to federal court in SC. Her suit was dismissed for
failure to comply with registration requirements SC imposes on out-of-state executors. She
appealed.
Decision: Affirmed. The proper venue was federal court in SC; “South Carolina has a far
greater interest in the outcome of this case than does Pennsylvania.” All events happened in SC
Add. Case: Barnes v. IBM (Ct. App., Mich., 1995)--Barnes sued his employer, IBM, for race
discrimination in state court in Wayne Co., Michigan. IBM moved to have the case moved to
Oakland Co., MI, the place of employment. The court in Wayne Co. refused; IBM appealed.
Decision: Reversed. “The venue provision of the [Michigan] Civil Rights Act states that an
action ‘may be brought in the circuit court for the county where the alleged violation occurred,
or for the county where the person against whom the civil complaint is filed resides or has his
Change of Venue—Defendants may request a change of venue from where the case is filed
because of witnesses or, in some cases, due to extreme publicity that will reduce the ability to get
a fair trial.
CASE: BancorpSouth Bank v. Hazelwood Logistics Center (8th Cir., 2013)—Hazelwwood
(HLC) was formed for commercial real estate development in Missouri. It got a loan from
BancorpSouth of Mississippi and more money from four Missouri banks. Owners of HLC
guaranteed the loan. Development stalled, HLC sued owners on the loan in fed. dist. ct. in
Missouri. HLC claimed venue was improper, but court held it had jurisdiction. HLC appealed.
Decision: This is a diversity case in which the law of Missouri applies as the loan contract was
written under that law. Further, there is diversity of citizenship that allows the federal court in
Questions: 1. What law will the federal district court use to resolve the matter?
Missouri law—as the court notes, the parties agreed to that, so the federal court will use it to
2.Could HLC have avoided being in federal court?
Yes, the banks could agree to submit to Missouri state court jurisdiction in the loan agreements,
Add. Case: R&D Transport, Inc. v. A.H. (Sup. Ct., Ind., 2006)--Hazel, a truck driver for R&D, lives in Hendricks
Co., Indiana, where R&D is located. His truck was in an accident in Dearborn Co., IN. The accident injured A.H., a
minor, who lives in Porter Co. IN. Suit was filed on behalf of A.H. against R&D and Hazel in Porter Co. They
moved to have the case transferred to either Hendricks or Dearborn Co. The trial court refused to change venue;
defendants appealed. The appeals court affirmed. Defendants appealed that ruling.
Decision: Reversed. Venue is the proper or possible place for a lawsuit to proceed. In general,
any lawsuit may proceed in any county, but certain counties are granted preferred venue status.
That is the case here. Actions for the recovery of real property, or for the determination in any
Forum Non Conveniens—(the forum is not suitable) A doctrine that applied based on fairness
and convenience of the parties, even though the original court has jurisdiction.
Add. Case: Design88 v. Power Uptik Productions (W.D. Va., 2001)--Design88, a VA company,
built a website called The Underground Trader for a non-Virginia company that sold its services
to stock day traders. For designing and maintaining the website, Design88 was given a 13%
interest in the trading operation. Things fell apart and Design88 sued the other parties in state
court in VA. The case was moved to federal court in VA. Defendants moved to dismiss the suit for
lack of personal jurisdiction because they had insufficient contacts with VA.
Decision: Motion denied. Due process requires sufficient minimum contacts within a forum state
such that maintenance of a suit against a nonresident defendant does not offend notions of fair
play and substantial justice. The defendants came to VA to discuss business with Design88. That
Add. Case: Peile v. Skelgas, (App. Ct., Ill., 1993)—When Peile attempted to light a gas furnace
at home, an explosion resulted in serious injuries to him in Pike Co., Illinois. Defendants operate
a pipeline-storage facility in St. Clair Co., where case was filed. After the filing, defendants filed
a motion to change the venue of the trial to Pike Co. which was denied. Defendants appealed.
Decision: Affirmed. Forum non conveniens is usually applied in interstate cases where the
plaintiff chooses a forum to place a burden on the defendant. Then the court can decline
jurisdiction even if it has jurisdiction over parties and subject matter. The doctrine also applies
to intrastate venue. The factors considered are “the availability of an alternative forum, the
Add. Info: Change of Venue Motions—A judge writing a concurring opinion in the Peile case
noted the judicial costs associated with change of venue motions. According to the judge: “Many
attorneys do not realize the considerable amount of time that an appellate judge spends ruling
on various motions and petitions. One of the most common petitions and probably the most
time-consuming petition to the appellate courts is the petition for leave to appeal ... from an
order entered as to forum non conveniens.”
Discussion Question
Judges in Europe and Japan play a quasi-prosecutor role, so they are quite different than U.S.
judges. The instruct attorneys on what evidence they want to see. So in that sense, their roles are
quite different. Further, judges in most countries do not have as much independence as do U.S.
judges. Not relying on the legislature or executive to retain a job, and having the power to strike
down statutes for violating constitutional rights, is important in the integrity of the U.S. system
and its structure. That does not address the issue of competence, but I have never seen a study
that tries to address that issue.
Case Questions
1. The trial court asserted it had jurisdiction over Columbia but the Florida appeals court reversed and remanded.
Florida courts do not have jurisdiction over the defendants. None of the alleged tortious acts occurred in Florida, as
2. (answer on Internet for students) The traditional rule—apply the law where the injury
occurred—would call for the application of Missouri law. Here, the court, like many
“South Dakota has all of the important contacts. First, the principal conduct which allegedly
caused the injury was the distribution of the candy in the bus on the first leg of the trip. Missouri
had no contact with that conduct. Even if Missouri could claim some limited contact with Dakota
Second, South Dakota was the domicile, residence, place of incorporation and place of business
of the parties, as well as the place where the relationship of the parties was centered. These
Applying the tests from the Restatement:
(a) the needs of the interstate and international systems,
“First, neither Missouri nor South Dakota’s laws significantly affect the needs of interstate
(b) the relevant policies of the forum,
“This state’s policy has been clearly expressed by the legislature in our comparative negligence
(c) the relevant policies of other interested states and the relative interests of those states in the
“Although Missouri also has a comparative negligence policy, South Dakota has the only
significant interest in a determination of the comparative negligence issue because all of the
contacts are in South Dakota, and Missouri’s policy would not be furthered by its application to
(d) the protection of justified expectations,
“The protection of justified expectancy, although important in consensual relationships, has no
importance in this negligence action. Generally, people do not consider the legal consequences of
“The policy of ameliorating the harsh consequences of common law contributory negligence
rules is furthered by both states’ comparative negligence laws. Although Chambers argue that
(f) certainty, predictability and uniformity of result,
“Little significance can be attached to the ease of determining and applying comparative
(g) ease in the determination and application of the law to be applied.
“Both states’ laws are easy to determine and apply. Furthermore, because the differences in the
3. The Nevada Supreme Court held that state courts had jurisdiction. The courts have personal
jurisdiction because Direct did business in Nevada by intentionally sending offers to people in
Nevada by their fax machines. The Nevada court cited the U.S. Supreme Court that state courts
4. (answer on Internet for students) Vacated and remanded. The district court lacked jurisdiction,
so the judgment is void. Parrot Bay, a foreign corporation, is not responsible for the actions of
the fishing boat operator, another foreign entity. The relationship between Parrot Bay and the
fishing boat operator did not arise out of, or relate to, Parrot Bay’s contacts with the United
5. The Alabama high court ordered the case moved to Florida on that ground. There were 25
witnesses to the accident–other drivers, ambulance personnel, hospital personnel–all in Florida.
Only the plaintiff was from Alabama. The court considers ease of access to sources of proof,
6. (answer on Internet for students) There was a sufficient basis for specific jurisdiction. This
exists when: 1) the non-resident defendant purposefully availed himself of the privilege of
conducting activities in the forum by some affirmative act or conduct; 2) plaintiff’s claim just
arise out of or result from defendant’s forum-related activities; and 3) the exercise of jurisdiction
7. Koh argued, and the appeals court agreed, that courts in Washington had quasi in rem
jurisdiction. Koh had a valid judgment from a court in another jurisdiction. Courts honor such
8. Transfer of case ordered. Under the forum non conveniens doctrine, a court may decline
jurisdiction if the case more conveniently could be tried in another forum. A transfer of venue
must be in the interest of justice. The party seeing to transfer venue must show good cause.
Factors relating to private interests are: 1) the relative ease of access to sources of proof; 2) the
availability of compulsory process to secure the attendance of witnesses; 3) the cost of
Ethics Question
It is hard to imagine that judges do not consider the social consequences of their decisions. Some
judges say that it is important that they take such consequences into account. Others argue that it
is important to stick to precedent even when the social consequences of a particular case are
against the personal positions held by the judge. There are cases in which judges release persons
Internet Assignments
Many federal court opinions can be found on the Internet. Many federal circuit courts post their
opinions. PACER allows low-cost access to court opinions and docket information from federal
district and bankruptcy courts. Check these major sites. U.S. Courts, Court Locator:
www.uscourts.gov/courtlinks/
FindLaw, Cases and Codes:
www.findlaw.com/casecode/
Emory Univsersity, Hugh F. MacMillan Law Library:
library.law.emory.edu/
U.S. Courts, Public Access to Court Electronic Records (PACER):
pacer.psc.uscourts.gov/
Essay test questions based on cases:
1. Brian Bermudez and Amanda Schmidt shared custody of their son after their divorce. Schmidt suspected
Bermudez of abusing the child, so she refused to let him visit. Bermudez filed a petition requesting that Schmidt
be held in contempt of court for denial of visitation. During the hearing, the judge said that he believed that
Schmidt and her new husband were lying. He stated to Schmidt: “you committed perjury” and, if done again,
“you are going to leave this courtroom in handcuffs,” and “you are playing games with this court,” and “you
have diarrhea of the mouth,” and other such comments. The judge awarded custody of the child to Bermudez.
Schmidt appealed. The appeals court affirmed. Schmidt appealed. Is there anything Schmidt can do if she
believes the judge was clearly biased against her? [5 So.3d 1064, Sup. Ct., Miss., (2009)]
Answer: Reversed and remanded. The judge insulted and badgered Schmidt repeatedly. He would cut her off before
she finished answering his questions. He insulted the professionals who had been consulted on the matter. He
2. Ruth Creech, an Ohio resident, filed an action for malpractice against the City of Faith Hospital
of Tulsa, Oklahoma. The claims arose out of injuries suffered while Creech was a patient at the
hospital in Tulsa and treated by Dr. McGee. Creech had heard of it through the Expect a Miracle
television program featuring Oral Roberts. Broadcast nationally, the program invited people to
come to the hospital for treatment. The case was tried in federal court in Ohio. The court found for
Creech. Defendants appealed on the ground that the federal court could not exercise jurisdiction
over them under the Ohio long-arm statute. They contended that they did not have sufficient
minimum contacts with Ohio to confer jurisdiction. Do you think the court’s exercise of jurisdiction
reasonable? [Creech v. Roberts, 908 F.2d 75 (6th Cir., 1990)]
Answer: The court ordered that McGee be dismissed from the case because he was not subject to
the district court's jurisdiction. He did not practice medicine in Ohio or directly advertise his
services there. The Center, on the other hand, had sufficient contact with the state of Ohio to
