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Jurisdiction

  • I. Personal Jurisdiction

    • A. Definitions and Applications

      1. What is Personal Jurisdiction.  Personal jurisdiction refers to one prerequisite of a court’s authority to render binding judgments over a party or a certain piece of property. It can be conceptualized with a view to its main purposes:  first, the requirement of enough control over the person or property for a judgment to be enforceable; and second, a Due Process concern that a party has some degree of notice and consents to being subjected to the laws of a jurisdiction.

      2. How Is Personal Jurisdiction Determined.  The determination of personal jurisdiction is in essence  a two-step process:


        1. First, according to Federal Rule of Civil Procedure 4, personal jurisdiction in a federal court is limited by the long-arm statute of the state in which the court sits. Federal laws have developed some piecemeal exceptions to this rule, providing for nationwide service of process in certain types of lawsuits, including bankruptcy, securities, and antitrust actions.

        2. Second, personal jurisdiction is limited by the Due Process Clause of the Constitution. Jurisdiction can be constitutionally granted by a long-arm statute in two ways:


          1. General Jurisdiction – personal jurisdiction may be granted over any party, in any controversy, arising inside or outside a particular state, if that party has “systematic and continuous” contacts within the state.

          2. Specific Jurisdiction – jurisdiction over a party may also be granted even if the party only has “minimum contacts” with the state, as long as the present controversy arises out of the party’s activities in the state. Int’l Shoe Co. v. Wash., 326 U.S. 310 (1945). The “constitutional touchstone” of the minimum contacts standard is that the defendant “purposefully avails” itself of the benefits of conducting business in the forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). 

      3. Personal Jurisdiction in the International Context.  In the context of international parties and international controversies, the principles of personal jurisdiction work in the same fashion, with close cases of jurisdiction centering on a determination of “minimum contacts.” One of the most significant extensions of the doctrine—having repercussions in both the domestic and international arenas—has arisen out of the now-universal role of technology and cross-border communications and their implications for personal jurisdiction.


        1. Generally, the issue of personal jurisdiction can be raised on a motion early in U.S.-based litigation.  Unlike other defenses, however, it is not immediately appealable in federal court but must await the case's conclusion -- or must be tacked onto an issue that is immediately appealable and then found to be "inextricably intertwined" with that issue.  For a discussion of the collateral order doctrine, see our OneWorld blog post of 8/23/10

        2. In a much-cited opinion, the Western District of Pennsylvania laid out the test for when Internet usage is of such a character as to allow a court to exercise personal jurisdiction under the “minimum contacts” standard. Zippo Mfg. Co. v. Zippo DOT Com, 952 F. Supp. 1119 (W.D. Pa. 1997). The decision lays out three levels of Internet usage and their respective treatment for jurisdictional purposes.


          1. The first category is when “the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the internet.” In this case, sufficient minimum contacts with a forum state arise for a court to exercise personal jurisdiction.

          2. The second category of Internet usage is the hosting of a “passive” website, which although it can be viewed repeatedly from the forum state, “does little more than make information available to those who are interested in it.” No personal jurisdiction exists in these cases.

          3. The third category is a middle ground composed of interactive websites “where a user can exchange information with the host computer.” Personal jurisdiction in these cases is determined by measuring “the level of interactivity and commercial nature of the exchange of information that occurs” on the site.

        3. Preventing an American patent holder from suing non-U.S. wireless providers, a District Court in Maryland issued a significant ruling in Technology Patents, L.L.C. v. Deutsche Telekom AG, 573 F. Supp. 2d 903 (D. Md. 2008).  The District Court found that the international defendants, because they do not supply wireless services outside their home countries, did not do business in the state of Maryland sufficient for the court to exercise personal jurisdiction over them. The fact that their wireless subscribers sent text messages to Maryland residents did not impute to defendant wireless companies the purposeful interaction required between them and the forum state. The court ruled that the defendants did not fully control how text messages were transmitted to Maryland, and the roaming agreements among wireless companies that permitted the texting were themselves insufficient to be deemed purposeful activity aimed at Florida.

      4. Imputation of Contacts Between Parent and Subsidiary.  Another important development at the intersection of personal jurisdiction and international controversies is the parent-subsidiary relationship and whether the minimum contacts of one can be imputed to the other.

         
        1. In Bauman v. DaimlerChrysler Corp., 579 F.3d 1088 (9th Cir. 2009), the Ninth Circuit addressed the question of whether a subsidiary’s contacts with a jurisdiction could be attributed to its parent, thus allowing for the exercise of personal jurisdiction by that forum over the parent company. This case was brought by Argentine residents against DaimlerChrysler to recover for human rights violations allegedly perpetrated by its Argentine subsidiary. The court held that a two-part test was required to determine whether the principal-agent relationship was sufficiently strong to impute the contacts necessary for personal jurisdiction. First, “the parent must exert control that is so pervasive and continual that the subsidiary may be considered an agent or instrumentality of the parent,” and second, the subsidiary “must also be sufficiently important to the parent corporation that if it did not have a representative, the parent corporation would undertake to perform substantially similar services.” 579 F.3d at 1095. The majority notes, however, that circuits are split as to how much control is required before contacts are imputed. Because DaimlerChrysler’s interactions with its subsidiary were consistent with its “investor status,” sufficient control was not established, and personal jurisdiction was found not to exist.


          1. In May 2010, the Ninth Circuit vacated this opinion, and granted a petition for rehearing, Bauman v. DaimlerChrysler Corp., 2010 U.S. App. LEXIS 9310 (9th Cir. May 6, 2010), to decide the question of whether control is, in fact, an element of the circuit’s agency test for personal jurisdiction, possibly indicating a willingness to extend its exercise of personal jurisdiction in the future.    

  • II. In Rem and Quasi in Rem Jurisdiction

    • A. Definitions and Applications

      1. Definition of in rem Jurisdiction. In rem jurisdiction implicates a court’s power to determine the status or ownership of a particular piece of property situated within its jurisdiction, regardless of the existence of personal jurisdiction over any party claiming an interest in the property. In rem jurisdiction, because of its very nature, does not present important issues when litigating international controversies in United States courts. Since in rem cases are centered on a particular piece of real or personal property located within a jurisdiction, rather than on a controversy between parties, the status of interested parties as international would have no implications for the conduct of the case, as it does not form an integral aspect of the litigation.

      2. Definition of quasi in rem Jurisdiction.  Cases implicating quasi in rem jurisdiction, unlike in rem jurisdiction, center on the parties to the litigation. It may also be exercised despite a lack of personal jurisdiction, as long as some property of the defendant is found in the jurisdiction, which may be used to satisfy a judgment against that defendant. To illustrate: If A and B, neither of whom have minimum contacts with New York, dispute ownership over a car located in New York, a court in that jurisdiction may exercise in rem jurisdiction over the car (In re Toyota Camry). If, however, A sues B over an unrelated debt, and B owns a motorcycle within the borders of New York, then a New York court may exercise quasi in rem jurisdiction over the case, and attach B’s motorcycle in anticipation of satisfying a judgment against B (A v. B).


        Quasi in rem jurisdiction may be the only means of utilizing the U.S. courts for recovery when both the parties and the interests are international, and when no personal jurisdiction exists over the defendant.


        1. In Shipping Corp. of India v. Jaldhi Overseas PTE Ltd., 585 F.3d 58 (2d Cir. 2009), the Second Circuit induced a sea change for quasi in rem jurisdiction. In this case, an Indian company brought suit against a corporation from Singapore to recover monies owed under a contract. Neither had sufficient contacts to allow the district court to exercise personal jurisdiction over the matter, but the court’s previous decision in Winter Storm Shipping Ltd. v. TPI, 310 F.3d 263 (2d Cir. 2002), held that in maritime and admiralty disputes, courts may exercise quasi in rem jurisdiction when, due to the location of branches of a party’s bank, electronic fund transfers (EFTs) momentarily pass through the forum jurisdiction. After Winter Storm, lawsuits seeking to attach funds, arising out of quasi in rem jurisdiction over the EFTs, came to compose fully one third of all lawsuits filed in the Southern District of New York. 585 F.3d at 62.


          The court in Jaldhi overruled the seven-year precedent of Winter Storm, holding that federal law did not compel the finding—required in quasi in rem proceedings—that EFTs were the property of defendants, and that under New York law, they were not. As a result, an extremely popular method of adjudicating foreign disputes in U.S. courts was closed.

  • III. Subject Matter Jurisdiction

    • A. Definitions and Application

      1. Definition of Subject Matter Jurisdiction. While personal, in rem, and quasi in rem jurisdiction determine whether a court has authority to issue a binding judgment against a particular party, the doctrine of subject matter jurisdiction implicates particular courts' ability to hear certain types of cases at all.


        1. State courts exercise a "general" subject matter jurisdiction, which means they can hear every type of case other than those that fall under the exclusive jurisdiction of some non-state tribunal (e.g. federal, administrative, or tribal courts).

        2. Federal courts, on the other hand, may only exercise "limited" subject matter jurisdiction. Federal courts have no jurisdiction except what is given to them by statute, which must fall within certain limits laid out by the Constitution. A very small amount of jurisdiction is provided for directly by the Constitution.

      2. Sources of Federal Subject Matter Jurisdiction. The two main sources of federal court jurisdiction are "federal question" jurisdiction, 28 U.S.C. § 1331, and diversity jurisdiction, 28 U.S.C. § 1332. Many other statutes exist, however, that give the federal courts jurisdiction over specific claims or areas of law.


        1. Since federal question jurisdiction covers all causes of action whose claims arise under federal law, a number of lawsuits in the international commercial litigation arena find their way into federal court via this path. Securities and antitrust law are two of the prime examples, with causes of action arising out of the Securities Exchange Act of 1934, the Sherman Antitrust Act, and the Clayton Antitrust Act. And since it is the rare lawsuit that contains only federal causes of action, Congress has provided for federal courts to exercise supplemental jurisdiction to hear state law claims that "form part of the same case or controversy" as the federal claims. 28 U.S.C. § 1367.

        2. The federal question statute acquires its breadth of application in accordance with the many contours of federal law. Thus, one vital source of subject matter jurisdiction over international disputes is the extraterritoriality of federal laws.


          1. In F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004), the Supreme Court interpreted the reach of The Foreign Trade Antitrust Improvements Act of 1982, which excludes from the Sherman Act's reach certain anticompetitive conduct causing foreign injury. Both domestic and international vitamin manufacturers were alleged to have engaged in price fixing, which caused injury both in the United States and abroad. The majority made use of a canon of statutory interpretation which forces them to "assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws." Due to that deference, the Court held that the law was intended to keep claims of foreign anticompetitive conduct causing independent foreign injury out of U.S. courts. In such cases, "application of [American securities] laws creates a serious risk of interference with a foreign nation's ability independently to regulate its own commercial affairs."

          2. Morrison v. National Australia Bank Ltd., No. 08-1191 (June 24, 2010), was the first "foreign-cubed" securities action to appear before the Supreme Court—in which (i) non-U.S. plaintiffs, (ii) sued a non-U.S. issuer, (iii) based on securities transactions outside of the United States. In Morrison, non-U.S. investors brought a securities fraud class action against an Australian bank. They argued that the bank's Florida subsidiary falsified its corporate records, and thereby caused the Australian bank to submit materially false filings to foreign securities markets. Below, the Second Circuit used their decades-old "conduct and effects" test to decide if the degree of U.S. involvement warranted the exercise of jurisdiction by an American court. Subject matter jurisdiction would exist, the court held, if the alleged infringing U.S. activity was "more than merely preparatory" to the fraud abroad, and if the specific acts, or failures to act, within the U.S. directly resulted in losses to non-U.S. investors. Using this test, the Second Circuit ruled that the federal court lacked subject matter jurisdiction over the class action because the non-U.S. activity of the Australian bank was a more dominant factor in the fraud and led more directly to the injury of affected investors than the U.S. conduct of the bank's subsidiary in Florida.


            Justice Scalia, writing for the majority, affirmed the Second Circuit's decision, albeit on different grounds. He criticized the "conduct and effects" test—which had been adopted in various forms by circuit courts across the country—as enabling judges to determine, on a policy level, what they think Congress would have decided about extraterritorial applicability if they had considered it, thereby substantially ignoring the well-recognized canon establishing a presumption against extraterritorial application of U.S. laws. Applying that canon to the Securities and Exchange Act of 1934 and relevant regulations, the majority held that Congress did not affirmatively provide for application of the statute in cases such as that presented here, and that the Act is only meant to apply when "the purchase or sale [of a security] is made in the United States, or involves a security listed on a domestic exchange."


            Notably, for the purposes of this chapter, Scalia also rejected the Second Circuit's framing of this issue as one of subject matter jurisdiction, explaining that the Act itself gave U.S. district courts the power to hear the merits of a claim brought to determine whether the Act applies to the bank's conduct. He also admitted however, that nothing in this case turned on such a distinction—only that the motion to dismiss ought to have been based on the failure to state a claim rather than a lack of subject matter jurisdiction.  There has been a great deal of commentary on Morrison.  We discuss it in our OneWorld blog in several contexts relating to jurisdiction over securities cases (though the principles adumbrated in the decision would not seem unique to that federal scheme (see posts on 7/16/10, 7/19/10, 7/21/10, 8/4/10), and, in nonsecurities contexts, on 8/27/10 and 8/30/10

        3. Federal question jurisdiction gives U.S. district courts the authority to hear cases where the cause of action arises under federal law, treaties, or the Constitution. In keeping with the limited nature of federal jurisdiction, however, courts express a very strong preference for express, rather than implied, causes of action.

           
          1. In the treaty context, the D.C. Circuit recently gave a limiting interpretation to a treaty which seemed like it could imply a private right of action. In McKesson Corp. v. Islamic Rep. of Iran, 539 F.3d 485 (D.C. Cir. 2008), the American company, McKesson, owned shares in an Iranian company, and alleged that Iran illegally expropriated its equity interest in the company and unlawfully withheld its dividends. The D.C. Circuit held that the Treaty of Amity did not provide a private plaintiff with a cause of action, reversing the district court. They reasoned that although treaties are presumed to be self-executing under the Supremacy Clause, it is also commonly presumed that international agreements do not provide for implied private causes of action in domestic courts. In the Treaty of Amity, they ruled, there was nothing to overcome this latter presumption.


            The court also noted that the notion of recognizing implied causes of action in treaties, much as courts recognize implied causes of action in the Constitution, is inappropriate, as the presumptions concerning constitutional rights and treaty rights are very different. The Constitution "stands apart from other texts" as courts traditionally assert freer reign over its interpretation, and courts have a special role in protecting constitutional rights. By contrast, finding an implied cause of action in treaties "embroils the judiciary in matters outside its competence and authority." Absent an express cause of action, treaty disputes should be left to the political branches and to diplomatic relations between the signatories.

        4. Even when subject matter jurisdiction does exist as a matter of federal law, courts sometimes impose upon themselves a sort of prudent subject matter jurisdictional limit. For example, the political question doctrine has been found by the Supreme Court to remove certain classes of cases from their jurisdiction based on prudential concerns of manageability and deference to the political branches. Being of a prudential nature, the lines of this doctrine are not always very clear, but below are some examples of U.S. courts choosing not to exercise subject matter jurisdiction over certain types of international disputes.


          1. In Sarei v. Rio Tinto, PLC, 550 F.3d 822 (9th Cir. 2008) (en banc), island residents in Bouganville, Papua New Guinea ("PNG") filed suit against Rio Tinto, a coal mining company, in a California district court under the Alien Tort Statute ("ATS"), a law that grants jurisdiction to a U.S. district court over civil actions by aliens for torts that violate a U.S. treaty or international law. The plaintiffs alleged Rio Tinto engaged in war crimes, environmental torts and racial discrimination. The Ninth Circuit observed that in international law a state is usually not compelled to adjudicate a non-U.S. claim until remedies in the country of origin have been exhausted, except where "such remedies are clearly sham or inadequate or their application is unreasonably prolonged." (quoting Restatement (Third) § 713 cmt. f). Guided by prudential concerns and basic principles of international law, the court held that some ATS claims require exhaustion—especially where both the claim's "nexus" to the United States is weak and the claim does not involve matters in which a state may exercise jurisdiction, without regard to territory or nationality of the defendants. See In re Xe Servs. Alien Tort Litig., 665 F. Supp. 2d 569 (E.D. Va. 2009) (finding that Sarei's exhaustion requirement probably did not apply, since the conduct complained of consisted of U.S. citizens working with the U.S. government, in a country then occupied by the United States).

          2. Compare Sarei with Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d 254 (2d Cir. 2007). In Khulumani, the Second Circuit held that subject matter jurisdiction did exist under the ATS for plaintiffs to sue South African corporations in the United States for allegedly aiding and abetting crimes against humanity by South Africa's apartheid regime. The court remanded, however, for determination of prudential questions of jurisdiction. On remand, in S. African Apartheid Litig. v. Daimler AG, 617 F. Supp. 2d 228 (S.D.N.Y. 2009), the district court determined that of the two primary prudential concerns—the political question and international comity—neither justified the prudential abstention exhibited in Sarei. Specifically, exhaustion was not required in this case because no adequate forum existed in South Africa to hear suits such as these.

          3. When courts address prudential concerns, bright line rules often make way for fact-specific determinations of jurisdiction. In Bondi v. Capital & Fin. Asset Mgmt., S.A., 535 F.3d 87 (2d Cir. 2008), the court carefully tailored its jurisdiction to hear the case in accordance with principles of deference, comity, and efficiency. Parmalat, an Italian dairy and food company, filed for bankruptcy amid reports of financial fraud. Investors then filed class actions in the United States against Parmalat and other alleged participants in the fraud. As a result, the Extraordinary Commissioner of the Parmalat bankruptcy in Italy (similar to a U.S. bankruptcy trustee) petitioned the U.S. Bankruptcy Court to enjoin actions regarding property involved in the Italian bankruptcy proceedings. Parmalat's successor in interest, Parmalat, S.p.A. ("New Parmalat"), then made a motion in the district court to prevent plaintiffs in the U.S. class actions from directly suing New Parmalat. The district court rejected New Parmalat's motion, ordering that it would be subject to any claims that would arise in that court.


            The Second Circuit affirmed on appeal. They rejected New Parmalat's argument that the order violated the objective of "economical and expeditious administration of the foreign estate" set forth in Bankruptcy Code §304. Any Italian court that handled the securities fraud litigation would be compelled to evaluate the U.S. legal and regulatory scheme for which "there is no Italian analog." The majority also ruled that the district court's order had due regard for principles of international comity since, in an unusual twist, it had determined that the Italian courts would handle enforcement of any U.S. judgment against New Parmalat.

        5. In the international controversies context, one of the more important specific statutory grants of jurisdiction is that concerning foreign arbitral awards, 9 U.S.C. § 203, which gives district courts jurisdiction to hear all actions falling under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention"), June 10, 1958, 21 U.S.T. 2517. This statutory grant of jurisdiction is a prime example of another of Congress's powers over federal court jurisdiction—the ability to not only limit the types of cases that district courts can hear, but also the claims and even the remedies that they can entertain.


          1. In Gulf Petro Trading v. Nigerian Nat'l Petrol. Corp., 512 F.3d 742 (5th Cir. 2008), a Swiss arbitration panel initially decided that a Texas oil company could not maintain its claims against a Nigerian oil company. The Texas company thereafter claimed, in litigation commenced in a U.S. federal court, that the Swiss arbitral award was invalid because it was obtained in a scheme of corruption, bribery and fraud. Viewing the lawsuit as a collateral attack on a non-U.S. arbitration award, the Fifth Circuit held that U.S. federal courts could not exercise subject matter jurisdiction over the suit.


            Explaining its holding, the court observed that the New York Convention distinguished between a country of primary jurisdiction (the country where an arbitral award is made) and a country of secondary jurisdiction (all other countries). The New York Convention, it concluded, basically limited the review of awards in courts of secondary jurisdiction to whether such awards should be enforced. The fraud, bribery, and corruption claims were collateral attacks on the award because, in the court's view, the injury claimed by the plaintiff was not caused by the alleged acts, but rather by the effect the alleged acts had on the award.


            The court left open the possibility that allegations of civil rights violations by participants in arbitration proceedings may not constitute a collateral attack, even where a major component of the damages sought would consist of modifying the amount of the award.

  • IV. Forum Non Conveniens

    • A. Definitions and applications

      1. What Does Forum Non Conveniens Cover?  Often both personal and subject matter jurisdiction can be established in more than one jurisdiction. If defendants dispute the plaintiff’s choice of forum, they may move to dismiss based upon forum non conveniens, or request that a judge transfer the case to any other forum in which it could have been brought in the first instance. 28 U.S.C. § 1404. Courts conduct a balancing test taking numerous factors into account, including, but not limited to, undue hardship for the defendant, the location of potential witnesses or evidence, the availability of other adequate forums, and public policy concerns. The plaintiff’s choice of forum, however, retains a heavy presumption of convenience and appropriateness.

      2. According to the general forum statute, at 28 U.S.C. § 1391, when the defendant is an alien or alien corporation, venue is appropriate in any U.S. district court that can exercise jurisdiction over it. § 1391(d). Venue for actions against a foreign state is always appropriate in the District Court for the District of Columbia, but can be had elsewhere in accordance with § 1391(f).

      3. When the plaintiff is an alien or alien corporation, the forum non conveniens balancing test is significantly altered in favor of the defendant.


        1. In Geier v. Omniglow Corp., 357 Fed. Appx. 377 (2d Cir. 2009), plaintiffs, survivors of a ski train fire in Austria, as well as family members of the deceased, filed suit against defendants in the Southern District of New York. Defendants moved to dismiss the suit based on forum non conveniens. The court held that while normally the plaintiff’s choice of forum is given deference in deciding a forum non conveniens challenge, the rationale does not hold when the plaintiff is from outside the United States, in part due to the “strong inference that forum shopping motivated their decision to sue in the United States.” 357 Fed. Appx., at 380 (internal quotation marks omitted). The opinion also confirmed the ability of a district court to respond to a forum non conveniens motion without reaching other threshold questions such as personal and subject matter jurisdiction.

      4. Potential forum non conveniens objections can be waived or contracted around. Forum selection clauses, both mandatory and permissive, are found in many international commercial contracts, and those clauses are to be given heavy, though not dispositive, weight in the forum non conveniens balancing. See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22 (1988). They can also be held invalid if “enforcement would be unreasonable and unjust, or [if] the clause was invalid for such reasons as fraud or overreaching.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972).

      5. The majority in Aguas Lenders Recovery Group LLC v. Suez S.A., 585 F.3d 696 (2d Cir. 2009), subscribes to the view that forum selection clauses are an especially valuable tool to eliminate uncertainty in international commerce, and that it is possible to apply a forum selection clause against a non-signatory to that clause. In this case, an Argentine water company, Aguas, entered into loan agreements with multiple companies, including some in the United States. These agreements included a New York forum selection clause and a forum non conveniens waiver. When Aguas defaulted on payments under the loan agreements, however, the Argentine government terminated its utility concession and assigned it to the appellee in this case, AySA, who also received the assets built and purchased with the money originally borrowed by Aguas. The Second Circuit held that if successorship is established under the relevant law, then a forum selection clause is among the contractual obligations that cannot be evaded by a formalistic change in ownership of assets and liabilities. In this case, a non-signatory is just as bound by a forum selection provision as by any other obligation of the predecessor.

      6. The doctrine of foreign non conveniens may take on even more importance after the Supreme Court's decision in Morrison v. National Australia Bank, Ltd., No. 08-1191 (June 24, 2010).  Morrison is discussed above, in the section on subject matter jurisdiction.  One of its holdings was that the statutory "reach" question was not, strictly speaking, a question of subject matter jurisdiction but was rather a "merits" issue.  To the extent courts read this holding as precluding an analysis of the "reach" issue at the beginning of the case, then, as we predicted in our OneWorld blog discussion, courts will have to find other avenues of determining whether an international dispute is properly in federal court.  One such way is via the doctrine of forum non conveniens.  This has already been demonstrated, in a case discussed in our OneWorld blog post of 8/4/10.