...MEMORANDUM To: Reader From: Date: Re: Can A State Court Exercise Personal Jurisdiction Over A Non-resident Summary of Facts Plaintiff, Froogle's action is based upon the claim that Mary, violated a signed agreement with Froogle. Froogle is a California company that provides internet search services. Mary is a resident of Vermont and a proprietor of a small business in Vermont specializing in the manufacture and sale of ski equipment to Vermont ski resorts. Two months after the signing of the contract, Froogle filed a lawsuit against Mary claiming that she violated the signed agreement. The lawsuit was filed in the Superior Court for the County of Monterey in Salinas, California. Mary claims that the California court does not have personal jurisdiction over her, because all her business dealings with Froogle were done online or via the telephone. Froogle claims that the California court has personal jurisdiction over Mary, because she knowingly did business with a California company. Issue: Can the California state court exercise personal jurisdiction over a non-resident who advertised on the internet? Rules: Pursuant to California Code of Civil Procedure section 410.10 (2014), "A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." The court in Bancroft & Masters v. Augusta Nat'l, 223 F.3d 1082 (9th Cir. Cal. 2000), found that because ANI's contacts did not qualify as either...
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...contract Froogle alleges that Mary violated the agreement between the parties and files suit in Superior Court for the county of Monterey in Salinas, California. Mary claims that the California court has no personal jurisdiction over her. Froogle claims California does have jurisdiction over her because she knowingly did business with a California Company. The issue in this case is whether Mary, resident of Vermont who sells ski equipmentin Vermont and maintains a website, is subject to the personal jurisdiction of a California court even though she has never been to California, and has no contacts there. In Gourmet Video, Inc. v. Alpha Blue Archives, Inc., 2008 U.S. Dist. LEXIS 87645 (D.N.J. Oct. 29, 2008), The plaintiff in this case is a New Jersey copyright owner who sued the defendant for violating the copyright act by selling the material via their website based out of the Northern California district. The defendant argued that the venue was improper and moved to dismiss the complaint. The court found that the venue was proper. The Defendants were subject to personal jurisdiction of New Jersey because they had sufficient minimum contacts with New Jersey. The defendants knowingly sold and shipped their products to New Jersey residents who initiated the sale of those products from their website. A court may exercise specific jurisdiction over a non resident defendant only if: 1. The...
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...MEMORANDUM Supervising Attorney 29 DEC 2015 Personal Jurisdiction Out of State Business Transactions FACTS Froogle a California based company, files a complaint against Mary, a client from Vermont. Mary argues that California does not have personal jurisdiction over her. All business is done over the internet; Mary has never been to California. ISSUE Does California have personal jurisdiction over Mary? RULE Snowney v. Harrah's Entertainment, Inc., 35 Cal. 4th 1054, 1055 (Cal. 2005), outlines the rule When determining whether specific jurisdiction exists, courts consider the relationship among the defendant, the forum, and the litigation. A court may exercise specific jurisdiction over a nonresident defendant only if: (1) the defendant has purposefully availed himself or herself of forum benefits; (2) the controversy is related to or arises out of the defendant’s contacts with the forum; and (3) the assertion of personal jurisdiction would comport with fair play and substantial justice. In Shisler v. Sanfer, 146 Cal App 4th 1254 (2006), the defendant, whose principal place of business was in Florida, maintained a website that advertised cars for sale. Plaintiff, a California resident, saw defendant’s advertisement and bought a car. Plaintiff was not happy with car and filed suit in California. Defendant claims California lacked personal jurisdiction of him. The trial court agreed with defendant and plaintiff now appeals. In order to sue the...
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...IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION HEATHER PERROW, Plaintiff, v. GRAND CANYON EDUCATION, INC., and GRAND CANYON UNIVERSITY, INC., Defendants. : : : : : : : : : : : Case No. 2:09-cv-670 JUDGE MARBLEY Magistrate Judge Kemp OPINION AND ORDER I. INTRODUCTION This matter is before the Court on Defendant Grand Canyon Education, Inc.’s (“GCE”) Motion to Dismiss for Lack of Jurisdiction (Doc. 4) and Renewed Motion to Dismiss for Lack of Jurisdiction (Doc. 21), and Defendant Grand Canyon University, Inc.’s (“GCU”) Motion to Dismiss for Lack of Jurisdiction (Doc. 6) and Renewed Motion to Dismiss for Lack of Jurisdiction (Doc. 22). For the reasons stated below, Defendants’ Motions are DENIED. II. BACKGROUND A. FACTUAL BACKGROUND GCE is a Delaware corporation with its principal place of business in Phoenix, Arizona. GCU is an online university also based in Phoenix. GCE is the owning and operating entity of GCU. Plaintiff Heather Perrow enrolled in online courses offered by GCU after conducting an online search for web-based degree programs. (Perrow Aff. at ¶ 5.) Perrow got in touch with an enrollment counselor, Mr. Brand, who assisted her in filling out the requisite forms for enrollment and financial assistance. (Id. at ¶ 7.) Perrow was informed that the program she had selected, the Master of Arts in Teaching Program of Study, was the appropriate program for her educational background. (Id.) Perrow was assigned a username, password...
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...files suit in California. Mary claims California holds no jurisdiction over her, while Froogle believes that the company being based in California gives enough credence over personal jurisdiction. Issue The issue in this case is whether or not the California Court has personal jurisdiction over Mary. Rule Abbott Power Corp. v. Overhead Elec. Co., 131 Cal. Rptr. 508 (Cal. Ct. App. 1976), held that Cal. Code Civ. Proc. § 410.10, which states that a court may exercise jurisdiction on any basis not inconsistent with the state or federal constitutions, allows for the broadest possible exercise of judicial jurisdiction. Burger King Corp. v Rudzewicz, 471 U.S. 462, 471 (1985), ruled that for a case concerning a foreign defendant to be heard, the defendant must have intentionally established minimum contacts in the forum state. Typically establishing minimum contacts means that the defendant must have taken actions deliberately directed toward the forum state. This does not require for the defendant to ever be present within the forum state; however, purposeful availment and minimum contact should not be found simply through incidental and fortuitous contact with a forum state. Bridgestone Corp. v. Superior Court, 99 Cal. App. 4th 767 (Cal. App. 2d Dist. 2002), stated that a nonresident defendant whose activities within the state are substantial, continuous, and systematic is subject to general jurisdiction in the state. If no such activities exist, a defendant is subject...
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...------------------------------------------------- Alternate Case Problem answers Chapter 2 Courts and Alternative Dispute Resolution 2-1A. Jurisdiction (Chapter 2—Pages 29–30) A court can exercise personal jurisdiction over nonresidents under the authority of a long arm statute. Under a long arm statute, it must be shown that the nonresident had sufficient contacts with the state to justify the jurisdiction. In regard to business firms, this requirement is usually met if the firm does business within the state. In this case, the parties to the sponsorship agreement contemplated that substantial activities to further their joint venture would take place in Florida. Sutton lived in Florida, and he was expected to and did play in tour events in Florida. Sutton was to be provided health care insurance in Florida. All earnings from Sutton’s golf-related activities in Florida and elsewhere were to be paid by the Professional Golfing Association from its headquarters and bank account in Florida to the ARS & Associates account in Michigan; the partnership was to disburse funds from the account to Sutton’s account in Florida to enable him to perform golf-related activities and participate in tour events for the benefit of the joint venture. After ARS failed to fund health insurance for Sutton, it instructed Sutton to obtain medical care in return for providing golf lessons to a physician in Florida. These facts—the provision of health care insurance in...
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...those looking to pursue business opportunities in Canada, this guide outlines several unique aspects of doing business in Canada, including French language requirements in the province of Québec as well as overlapping regulatory jurisdiction among various levels of government in certain areas of the law. With few exceptions, the same considerations apply to Canadians who live, work and conduct business in Canada. Despite the ongoing harmonization of many areas of Canadian business law with those of our major trading partners through international agreements, addressing distinctly Canadian business law requirements is a crucial consideration when entering the Canadian marketplace. Each chapter is designed to assist you with an overview of that particular subject and the laws most likely to affect your business decisions. Beginning with an introduction to Canada’s legal system as it applies to businesses, the guide includes an introduction to Canada’s tax system, the pensions and retirement savings landscape in Canada, foreign investment considerations, competition law, and details on doing business in Québec, to name a few topics. Doing Business in Canada does not contain a full analysis of the law. This guide provides general information only and does not constitute legal or other...
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...Jurisdiction, who gets what? Gabraille Driscol American InterContinental University CRJ215-1204D Dr. Gwenda Hawk Abstract Who gets what when it comes to jurisdiction, how do you tell if it’s a state matter or a federal matter? Whether state or federal there are strict jurisdictions that both state and federal has to follow. From subject and personal jurisdiction, to the three types of personal jurisdiction. Each court has set boundaries that govern their rights. Without these rights there would be no subject matter. No one would go to the appreciate courts or have the correct measures to even known which court they are supposed to go to. But weather federal or state jurisdiction is going to take part in each case. There are two types of jurisdiction they are subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction is types of cases courts have been authorized to hear and decide. (Fradella & Neubauer, 2011 p. 566) Subject matter jurisdiction determines the court structure and what types of cases they will hear. For example special jurisdiction are restricted to hearing cases such as civil suits involving small sums of money ideally less than $75,000, and misdemeanors. Other types of cases that state courts hear are traffic and juvenile courts, state offenses; child-victim cases are all apart of subject matter jurisdiction. Most juvenile courts are heard by state courts because of the “one-pot jurisdiction” (Fradella & Neubauer, 2011...
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...Two The Court Systems Federal Judges Serve during g ood behavior May be removed if Congress impeaches them for treason, bribery, or other high crimes and misdemeanors (vague definition) House of Representatives State Judges Chosen by a variety of methods Generally serve for a fixed term Judicial Immunity Absolute, even when the judge acts maliciously Organization of the Court Systems Original Jurisdiction Appellate Jurisdiction Davis v. West Issue: HRS sued Davis for an unpaid bill and received a default judgment. Radoff was appointed as the receiver and sent a letter to the defendant’s bank demanding payment, which was received. Davis sued Radoff for abuse of process. Is Radoff protected by derived judicial immunity? Rule: Derived judicial immunity attaches to the delegation, appointment or court employment of a person acting in such capacity. Test: Is the person seeking immunity intimately associated with the judicial process and does that person exercise discretionary judgment comparable to that of the judge? Application: A court-appointed receiver acts as an arm of the court and is immune from liability for actions grounded in his conduct as a receiver. Conclusion: The trial court properly granted summary judgment on Radoff’s motion for summary judgment. Appellate courts are concerned with correcting errors in the application of the law or procedures The Federal Courts Federal...
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...and state judicial systems CB 1-12, FRCP 1, 28 U.S.C. § 41, 44,132,133, 1331, 1332. What is the basic structure of the federal judiciary? How do federal courts differ from state courts? What are pleadings and what purpose do they serve? Tues. Aug. 31: Overview of the litigation process CB 13-21 FRCP 3, 4 What are the differences between subject matter jurisdiction, personal jurisdiction and venue? How is a lawsuit commenced in federal court? Wed. Sept. 1: Motions and Discovery Practice CB 20-34 FRCP 7(b), 26(b)(1) What is a motion? How does one go about making a motion in federal court? What is discovery and when does it take place? What is the difference between depositions and interrogatories? Thurs. Sept. 2: Motions and Discovery Practice (cont’d) CB 34-46 FRCP 8, 11, 12, 38, 28 U.S.C. §§ 1291, 1292 What is a demurrer? Is it permitted in federal court today? What has replaced it? What is the significance of Rule 11 for pleadings? When are litigants in a federal lawsuit entitled to a trial by jury? What happens if plaintiff wants a jury trial and defendant does not? What if the reverse is true? When can an appeal be taken from a federal court decision? What kinds of issues can be appealed from a state court to the United States Supreme Court? What issues cannot be appealed? Tues. Sept. 7: Rose v. Giamatti CB 47-58, 28 U.S.C. §§ 1441, 1446 Answer the questions on pages 57 and 58 of the Casebook...
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...Civil Procedure Outline Chapter 1: An Introduction to American Courts Chapter 2: A Description of the Litigation Process and Sources of Procedural Law Chapter 3: Diversity Jurisdiction in the Federal Courts I. Introduction: II. State Citizenship of Individuals: The Domicile Test 1. Common Law concept of Domicile: a. Residence with the intent to remain “indefinitely.” b. Has been used for several purposes. For example: to determine the power to exercise personal jurisdiction over a person, to grant a divorce, to impose a tax or to determine the persons entitled to inherit property. 2. Losing and gaining a domicile: a person does not lose her old domicile until she acquires a new one, that is, until she hoes to another state wit the intent to reside indefinitely in the new state. (Examples on pg 45-46). 3. Meaning of “indefinite intent: often, courts state that it is enough that the party “intends to make the new state his home and that he has no present intention of going elsewhere [to live].” 4. Alternative formulation of the domicile test: to establish a domicile of choice a person generally must be physically present at the location and intend to make that place his home “for the time at least.” 5. The date for determining diversity: parties must be diverse on the day the complaint is filed, even if the parties were not diverse at the time of the events giving rise to the claim. ...
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...with relevant cases. 1. Equality 2.1 Foreign bribes With the prevalence of overseas corruption, most of the countries have set specific regulation against foreign bribes. For example, both the UK Bribery Act and the US Foreign Corrupt Practices Act (FCPA) make it an offence to bribe foreign officials. Under the Bribery Act a “foreign public official “ is defined more narrowly than under the FCPA but sill includes (1) anyone who holds a foreign legislative or judicial position; (2) individuals who exercise a public function for a foreign country, territory, public agency or public enterprise o; or (3) any official or agent of a public organization. On the other hand, the Hong Kong Bribery Law does not specifically cover the foreign bribes, which results in the controversial judgment on the case HKSAR v. Krieger . In this case, the defendants, the officers of a Hong Kong subsidiary of the Swire Group of Companies were accused of conspiring with a Macau businessman to offer advantages, namely an amount of 29 million MOP (Macau currency) to an agent, the Secretary for Transport and Public Works of the Macao SAR Government, for the award and renewal of public cleaning contracts, contrary to section 9(2)(a) of the Prevention of Bribery Ordinance Cap. 201 (POBO) and section 159A of the Crimes Ordinance, Cap. 200. However, the court stated that the offer was treated...
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...objections to personal jurisdiction in the first response to the plaintiff’s complaint or the issue is waived and may not be reconsidered. True False Feedback: See pages 118, 120-121. A defendant must raise objections to venue, personal jurisdiction, and form and method of service of process in their first response to the complaint (pre-answer or answer) or the issue is waived and may not be reconsidered at a later time. Question 2 of 30 2.5 Points A defendant can remove a case from state court to federal court even if the federal court could not have heard the case initially. True False Feedback: See page 27- “FAQ”. Removal jurisdiction is available to defendants only in cases that the plaintiff could have commenced in federal court. Question 3 of 30 2.5 Points Is it possible for a defendant to file a motion to dismiss for personal jurisdiction and a motion for summary judgment simultaneously? A.Yes B.No Feedback: A motion to dismiss is asserted prior to the answer (as an alternative to an answer) or in the answer to the complaint. A motion for summary judgment is made after the filing of the complaint and answer. Question 4 of 30 2.5 Points John Doe (Arizona) sues Jane Smith (California) and Joe Johnson (California) in federal district court in California. A.The court does not have jurisdiction as the defendants are both from California and not diverse. B.The court does not...
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...2 states (then an international tribunal/court can be convened). The law of the forum, where the dispute is being heard, will supply the procedural rules that will allow it to review the substantive matter (legal issues at stake). Disputes involving a private individual or company usually end up in a domestic court of a state. 3-1 © 2009 Pearson Education, Inc publishing as Prentice Hall Disputes between states 3-2 © 2009 Pearson Education, Inc publishing as Prentice Hall Are taken to an international tribunal, such as the ICJ (International Court of Justice) or the dispute resolution panel of the World Trade Organization (if both states are members) and the matter involves a trade in goods issue. The International Criminal Court (ICC) is a court of last resort which tries persons accused of the most serious crimes against humanity (crimes such as genocide). Settlement of Disputes in International Tribunals International Court of Justice International Criminal Court World Trade Organization Dispute Settlement Procedures 3-3 © 2009 Pearson Education, Inc publishing as Prentice Hall 4 © 2009 Pearson Education, Inc publishing as Prentice Hall 1 3/7/2016 ICJ Jurisdiction International Court of Justice Principal judicial organ of the United Nations. It has jurisdiction to hear: • Disputes between states pursuant to its contentious jurisdiction. • Cases from organs and specialized ...
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...person is a visitor, the frequency, regularity and duration of visits: IRC v Lysaght [1928] AC 234 * The person’s family, business and social ties: Levene v IRC. * Maintenance of place of abode in Australia during absences * Family and business ties * Present habits & modes of life * Nationality Domicile test (resident going out of Australia) – COMMON LAW TEST * Under the domicile test, an individual is a resident of Australia if his or her domicile is in Australia, unless the Commissioner is satisfied that the person has a permanent place of abode outside Australia. * “Domicile” is determined according to the Domicile Act 1982: * Domicile of origin at birth OR Domicile of choice. * Permanent is not everlasting (FC of T v Applegate). 183-days Test (moving to Australia) – STATUTORY TEST * Individual is a resident of Australia if he “has actually been in Australia, continuously or intermittently, during more than one-half of the year of income, unless the Commissioner is satisfied: * That his usual place of abode is outside Australia; and * That he does not intend to take up residence in Australia. Commonwealth Superannuation Test - STATUTORY TEST * Member of a superannuation scheme established under the Superannuation Act 1990. * An eligible employee for the purposes of the Superannuation Act 1976, or * A...
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