Tuesday, November 25, 2008

Personal Jurisdiction and the Internet

A panel of the Eleventh Circuit Court of Appeals recently reversed a district court's grant of a motion to dismiss for lack of personal jurisdiction in a case filed in the Middle District of Florida against a Tennessee resident that allegedly used the plaintiff's trademarked name and his picture on a website accessible in Florida.  The defendant argued that his website was not a sufficient contact upon which the FL court could exercise personal jurisdiction. 

The court first established that although the website was created in TN, the FL long-arm statute permitted the exercise of jurisdiction if the alleged trademark infringement on the site caused injury in FL.  The court next turned to whether the due process clause permitted such an exercise.  Looking to both the Seventh Circuit and the Ninth Circuit, the court reasoned that "the defendant's connection with the forum in an intentional tort case should be evaluated under the Calder 'effects' test, rather than the contracts-oriented 'minimum contacts' test."  The court then applied the three element test and concluded that the allegations "satisfy the Calder effects test for personal jurisdiction - the commission of an intentional tort, expressly aimed at a specific individual in the forum whose effects were suffered in the forum."

In Footnote 8 the court explained that this decision was not intended to establish any general rule for personal jurisdiction in the internet context:

We do not, by our decision today, intend to establish any general rule for personal jurisdiction in the internet context. Our holding, as always, is limited to the facts before us. We hold only that where the internet is used as a vehicle for the deliberate, intentional misappropriation of a specific individual’s trademarked name or likeness and that use is aimed at the victim’s state of residence, the victim may hale the infringer into that state to obtain redress for the injury. The victim need not travel to the state where the website was created or the infringer resides to obtain relief.

Read the full opinion here.


November 25, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, November 24, 2008

Federal Jurisdiction in light of Sosa v. Alvarez-Machain

Professor Gwynne Skinner recently published Federal Jurisdiction Over U.S. Citizens' Claims for Violations of the Law of Nations in Light of Sosa.  Click the article title to download it.  This abstract follows:

This article finds that general federal question jurisdiction provides federal courts with jurisdiction over U.S. citizens' claims for violations of the law of nations in light of the Court's analysis in Sosa v. Alvarez-Machain, because Congress implicitly authorized federal courts to recongize such claims using their common law power when it enacted general federal question jurisdiction in 1875.


November 24, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, November 21, 2008

Federal Judicial Center Publishes More Findings on CAFA's Impact

The Federal Judicial Center released the findings from Phase Two of a study on the impact of CAFA on the federal courts:

This report presents preliminary findings from Phase Two of the ongoing study of
the impact of the Class Action Fairness Act of 2005 (CAFA) on the federal
courts. Phase One found that the number of class actions based on diversity of
citizenship jurisdiction filed in or removed to the federal courts increased after
CAFA s effective date. Phase Two will, when complete, measure CAFA s impact
on litigation activity and judicial rulings in class actions in the federal courts. This
report presents an initial description and overview of the litigation activity, outcomes,
and case characteristics of class actions based on diversity of citizenship
jurisdiction filed in or removed to the federal courts in the two years preceding
CAFA s effective date. Future reports will compare these findings to the extent
that meaningful comparisons are possible with prior empirical research and discuss
any apparent differences.

For the whole report, click here.

November 21, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2008

Declaratory Judgments and Claim Preclusion

A panel of the First Circuit Court of Appeals recently reversed a district court finding that a deceptive trade practices claim against an insurance company was barred by res judicata because the claim could have been brought in the plaintiff's previously obtained declaratory judgment action.  The plaintiff argued that the district court erred by not recognizing that the normal rules of claim preclusion do not apply when the original action involves declaratory relief.  The First Circuit panel explained that section 33 of the 2d Restatement of Judgments provides such an exception to the general rule: 

The linchpin of this asseveration is section 33 of the Restatement (Second) of Judgments, which states that "[a] valid and final judgment in an action brought to declare rights or other legal relations of the parties is conclusive in a subsequent action between them as to the matters declared." Under this prescription, "[a] plaintiff who wins a declaratory judgment may go on to seek further relief, even in an action on the same claim which prompted the action for a declaratory judgment.

The panel then went on to find that although the Massachusetts high court had not adopted Section 33, "when faced with the question that is now before us, the SJC will adopt the articulation of claim preclusion principles limned in section 33 of the Second Restatement."

The court concluded that the ability of a party to seek declaratory relief would be frustrated if the plaintiff were required to bring all conceivable claims and counterclaims.  Read the full opinion here.

November 20, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 19, 2008

E-Discovery Symposium

Click the link to download the details of  Northern Kentucky's Symposium on E-Discovery. 
Download northern_kentucky_law_review_spring_symposium.doc


November 19, 2008 | Permalink | Comments (0) | TrackBack (1)

Friday, November 14, 2008

Discovery and Social Networking Sites

Over at Law.com, Ronald J. Levine and Susan L. Swatski-Lebson discuss the current trend of court decisions regarding the discoverability and admissibility of information available on social networking sites.  Read the story here.--Counseller

November 14, 2008 | Permalink | Comments (0) | TrackBack (0)

Supplemental-Jurisdiction Article

Prof. Michelle S. Simon recently published Defining the Limits of Supplemental Jurisdiction under 28 U.S.C. s1367:  A Hearty Welcome to Permissive Counterclaims.   Click the article title to download the article.  The abstract follows:

In 1990, Congress passed 28 U.S.C. j 1367, which combined the judge-made doctrines of ancillary and pendent jurisdiction into a new category, "supplemental jurisdiction. " supplemental jurisdiction allows federal district courts with original jurisdiction to also have jurisdiction over all other claims that form part of the "same case or controversy under Article 1II of the United States Constitution."This Article analyzes supplemental jurisdiction over both permissive and compulsory counterclaims, before and ajier the codz~cationo f$ 1367, by looking at the meaning of "same case or controversy." It then examines two Circuit Court opinions that have held permissive counterclaims may be subject to supplemental jurisdiction as part of the "same case or controversy" as the claim over which the court has original jurisdiction. The author concludes that recent opinions from the Second and Seventh Circuit Courts of Appeal have correctly recognized federal courts' ability to hear permissive counterclaims without independent jurisdiction.


November 14, 2008 | Permalink | Comments (1) | TrackBack (0)

Wednesday, November 5, 2008

A Call for Papers

We received this call for papers from the Journal of Court Innovation:

Dear Colleagues,

The Journal of Court Innovation is soliciting articles concerning the future of commercial litigation and e-discovery.  Articles can concern the federal or any state justice system and there is no page length requirement.

Articles will be published in conjunction with the New York State Judicial Institute Colloquium on the Future of Commercial Litigation: Developing a Cost-Efficient Judicial Process for the Electronic Age.  Chief Justice Judith Kaye will open the event and will be followed by distinguished members of the judiciary, the bar and the educational academy.

The Journal of Court Innovation is a peer reviewed journal that is a combined effort between the New York State Judicial Institute (White Plains, NY), the Center for Court Innovation (New York) and Pace Law School (White Plains, NY).   The journal's mission is to promote innovation among the 50 state court systems and seeks to "bridge the worlds of theory and practice."  It is targeted to court administrators, judges, lawyers, scholars, non-profit executives, legislative and executive branch officials and other professionals interested on improving court systems and the administration of justice. Additional information about the journal can be found at http://www.courtinnovation.org/journal.html.

If you are interested in submitting a paper for consideration please contact Prof. Leslie Yalof Garfield at [email protected]. Final drafts should be submitted by December 30, 2008 for consideration in this edition

We also welcome articles on any topics that consider court innovation for publication in future editions.

November 5, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, November 3, 2008


The Supreme Court heard oral argument in the Levine case today.  Listen to NPR's story on the case here.--Counseller

November 3, 2008 | Permalink | Comments (0) | TrackBack (0)

Saturday, November 1, 2008

Daubert and Halloween

It's the day after Halloween, but Mark Herrmann's punny little Halloween-Daubert post is still midly amusing.  (Mildly, Mark).  Here's an excerpt:

"Multidistrict litigation courts are often confronted with evaluating limited or evolving scientific and medical theories and evidence. . . . . The Rules of Evidence, however, cannot be disregarded even if at a future date, medical and scientific literature proves the contrary. As Judge Richard Posner put it, 'the courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.'" Id. at 103 (citation omitted). 100 Grand bar!


November 1, 2008 | Permalink | Comments (0) | TrackBack (0)