The University of Florida
Fredric G. Levin College of Law

Civil PRocedure
Spring 2009
Professor Pedro A. Malavet

Final Examination Feedback Memorandum

UPDATED OCTOBER 19, 2009

I reviewed the memo, and I was not pleased by the abstract of the essay answer, because it tracks the 2008 exam without giving you much guidance of what was new in your exam. I have now posted an updated essay discussion that better addresses the Florida fact-pattern I used in 2009.

EXAM REVIEW

Review. I will be available to discuss examination results during the Fall semester, beginning after Thursday, September 17, 2009. I will not discuss examination results or any other grade-related matter before that date.

Review will proceed as follows:

1. Get your examination from Professor Malavet (please be sure to have your examination number with you when you come to pick it up, because they are organized by exam number). You may make a copy of your examination for your own reference, but you must return the original because faculty are required to store them for some time.

2. Review your exam, together with the feedback memorandum. Please pay special attention to any notes written on the exam itself, as they will give you explanations of your errors, and sometimes your strengths.

3. Schedule a meeting to discuss your examination. However, be advised that the purpose of exam review is for you to become a better exam taker, I do not change grades.

General Instructions For Part I

Select the best answer to the question presented. In this section, do not look for "perfect" answers, just the most correct one among the alternatives available to you, in light of the question or statement presented. No explanations are required or allowed. Your answer will either be correct or incorrect, there will be no partial credit for incorrect answers. Circle the appropriate letter that you select as your response.

Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, "missing facts" suggest three possibilities: (1) you need to read the question again, i.e., "it's in there somewhere," (2) the fact is not necessary to the resolution of the question, or (3) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question).

Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked, with the best possible response among the alternatives given.

Applicable Rules. Assume that the applicable rules are the Redacted Federal Rules of Civil Procedure and pertinent constitutional and statutory provisions, taken together with all the accompanying doctrines and caselaw as we discussed them in class.

Residence, Domicile and Personal Jurisdiction. Residence and domicile are synonymous. Unless otherwise expressly indicated, assume that individuals are subject to general personal jurisdiction in their place of residence and specific personal jurisdiction where they can be alleged to have been involved in a tort. Corporations are subject to general personal jurisdiction in their place of incorporation and in their principal place of business, additionally insurance companies are also subject to specific personal jurisdiction in any state in which the insured would be subject to personal jurisdiction.

Well-pleaded/Amount in Controversy. Assume that all claims are well-pleaded and that claimed amounts are exclusive of interest and costs.

Part I: Multiple-Choice (40%)

1. A traffic accident involving three vehicles occurs at the intersection of University Avenue and 34^th Street in Gainesville, Florida. The driver of one car, Michelle Jeffreys, joined by her four passengers, all citizens of Florida who reside in Gainesville, Florida, file suit in the United States District Court for the Northern District of Florida against the driver of one of the other vehicles, Jason Richards, a citizen of Georgia. The complaint states that the subject-matter jurisdiction of the court is based on diversity. Each of the five plaintiffs claims damages resulting from the accident in the amount of $85,000.00; Ms. Jeffreys additionally claims damage to her car as a result of the accident in the amount of $3,500.00. Does the court have subject-matter jurisdiction over this action?

a. Yes, because there is diversity and supplemental subject-matter jurisdiction over plaintiffs' claims.

b. No, because the claims fail to reach the jurisdictional amount.

c. Yes, because there is diversity subject-matter jurisdiction over plaintiffs' claims.

d. No, because all the drivers may not be joined in the same suit.

ANSWER C. You have a properly pleaded diversity case and so the answer was C, each plaintiff is diverse, and each has a claim exceeding 75,000 and Ms. Jeffreys 3500 claim can be aggregated to her 85K to meet the jurisdictional amount, so you do not need 1367 at all.

2. Consider the same facts described in 9 [sic, it should have been 1, as clarified during the exam] above, except that each plaintiff alleges that their damages amount to $30,000.00, and Ms. Jeffrey's claims that her car was a total loss and was valued at $85,000.00 at the time of its loss. Does the court have subject-matter jurisdiction over this action?

a. Yes, because there is diversity and supplemental subject-matter jurisdiction over plaintiffs' claims.

b. No, because the claims fail to reach the jurisdictional amount.

c. Yes, because there is diversity subject-matter jurisdiction over plaintiffs' claims.

d. No, because all the drivers may not be joined in the same suit.

ANSWER A. Exxon Mobil, the facts of the Ortega v. Star Kist part of Exxon. So there is one claim that is properly filed to act as an anchor, by the driver, and the diverse plaintiffs can join in. Accordingly here you need both 1332 diversity for the anchor claim and 1367 supplemental for the ones that fail the jurisdictional amount.

3. Dr. Frazier Crane, is a citizen of Washington state who resides in Seattle. His car was hit by a car negligently driven by Daphnee Smith, a citizen of the United Kingdom who resides in Seattle, works the University of Washington, and is admitted to the United States for permanent residence. Crane did not suffer any physical damages, but he lost his BMW, valued at $45,000.00 at the time of its loss, and his Ming vase, valued at $35,000.00 at the time it was destroyed. The accident occurred at the corner of Olive Way and Fourth Avenue in downtown Seattle. Crane only has state-law claims against Smith. May Crane sue Smith in the United States District Court for the Western District of Washington, at Seattle?

a. No, because you cannot sue aliens in U.S. courts.

b. No, because there is no subject-matter jurisdiction over this action.

c. Yes, because there is subject-matter jurisdiction, personal jurisdiction and venue over this case in the Western District of Washington.

d. Yes, because you can sue aliens in any district.

Answer: B. We are back to Daphne being admitted for permanent residence, thus triggering the final clause of 1332(a) deeming her a citizen of Washington, thus destroying diversity. The last sentence of 1332(a) covers a special case of permanent residents, and that provision would make Daphne a citizen of Washington state, which destroys diversity.

4. Amy Smith, a citizen of Louisiana, files a suit alleging diversity jurisdiction against Jonathan Jones, a citizen of Florida, who resides in Gainesville, in the United States District Court for the Northern District of Florida. She claims that defendant Jones owes her $50,000.00, on account an unpaid debt. She further claims that Jones owes her $10,000.00, for unpaid rent. She finally claims that Defendant Jones owes her $30,000.00, for damage caused to her car in an automobile accident. May these claims be pursued in a single federal case?

a. Yes, because these claims may properly be joined under Rule 18(a) and there is diversity subject-matter jurisdiction.

b. No, because each claim fails to meet the jurisdictional amount.

c. Yes, because these claims may properly be joined under rule 20(a) and there is diversity subject-matter jurisdiction.

d. No, because the claims fail to reach the jurisdictional amount.

ANSWER: A. This is proper Rule 18 joinder and aggregation gives you jurisdictional amount for 1332 purposes and the parties are diverse. B is an incorrect statement of the aggregation rule, C is wrong because this is not Rule 20 joinder of multiple parties, and D is factually incorrect because I changed the numbers to add up to more than 75k (the instructions addressed exclusive of cost and interest, which is why I did not repeat it here.)

5. Ally McBeal, a citizen of Massachusetts, kicks Oren Koolie, a citizen of New York, when he is visiting her law office in Boston. She mistook him for "Mr. Huggy," an imaginary dancing baby. Unfortunately, Mr. Koolie is a very real small person, who happens to be a lawyer. Naturally, Mr. Koolie sues Ms. McBeal in the U.S. District Court for the District of Massachusetts. Ms. McBeal is the only named defendant in the suit. In addition to Ms. McBeal and Mr. Koolie, there were two eyewitnesses to this incident, John Cage, a partner in the law offices Koolie was visiting, and Elaine Vassal, a secretary at that same firm. Lloyds of Cleveland Insurance Company provides insurance coverage to Ms. McBeal. Ms. McBeal called the company on the date of the occurrence and asked it to start preparing her defense to the reasonably anticipated litigation. Harry Smith, an agent for Lloyds, took statements from Mr. Cage and from Ms. Vassal. Mr. Smith wrote down what Ms. Vassal and Mr. Cage said and each of them, after reading their respective statement, signed the document. While Mr. Smith was taking down the statements, Mr. Koolie could be heard outside the door to the office that Smith was using screaming "I am going to sue you for every penny you've got, McBeal." The trial court rules that the statements were taken in anticipation of litigation and that Vassal and Cage are available for depositions, therefore, Koolie has no "substantial need" for the statements and can obtain their substantial equivalent by other means that in no way involve "undue hardship." Accordingly, should the court grant Mr. Koolie's request for copies of the statements by Vassal and Cage?

a. Yes, because the statements are not protected "work-product."

b. Yes, because Vassal and Cage are entitled to copies of their statements.

c. No, because Vassal and Cage are not parties to the case.

d. No, because the statements are protected "work-product."

Answer: D: The same fact-pattern I used in 2008, but I simply moved the correct answer from A to D. The critical issue is that here the party, rather than the witnesses is making the request. Moreover, the court found that the statements were taken in anticipation of litigation and the court has found that the showing required to overcome the protection has not been made. The second sentence of the second paragraph of 26(b)(3) allows a non-party witness to obtain copies of their statements upon request, making b plausible, but they are not the ones making the request. C was about reading the rule, the rules expressly allows a non-party witness to make the request. A is an incorrect characterization of the facts, which point to anticipation of litigation and work-product protection.

6. Juan Gonzalez, a citizen of California, was severely beaten by four Los Angeles Police officers during the course of an illegal arrest. The actions of the police can be argued to have violated Mr. Gonzalez's rights under the Constitution of the United States. Such a claim would be both reasonable and substantial. The facts giving rise to this claim occurred in Los Angeles. All the officers involved reside in Ventura County, and are citizens of California. Gonz?lez then sues the officers and the City of Los Angeles in U.S. District court for the Central District of California, Western Division, using 42 U.S.C. sec. 1983 to pursue claims arising out of the beating and the illegal arrest. Mr. Gonzalez also includes claims arising under state tort law in his complaint. The state-law based claims are so related to the section 1983 claims that they form part of the same case or controversy under Article III of the United States Constitution. May this matter be heard in a single federal case?

a. Yes, because plaintiff can properly plead federal question subject-matter jurisdiction and the joinder of claims and parties is consistent with the rules.

b. No, because there is no diversity of citizenship among the parties.

c. No, because joinder of the parties is inconsistent with the rules.

d. Yes, because plaintiff can properly plead federal question and supplemental subject-matter jurisdiction over the case and the joinder of claims and parties is consistent with the rules.

ANSWER: D. there is section 1331 federal question jurisdiction in this case, and Rule 20 allows plaintiff to pursue claims against multiple defendants arising out the beating/arrest, and Rule 18(a) would allow him to pursue multiple claims against each defendant in the same case. I added state law claims, and there is no diversity of citizenship and you are not even told the amount in controversy. You use the 1331 claim as an anchor claim and 1367(a) is available and the case is not covered by 1367(b) because jurisdiction is not solely based on diversity as explained in my answers to the problems when I created a federal auto accidents tort act, and by professor Mashburn in her coverage of Supplemental Jurisdiction.

7. Jason Bourne, a citizen and resident of Maryland, is involved in a traffic accident with Dr. Albert Hirsch, a citizen of South Africa who resides in Alexandria, Virginia, and is admitted to the United States on a work visa. Bourne files suit in the United States District Court for the Eastern District of Virginia and pleads only subject-matter jurisdiction pursuant to section 1332; his claims for damages exceed $75,000.00. May this case proceed as filed?

a. No, the case should be dismissed for lack of subject-matter jurisdiction because Mr. Bourne is an expatriate American.

b. Yes, because there is alienage jurisdiction and the amount in controversy exceeds $75,000.00.

c. No, because you cannot sue aliens in U.S. courts.

d. Yes, because there is supplemental jurisdiction over this case.

Answer: B. Yes, there is 1332 alienage jurisdiction here, with a U.S. citizen suing a foreign citizen. Even if Hirsh was admitted for permanent residence, there would not be any problems, given that one is from Virginia and the other from Maryland, but I wanted Hirsch to be a non-permanent residence to avoid confusion about alienage vs. diversity. The other alternatives are ridiculously off the wall. Bourne in the movies is an expatriate American, but in the facts of the question, he is a standard state (and ergo U.S.) citizen. The "no foreigners" red herring is an old stanby for me, and supplemental is inapplicable if you are not given an anchor claim. Since Hirsch resides in Alexandria, there is clearly PJ there and venue is appropriate over an alien in any district (which might lead to evil variations in future exams).

8. Jerry Seinfeld has sued Cosmo Cramer for the tort of assault and battery with weird hair. He claims over $750,000.00 in damages. He has filed the action in the U.S. District Court for the Southern District of New York, where all the relevant acts occurred. He claims diversity of citizenship because he is a citizen of New York, and Cosmo Cramer is a citizen of Florida. Mr. Cramer has moved the court to dismiss the action for failure to join a party under Rule 19. He argues that his hair dresser, one George "Scissors" Costanza, a citizen of Georgia, was not made a defendant to the complaint in violation of Rule 19. Mr. Seinfeld may properly plead tort claims against Costanza for a similar amount in damages as is claimed in his original complaint, but the only basis of subject-matter jurisdiction that he could plead would be diversity. Specific personal jurisdiction over both Mr. Cramer and Mr. Costanza may properly be based on the occurrence of the relevant acts in New York. The court rules that Mr. Costanza is a "necessary" party as defined in Rule 19(a). Therefore, the court should:

a. Grant leave to Mr. Cramer to sue Mr. Costanza under Rule 14(a), for contribution only.

b. Deny the motion to dismiss, refuse to order the joinder of Mr. Costanza, and proceed with the case as filed.

c. Order the joinder of Mr. Costanza and then proceed with the case.

d. Order the dismissal of the case pursuant to Rule 19(b), because the joinder is not feasible.

ANSWER: C. George is now a citizen of Georgia, so there is complete diversity so the joinder should be ordered and we go on our happy way with the case as then constituted. Once the court rules that the party is both "necessary" and "indispensable" dismissal is the only option when joinder is not feasible, but in this case, the joinder is feasible. Mechanically, the court does not need to reach 19(b), which is the dismissal stage and holds that it must dismiss. Rule 14 is not the motion before the court so all that irrelevant.

9. Jerry Seinfeld has sued Cosmo Cramer for the tort of assault and battery with weird hair. He claims over $750,000.00 in damages. He has filed the action in the U.S. District Court for the Southern District of New York, where all the relevant acts occurred. He claims only diversity jurisdiction because he is a citizen of New York, and Cosmo Cramer is a citizen of Florida who resides in Miami. Mr. Cramer moves to dismiss the case for lack of venue. How should the court rule on his motion:

a. Grant the motion due to plaintiff's failure to comply with the requirements of 28 U.S.C. sec. 1391(b)(1).

b. Deny the motion because venue is proper under 28 U.S.C. sec. 1391(b)(2).

c. Grant the motion due to plaintiff's failure to comply with the requirements of 28 U.S.C. sec. 1391(a)(1).

d. Deny the motion because venue is proper under 28 U.S.C. sec. 1391(a)(2).

Answer: D. All relevant acts you are told occurred in the district chosen by the plaintiff, thus making it the location of "substantial part of the events". Then the question was whether to choose 1391(a)(2) or (b)(2) and you had to choose (a) because you are only given diversity as the source of subject matter jurisdiction. Rejecting the alternatives suggesting "violation" of either (a)(1) or (a)(2) simply requires an understanding that multiple venues MAY be available and plaintiff chooses the one.

10. Emeril Lagasse has filed a federal suit against Wolfgang Puck in the U.S. District Court for the Central District of California, Western Division. The complaint was filed on March 24, 2008, and Mr. Puck was served on March 25, 2008. On April 3, 2008, defendant Puck appeared in the case for the first time by filing his Answer to the complaint. He did not raise any Rule 12(b) defenses in the answer. On March 16, 2009, after the pleadings were closed and discovery had been completed in the case, Mr. Puck filed a motion to dismiss for failure to state a claim upon which relief can be granted. In support of his motion, Mr. Puck presents matters outside the pleadings, and the court does not exclude them. Consideration of the motion would in no way delay the trial, which is scheduled to take place on August 24, 2009. May the Court consider this motion?

a. No, because the time to file a 12(b)(6) motion has expired.

b. Yes, because the defense has not been waived, but the court must treat it as a Rule 56 motion for summary judgment.

c. Yes, because the defense has not been waived and the court can consider this a proper motion for judgment on the pleadings.

d. No, because matters outside the pleadings are raised, the motion is untimely.

Answer: B: The language of rule 12(d). Failure to state a claim upon which relief can be granted, once the pleadings are closed but before trial, is a 12(c) motion for judgment on the pleadings as per 12(h)(2)(B) and that rule also provides that the defense has not been waived. However, redacted rule 12(d) requires that the motion be treated as one for Summary Judgment because matters outside the pleadings were included by the party and not excluded by the court.

PART II: Essay (60%)

General Instructions for Part II

Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, "missing facts" suggest three possibilities: (1) you need to read the question again, i.e., "it's in there somewhere," (2) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question), or (3) you need to indicate that you need to establish certain facts in order to provide a complete opinion. In this section of the exam, identifying missing facts that are necessary to a complete resolution of the issue may be precisely what you need to do in order to provide a proper response.

Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked. Civil Procedure is a broad and complex course, I have crafted the questions narrowly, do not waste your time covering issues that the question does not require you to resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the question.

Applicable Rules. Assume that the applicable rules are the Redacted Federal Rules of Civil Procedure, and pertinent constitutional and statutory provisions, taken together with all the accompanying doctrines and caselaw as we discussed them in class.

Citations. Since this is an open-rule exam, citation should be made to the appropriate rule, especially the Federal Rules of Civil Procedure, statutory or Constitutional provision, etc. Case citations will be judged on a "close-enough" basis. Please keep in mind that my annotated versions of the rules are helpful shorthand references, provided that you account for redaction.

Limited Space. You must answer the essay question by hand or typewriter, using the answer packet that I shall provide or using the electronic template for this examination.

Instructed Result. Failure to reach the instructed result shall result in no score.

ESSAY QUESTION

EXHIBIT ICONS, LLC et al, Plaintiffs,

vs.

XP COMPANIES, LLC, et al, Defendants.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

KENNETH A. MARRA, United States District Judge.

This cause is before the Court upon Defendant XP Companies, LLC, XP Entertainment, LLC and William Wall III's Motion to Dismiss the Amended Complaint or, in the Alternative, Transfer of Venue (Docket Entry 19, hereinafter "DE #"); Plaintiffs Exhibit Icons and Russell Etling Company's Motion for Leave to File a Brief Surreply to Defendants' Reply Memorandum (DE 88); Plaintiffs Exhibit Icons and Russell Etling Company's Request for Oral Argument on Defendants' Motion to Dismiss for Lack of Jurisdiction (DE 92); Defendant XP Companies, LLC, XP Entertainment, LLC and William Wall III's Motion to Dismiss Second Amended Complaint for Lack of Personal Jurisdiction, or, in the Alternative, Change of Venue (DE 99); Plaintiffs Exhibit Icons and Russell Etling Company's Request for Oral Argument on Defendants' XP Companies, LLC, XP Entertainment, LLC and William Wall III's Motion to Dismiss Verified Second Amended Complaint (DE 112); Defendant XP Apparel, LLC's Motion, and Joinder in the Defendants' Motion, to Dismiss Second Amended Complaint for Lack of Personal Jurisdiction or, in the Alternative, Change of Venue (DE 115); Plaintiffs Exhibit Icons and Russell Etling Company's Request for a Hearing on Defendant XP Apparel, LLC's Motion to Dismiss for Lack of Jurisdiction (DE 119); Plaintiffs Exhibit Icons and Russell Etling Company's Motion to Strike Affirmative Defenses and Portions of Defendants' Answer (DE 126) and Plaintiffs Exhibit Icons and Russell Etling Company's Motion to Strike Affirmative Defenses and Portions of Defendants' Answer (DE 132).

I. Background

According to the Second Amended Complaint ("SAC"), Plaintiff Exhibit Icons ("EI") is a Florida limited liability company and Plaintiff Russell Etling Company ("Etling") is a Florida corporation. (SAC pp. 2-3.) Defendants XP Companies, LLC ("XP Companies"), XP Entertainment, LLC ("XP Entertainment") and XP Apparel, LLC ("XP Apparel") are Colorado limited liability companies. Defendant William Wall resides in Colorado. (SAC pp. 4-7.) The SAC alleges as to XP Companies: (1) breach of contract against XP Companies, XP Entertainment and Wall (count one); (2) breach of the duty of good faith and fair dealing against XP Companies, XP Entertainment and Wall (count two). The subject-matter jurisdiction of the court is properly pleaded under diversity.

In 2003, Etling entered into a long-term licensing agreement to produce a traveling exhibition of the Napoleon Collection, a collection of personal items and memorabilia associated with Napolean Bonaparte. (SAC pp. 12-13.) Etling's responsibilities included providing supporting work to the Collection, including design, development and marketing work to be performed in Florida. (SAC p. 14.) In March of 2006, Etling and EI entered into an agreement in Florida whereby EI was hired as Etling's agent to promote and arrange the tour of the Collection. (SAC p. 17.)

Thereafter, EI entered into an agreement with XP Companies for XP Companies to be the exclusive tour operator of the Napoleon Tour, beginning June 1, 2007 and ending April 30, 2012. During the first year of the agreement, XP Companies was to pay EI one million dollars. XP Companies was referred to in the agreement as XP Exhibits and Mr. Wall signed the agreement on behalf of XP Exhibits. (Sept. 8, 2006 Contract, attached to DE 1.) The contract is governed by Florida law. (Sept. 8, 2006 Contract, attached to DE 1, providing that: "This contract shall be governed and construed in accordance with the laws of the State of Florida") Plaintiffs allege that Defendants XP Companies, XP Entertainment and Mr. Wall breached their contractual obligations as Napoleon tour operator and failed to pay amounts due under the contract (SAC pp. 50-73.) The contract stipulates that all payments were to be received in Florida. In addition, Plaintiffs allege that XP Apparel and Mr. Wall represented to Plaintiffs that XP Apparel and the other corporate defendants were one and the same entity in order to induce them to enter into the aforementioned contract. (SAC pp. 84-97.)

Defendants XP Companies, XP Entertainment and Wall moved to dismiss the first amended complaint for lack of personal jurisdiction on December 4, 2007 (DE 19). On March 3, 2008, the Court granted Plaintiffs' motion for leave to take jurisdictional discovery and permitted the parties to file amended responses/replies to Defendants' motion to dismiss (DE 40). Defendants XP Companies, XP Entertainment, Wall and XP Apparel now argue that Plaintiffs cannot establish either specific or general jurisdiction over them.

The Court has examined the evidence garnered by the parties with respect to the motion to dismiss for lack of personal jurisdiction. It has found the relevant facts to be as follows.

In early 2006, Gary Stern, the president of EI, had a business discussion with Zvi Harpaz, the operator of a marketing and placement services in Boca Raton, Florida, about the Napoleon Collection. (Harpaz Affidavit p. 2; Stern Affidavit p. 2, attached to DE 30 and 31.) Mr. Harpaz then discussed the Napoleon Collection with Jeremy Fey, who worked for XP Apparel, and Jeremy Fey told Mr. Harpaz that he thought his company would be interested in obtaining the touring rights and that he would discuss it with Mr. Wall, the president of "XP." (The Stern affidavit does not identify to which company "XP" refers.) Subsequently, Jeremy Fey telephoned Mr. Harpaz and said that "they had a strong interest" in obtaining the touring rights and a contract was signed by Mr. Wall on behalf of XP Apparel to secure Mr. Harpaz's commission. Jeremy Fey instructed Mr. Harpaz to have Mr. Stern call Mr. Wall. (Harpaz Affidavit pp. 4-8; Stern Affidavit p. 3.)

Mr. Stern then called Mr. Wall and was told to call Jeremy Fey who was his "point man" with respect to the Napoleon Collection. (Stern Affidavit p. 4.) When Mr. Stern called Jeremy Fey, he stated that Mr. Wall and XP were very interested in purchasing the rights to market the Napoleon Collection. On April 12, 2006, Jeremy Fey emailed Mr. Stern that Mr. Wall wanted Mr. Stern to make the offer. (Stern Affidavit p. 5.)

Mr. Stern and Jeremy Fey had "hundreds of follow-up telephone conversations" and communicated nearly every day by telephone, email and facsimile regarding the terms for "defendants" (The Court assumes "defendants" include XP Companies, XP Entertainment and Mr. Wall.) At the time this affidavit was created, XP Apparel was not a defendant in the case. To obtain the tour rights to the Napoleon Collection. Jeremy Fey called Mr. Stern in Florida at least 188 times from April 13, 2006 through June 28, 2006. (Stern Affidavit p. 6.) During all of the telephone calls with Jeremy Fey, Jeremy Fey stated that "defendants" had a keen interest in obtaining the tour rights to the Napoleon Collection. (Stern Affidavit p. 7.) In addition, Jeremy Fey spoke to Mr. Stern about his famous father, promoter Barry Fey, "who has a world-wide reputation for working with such groups as The Who, the Rolling Stones," and emphasized that Barry Fey was a resource that could be used in marketing the exhibit. (SAC pp. 24, 27.)

In late March or early April of 2006, Mr. Stern received a draft contract from Jeremy Fey, sent to him in Florida via email. In June and August of 2006, Mr. Stern met with Jeremy Fey and Mr. Wall in Colorado and then again with Jeremy Fey in Georgia. Final contract terms were agreed to in principle. (Stern Affidavit p. 7.)

In September of 2006, EI entered into the contract with XP Companies, LLC, which was referred to in the contract as "XP Exhibits" and "XP Sports and Entertainment." The contract provided that XP Companies would pay EI $ 75,000.00. (September 8, 2006 Contract, DE 1.) According to the SAC, XP Apparel and Wall induced EI to enter into the contract with these entities by representing these entities as divisions of a large conglomerate that were legally one and the same. (SAC p. 1.) XP Apparel and Wall sought to shift liability to XP Companies, LLC, a non-operational and defunct entity, in order to shield XP Apparel from liability under the contract. (SAC pp. 2, 75.)

In March 2007, Mr. Stern met with Jeremy Fey and Mr. Wall in Denver. They had decided to pursue promotion of the Napoleon Collection in exhibit space rented in Florida. Mr. Stern was asked to suggest sites and Plaintiffs then explored sites in Miami, Fort Lauderdale and West Palm Beach. On March 20, 2007, Jeremy Fey sent Russell Etling, Etling's President, an email with a budget and numerous questions about the Miami venue. (Stern Affidavit p. 11.) Jeremy Fey told Mr. Stern that "defendants" would lease three storefronts in West Palm Beach and sent him a copy of an email he sent to a representative of CityPlace in West Palm Beach. Jeremy Fey also sent Plaintiffs a schedule which contemplated him living in Florida for at least 30 consecutive weeks while he was managing the exhibit. (Stern Affidavit p. 12.) Jeremy Fey also told Mr. Stern that Mr. Wall was his "best friend" and that Mr. Wall would be traveling to Florida to confer about this transaction.(Stern Affidavit p. 13.)

William Wall, the president of XP Companies and XP Entertainment, states that neither XP Companies nor XP Entertainment have any offices, real property or bank accounts in the state of Florida. No representative of XP Companies or XP Entertainment has traveled to Florida for any business dealings with EI. Mr. Wall first met Mr. Stern in Colorado and the Agreement between EI and XP Companies was signed there. (DE 8-2.) Jeremy Fey first met Mr. Stern and Mr. Etling in South Carolina to view the Napoleon exhibit. Jeremy Fey next met Mr. Stern in Georgia at a USA volleyball event where XP Companies was present for the purpose of apparel sales. Mr. Stern traveled there to see how XP Companies conducted its events. Jeremy Fey never traveled to Florida to meet with Plaintiff or Plaintiffs' representatives. Nor have any other XP Companies representatives traveled to Florida to meet with Plaintiffs. Jeremy Fey's communications with Plaintiffs were by telephone and email. According to Jeremy Fey, XP Companies did not solicit or approach Plaintiffs to enter into any agreement to exhibit or display the Napoleon exhibit (DE 8-3.) Mr. Wall has never been to Florida on business. (Wall Deposition 153.)

II. Legal Standard

The plaintiff's burden in alleging personal jurisdiction requires that the plaintiff establish a prima facie case of personal jurisdiction over a nonresident defendant. A prima facie case is established if the plaintiff presents enough evidence to withstand a motion for directed verdict. The district court must accept the facts alleged in the complaint as true, to the extent they are uncontroverted by the defendant's affidavits. If by defendant's affidavits or other competent evidence, defendant sustains the burden of challenging plaintiff's allegations, the plaintiff must substantiate the jurisdictional allegations in the complaint by affidavits, testimony or documents. However, where the evidence conflicts, the district court must construe all reasonable inferences in favor of the plaintiff. See Future Tech. Today, Inc., v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000); Robinson, 74 F.3d 253, 255 (11th Cir. 1996) citing Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990).

Under applicable Florida substantive law, count one of the Second Amended Complaint sounds in contract, and count two in tort.

The applicable Florida Long Arm statute is Fla. Stat. 48.193(1) which provides:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself, and if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from doing of any of the following acts:

***

(b) Committing a tortious act within this state.

***

(g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.

III. Instructions

A usual, the facts are taken verbatim from an actual opinion, in this case issued by Judge Marra, with some modifications. Upon graduating from the University of Florida Fredric G. Levin College of Law, you were hired by Judge Marra to be one of his law clerks. Judge Marra has assigned you to prepare a memorandum addressing how he should craft the opinion ruling only upon defendant XP Companies' motion to dismiss for lack of personal jurisdiction, given his factual conclusions and other pertinent information detailed above. He intends to rule that there is specific personal jurisdiction over defendant XP Companies because (1) the exercise of personal jurisdiction over defendant XP Companies is proper under the applicable long-arm statute on both the contract and tort claims; (2) the exercise of specific personal jurisdiction over this defendant on those claims also complies with the limitations imposed by the Constitution of the United States. In explaining and supporting the court's conclusions, you shall display your command of the applicable rules, statutes, constitutional provisions and caselaw as you learned them in your Spring 2009 civil procedure course.

ANSWER IN GENERAL:

The question was very purposely similar to the scenario in the 2008 examination involving two Colorado statutes. It was also intended to emphasize the cases that I covered in class, especially Burger King and Asahi. I have revised the memorandum to give you more Florida-specific feedback, rather than merely repeating the Colorado analysis from the 2008 examination.

The source of this scenario was an opinion by U.S. District Judge Marra in Exhibit Icons, LLC Et Al, vs. XP Companies, LLC, Et Al, 2009 U.S. Dist. LEXIS 23515 (USDC So. Dist. Fla., March 26, 2009).

In terms of law and course coverage, the question was basically designed to give you a challenging opportunity to apply the leading minimum contacts cases that we covered in class and that I emphasized during the final sessions that I personally taught you and during our review session. You were instructed that Judge Marra was going to find specific personal jurisdiction, therefore, you had to address the basics of International Shoe and its progeny, especially Burger King which also had a sophisticated contractual business relationship and raised tort claims as well under the Florida Long-Arm statute. You also had to use Asahi, and I gave you a scenario for the analogies to Kawasaki, with strong control of the operations by the non-resident defendant.

In terms of factual analysis, it was very critical that the essays reflect the instruction to address the motion by one party only, rather than by all defendants. This meant discussing the facts from the perspective of defendant XP Companies only. Students had to then be especially careful to identify that single defendant’s actions, and then use the actions of other defendants only to the extent that they could be attributed to XP Companies. For example, you could note that plaintiffs alleged: “that XP Apparel and Mr. Wall represented to Plaintiffs that XP Apparel and the other corporate defendants were one and the same entity in order to induce them to enter into the aforementioned contract. (SAC pp. 84-97.)” This required a level of precision that was often lacking, and that resulted in reduced grades. You also had to be precise in addressing the two separate claims independently, to the extent that this was necessary for an accurate answer. Initially, you had to apply two different sections of the Florida Long-Arm statute, and then move on from there. Failure to be precise in differentiating the discussion of the two causes of action also produced reduced scores.

Major Issues Outline: (1) A proper FRCP 12(b)(2) and 12(b)(3) motion was filed by ONE PARTY as per instructions; (2) The Territoriality Principle does not resolve the Personal Jurisdiction question; (3) the Federal District Court must apply the Florida Long-Arm Statute because of FRCP 4(k)(1)(A); (4) the Florida Long-Arm statute provisions for tort must be applied because of the claims in the case; (5) the Florida Long-Arm statute provision for contract must be applied because of the claims in the case; (6) the application of the statute to both claims must pass Due Process muster starting with Minimum Contacts; (7) the application of the statute to both claims must pass Due Process muster under the Reasonableness prong of the test.

ISSUES ABSTRACT AND SOME SAMPLE LANGUAGE

(1) The Affirmative Defenses of Lack of Personal Jurisdiction and Improper Venue,  matters governed by the Federal Rules of Civil Procedure have been raised.

Initially, the defendant XP Companies has moved to dismiss for lack of personal jurisdiction and improper venue. Pursuant to Rule 12(b)(2) personal jurisdiction and 12(b)(3) venue are least favored defenses that are waived if not presented early (12(h)(1)).

Just as with the Colorado statute in 2008, this year there was not forum-selection clause in the contract, so you had to proceed to the statutory and then to the minimum contacts analysis and the contract and its choice of law clause simply became part of the Minimum Contacts analysis.

In ruling on the motion, you were instructed as follows on the legal standard:

The plaintiff’s burden in alleging personal jurisdiction requires that the plaintiff establish a prima facie case of personal jurisdiction over a nonresident defendant. A prima facie case is established if the plaintiff presents enough evidence to withstand a motion for directed verdict. The district court must accept the facts alleged in the complaint as true, to the extent they are uncontroverted by the defendant’s affidavits. If by defendant’s affidavits or other competent evidence, defendant sustains the burden of challenging plaintiff’s allegations, the plaintiff must substantiate the jurisdictional allegations in the complaint by affidavits, testimony or documents. However, where the evidence conflicts, the district court must construe all reasonable inferences in favor of the plaintiff. See Future Tech. Today, Inc., v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000); Robinson, 74 F.3d 253, 255 (11th Cir. 1996) citing Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990).

The standard favors the plaintiff when it comes to evidentiary conflicts. This was critical to resolving factual disputes in favor of the Florida plaintiffs.

(2) The Territoriality Principle does not resolve the Personal Jurisdiction question.

Defendant XP Companies is not a resident of and has no agent for service of process in Florida. XP Companies, the facts state, is a Colorado Limited Liability Company. The last paragraph of the facts also gives you information about the lack of physical contact between XP Companies and its at least alleged “associates” and “representatives” with Florida. Therefore, substituted service had to be used in this case. We have an “absent defendant”, i.e., a non-resident foreign corporation and foreign individual. The two basis for the exercise of jurisdiction under the Territoriality Principle --(1) Personal service on the party within the state, and (2) Voluntary appearance by the party-- are not present. Because the absent defendant is a corporation, the possibility of the appointment of an agent for service of process also had to be excluded.

(3) Why does the court need to apply the Florida long-arm statute in this case?

The use of substituted service must be consistent with applicable law. Because the U.S. District Court for the Southern District of Florida (28 USC sec. 89) is bound by the Florida state statute under FRCP 4(k)(1)(A). How should it interpret it? The district court is bound by the state interpretation of its own statute. This is a necessary corollary to the language of rule 4(k)(1)(A) allowing the exercise of jurisdiction in the district court when the defendant “is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” The fact-pattern placed you in the U.S. District Court for the Southern District of Florida, hence, you apply the supplied Florida Statute. This issue is discussed at page 727 of the casebook.

— Is the exercise of Personal Jurisdiction Consistent with Florida Law? In other words, is this situation covered by the Florida Long Art Statute? This discussion had to be broken up into a discussion of each cause of action and how it was treated under the state LAS. Hence, issues 4 and 5.

(4) the Florida Long-Arm statute provisions for tort must be applied because of the claims in the case;

Fla. Stat. 48.193(1) (b) Committing a tortious act within this state. Injury within the state and failure to perform within the state were critical factual discussions here.

Initially, you had to refer to the allegations in the complaint against defendant XP Companies. Allegation no. “(2) breach of the duty of good faith and fair dealing against XP Companies, XP Entertainment and Wall (count two).” The occurrence question was of course the important issue here. The course of dealing on the contract was important, in that the claim is a lack of good faith and fair dealing in this initially contractual relationship, as discussed in the next section. References in the fact-pattern to “inducements” and “representations” were specific examples of where there might be what plaintiffs allege was tortuous conduct. To the extent that plaintiffs EI and Etling are Florida legal entities (I was not especially concerned with the nuances of Limited Liability Companies and Corporations), the effects of representations and inducements and other conduct are felt in the state of Florida. A high volume of electronic communications of pretty much every kind was directed at plaintiff in Florida.

(5) The Florida Long-Arm statute provision for contract must be applied because of the claims in the case

Fla. Stat. 48.193(1) (g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.

Again, you had to reference the allegations in the complaint against defendant XP Companies, namely “(1) breach of contract against XP Companies, XP Entertainment and Wall (count one).”

It was critical to pick out the facts for acts that were contemplated to be performed in Florida, such as payments, which you were expressly told were to be received in Florida as per the contract. But you also had to use the actual course of dealing, a la Burger King, which showed that XP through its individual representatives, was planning performance in Florida, including one person moving here and looking for space. Critical facts were given in the following paragraph of the fact-pattern:

In March 2007, Mr. Stern met with Jeremy Fey and Mr. Wall in Denver. They had decided to pursue promotion of the Napoleon Collection in exhibit space rented in Florida. Mr. Stern was asked to suggest sites and Plaintiffs then explored sites in Miami, Fort Lauderdale and West Palm Beach. On March 20, 2007, Jeremy Fey sent Russell Etling, Etling’s President, an email with a budget and numerous questions about the Miami venue. (Stern Affidavit p. 11.) Jeremy Fey told Mr. Stern that “defendants” would lease three storefronts in West Palm Beach and sent him a copy of an email he sent to a representative of CityPlace in West Palm Beach. Jeremy Fey also sent Plaintiffs a schedule which contemplated him living in Florida for at least 30 consecutive weeks while he was managing the exhibit. (Stern Affidavit p. 12.) Jeremy Fey also told Mr. Stern that Mr. Wall was his “best friend” and that Mr. Wall would be traveling to Florida to confer about this transaction.(Stern Affidavit p. 13.)

(6) The application of the Florida statute to both claims must pass Due Process muster starting with Minimum Contacts.

Separately dealing with each claim was critical at the statutory discussion and in the minimum contacts discussion. And you had to emphasize the major cases as we covered them. The fetishistic references to McGee were really annoying and did not score well. This was a sophisticated business relationship such as we saw in Burger King, not a one-contract consumer solicitation that is present in McGee. Similarly, Keeton, Gray and many references to Calder were way off the mark. It was possible, however, to make thoughtful effects test discussions especially using Calder, in discussing how to apply the tort part of the long-arm statute.

As discussed above with the Long Arm Statute language, course of dealing, a la BK, tells us that initial performance under the contract was to take place in Florida. Therefore, not only was payment to be made in Florida, but the initial performance was to take place here as detailed during the discussion of the Denver meeting the fact pattern. A few students realized that this made this case even stronger than BK, because in addition to payments, you had actual performance of the principal duties undertaken in the contract here in the state. I was unpleasantly surprised to note that terms of art such as “Predictability” land “primary conduct” were shockingly little used.

More precisely, the Due Process clause of the Fourteenth Amendment to the U.S. Constitution imposes limitations on the exercise of personal jurisdiction. Pennoyer v. Neff. After Pennoyer, in order to be consistent with the Due Process clause of the 14^th amendment, the exercise of jurisdiction had to be based on physical presence within the state, or on consent, actual or implied, by the defendant. International Shoe v. Washington, extended the old territoriality principle-bases of in personam jurisdiction, to allow exercises of personal jurisdiction upon non-resident defendants. It allows the states to exercise jurisdiction over non-resident defendants provided that they have certain minimum contacts with the forum. The test: (1) Minimum contacts and (2) Traditional Notions of Fair Play and Substantial Justice. (aka, “Reasonableness”). International Shoe put it as follows:

“*** But now that the capias ad respondendum has given way to personal service of summons or other form of notice, 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 [1] certain minimum contacts with it [2] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’

Essentially, you had to show that there was “Purposeful Availment” by the defendant XP Companies, through its own actions and those of others that are fairly attributable to XP Companies, of the Florida market and that the “Nature and Quality” of the contacts justified the exercise of personal jurisdiction. The discussion in these sections earned the bulk of the points for this essay.

As to the tort claim, the mere suggestion of an “effects” standard sent many students to wildly off-target discussions of Hanson v. Denckla, McGee and Gray v. American Standard. I must conclude that this is attributable to canned outlines, since this is not the first time that I have seen this pattern. But those references were simply not the strongest arguments that could be constructed. I once again gave you a situation in which the tort claim had a link to the contractual relationship and by linking it to ultimate payment to be made in Florida, it was a strong MC case that would satisfy even the plurality in Asahi part II-A and fit well within the language of Burger King. This was not a single contract, or a single act of defamation (a la Calder v. Jones). It was not a fortuitous stream of commerce occurrence (a la World Wide and Gray) either. Regardless of the continuing viability of stream of commerce, defendant established and used a continuous and systematic business relationship, it failed to pay as required by the contract, it failed to carry out the services related to the exhibit required by the contract (or, giving the benefit of the doubt to plaintiff, as required by the provided legal standard, the court could conclude this at this stage of the proceedings). The tortious acts, initiated outside the state had of course the impact of non-payment damages in the state (of Florida). The electronic communications were directed to the Florida entities. This was a long-term, sophisticated business relationship that required substantial performance, at least initially according to the course of dealing, in Florida. It is more analogous to Justice O’Oconnor’s illustration of the Kawasaki case as one where there would be minimum contacts than a reference to a weak Gray stream of commerce case. It is indeed much stronger than cases of a single tort or single consumer contract solicitation. Hence, I was not impressed by the strength of arguments using Hanson, McGee, Gray, Calder and Keeton. Contrast to Asahi part II-A:

[Asahi] has no office, agents, employees, or property in California. It does not advertise or otherwise solicit business in California. It did not create, control, or employ the distribution system that brought its valves to California. Cf. Hicks v. Kawasaki Heavy Industries, 452 F.Supp. 130 (M.D.Pa.1978).

XP Companies, on the other hand, was sufficiently in command and control of the communications at issue here.

Are there “minimum contacts” in this case? Purposeful Availment? This was mostly like Burger King, a long-term, substantial contractual relationship between parties of reasonably equal bargaining power.

Burger King was the big case here. You had a contract claim and tort claim as you did in Burger King. And here, unlike Burger King as discussed at page 753-754 of the casebook, the tort claim has not gone away. Moreover, the tort here of fraudulent inducement is more related to the contract performance in Florida because it is directly tied to payments to be made in Florida, and to specific performance promises that were to occur here. The communications were also mostly directed at the Florida plaintiffs here in Florida, even when they originated out of state. The exam facts were an easier sell than the tortious trademark infringement claims in BK. In the relatedness discussion, you had to be particularly careful to discuss both the contract and the tort causes of action.

One particularly good statement of the Minimum Contacts by way of affirmative conduct, i.e., purposeful availment analysis, which I deconstructed for you in class, is found in Burger King: 

[1, MC] The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful “contacts, ties, or relations.”  International Shoe Co. v. Washington, .... By [CB-732] [2-A, MC] requiring that individuals have “fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign,” Shaffer v. Heitner, ... (1977) (Stevens, J., concurring in judgment), [2-b, MC] the Due Process Clause “gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit,” World-Wide Volkswagen Corp. v. Woodson, ... (1980).

Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, [2-c, MC] this “fair warning” requirement is satisfied if the defendant has “purposefully directed” his activities at residents of the forum, Keeton v. Hustler Magazine, Inc., ... (1984), [3-a, Specific Jurisdiction MC] and the litigation results from alleged injuries that “arise out of or relate to” those activities, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, ... (1984). (FN15)  [3-b, MC] Thus “[t]he forum State does not exceed its powers 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” and those products subsequently injure forum consumers. World-Wide Volkswagen Corp. v. Woodson, ***

[The constitutional test, 177]:

A three-pronged test has emerged for determining whether the exercise of specific personal jurisdiction over a non-resident defendant is appropriate: (1) the defendant must have sufficient "minimum contacts" with the forum state, (2) the claim asserted against the defendant must arise out of those contacts, and (3) the exercise of jurisdiction must be reasonable. [Keep in mind that 1 and 2 are part of the minimum contacts constitutional analysis, and reasonableness is the traditional/contemporary notions of fair play and substantial justice] Id. The "Constitutional touchstone" of the minimum contacts analysis is embodied in the first prong, "whether the defendant purposefully established" contacts with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (citing International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)).

Can XP Companies adjust its primary conduct? By accepting the exclusive exhibition agreement with its choice of law clause, XP was well aware of the Florida connection. The plaintiffs were also well-known to XP as Florida residents and the course of dealing discussed above was purposefully directed to Florida. That is certainly enough for minimum contacts. The importance of the agreement was also critical, you have an exclusive rights agreement that was given by Plaintiff Etling to defendant XP Companies.

(7) the application of the Florida statute to both claims must pass Due Process muster under the Reasonableness prong of the test.

Furthermore, in Asahi, the court clearly emphasized that in addition to the required Minimum Contacts, the exercise of Personal Jurisdiction must be “reasonable.” For example, at page 746, the court states:

We have previously explained that the determination of the reasonableness of the exercise of jurisdiction in each case will depend on an evaluation of several factors. A court must   consider the burden on the defendant, the interests of the forum state, and the plaintiff's interest in   obtaining relief. It must also weigh in its determination "the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in   furthering fundamental substantive social policies." World-Wide Volkswagen,

The application of the balancing of the different factors, as I listed for you:

o Volume of Contacts

o Systematic and continuous nature of contacts

o Balance of conveniences

o State interest in regulating defendant’s conduct

o State interest in opening its courts to its residents

o Location of witnesses or evidence

o Foreseeability of suit in that forum

o Availability of an Alternative forum.

Clearly, there is some overlap between these factors and the minimum contacts analysis, but the important difference is simply that minimum contacts is a threshold finding of constitutional permissibility. In the reasonableness analysis, you now make qualitative balancing of the factors. If you chose to discuss foreseeability, volume and systematic contacts only in Minimum Contacts, that was fine. You had to emphasize here that you had sophisticated business entities with the wherewithal to communicate virtually and in person over great distances. Travel is clearly not a problem for the principals associated with XP Companies, which suggest that Florida is not an unconstitutionally inconvenient forum.

Bootstrapping arguments (tail wagging the dog) were, in my view, irrelevant, given the strong minimum contacts situation. Still, I was pleased that some students remembered that discussion from class and tried to incorporate it in the answers. This was not annoying, unlike references to McGee.

You had to establish where these factors came from and what the policy behind them is, not recite as some kind of mindless incantation.

Here is how the Court of Appeals in the case that I used to design the 2008 question dealt with the reasonableness factors, with some of my comments about the 2009 Florida case inserted in bold type.

1. Burden on Defendant

In OMI, we noted:

   [T]he burden on the defendant of litigating the case in a foreign forum is of primary concern in determining the reasonableness of personal jurisdiction . . . . When the defendant is from another country, this concern is heightened and great care and reserve should be exercised before personal jurisdiction is exercised over the defendant.

149 F.3d at 1096 (quotation marks and citations omitted). Nevertheless, it is also true that "modern transportation and communications have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity." Burger King, 471 U.S. at 474 (quoting McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957)). Accord Pro Axess, 428 F.3d at 1280.

*** Accordingly, forcing CLF to litigate this dispute in Colorado is neither "gravely difficult" nor sufficiently "inconvenient." Burger King, 471 U.S. at 478 (quotation marks and citations omitted). See Pro Axess, 428 F.3d at 1280.

In the 2009 case, we have all US parties who have shown that travel and communication across long distances away from the Colorado base of XP Companies is easy.

2. Forum State's Interest In Resolving Dispute

"States have an important interest in providing a forum in which their residents can seek redress for injuries caused by out-of-state actors." OMI, 149 F.3d at 1096. "The state's interest is also implicated  where resolution of the dispute requires a general application of the forum state's law." Id. This factor clearly favors Colorado's exercise of jurisdiction over CLF. AST is a Colorado company with its principal place of business in Colorado, and that state has an interest in providing it with a forum for its suit against CLF. See Pro Axess, 428 F.3d at 1280 n.7 (noting strength of this factor when a party is resident of forum state).

In the 2009 case, you substitute Florida for Colorado. Florida has an interest in protecting the Florida plaintiffs and opening its courts to its residents. Moreover, Florida law will be applied as required by the Choice of Law clause.

3. Plaintiff's Interest in Convenient and Effective Relief

"This factor hinges on whether the [p]laintiff may receive convenient and effective relief in another forum." Id. at 1281 (citation omitted).

Convenience was the factor favoring a Florida forum. To the extent that XP Companies and some of its related companies and people had assets in Florida, that also covered the “effective relief” prong, otherwise, you have to use Full Faith and Credit to go execute in Colorado (here you could have used McGee to discuss FF&C).

4. Interstate Judicial System's Interest in Obtaining Efficient Resolution

This factor asks "whether the forum state is the most efficient place to litigate the dispute." OMI, 149 F.3d at 1097. To answer this question, we look at the "location of the witnesses, where the wrong underlying the lawsuit occurred, what forum's substantive law governs the case, and whether jurisdiction is necessary to prevent piecemeal litigation." Id. (citations omitted). AST and its witnesses are located in Colorado, while CLF, Mr. Holiday, and other potential witnesses are in England. It appears likely that Colorado law will govern at least the contract claim, either by virtue of the Agreement or because an implied contract was solicited and performed in Colorado.

In the 2009 exam, you again substitute Florida for Colorado and focus on the resident plaintiffs, the communications directed to them here, the payments to be received here, their employees located here and the course of dealing that was to start here. There is a lot to balance on the other side, but you know how you were supposed to come out.

5. Shared Interest of the States in Furthering Fundamental Social Policies

In the Colorado case, you had an international defendant, here you just have U.S. citizens from different states. Florida has a strong interest and it is not violating interstate comity by exercising jurisdiction over this defendant. Hence the language can be simplified:

In sum, the five factors do not weigh in defendants' favor. CLF and Mr. Holiday have not established a "compelling case" that the exercise of jurisdiction by a Colorado court would be unreasonable. Burger King, 471 U.S. at 477. We accordingly conclude that Colorado's exercise of personal jurisdiction over CLF would not offend traditional notions of fair play and substantial justice. Because both prongs of the federal due process analysis are satisfied, the district court may exercise personal jurisdiction over defendants.

I did not separately account for the “traditional notions” vs. “contemporary notions” discussion this year, but I did reward it when I saw raised in the constitutional analysis.