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view would be appropriate to the action, and all other practical problems that
make trial of a case easy, expeditious, and inexpensive. There may also be
questions as to the enforceability of a judgment if one is obtained. The court will
weigh relative advantages and obstacles to fair trial. It is often said that the
plaintiff may not, by choice of an inconvenient forum, "vex," "harass," or
"oppress" the defendant by inflicting upon him expense or trouble not necessary
to his own right to pursue his remedy. But, unless the balance is strongly in favor
of the defendant, the plaintiff's choice of forum should rarely be disturbed.
Factors of public interest also have place in applying the doctrine. Administrative
difficulties follow for courts when litigation is piled up in congested centers
instead of being handled at its origin. Jury duty is a burden that ought not to be
imposed upon the people of a community which has no relation to the litigation.
In cases which touch the affairs of many persons, there is reason for holding the
trial in their view and reach, rather than in remote parts of the country where they
can learn of it by report only. There is a local interest in having localized
controversies decided at home. There is an appropriateness, too, in having the
trial of a diversity case in a forum that is at home with the state law that must
govern the case, rather than having a court in some other forum untangle
problems in conflict of laws, and in law foreign to itself.
TRAVELERS HEALTH ASSN. v. VIRGINIA
But where business activities reach out beyond one state and create continuing
relationships and obligations with citizens of another state, courts need not resort
to a fictional "consent" in order to sustain the jurisdiction of regulatory agencies in
the latter state. And in considering what constitutes "doing business" sufficiently
to justify regulation in the state where the effects of the "business" are felt, the
narrow grounds relied on by the Court in the Benn case cannot be deemed
controlling.
In Osborn v. Ozlin, a state has a legitimate interest in all insurance policies
protecting its residents against risks, an interest which the state can protect even
though the "state action may have repercussions beyond state lines" And in
Hoopeston, we accorded "great weight" to the "consequences" of the contractual
obligations in the state where the insured resided and the "degree of interest"
that state had in seeing that those obligations were faithfully carried out. And in
International Shoe Co. v. Washington, this Court, after reviewing past cases,
concluded: "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 certain minimum contacts with it such that the maintenance of the suit does
not offend `traditional notions of fair play and substantial justice.
Measured by the principles of the Osborn, Hoopeston and International Shoe
cases, the contacts and ties of appellants with Virginia residents, together with
corporation to defend the particular suit which is brought there." Implicit in this
emphasis on reasonableness is the understanding that the burden on the
defendant, while always a primary concern, will in an appropriate case be
considered in light of other relevant factors, including the forum State's interest in
adjudicating the dispute; the plaintiff's interest in obtaining convenient and
effective relief, at least when that interest is not adequately protected by the
plaintiff's power to choose the forum; 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.
Thus, the Due Process Clause "does not contemplate that a state may make
binding a judgment in personam against an individual or corporate defendant
with which the state has no contacts, ties, or relations. Even if the defendant
would suffer minimal or no inconvenience from being forced to litigate before the
tribunals of another State; even if the forum State has a strong interest in
applying its law to the controversy; even if the forum State is the most convenient
location for litigation, the Due Process Clause, acting as an instrument of
interstate federalism, may sometimes act to divest the State of its power to
render a valid judgment.
Applying these principles to the case at hand, we find in the record before us a
total absence of those affiliating circumstances that are a necessary predicate to
any exercise of state-court jurisdiction. Petitioners carry on no activity
whatsoever in Oklahoma. They close no sales and perform no services there.
They avail themselves of none of the privileges and benefits of Oklahoma law.
They solicit no business there either through salespersons or through advertising
reasonably calculated to reach the State. Nor does the record show that they
regularly sell cars at wholesale or retail to Oklahoma customers or residents or
that they indirectly, through others, serve or seek to serve the Oklahoma market.
In short, respondents seek to base jurisdiction on one, isolated occurrence and
whatever inferences can be drawn therefrom: the fortuitous circumstance that a
single Audi automobile, sold in New York to New York residents, happened to
suffer an accident while passing through Oklahoma.
SCHMIDT v. DRISCOLL HOTEL, INC.
If the principles expressed in Restatement, Conflict of Laws, Sections 377 and
378, are held applicable to multistate fact situations like the present, then neither
the laws of the state where the last event necessary to create tort liability took
place nor the laws of the state where the liquor dealer's violations of the liquor
statutes occurred would afford an injured party any remedy against the offending
liquor dealer for the injuries which resulted from his statutory violations. The
result would be that here both the interest of Wisconsin in affording whatever
remedies it deems proper for those injured there as the result of foreign violations
of liquor laws, and the interest of Minnesota in admonishing a liquor dealer
whose violation of its statutes was the cause of such injuries; and in providing for
the injured party a remedy therefor under the Civil Damage Act would become
ineffective.
The principles in Restatement, Conflict of Laws, Sections 377 and 378, should
not be held applicable to fact situations such as the present to bring about the
result described and that a determination to the opposite effect would be more in
conformity with principles of equity and justice. Here all parties involved were
residents of Minnesota. Defendant was licensed under its laws and required to
operate its establishment in compliance therewith. Its violation of the Minnesota
statutes occurred here, and its wrongful conduct was complete within Minnesota
when, as a result thereof, Sorrenson became intoxicated before leaving its
establishment. The consequential harm to plaintiff, a Minnesota citizen,
accordingly should be compensated for under M.S.A. 340.95 which furnishes him
a remedy against defendant for its wrongful acts. By this construction, no greater
burden is placed upon defendant than was intended by 340.95.
JURISDICTION OVER THE SUBJECT MATTER
Banco Nacional de Cuba v. Sabbatino
The privilege of resorting to United States courts being available to a recognized
sovereign power not at war with the United States, and not being dependent
upon reciprocity of treatment, petitioner has access to the federal courts.
The propriety of the taking was not governed by New York law, since the sugar
itself was expropriated.
This suit is not uncognizable in American courts as being one to enforce the
"public" acts of a foreign state, since the expropriation law here involved had
been fully executed within Cuba.
The Government's uncontested assertion that the two State Department letters
expressed only the then wish of the Department to avoid commenting on the
litigation, obviates the need for this Court to pass upon the "Bernstein exception"
to the act of state doctrine, under which a court may respond to a representation
by the Executive Branch that, in particular circumstances, it does not oppose
judicial consideration of the foreign state's act.
The scope of the act of state doctrine must be determined according to federal
law.
The act of state doctrine applies and is desirable with regard to a foreign
expropriation even though the expropriation allegedly violates customary
international law.
an instance when a court will not entertain a cause of action arising in another
jurisdiction. While historic notions of sovereign authority do bear upon the
wisdom or employing the act of state doctrine, they do not dictate its existence.
The text of the Constitution does not require the act of state doctrine; it does not
irrevocably remove from the judiciary the capacity to review the validity of foreign
acts of state.
"The courts of one independent government will not sit in judgment upon the
validity of the acts of another done within its own territory, even when such
government seizes and sells the property of an American citizen within its
boundaries."
The Judicial Branch will not examine the validity of a taking of property within its
own territory by a foreign sovereign government, extant and recognized by this
country at the time of suit, in the absence of a treaty or other unambiguous
agreement regarding controlling legal principles, even if the complaint alleges
that the taking violates customary international law.
It is suggested that, if the act of state doctrine is applicable to violations of
international law, it should only be so when the Executive Branch expressly
stipulates that it does not wish the courts to pass on the question of validity. We
should be slow to reject the representations of the Government that such a
reversal of the Bernstein principle would work serious inroads on the maximum
effectiveness of United States diplomacy. Often, the State Department will wish
to refrain from taking an official position, particularly at a moment that would be
dictated by the development of private litigation but might be inopportune
diplomatically. Adverse domestic consequences might flow from an official stand
which could be assuaged, if at all, only by revealing matters best kept secret. Of
course, a relevant consideration for the State Department would be the position
contemplated in the court to hear the case. It is highly questionable whether the
examination of validity by the judiciary should depend on an educated guess by
the Executive as to probable result, and, at any rate, should a prediction be
wrong, the Executive might be embarrassed in its dealings with other countries.
We do not now pass on the Bernstein exception, but, even if it were deemed
valid, its suggested extension is unwarranted.
It is plain that, if a recognized government sued on a contract with a United
States citizen, concededly legitimate by the locus of its making, performance,
and most significant contacts, the forum would not apply its own substantive law
of contracts. Since the act of state doctrine reflects the desirability of presuming
the relevant transaction valid, the same result follows; the forum may not apply
its local law regarding foreign expropriations.
EL-FADL v. CENTRAL BANK OF JORDAN
The district court granted Petra Bank's motion to dismiss for lack of personal
jurisdiction under D.C. Code Sections 13-422, 13-334 or 13-423 (a). First, the
district court agreed that it lacked general jurisdiction over Petra Bank under D.C.
Code Sec. 13-422 because Petra Bank was not a "person domiciled in,
organized under the laws of, or maintaining his or its principal place of business
in, the District of Columbia." D.C.CODE ANN. Sec. 13-422 (1995). Second, the
court agreed with Petra Bank that it was not subject to general jurisdiction for
"doing business" in the District of Columbia under D.C. Code Sections 13-334.5
Neither Petra Bank's maintenance of correspondent banking relationships nor its
ownership of more than 70% of the shares in PIBC sufficed for "doing business."
Third, the court agreed that it lacked specific jurisdiction over Petra Bank under
the District of Columbia long-arm statute because none of El-Fadl's claims "arose
from" Petra Bank's alleged contacts with the District. D.C.CODE ANN. Sec. 13423(a) (1995).
Doing business has been interpreted by the District of Columbia Court of Appeals
as requiring a "continuing corporate presence", and conducting "substantial
business" in the District. The defendants argue that El-Fadl's conclusory
statements alleging that the defendants are doing business in the District within
the meaning of Sections 13-334 are not sufficient to constitute the prima facie
showing necessary to carry the burden of establishing personal jurisdiction. The
Court is inclined to agree. El-Fadl has failed to present any evidence to support
his position that the court could exercise jurisdiction over the Jordanian
defendant pursuant to D.C.Code Sections 13-334. To the contrary, the
defendants seem to establish that their presence in the District of Columbia is
very limited, and, in the case of Petra Bank, the presence of PIBC in the District
is insufficient to create personal jurisdiction over Petra Bank.
For general jurisdiction, the Due Process Clause requires that the defendant
have "continuous and systematic general business contacts" with the forum.
Even though El-Fadl's present jurisdictional allegations are insufficient, he has
sufficiently demonstrated that it is possible that he could supplement them
through discovery. A plaintiff faced with a motion to dismiss for lack of personal
jurisdiction is entitled to reasonable discovery, lest the defendant defeat the
jurisdiction of a federal court by withholding information on its contacts with the
forum. Accordingly, we reverse the dismissal of El-Fadl's claims against Petra
Bank for lack of personal jurisdiction and remand those claims to the district court
in order to allow El-Fadl to conduct reasonable discovery on personal jurisdiction.
Republic of the Philippines v. Pimentel
As a general matter any party may move to dismiss an action under Rule 19(b). A
court with proper jurisdiction may also consider sua sponte the absence of a
required person and dismiss for failure to join.
Multiple factors must bear on the decision whether to proceed without a required
person. This decision must be based on factors varying with the different cases,
some such factors being substantive, some procedural, some compelling by
themselves, and some subject to balancing against opposing interests.
The Republic and the Commission are required entities because without them
as parties in this interpleader action, their interests in the subject matter are not
protected.
In considering whether the Republic and the Commission would be prejudiced if
the action were to proceed in their absence, the Court of Appeals gave
insufficient weight to their sovereign status. The doctrine of foreign sovereign
immunity has been recognized since early in the history of our Nation. It is
premised upon the perfect equality and absolute independence of sovereigns,
and the common interest impelling them to mutual intercourse. The Court has
observed that the doctrine is designed to give foreign states and their
instrumentalities some protection from the inconvenience of suit,
The Republic and the Commission have a unique interest in resolving the
ownership of or claims to the Arelma assets and in determining if, and how, the
assets should be used to compensate those persons who suffered grievous
injury under Marcos. There is a comity interest in allowing a foreign state to use
its own courts for a dispute if it has a right to do so. The dignity of a foreign state
is not enhanced if other nations bypass its courts without right or good cause.
Then, too, there is the more specific affront that could result to the Republic and
the Commission if property they claim is seized by the decree of a foreign court.
The analysis of the joinder issue in those cases was somewhat perfunctory, but
the holdings were clear: A case may not proceed when a required-entity
sovereign is not amenable to suit. These cases instruct us that where sovereign
immunity is asserted, and the claims of the sovereign are not frivolous, dismissal
of the action must be ordered where there is a potential for injury to the interests
of the absent sovereign.
The decision to proceed in the absence of the Republic and the Commission
ignored the substantial prejudice those entities likely would incur.
The Supreme Court ruled that the lower courts did not recognize the importance
of sovereign immunity in this case and stated that the case should be thrown out
due to the sovereign immunity of the government of the Philippines. In addition,
the Supreme Court judged that the government should be considered an
indispensable party to the case under Rule 19(b). Thus, precedent describing
how all governments who are absent from a court hearing because of their
sovereignty that grants them immunity from a joint case, should always be seen
as indispensible under Rule 19 (b) and the cases should be dismissed if the
claims of the sovereign are not frivolous. By allowing a case to be heard despite
sovereign immunity, the sovereignty of other states is undermined.
The court decided that the government of the Philippines and the commission
have an extreme interest in handling how the assets of Arelma should be
distributed and it is not up to the court system of another state to determine how
to do that.
Credit Suisse v. U.S.D.C.
California law requires "personal service" of a notice of levy on a deposit account
to be made at the branch or office of the financial institution at which the account
is actually carried. Because none of the Estate's assets were held in deposit
accounts located in California, the service of the notice of levy at the Banks'
California offices was ineffective. The district court should have therefore granted
the Banks' motions to vacate and quash the levies.
Second, we held that because Rule 69(a) "essentially limits a district court's
mechanism for enforcement of a money judgment to a writ of execution, the court
had no authority to order the Banks to deposit the contested funds into the court
registry." In coming to this conclusion, we noted that although the Banks had
previously been found to be "agents and representatives" of the Marcos Estate,
the significance of this finding was "outweighed by the fact that the Banks were
not parties before the court in the case in which the finding was made."
Every sovereign State is bound to respect the independence of every other
sovereign State, and the courts of one country will not sit in judgment on the acts
of the government of another done within its own territory. Redress of grievances
by reason of such acts must be obtained through the means open to be availed
of by sovereign powers as between themselves.
Although once viewed as an expression of international law, resting on
considerations of international comity and expediency, the act of state doctrine is
currently viewed as a "consequence of domestic separation of powers, reflecting
`the strong sense of the Judicial Branch that its engagement in the task of
passing on the validity of foreign acts of state may hinder' the conduct of foreign
affairs."
Under this current view, an action will be barred only if: (1) there is an "official act
of a foreign sovereign performed within its own territory"; and (2) "the relief
sought or the defense interposed [in the action would require] a court in the
United States to declare invalid the foreign sovereign's official act."
Any order from the district court compelling the Banks to transfer or otherwise
convey Estate assets would be in direct contravention of the Swiss freeze orders.
Subjecting Estate assets held by the Banks to the district court's further orders
would thus allow a United States court to question and, in fact, "declare invalid
the official act of a foreign sovereign." Issuance of the injunctive relief sought
would therefore violate the act of state doctrine.
United States courts are "bound to respect the independence of every other
sovereign State," including Switzerland If the MDL plaintiffs want to contest the
legality of the Swiss freeze orders, seek a declaration of the validity of the Chinn
assignment as against the Banks, or seek an injunction compelling the Banks to
turn over the assets, they should do so via the Swiss judicial system.
Pennhurst States School and Hosp. v. Halderman
The principle of sovereign immunity is a constitutional limitation on the federal
judicial power established in Art. III of the Constitution. The Eleventh Amendment
bars a suit against state officials when the State is the real, substantial party in
interest, regardless of whether the suit seeks damages or injunctive relief. The
Court in Ex parte Young, recognized an important exception to this general rule:
a suit challenging the federal constitutionality of a state official's action is not one
against the State.
In Edelman v. Jordan, this Court recognized that the need to promote the
supremacy of federal law that is the basis of Young must be accommodated to
the constitutional immunity of the States. Thus, the Court declined to extend the
Young doctrine to encompass retroactive relief, for to do so would effectively
eliminate the States' constitutional immunity. Edelman's distinction between
prospective and retroactive relief fulfilled Young's underlying purpose of
vindicating the supreme authority of federal law while at the same time
preserving to an important degree the States' constitutional immunity. But this
need to reconcile competing interests is wholly absent when a plaintiff alleges
that a state official has violated state law. In such a case, the entire basis for the
doctrine of Young and Edelman disappears. A federal court's grant of relief
against state officials on the basis of state law, whether prospective or
retroactive, does not vindicate the supreme authority of federal law. When a
federal court instructs state officials on how to conform their conduct to state law,
this conflicts directly with the principles of federalism that underlie the Eleventh
Amendment.
The dissenters' view is that an allegation that official conduct is contrary to a
state statute would suffice to override the State's protection from injunctive relief
under the Eleventh Amendment because such conduct is ultra vires the official's
authority. This view rests on fiction, is wrong on the law, and would emasculate
the Eleventh Amendment. At least insofar as injunctive relief is sought, an error of
law by state officers acting in their official capacity will not suffice to override the
sovereign immunity of the State where the relief effectively is against it. Under
the dissenters' view, the ultra vires doctrine, a narrow and questionable
exception, would swallow the general rule that a suit is against the State if the
relief will run against it.
The principle that a claim that state officials violated state law in carrying out their
official responsibilities is a claim against the State that is protected by the
Eleventh Amendment applies as well to state law claims brought into federal
court under pendent jurisdiction.
While it may be that applying the Eleventh Amendment to pendent state law
claims results in federal claims' being brought in state court or in bifurcation of
claims, such considerations of policy cannot override the constitutional limitation
on the authority of the federal judiciary to adjudicate suits against a State.
The judgment cannot be sustained on the basis of the state law obligation of
petitioner county officials, since any relief granted against these officials on the
basis of the MH/MR Act would be partial and incomplete, at best. Such an
ineffective enforcement of state law would not appear to serve the purposes of
efficiency, convenience, and fairness that must inform the exercise of pendent
jurisdiction.
A sovereign's immunity may be waived, and the Court consistently has held that
a State may consent to suit against it in federal court. The State's consent must
be unequivocally expressed. A State's constitutional interest in immunity
encompasses not merely whether it may be sued, but where it may be sued.
The general rule is that relief sought nominally against an officer is in fact against
the sovereign if the decree would operate against the latter."
When a federal court obtains jurisdiction over a federal claim, it may adjudicate
other related claims over which the court otherwise would not have jurisdiction.
The Court also has held that a federal court may resolve a case solely on the
basis of a pendent state law claim, and that, in fact, the court usually should do
so in order to avoid federal constitutional questions (If a case can be decided on
either of two grounds, one involving a constitutional question, the other a
question of statutory construction or general law, the Court will decide only the
latter). But pendent jurisdiction is a judge-made doctrine inferred from the general
language of Art. III. The question presented is whether this doctrine may be
CHOICE OF LAW
UNITED AIRLINES, INC. vs. COURT OF APPEALS
The appellate court erred in applying the laws of the United States as, in the case
at bar, Philippine law is the applicable law. Although, the contract of carriage was
to be performed in the United States, the tickets were purchased through
petitioners agent in Manila. It is true that the tickets were rewritten in
Washington, D.C. However, such fact did not change the nature of the original
contract of carriage entered into by the parties in Manila.
In the case of Zalamea vs. Court of Appeals, this Court applied the doctrine
of lex loci contractus. According to the doctrine, as a general rule, the law of the
place where a contract is made or entered into governs with respect to its nature
and validity, obligation and interpretation. This has been said to be the rule even
though the place where the contract was made is different from the place where
it is to be performed, and particularly so, if the place of the making and the place
of performance are the same. Hence, the court should apply the law of the place
where the airline ticket was issued, when the passengers are residents and
nationals of the forum and the ticket is issued in such State by the defendant
airline.
CADALIN v. POEA ADMINISTRATOR
The parties to a contract may select the law by which it is to be governed. In such
a case, the foreign law is adopted as a "system" to regulate the relations of the
parties, including questions of their capacity to enter into the contract, the
formalities to be observed by them, matters of performance, and so forth.
Instead of adopting the entire mass of the foreign law, the parties may just agree
that specific provisions of a foreign statute shall be deemed incorporated into
their contract "as a set of terms." By such reference to the provisions of the
foreign law, the contract does not become a foreign contract to be governed by
the foreign law. The said law does not operate as a statute but as a set of
contractual terms deemed written in the contract.
A basic policy of contract is to protect the expectation of the parties. Such party
expectation is protected by giving effect to the parties' own choice of the
applicable law. The choice of law must, however, bear some relationship to the
parties or their transaction. There is no question that the contracts sought to be
enforced by claimants have a direct connection with the Bahrain law because the
services were rendered in that country.
As a general rule, a foreign procedural law will not be applied in the forum.
Procedural matters, such as service of process, joinder of actions, period and
requisites for appeal, and so forth, are governed by the laws of the forum. This is
true even if the action is based upon a foreign substantive law.
A law on prescription of actions is sui generis in Conflict of Laws in the sense that
it may be viewed either as procedural or substantive, depending on the
characterization given such a law.
In Bournias v. Atlantic Maritime Company, the American court applied the statute
of limitations of New York, instead of the Panamanian law, after finding that there
was no showing that the Panamanian law on prescription was intended to be
substantive. Being considered merely a procedural law even in Panama, it has to
give way to the law of the forum on prescription of actions.
However, the characterization of a statute into a procedural or substantive law
becomes irrelevant when the country of the forum has a "borrowing statute." Said
statute has the practical effect of treating the foreign statute of limitation as one
of substance. A "borrowing statute" directs the state of the forum to apply the
foreign statute of limitations to the pending claims based on a foreign law. While
there are several kinds of "borrowing statutes," one form provides that an action
barred by the laws of the place where it accrued, will not be enforced in the forum
even though the local statute has not run against it. Section 48 of our Code of
Civil Procedure is of this kind. Said Section provides:
Section 48 has not been repealed or amended by the Civil Code of the
Philippines. Article 2270 of said Code repealed only those provisions of the Code
of Civil Procedures as to which were inconsistent with it. There is no provision in
the Civil Code of the Philippines, which is inconsistent with or contradictory to
Section 48 of the Code of Civil Procedure.
As noted earlier, both the Labor Arbiter and the Deputy Minister, MOLE, in effect
held that paragraph 5 of that employment contract was inconsistent with Articles
280 and 281 of the Labor Code as they existed at the time the contract of
employment was entered into, and hence refused to give effect to said paragraph
5.
respondents even during the limited period of three (3) years, and thus to escape
completely the thrust of Articles 280 and 281 of the Labor Code.
We have already pointed out that the relationship is much affected with public
interest and that the otherwise applicable Philippine laws and regulations cannot
be rendered illusory by the parties agreeing upon some other law to govern their
relationship. Neither may petitioner invoke the second clause of paragraph 10,
specifying the Karachi courts as the sole venue for the settlement of dispute;
between the contracting parties. Even a cursory scrutiny of the relevant
circumstances of this case will show the multiple and substantive contacts
between Philippine law and Philippine courts, on the one hand, and the
relationship between the parties, upon the other: the contract was not only
executed in the Philippines, it was also performed here, at least partially; private
respondents are Philippine citizens and respondents, while petitioner, although a
foreign corporation, is licensed to do business (and actually doing business) and
hence resident in the Philippines; lastly, private respondents were based in the
Philippines in between their assigned flights to the Middle East and Europe. All
the above contacts point to the Philippine courts and administrative agencies as
a proper forum for the resolution of contractual disputes between the parties.
Under these circumstances, paragraph 10 of the employment agreement cannot
be given effect so as to oust Philippine agencies and courts of the jurisdiction
vested upon them by Philippine law. Finally, and in any event, the petitioner PIA
did not undertake to plead and prove the contents of Pakistan law on the matter;
it must therefore be presumed that the applicable provisions of the law of
Pakistan are the same as the applicable provisions of Philippine law.
In the present case, it is not disputed that the decedent was both a national of
Texas and a domicile thereof at the time of his death. So that even assuming
Texas has a conflict of law rule providing that the domiciliary system (law of the
domicile) should govern, the same would not result in a reference back (renvoi)
to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a
conflicts rule adopting the situs theory (lex rei sitae) calling for the application of
the law of the place where the properties are situated, renvoi would arise, since
the properties here involved are found in the Philippines. In the absence,
however, of proof as to the conflict of law rule of Texas, it should not be
presumed different from ours. Appellants' position is therefore not rested on the
doctrine of renvoi. As stated, they never invoked nor even mentioned it in their
arguments. Rather, they argue that their case falls under the circumstances
mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil
Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national
law of the decedent, in intestate or testamentary successions, with regard to four
items: (a) the order of succession; (b) the amount of successional rights; (e) the
intrinsic validity of the provisions of the will; and (d) the capacity to succeed.
Prohibitive laws concerning persons, their acts or property, and those which have
for their object public order, public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.
Appellants would also point out that the decedent executed two wills one to
govern his Texas estate and the other his Philippine estate arguing from this
that he intended Philippine law to govern his Philippine estate. Assuming that
such was the decedent's intention in executing a separate Philippine will, it would
not alter the law, a provision in a foreigner's will to the effect that his properties
shall be distributed in accordance with Philippine law and not with his national
law, is illegal and void, for his national law cannot be ignored in regard to those
matters that Article 10 now Article 16 of the Civil Code states said national
law should govern.
Foreign laws do not prove themselves nor can the courts take judicial notice of
them. Like any other fact, they must be alleged and proved. Written law may be
evidenced by an official publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and accompanied with a
certificate that such officer has custody. The certificate may be made by a
secretary of an embassy or legation, consul general, consul, vice-consul, or
consular agent or by any officer in the foreign service of the Philippines stationed
in the foreign country in which the record is kept, and authenticated by the seal of
his office.
Respondent TWA relied solely on the statement of Ms. Gwendolyn Lather, its
customer service agent, in her deposition dated January 27, 1986 that the Code
of Federal Regulations of the Civil Aeronautics Board allows overbooking. Aside
from said statement, no official publication of said code was presented as
evidence. Thus, respondent court's finding that overbooking is specifically
allowed by the US Code of Federal Regulations has no basis in fact. Even if the
claimed U.S. Code of Federal Regulations does exist, the same is not applicable
to the case at bar in accordance with the principle of lex loci contractus which
require that the law of the place where the airline ticket was issued should be
applied by the court where the passengers are residents and nationals of the
forum and the ticket is issued in such State by the defendant airline. Since the
tickets were sold and issued in the Philippines, the applicable law in this case
would be Philippine law.
It is respondent TWA's position that the practice of overbooking and the airline
system of boarding priorities are reasonable policies, which when implemented
do not amount to bad faith. But the issue raised in this case is not the
reasonableness of said policies but whether or not said policies were
incorporated or deemed written on petitioners' contracts of carriage. Respondent
TWA failed to show that there are provisions to that effect. Neither did it present
any argument of substance to show that petitioners were duly apprised of the
overbooked condition of the flight or that there is a hierarchy of boarding priorities
in booking passengers. It is evident that petitioners had the right to rely upon the
assurance of respondent TWA, thru its agent in Manila, then in New York, that
their tickets represented confirmed seats without any qualification. The failure of
respondent TWA to so inform them when it could easily have done so thereby
enabling respondent to hold on to them as passengers up to the last minute
amounts to bad faith. Evidently, respondent TWA placed its self-interest over the
rights of petitioners under their contracts of carriage. Such conscious disregard of
petitioners' rights makes respondent TWA liable for moral damages. To deter
breach of contracts by respondent TWA in similar fashion in the future, we
adjudge respondent TWA liable for exemplary damages, as well.
Garcia v. Recio
Philippine law does not provide for absolute divorce; hence, our courts cannot
grant it. A marriage between two Filipinos cannot be dissolved even by a divorce
obtained abroad, because of Articles 15 and 17 of the Civil Code. In mixed
marriages involving a Filipino and a foreigner, Article 26 of the Family Code
allows the former to contract a subsequent marriage in case the divorce is
validly obtained abroad by the alien spouse capacitating him or her to
remarry. A divorce obtained abroad by a couple, who are both aliens, may be
recognized in the Philippines, provided it is consistent with their respective
national laws.
Before a foreign divorce decree can be recognized by our courts, the party
pleading it must prove the divorce as a fact and demonstrate its conformity to the
foreign law allowing it. Presentation solely of the divorce decree is insufficient.
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document
may be proven as a public or official record of a foreign country by either (1) an
official publication or (2) a copy thereof attested by the officer having legal
custody of the document. If the record is not kept in the Philippines, such copy
must be (a) accompanied by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service stationed in the foreign country in
which the record is kept and (b) authenticated by the seal of his office.
The burden of proof lies with the party who alleges the existence of a fact or
thing necessary in the prosecution or defense of an action. In civil cases,
plaintiffs have the burden of proving the material allegations of the complaint
when those are denied by the answer; and defendants have the burden of
proving the material allegations in their answer when they introduce new matters.
Since the divorce was a defense raised by respondent, the burden of proving the
pertinent Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of
foreign laws. Like any other facts, they must be alleged and proved. Australian
marital laws are not among those matters that judges are supposed to know by
reason of their judicial function. The power of judicial notice must be exercised
with caution, and every reasonable doubt upon the subject should be resolved in
the negative.
The legal capacity to contract marriage is determined by the national law of the
party concerned. The certificate mentioned in Article 21 of the Family Code
would have been sufficient to establish the legal capacity of respondent, had he
duly presented it in court. A duly authenticated and admitted certificate is prima
facie evidence of legal capacity to marry on the part of the alien applicant for a
marriage license.
A foreign judgment is presumed to be valid and binding in the country from which
it comes, until a contrary showing, on the basis of a presumption of regularity of
proceedings and the giving of due notice in the foreign forum. Under Section
50(b), Rule 39 of the Revised Rules of Court, which was the governing law at the
time the instant case was decided by the trial court and respondent appellate
court, a judgment, against a person, of a tribunal of a foreign country having
jurisdiction to pronounce the same is presumptive evidence of a right as between
the parties and their successors in interest by a subsequent title. The judgment
may, however, be assailed by evidence of want of jurisdiction, want of notice to
the party, collusion, fraud, or clear mistake of law or fact. In addition, under
Section 3(n), Rule 131 of the Revised Rules of Court, a court, whether in the
Philippines or elsewhere, enjoys the presumption that it was acting in the lawful
exercise of its jurisdiction. Hence, once the authenticity of the foreign judgment
is proved, the party attacking a foreign judgment, is tasked with the burden of
overcoming its presumptive validity.
Needless to stress, the recognition to be accorded a foreign judgment is not
necessarily affected by the fact that the procedure in the courts of the country in
which such judgment was rendered differs from that of the courts of the country
in which the judgment is relied on. Ultimately, matters of remedy and procedure
such as those relating to the service of summons or court process upon the
defendant, the authority of counsel to appear and represent a defendant and the
formal requirements in a decision are governed by the lex fori or the internal law
of the forum, i.e., the law of Malaysia in this case.
In this case, it is the procedural law of Malaysia where the judgment was
rendered that determines the validity of the service of court process on private
respondent as well as other matters raised by it. As to what the Malaysian
procedural law is, remains a question of fact, not of law. It may not be taken
judicial notice of and must be pleaded and proved like any other fact. Sections
24 and 25 of Rule 132 of the Revised Rules of Court provide that it may be
evidenced by an official publication or by a duly attested or authenticated copy
thereof. It was then incumbent upon private respondent to present evidence as
to what that Malaysian procedural law is and to show that under it, the assailed
service of summons upon a financial officer of a corporation, as alleged by it, is
invalid. It did not. Accordingly, the presumption of validity and regularity of
service of summons and the decision thereafter rendered by the High Court of
Malaya must stand.
The lex fori or the internal law of the forum governs matters of remedy and
procedure. Considering that under the procedural rules of the High Court of
Malaya, a valid judgment may be rendered even without stating in the judgment
every fact and law upon which the judgment is based, then the same must be
accorded respect and the courts in this jurisdiction cannot invalidate the
judgment of the foreign court simply because our rules provide otherwise.
ENFORCEMENT OF JUDGMENTS
what belongs to them. We cannot give them the same judgment that our law
would give if the wrong had been done here. Very likely we cannot give them as
much. But that is no reason for refusing to give them what we can. We shall not
make things better by sending them to another state, where the defendant may
not be found, and where suit may be impossible. Nor is there anything to shock
our sense of justice in the possibility of a punitive recovery. The penalty is not
extravagant. It conveys no hint of arbitrary confiscation. It varies between
moderate limits according to the defendants guilt.
We have no public policy that prohibits exemplary damages or civil penalties. We
give them for many wrongs. To exclude all penal actions would be to wipe out the
distinction between the penalties of public justice and the remedies of private law.
Finally, there are no difficulties of procedure that stand in the way. We have a
statute authroizing the triers of the facts, when statutory penalties are sued for, to
fit the award to the offense. The case is not one where special remedies
established by the foreign law are incapable of adequate enforcement except in
the home tribunals.
We hold, then, that public policy does not prohibit the assumption of jurisdiction
by our courts and that this being so, mere differences of remedy do not count.
For many years the courts have been feeling their way in the enforcement of
these statutes. A civil remedy for another's death was something strange and
new, and it did not find at once the fitting niche, the proper category, in the legal
scheme. We need not be surprised if some of the things said, as distinguished
from those decided, must be rejected today. We must apply the same rules that
are applicable to other torts; and the tendency of those rules to-day is toward a
larger comity, if we must cling to the traditional term.
The fundamental public policy is perceived to be that rights lawfully vested shall
be everywhere maintained. At least, that is so among the states of the Union.
There is a growing conviction that only exceptional circumstances should lead
one of the states to refuse to enforce a right acquired in another. The evidences
of this tendency are many. One typical instance will suffice. For many years
Massachusetts closed her courts to actions of this order based on foreign
statutes. She has opened them now, and overruled her earlier decisions. The test
of similarity has been abandoned there. If it has ever been accepted here, we
think it should be abandoned now.
Hilton v. Guyot
A citizen and resident of this country who has his principal place of business here
but has an agent in a foreign country and is accustomed to purchase and store
large quantities of goods there, and, in a suit brought against him by a citizen and
in a court of that country, appears and defends with the sole object of preventing
his property within the jurisdiction, but not in the custody of that court, from being
taken in satisfaction of any judgment that may be recovered against him there
cannot, in an action brought against him in this country upon such a judgment,
impeach it for want of jurisdiction of his person.
The admission at the trial in a court of a foreign country, according to its law and
practice, of testimony not under oath and without opportunity of crossexamination, and of documents with which the defendant had no connection and
which by our law would not be admissible against him, is not of itself a sufficient
ground for impeaching the judgment of that court in an action brought upon it in
this country.
When an action is brought in a court of this country by a citizen of a foreign
country against one of our own citizens to recover a sum of money adjudged by a
court of that country to be due from the defendant to the plaintiff, and the foreign
judgment appears to have been rendered by a competent court, having
jurisdiction of the cause and of the parties, and upon due allegations and proofs
and opportunity to defend against them, and its proceedings are according to the
course of a civilized jurisprudence, and are stated in a clear and formal record,
the judgment is prima facie evidence, at least, of the truth of the matter adjudged,
and the judgment is conclusive upon the merits tried in the foreign court unless
some special ground is shown for impeaching it, as by showing that it was
affected by fraud or prejudice or that, by the principles of international law and by
the comity of our own country, it is not entitled to full credit and credit.
A judgment for a sum of money, rendered by a court of a foreign country, having
jurisdiction of the cause and of the parties, in a suit brought by one of its citizens
against one of ours, is prima facie evidence only, and not conclusive of the merits
of the claim in an action brought here upon the judgment if by the law of the
foreign country, as in France, judgments of our own courts are not recognized as
conclusive.
No law has any effect beyond the limits of the sovereignty from which
its authority is derived. The extent to which one nation shall be allowed to
operate within the dominion of another nation, depends upon the comity of
nations. Comity is neither a matter of absolute obligation, nor of mere courtesy
and good will. It is a recognition which one nation allows within its territory to the
legislative, executive or judicial acts of another nation, having due regard both to
international duty and convenience, and to the rights of its own citizens or other
persons who are under the protection of its laws. The comity thus extended to
other nations is no impeachment of sovereignty. It is the voluntary act of the
nation by which it is offered, and is inadmissible when contrary to its policy, or
prejudicial to its interests. But it contributes so largely to promote justice between
individuals, and to produce a friendly intercourse between the sovereignty to
which they belong, that courts of justice have continually acted upon it, as a part
of the voluntary law of nations. It is not the comity of the courts, but the comity of
the nation, which is administered and ascertained in the same way, and guided
by the same reasoning, by which all other principles of municipal law are
ascertained and guided.
PHIL. ALUMINUM WHEELS v. FASGI
Generally, in the absence of a special compact, no sovereign is bound to give
effect within its dominion to a judgment rendered by a tribunal of another country;
however, the rules of comity, utility and convenience of nations have established
a usage among civilized states by which final judgments of foreign courts of
competent jurisdiction are reciprocally respected and rendered efficacious under
certain conditions that may vary in different countries.
In this jurisdiction, a valid judgment rendered by a foreign tribunal may be
recognized insofar as the immediate parties and the underlying cause of action
are concerned so long as it is convincingly shown that there has been an
opportunity for a full and fair hearing before a court of competent jurisdiction; that
trial upon regular proceedings has been conducted, following due citation or
voluntary appearance of the defendant and under a system of jurisprudence
likely to secure an impartial administration of justice; and that there is nothing to
indicate either a prejudice in court and in the system of laws under which it is
sitting or fraud in procuring the judgment.
A foreign judgment is presumed to be valid and binding in the country from which
it comes, until a contrary showing, on the basis of a presumption of regularity of
proceedings and the giving of due notice in the foreign forum. Rule 39, section 48
of the Rules of Court of the Philippines.
PHILSEC INVESTMENT CORPORATION vs. THE HONORABLE COURT OF
APPEALS
While this Court has given the effect of res judicata to foreign judgments in
several cases, it was after the parties opposed to the judgment had been given
ample opportunity to repel them on grounds allowed under the law. It is not
necessary for this purpose to initiate a separate action or proceeding for
enforcement of the foreign judgment. What is essential is that there is opportunity
to challenge the foreign judgment, in order for the court to properly determine its
efficacy. This is because in this jurisdiction, with respect to actions in personam,
as distinguished from actions in rem, a foreign judgment merely constitutes prima
facie evidence of the justness of the claim of a party and, as such, is subject to
proof to the contrary. Rule 39, Section 50 provides:
SEC. 50. Effect of foreign judgments. - The effect of a judgment of a
tribunal of a foreign country, having jurisdiction to pronounce the judgment
is as follows:
a part of the Minnesota decree in not final, but is subject to modification by the
court which rendered it, then neither the United States Constitution nor the
principle of comity compels the courts of this state to enforce that part of the
decree; for no court other than the one granting the original decree could
undertake to administer relief without bringing about a conflict of authority.
A judgment rendered by a competent court, having jurisdiction in one state, is
conclusive on the merits in the courts of every other state, when made the basis
of an action and the merits cannot be reinvestigated. Our own Supreme But
before such a judgment rendered in one state is entitled to acceptance, in the
courts of another state, as conclusive on the merits, it must be a final judgment
and not merely an interlocutory decree.
A consideration of all the facts and circumstances leads to the conclusion that
comity does not require the courts of this state, regardless of the well-being of
the child, to lend their aid to the enforcement of the Iowa decree by returning
Winifred to the custody of her grandmother. A child is not a chattel to which title
and the right of possession may be secured by the decree of any court. If the
decree had been rendered by a domestic court of competent jurisdiction, it would
not have conclusively established the right to the custody of the child. In a
contest between rival claimants, this court would have been free, notwithstanding
the decree, to award the custody solely with an eye to the child's welfare.
"Comity cannot be considered in a case like this, when the future welfare of the
child is the vital question in the case. The good of the child is superior to all other
considerations. It is the polar star to guide to the conclusion in all cases of
infants, whether the question is raised upon a writ of habeas corpus or in a court
of chancery."
PHILIPPINE INTERNATIONAL SHIPPING CORPORATION v. THE HON. COURT OF
APPEAL
The evidence of record clearly shows that the U.S. District Court had validly
acquired jurisdiction over petitioner PISC under the procedural law applicable in
that forum. Copies of the Summons and Complaint 16 in 83 Civil 290 (EW) which
were in fact attached to the Petition for Review filed with this Court, were
stamped "Received, 18 Jan 1983, P.I.S.C., Manila." indicating that service thereof
had been made upon and acknowledged by the PISC office in Manila on, and
that PISC had actual notice of such Complaint and Summons. Moreover, copies
of said Summons and Complaint had likewise been served upon Prentice-Hall
Corporation System, Inc. (New York), petitioner PISCS agent, expressly
designated by it in the Master Equipment Leasing Agreement with respondent
Interpool. "For the purpose of accepting service of any process within the State of
New York, USA with respect to any claim or controversy arising out of or relating
to directly or indirectly, this Lease."
The record also shows that petitioner PISC, without, however, assailing the
jurisdiction of the U.S. District Court over the person of petitioner, had filed a
Motion to Dismiss the Complaint, which Motion was denied. All of the foregoing
matters, which were stated specifically in the U.S. District Courts disputed
Default Judgment, 19 have not been disproven or otherwise overcome by
petitioners, whose bare and unsubstantiated allegations cannot prevail over clear
and convincing evidence of record to the contrary.
That foreign judgment which had become final and executory, no appeal
having been taken therefrom and perfected by petitioner PISC is thus
"presumptive evidence of a right as between the parties [i.e., PISC and Interpool]
and their successors in interest by a subsequent title." We note, further, that
there has been in this case no showing by petitioners that the Default Judgment
rendered by the U.S. District Court in 83 Civil 290 (EW), was vitiated by "want of
notice to the party, collusion, fraud, or clear mistake of law or fact." In other
words, the Default Judgment imposing upon petitioner PISC a liability of U.S.
$94,456.28 in favor of respondent Interpool, is valid and may be enforced in this
jurisdiction.
Petitioners argument of lack or absence of jurisdiction on the part of the RTC, on
the alleged ground of non-service of notice or summons does not persuade.
Even assuming that none of the ten (10) petitioner herein had been served with
notice or summons below, the record shows, however, that they did in fact file
with the Regional Trial Court Motion for Extension of Time to file Answer as well
as Motion for Bill of Particulars both addressing respondent Interpools. In those
pleadings, petitioners not only manifested their intention to controvert the
allegations in the Complaint, but they neither questioned nor assailed the
jurisdiction of the trial court, either over the case filed against them or over their
individual persons, as defendants therein. There was here, in effect, voluntary
submission to the jurisdiction of the trial court by petitioners, who are thereby
estopped from asserting otherwise before this Court.
It is a general rule that processes of the court cannot lawfully be served outside
the territorial limits of the jurisdiction of the court from which it issues and this is
regardless of the residence or citizenship of the party thus served. There must be
actual service within the proper territorial limits on defendant or someone
authorized to accept service for him. Thus, a defendant, whether a resident or
not in the forum where the action is filed, must be served with summons within
that forum.
It then concluded that the service of summons effected in Manila or beyond the
territorial boundaries of Japan was null and did not confer jurisdiction upon the
Tokyo District Court over the person of SHARP; hence, its decision was void.
A foreign judgment is presumed to be valid and binding in the country from which
it comes, until the contrary is shown. It is also proper to presume the regularity of
the proceedings and the giving of due notice therein.
It is settled that matters of remedy and procedure such as those relating to the
service of process upon a defendant are governed by the lex fori or the internal
law of the forum. In this case, it is the procedural law of Japan where the
judgment was rendered that determines the validity of the extraterritorial service
of process on SHARP. As to what this law is is a question of fact, not of law. It
may not be taken judicial notice of and must be pleaded and proved like any
other fact. Sections 24 and 25, Rule 132 of the Rules of Court provide that it may
be evidenced by an official publication or by a duly attested or authenticated copy
thereof. It was then incumbent upon SHARP to present evidence as to what that
Japanese procedural law is and to show that under it, the assailed extraterritorial
service is invalid. It did not. Accordingly, the presumption of validity and regularity
of the service of summons and the decision thereafter rendered by the Japanese
court must stand.
Alternatively in the light of the absence of proof regarding Japanese law, the
presumption of identity or similarity or the so-called processual presumption may
be invoked. Applying it, the Japanese law on the matter is presumed to be similar
with the Philippine law on service of summons on a private foreign corporation
doing business in the Philippines. Section 14, Rule 14 of the Rules of Court
provides that if the defendant is a foreign corporation doing business in the
Philippines, service may be made: (1) on its resident agent designated in
accordance with law for that purpose, or, (2) if there is no such resident agent, on
the government official designated by law to that effect; or (3) on any of its
officers or agents within the Philippines.
In Magdalena Estate, what was declared invalid resulting in the failure of the
court to acquire jurisdiction over the person of the defendants in an action in
personam was the service of summons through publication against nonappearing resident defendants. It was claimed that the latter concealed
themselves to avoid personal service of summons upon them. In Dial, the
defendants were foreign corporations which were not, domiciled and licensed to
engage in business in the Philippines and which did not have officers or agents,
places of business, or properties here. On the other hand, in the instant case,
SHARP was doing business in Japan and was maintaining four branches therein.
however, reminded us that the due process rights of a defendant should be the
courts' primary concern where personal jurisdiction is at issue.
The Internet represents perhaps the latest and greatest manifestation of these
historical, globe-shrinking trends. It enables anyone with the right equipment and
knowledge - that is, people like Patterson - to operate an international business
cheaply, and from a desktop. That business operator, however, remains entitled
to the protection of the Due Process Clause, which mandates that potential
defendants be able "to structure their primary conduct with some minimum
assurance as to where the conduct will and will not render them liable to suit."
Thus, this case presents a situation where we must reconsider the scope of our
jurisdictional reach.
To determine whether personal jurisdiction exists over a defendant, federal courts
apply the law of the forum state, subject to the limits of the Due Process Clause
of the Fourteenth Amendment. "The defendant must be amenable to suit under
the forum state's long-arm statute and the due process requirements of the
Constitution must be met."
The Ohio long-arm statute allows an Ohio court to exercise personal jurisdiction
over nonresidents of Ohio on claims arising from, inter alia, the nonresident's
transacting any business in Ohio.. It is settled Ohio law, moreover, that the
"transacting business" clause of that statute was meant to extend to the federal
constitutional limits of due process, and that as a result Ohio personal jurisdiction
cases require an examination of those limits.
Further, personal jurisdiction may be either general or specific in nature,
depending on the nature of the contacts in a given case. In the instant case,
because CompuServe bases its action on Patterson's act of sending his
computer software to Ohio for sale on its service, CompuServe seeks to
establish such specific personal jurisdiction over Patterson.
As always in this context, the crucial federal constitutional inquiry is whether,
given the facts of the case, the nonresident defendant has sufficient contacts with
the forum state that the district court's exercise of jurisdiction would comport with
"traditional notions of fair play and substantial justice." This court has repeatedly
employed three criteria to make this determination:
o First, the defendant must purposefully avail himself of the privilege of
acting in the forum state or causing a consequence in the forum state.
Second, the cause of action must arise from the defendant's activities
there. Finally, the acts of the defendant or consequences caused by the
defendant must have a substantial enough connection with the forum to
make the exercise of jurisdiction over the defendant reasonable.
due process inquiry rests upon the totality of the circumstances rather than any
mechanical criteria.
In the present case, Instruction has directed its advertising activities via the
Internet and its toll-free number toward not only the state of Connecticut, but to
all states. The Internet as well as toll-free numbers are designed to communicate
with people and their businesses in every state. Advertisement on the Internet
can reach as many as 10,000 Internet users within Connecticut alone. Further,
once posted on the Internet, unlike television and radio advertising, the
advertisement is available continuously to any Internet user. ISI has therefore,
purposefully availed itself of the privilege of doing business within Connecticut.
The court concludes that since ISI purposefully directed its advertising activities
toward this state on a continuing basis since March, 1995, it could reasonably
anticipate the possibility of being hailed into court here.
"The minimum requirements inherent in the concept of 'fair play and substantial
justice' may defeat the reasonableness of jurisdiction even if the defendant has
the requisite minimum contacts with the forum. However, where minimum
contacts have been established the defendant 'must present a compelling case
that the presence of some other considerations would render jurisdiction
unreasonable." The factors to be considered are "the relative burdens on the
plaintiff and defendant of litigating the suit in this or another forum, the forum
state's interest in adjudicating the dispute, and the interstate judicial system's
interest in efficient resolution of controversies."
In the present case, the distance between Connecticut and Massachusetts is
minimal. Further, since the present action also concerns issues of Connecticut
common and statutory law, Connecticut has an interest in adjudicating the
dispute. This being the case, adjudication in Connecticut would dispose of this
matter efficiently. Therefore, the court concludes that its finding of minimum
contacts in this case comports with notions of fair play and substantial justice.
BENSUSAN RESTAURANT CORPORATION v. RICHARD B. KING,
The mere fact that a person can gain information on the allegedly infringing
product is not the equivalent of a person advertising, promoting, selling or
otherwise making an effort to target its product in New York. Here, there is simply
no allegation or proof that any infringing goods were shipped into New York or
that any other infringing activity was directed at New York or caused by King
occur here.
Substantial "revenue" is required from interstate commerce, not mere
participation in it. King has submitted an affidavit stating that 99% of his
patronage and revenue is derived from local residents of Columbia, Missouri
(primarily students from the University of Missouri) and that most of the few out-
of-state customers have either an existing or a prior connection to the area, such
as graduates of the University of Missouri.
Allegations of foreseeability which are based solely on the fact that King knew
that Bensusan's club is located in New York, is insufficient to satisfy the
requirement that a defendant "expects or should reasonably expect the act to
have consequences in the state." That prong of the statute requires that a
defendant make "a discernable effort to serve, directly or indirectly, a market in
the forum state."
Finally, Bensusan's conclusory allegation of a loss in New York is nothing more
that an allegation of an "indirect financial loss resulting from the fact that the
injured person resides or is domiciled in New York," which is not the allegation of
a "significant economic injury" required by section 302(a)(3).
Bensusan's primary argument in support of both statutory bases for personal
jurisdiction is that, because defendant's Web site is accessible in New York,
defendant could have foreseen that the site was able to be viewed in New York
and taken steps to restrict access to his site only to users in a certain geographic
region, presumably Missouri. Regardless of the technical feasibility of such a
procedure, mere foreseeability of an in-site consequence and a failure to avert
that consequence is not sufficient to establish personal jurisdiction.
Furthermore, even if jurisdiction were proper under New York's arm statute,
asserting personal jurisdiction over King in this forum would violate the Due
Process Clause of the United States Constitution. Due process requires "that the
non-resident defendant has purposefully established minimum contacts with the
forum state such that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.
The following factors are relevant to this determination: "(1) whether the
defendant purposefully availed himself of the benefits of the forum state; (2)
whether the defendant's conduct and connection with the forum state are such
that he should reasonably anticipate being haled into court there; and (3) whether
the defendant carries on a continuous and systematic part of its general business
within for forum state."
There are no allegations that King actively sought to encourage New Yorkers to
access his site, or that he conducted any business-- let alone a continuous and
systematic part of its business-- in New York. There is in fact no suggestion that
King has any presence of any kind in New York other than the Web site that can
be accessed worldwide. Bensusan's argument that King should have foreseen
that users could access the site in New York and be confused as to the
relationship of the two Blue Note clubs is insufficient to satisfy due process.