Tn Choice Of Law

Front 1

What is the key issue for choice of law questions

Back 1

Domicile; Note it is NOT RESIDENCE (even though legislature sometimes calls it that); This is the basis for a court to exercise jurisdiction over a defendant;

Front 2

Two fundamental principles of domicile

Back 2

Everyone has one and noone can have more than one at any given moment in time

Front 3

Three categories of domicile

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Domicile of origin, Domicile of choice, Domicile by operation of law

Front 4

If child is born legitimate, he has the domicile of ______

Back 4

the father

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If child is born illegitimate, he has the domicile of ______

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the mother

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Once you reach the age of majority and are of sound mind, you may have the domicile of _______

Back 6

Choice! Domicile of choice

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Domicile of choice requires TWO things

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1) that you be physically present at a place (no specific amt of time required - can do this in an instant); 2) that, while present, you have intent to make that place your hoome

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What happens when someone has physical presence in multiple places

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We compare them and look at difference characteristics (where you vote, worship, cost, time spent there, where car is registered, etc)

Front 9

TN reverter doctrine - exception to physical presence requirement

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If a person who has established a domicile of choice somewhere other than their domicile of origin, decides to REESTABLISH their domicile in their domicile of origin, that person COMPLETES THIS as soon as he begins his journey back, whether or not he makes it

Front 10

Can prisoners or people in military establish domicile of choice in prison or in places of service?

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This implicates the INTENT requirement. Very unlikely they can establish domicile of choice there because they didn't chose it. Very difficult.

Front 11

Domicile by operation of law: married women at common law

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Had domicile of husband; legally incapable of establishing separate domicile

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Domicile by operation of law: TN spouses

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If H & W are living apart, each can establish separate domicile of choice.

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Domicile by operation of law: Married women under restatement

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Even a married woman can establish her own domicile of choice

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Domicile by operation of law: minor adopted children

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Domicile of adopted parents

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Domicile by operation of law: minor children of separated parents

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Child has domicile of custodial parent

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Domicile by operation of law: Deceased parents

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TN: If both parents are deceased, domicile of minor stays were it was at time of death of 2nd parent, until changed by a judicially-appointed legal guardian. NB: The general rule around the US is different: if both parents are dead, child has domicile of person acting as parent at home where child is living

Front 17

First in time rule

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If you ever confront a case where you really cannot tell which place is a person's domicile, then the rule is a person's domicile is a place established first in time

Front 18

What happens when law of domicile is different in one state from another

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Forum almost invariably applies its own law of domicile

Front 19

Three elements of valid jurisdiction

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Territorial jurisdiction, Subject Matter Jurisdiction and adequacy of notice

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Three categories of territorial jurisdiction

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Over person (In personam - judgment against individual can be enforced against all property that person owns wherever in the US and whenever acquired); Over property (In rem - over property of D that happens to be present in the forum state); Status adjudication (think about divorce litigant who wants their legal status changed from married to single, or adoption proceedings)

Front 21

Traditional bases for getting valid IN PERSONAM judgment against D

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Physical presence, domicile, consent and appearance

Front 22

Getting in personam jurisdiction against D via physical presence (Pennoyer)

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If you are physically present in a place, and are served with process in that place, state has a right to enter a valid personal judgment against you (think of person served flying over arkansas; Sovereignty of Arkansas extends FROM SOIL TO HEAVENS); Remember: This rule says ANY claim that a P wants to assert against you is OK in any state where you were physically served with process

Front 23

Getting in personam jurisdiction through state of domicile

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Even if absent from state at time the suit is brought, if you are domiciled in the state, that state can enter a valid personal judgment against you with respect to virtually any claim (even if that claim has nothing to do with your state of domicile)

Front 24

Getting in personam jurisdiction through consent

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If D consents to jurisdiction; Typically, consent is found by failure to object to personal jurisdiction. Generally, you have to object at the outset (pre-answer motion, etc.)

Front 25

Choice of forum provision

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Could have multiple effects if given effect by court. Could create jurisdiction where a state would not otherwise have it, could deprive state of jurisdiction. SCOTUS (Carnival cruise lines): Up to each state whether to enforce for themselves. SCOTUS has since said these will be allowed if FAIR AND REASONABLE

Front 26

TN Choice of forum provisions; FOUR criteria

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1) Effective relief (can p get effective relief in state designated in contract); 2) Substantial inconvenience (is it substantially less convenient than forum state); 3) Misrepresentation (was agreement reached through misrepresentation, duress, abuse of economic power or other unconscionable means); 4) any other factors

Front 27

Jurisdiction by APPEARANCE

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When D has made an appearance in the action, your appearance empowers that court to enter a valid personal judgment against you. You have GOT to make the argument that the court does not have jurisdiction over you at that appearance, or you are stuck. If you LOSE, you have got to get it reversed on appeal otherwise that judgment will be valid and entitled to full faith and credit

Front 28

General jurisdiction (Post Intl Shoe)

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Where can I sue a D w/ respect to ANY claim that I want to assert regardless of whether a claim occurred in that state? Before you can assert general jurisdiction, D has to have substantial contacts with forum state

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Specific jurisdiction (Post Intl Shoe)

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When claim arises out of or relates to something that occurred in the forum state; Specific jurisdiction only requires that D has MINIMAL CONTACTS

Front 30

Where can you sue a corporation

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On any claim in its state of incorporation or its PPOB; NB: A corp is not subject to GENERAL JURISDICTION just because it regularly PURCHASES goods and services in a state (but may be because it SELLS them there- SCOTUS has not yet said)

Front 31

Suing a corp in TN

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TN requires you have a registered agent for service of process if you are a foreign corp doing business here; If you have this, you can be sued in TN on actions occurring elsewhere. Many other states have not embraced this; agent for service is insufficient

Front 32

Minimal contacts for specific personal jurisdiction

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Person is served personally or through an agent over an act occurring WHILE PHYSICALLY PRESENT IN THE FORUM STATE (OK to sue someone just driving through when issue occurs - doesn't matter whether person is resident there); Person is sued over act which occurred outside forum state but which had consequence or effect inside the forum (think purposeful availment, stream of commerce, Burger King, etc.)

Front 33

True In Rem jurisdiction

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Purports to affect interest of all persons, wherever they may be in the whole world, with respect to property in the forum state (i.e. quiet title action)

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Quasi In Rem jurisdiction

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Simply purports to bind the interest of PARTICULAR individuals by judgment court will enter; Type 1: Actions in which we are attempting to determine the interests of designated persons in property physically present in forum (dispute about ownership or about interests that specific individuals have); Type 2: P gets court to attach property and if P prevails on an action, they satisfy judgment through property. NB: You cannot establish jurisdiction over P through P's property in a state if the claim is unrelated to that property

Front 35

Notice

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Means employed to notify D of lawsuit must be reasonably calculated under all the circumstances to apprise the D of the pendency of the action; NB: Mullane did NOT say you have to serve D personally or that a judgment is invalid if D never receives notice, just that you have to use a method that MOST OF THE TIME is sufficient to give D notice

Front 36

When notice by publication is insufficient

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If identify of D and location of D is known

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When notice by mail is sufficient

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If accompanied by certain safeguards.

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If identity of D is unknown and cannot be ascertained by due diligence, then _______ is ok

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Notice by publication, because that is all we can do

Front 39

If I know my method will be ineffective or that a party will NOT receive notice by my method, what must I do

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SOMETHING! Leaving notice on door or sending by first class mail because someone living there might open it and let D know

Front 40

Impact of full faith and credit

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If a judgment is entitle to FF&C, it is entitled to RECOGNITION. You must give it the same ISSUE AND CLAIM PRECLUSION effect it would have had in the state where judgment was rendered (you have to look at that state's law). Usually you have to bring that foreign judgment to the new state and DOMESTICATE IT (new state basically creates its own judgment based on the earlier valid judgment)

Front 41

Claim preclusion

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Cannot bring successive actions based upon same claim; If you have separate claims against same D, that is ok... Question is really whether they are the same claim. MODERN TREND: SAME OCCURENCE OR TRANSACTION

Front 42

Claim preclusion MERGER

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Applies when person asserting the claim wins. When I sued on my claim and won, my claim is extinguished and merged into the judgment, so that the judgment itself is the only thing I can enforce

Front 43

Claim preclusion BAR

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When person asserting initial claim loses. Cannot bring a second action based on same claim. EXCEPTION: If earlier judgment was not on the merits

Front 44

Issue preclusion

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Three requirements: Issue in 2nd suit must have been ACTUALLY LITIGATED in 1st suit; Issue must have been ACTUALLY DECIDED in 1st suit; Decision of that issue must have been ESSENTIAL TO THE JUDGMENT;

Front 45

Mutuality of Estoppel

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You can only assert issue preclusion against someone who was a party or in privity with a party in the 1st suit and is now a party in the 2nd suit. They must have had their day in court; NB: TN only allows non-mutual issue preclusion to be used defensively (to defeat a claim); We do not allow it to be used offensively to establish a claim

Front 46

Example of offensive non-mutual issue preclusion (disallowed in TN)

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25 passengers injured in bus crash. P1 sues only the bus driver (D1). P1 wins. P1 now brings second lawsuit against bus company (D2). Note that this is a separate claim and claim preclusion does not apply. Will the P in the second suit be able to say to the court, hey I showed in the first action that D1 was liable... and under respondent superior, I want you to enter a judgment against D2? NO. Bus company was not a party to the first lawsuit. They have not had a day in court. You cannot invoke issue preclusion against them.

Front 47

Example of defensive non-mutual issue preclusion (allowed)

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P1 sues against the bus driver (D1). Trier of fact finds for D1 (P1 loses).P1 now sues bus company (D2), making same allegation, that driver fell asleep. Can D2 invoke issue preclusion against P1? P1 did have a day in court. Bus company is using issue preclusion defensively and TN courts DO allow non mutual defensive use of issue preclusion. NB: P1 can still sue D2, but not on the same grounds - perhaps they can allege that they didn't check the brakes or something.

Front 48

FF&C: What happens if foreign judgment (earlier judgment) was wrong?

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Still entitled to FF&C if valid (errors in fact and law do not make it invalid)(validity just means notice, SMJ and Territorial Jurisdiction)

Front 49

FF&C: what if foreign judgment is valid but against public policy in TN

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TN must still recognize and enforce. EXCEPTION: Workers compensation - it is constitutional for the 2nd state to grant a SUPPLEMENTAL award if it choses to do so, even though the state handing down the initial award would not allow that worker to seek an additional recovery. TN: If a worker is limited in another state from getting supplemental awards, and has voluntarily sought benefits in another state, we will not allow that worker to sue for supplemental benefits in TN; ALSO*** - enforcing state may apply its own statutes of limitation to foreign judgments, even when foreign state has longer SOL!!

Front 50

What is the source of choice of law rules

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Common law (created by courts)... EXCEPTION: if state legislature enacts one - then it is binding on courts as long as constitutional

Front 51

Choice of law in the UCC

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UCC has its own choice of law provision - if you have any excuse to apply forum state's law, do it

Front 52

Effect of TN's choice of law rules in federal courts in TN

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Binding when they are adjudicating state created claims or defenses

Front 53

Torts choice of law

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You apply the law of the last event giving rise to the cause of action (injury); TN RULE: Apply the law of the state that has the MOST SIGNIFICANT RELATIONSHIP to the occurrence and the parties with respect to the particular issue

Front 54

Contracts choice of law

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Is there a choice of law provision in the contract itself? Generally, if yes, courts will enforce. Courts will NOT apply this provision IF the chosen state has "no material connection" and "no reasonable basis for the parties' choice" (i.e. just chosen because less restrictive than TN's usury law); COMMON LAW RULE: apply the law of the state where contract was made

Front 55

Renvoi

Back 55

If we are directed to apply the law of some other state, should we apply that state's choice of law rule in determining the law that will ultimately govern the determination of the case? Rule: You do NOT apply the other state's choice of law rule (this is called rejecting the Renvoi)

Front 56

Family law choice of law

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Traditional rule: You determine validity of the law based on the law where the marriage is CELEBRATED; CAVEAT: TN will not recognize the validity of a marriage that violates our strongly held public policy

Front 57

Divorce choice of law

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No choice of law in divorce; Every state applies its own choice of law in divorce. As long as either party is domiciled in a state, that state can grant the divorce

Front 58

Custody and visitation choice of law

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Home state; by both federal and state statutes, only the Home State can determine custody and visitation and only the Home State can alter the original determination of these matters

Front 59

Home state in custody matters

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State where child has lived with a contestant for at least six consecutive months immediately preceding the lawsuit. That state and that state alone can determine custody and visitation; Exceptions: Current forum must now be the current Home state; Original Home state must no longer have jurisdiction because both parents no longer live there or that state simply declines to exercise its jurisdiction; In other words, if one of the parents still lives in the Home state, alterations of custody and visitation must be done in that court unless it declines to exercise jurisdiction. NB: Exception - if parent in a different state faces emergency situation - can get jurisdiction there to modify original home state's order

Front 60

Putative father statutes

Back 60

Some state have these and require people to register if they have an inkling that they have fathered a child; they are then on notice. If they fail to register, then no notice is required. TN has this

Front 61

Decedent's estates choice of law

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Immovable property (land and interests in land) - where the land is; Moveable property - we look at law of land where decedent was domiciled. NB: In this category, courts DO look at Renvoi (they look at all the law including that jurisdiction's choice of law rules)

Front 62

Validity of a will in TN court

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TN will consider it valid if it complies with TN law OR with law where executed OR where decedent domiciled at the time of execution (even if it doesn't comply with TN law)

Front 63

What if forum's choice of law rule tells it to apply law of other state? When would we ignore this?

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When it is a procedural issue. Must decide if law is procedural or substantive. SOL's are procedural. Statutes of repose are substantive.

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Public policy

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If claim is brought pursuant to a law of another state and that law is offensive to a public policy of TN, we will not adjudicate it, we will simply dismiss the case; NB: only applies to claims, not defenses

Front 65

Criminal choice of law

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If someone has violated law of a foreign state, we will extradite them and let foreign state prosecute