Question: Thinking Like A Lawyer

You have taken a few of Tenure Track Instructor Judd's classes and have learned about jurisdiction.You work part-time for a lawyer in Costa Mesa, CA.The lawyer tells you that a client called her and asked if she has a case.He needs you to tell him if he can file a lawsuit for the client in California courts, and wants a one-page memo about it.He tells you that the client may have a great case, but doesn't know laws about jurisdiction, but knows that you have studied them.

The client, aCalifornia resident looks for a ticket online for a trip to Argentina, and she wants the adventure dancing the Tango on the streets of Buenos Aires, Argentina.She also wants to travel to Cordoba, Rosario, Salta, and even the ski resort Bariloche, and can do it by train.Online, she sees Ferrocariles Argentinos, the Argentine railway who has Google ads that pop up anywhere in the world when someone enters "Argentine train trip", it then says "Special one month rail pass for US residents only - $299".After seeing it, she buys a ticket online and tells her friend in Arizona to buy one as well, and her friend does buy one.The railway has nooffices in California, but they have an advertising agency in Miami that manages the website.

She will be able to fly to Buenos Aires, shop in la calle Florida,and dance in the club VIRUTA and La Boca and then go on her train trip.She is excited about her trip, and is looking forward to spending time skiing in Bariloche.After she arrives in Buenos Aires, she does indeed tango, having the time of her life.She gets a video of her instructor doing a tango with her.

She leaves Buenos Aires, and while waiting at the Mar del Plata train station, she is standing at the train station, and she watches two trains crash, and she unfortunately is hit by a piece of metal flying from one of the trains, which severely injures her leg.She is devastated, and now can't ski, or tango, and needs a cane to walk.

When she arrives back in the US, she files a lawsuit against the Argentine railway, claiming that they were negligent in the operation of the trains.The railway responds, and claims that they are not subject to the jurisdiction of California courts.

Using the five step process, please tell me how you expect that a court would rule in this case - only on the issue of jurisdiction.

Using the five step process, you will list

FACTS(Focus on relevant facts)

ISSUE(What is the primary issue to be decided)

RULE OF LAW(What is the current rule of law that exists in the area)

APPLICATION(How would the current rule of law be applied to the facts that exist in the case)

CONCLUSION(So, what is the likely ruling in the case.In this section, you might also look at other cases of the court to help you make your ruling)

Remember, a question like this will be decided before there is a finding of negligence.We have not studied negligence, and I am not asking about that.If the Argentine railway is not subject to the jurisdiction of California courts, there will be no trial about negligence.So, limit your answer only to the question of whether the railway will be subject to the jurisdiction of California courts.I am NOT asking you to answer with more than we have studied in class.Your boss left a little post-it that said "Look at Nicastro, and OBB v. Sachs (don't worry about FSIA).

Contents of my last two submit:

First time:

FACTS

A California client looks for a ticket online for a trip, Ferrocariles Argentinos, the Argentine railway who has Google ads that pop up anywhere in the world when someone enters "Argentine train trip",and it said"Special one month rail pass for US residents only - $299". She buys a ticket online after seeing it and advises her friend to purchase a ticket and her friend buys it. The railway does not have branches in California but have an advertising agency in Miami that manages the website. She was at a train station in Mar del Plata and sees two trains collide, a piece of metal from a train that injures her leg is struck by her. She can't skate or tango or use a stick. Then she files a lawsuit against the Argentine railway, claiming that they were negligent in the operation of the trains.

ISSUE

Whether the railway will be subject to the jurisdiction of California courts.

RULE OF LAW

Referring to section 395 of Californian Code of Civil Procedure, "If the action is for injury to person or personal property or for death from wrongful act or negligence, the superior court in either the county where the injury occurs or the injury causing death occurs or the county where the defendants, or some of them reside at the commencement of the action, is a proper court for the trial of the action." So, the superior court in the county has personal jurisdiction over a defendant if the plaintiff suffered harm in the county based on the defendant's actions.

APPLICATION

Based on the case facts, the train accident which did harm to the client took place in Buenos Aires, so the client suffered harm in Buenos Aires, the capital city of Argentina, instead of California.

CONCLUSION

Because the client suffered harm in Buenos Aires, a city in Argentina, the California courts have no personal jurisdiction over the Argentina railway company. So, the company is not subject to California courts jurisdiction as outlined under section 395 of Californian Code of Civil Procedure. Therefore, the court would rule in favor of Argentine railway.

Professor said: Section 395 of CCP addresses "venue", not jurisdiction.Think about Nicastro, minimum contacts and targeting.Redo, and resubmit.

Second time:

FACTS

A California client looks for a ticket online for a trip, Ferrocariles Argentinos, the Argentine railway who has Google ads that pop up anywhere in the world when someone enters "Argentine train trip",and it said"Special one month rail pass for US residents only - $299". She buys a ticket online after seeing it and advises her friend to purchase a ticket and her friend buys it. The railway does not have branches in California but have an advertising agency in Miami that manages the website. She was at a train station in Mar del Plata and sees two trains collide, a piece of metal from a train that injures her leg is struck by her. She can't skate or tango or use a stick. Then she files a lawsuit against the Argentine railway, claiming that they were negligent in the operation of the trains.

ISSUE

Whether the railway will be subject to the jurisdiction of California courts.

RULE OF LAW

The rules of law applicable to the facts and circumstances of the present case are Presumption of control: the determination of whether the advertising agency in Miami was under the direct control of the Argentine railway corporation. Referring to parent-subsidiary relation (If direct control is established a parent-subsidiary relation will be established between the Argentine advertising agency and the Argentine railway corporation), the Island of Palmas case in international law states that every nation has "exclusive competence regarding the settling of issues occurring on its territory". The present case involves determination of issues from which occurred in a foreign jurisdiction. The principle of foreign direct liability on the subsidiary of the Argentine company may be utilized to fix liability on the Argentine company. Determining where the subsidiary of the Argentine rail company belonging to. Then referring to these rules of law: The law of Torts related to negligence may be utilized for breach of a duty that could be assumed on the part of the Argentine Railway. The law of Torts related to mental anguish experienced by the California resident due to cutting short her trip and inability to walk without assistance may be used to claim compensation. The law of contract related to the specific terms of the contract that a customer enters when buying the rail pass. The railway company may then be sued for breach of contract in addition to the tort of negligence.

APPLICATION

The courts in California should consider the determination of the remoteness of damages and injury that occurred to the woman as a bystander and witness to the railway accident, also should solve the problem whether it is reasonably foreseeable that a railway accident may occur and a piece of shrapnel injures persons standing nearby.

CONCLUSION

The case involves fixing of liability on a foreign corporation through claiming damages from its subsidiary. The test of control may be used to fix liability and claim damages from the advertising agency of the Argentine railway that is situated in Miami. The woman may seek damages under torts and contracts.

Professor said: This way too complicated.I am only asking about jurisdiction.The Rules of Law should be "minimum contacts", "targeting" and "Nicastro".Nothing else.Try again.

I hope you can give me the answer referring to my professor's advice, you may not change FACTS and ISSUE. Thanks.