CIVIL PROCEDURE
I.
Levin
Introductory Material
A. 14th Amendment – provides constitutional right to due process
i. “reasonable steps” must be taken to guarantee  has
1. notice of the proceedings
2. opportunity to be heard and defend
ii. Fuentes v. Shevin
1. Holding: Ct. held b/c the FL and PA statutes offer no opportunity for the defendant
to be heard prior to the seizure of their goods they violated the ’s right to be heard
and thus contradict the central meaning of due process.
2. Facts: ’s stove and stereo were replevined when she defaulted after paying $400
on a $600 installment contract. FL statute provided to get the writ a party must file
a court action and file a security bind for double the amount to be replevined. Ct.
clerk then issues a writ for sheriff to seize property. Debtor could then recover
goods by posting bond for double the value. Under statute debtor was provided no
opportunity to challenge the issuance of the writ.  brought suit on grounds her 14th
amendment right to due process was being violated by the statute.
iii. Mitchell v. W.T. Grant Co. – Ct. held LA sequestration proceeding statute as valid b/c it
requires an issuance of a writ by a Judge from clearly specific facts by means of a
verified affidavit or petition. Furthermore an adversary hearing is immediately
available to the debtor
iv. North Georgia Finishing Inc. v. Di-Chem – Ct. held garnishment of a bank account
violates due process. A corporation deprived of their bank account suffers just as much
irreparable harm as a family man whose wages have been garnished.
II.
Getting the Defendant into Court
A.
PERSONAL JURISDICTION
i. Traditional Bases of Jurisdiction – Persons and Unincorporated Corporations
1. Pennoyer v. Neff
a. Holding: For an in personam action notice by publication is insufficient and
creates no obligation for a non-resident to appear. The non-resident must
receive notice by personal service while he is within the forum state.
b. Facts: Pennoyer purchased land through a deed from the sheriff after a he
recovered a judgment against Neff for legal costs due. Neff was a non-resident
of OR and was not personally served with process (was service by publication),
and thus did not appear for the hearing. Thus Pennoyer won by default.
- Case would have been different if Neff had officially owned the land (the
land patent was pending. Then State would have had jurisdiction over
Neff as a property owner)
2. Traditional Rule: For a court to obtain valid in personam jurisdiction over a
defendant the defendant must be served with process within the State the court is
sitting
3. Modifications of Pennoyer:
a. Domicile, residency and nationality in a jurisdiction are sufficient to confer in
personam jurisdiction even though service of process is made outside that
jurisdiction.
i.
Milliken v. Meyer – Ct. held domicile within a State is sufficient to bring
an absent defendant within the jurisdiction of that State. Cts. are
somewhat split as to whether long-term residency is sufficient
ii.
Blackmer v. United States – U.S. has jurisdiction over all U.S. citizens
living abroad to comply with subpoenas issued in response to federal
statutes
b. Appearance to defend upon the merits (general appearance) is enough to confer
in personam jurisdiction whether it existed previously or not.
c. Prior consent (express or implied) will confer in personam jurisdiction
d. Non-resident motorist statutes are constitutional, and confer in personam
jurisdiction
i.
Hess v. Pawloski – Ct. held longarm non-resident motorist statute does
not violate the due process clause b/c it is within the public interest.
e. Conduct of State regulated business is equivalent to consent of jurisdiction.
i.
Henry L. Doherty Co. v. Goodman – selling of corporate securities is
state regulated and thus Iowa courts have jurisdiction. Service on the
’s local agent, a salesman, was sufficient.
f. Ownership of real property in a state out of which the cause of action arises from
is enough to confer jurisdiction
g. State Longarm statutes are constitutional and can confer jurisdiction
h. Consent by bringing suit a counterclaim is enough to hold  has submitted to
jurisdiction by voluntarily submitting himself to the judicial processes of the
State. (Adam v. Saenger)
ii. Historical Development of the Minimum Contacts Test
1.
Evolution of the Rules
a. Originally incorporation in the forum state was the exclusive basis for
jurisdiction
b. This then changed so local business was allowed in a state by a non-resident
corporation as long as that corporation consented to being sued within the
state
c. This led to rule that by simply conducting business in a state a corporation
was giving its implied consent to be sued there
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d. This theory broke down as interstate commerce grew and states began to rely
on the presence of the corporation to confer jurisdiction. This led to the
development of the minimum contacts test.
2. International Shoe Co. v. Washington
a. Holding: Solicitation of orders for purchase of goods within a State and
presence of salesmen within the State are sufficient enough contact to confer
personal jurisdiction.
b. Facts: Int’l. Shoe was incorporated in DE, had its business HQ in Missouri,
and employed several sales people in WA to solicit business there. State sued
Int’l. Shoe to get is to contribute to the workers’ compensation fund of the
State, Int’l. Shoe refused asserting a lack of jurisdiction.
c. Rule: Due process requires  have “minimum contact” with the forum State,
and that the assertion of jurisdiction does not violate “traditional notions of
fair play and substantial justice”. Minimum contacts are a balance of interests
to weighed such as:
- quantity of contacts  has within forum State
- relatedness of contacts to lawsuit
- benefits obtained by  from the State
- estimate of inconveniences to the 
- corporations “systematic and continuous” contacts within the State
iii. Modern Elaboration of the Minimum Contacts Test
1. Injury as only Contact in Forum State is sufficient for jurisdiction
a. Gray v. American Radiator
i. Holding: A state can exercise in personam jurisdiction over a non-resident
defendant whose only contacts with the state occurred when a 3d
party shipped the product to the state and then injury occurred in
that state.
ii. Facts:  sued  to recover for damages resulting from injury caused by ’s
defective product.  challenged jurisdiction on the grounds it had
not purposefully shipped its product to IL, and that its economic
contacts with the state were insufficient.
1.
Ct. emphasized where non-resident engages in activities that can
be reasonably expected to directly or indirectly affect the
residents of another state, and to the extent that nonresident
receives benefits from the forum state that state is justified in
asserting personal jurisdiction over the non-resident.
iii. “Tortious act” longarm statutes: must commit some tortious act within the
state. It is not enough that the consequences
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of the negligent act arise within the forum
state.
iv. “Tort in whole or in part” statutes: jurisdiction can be asserted if any result
of the tortious act of the  is felt in the
forum state
2. Forseeability alone is not enough to justify jurisdiction
a. World-Wide Volkswagen v. Woodson
i. Holding: The forseeability that a product that is sold could possibly cause
injury in another state in which the manufacturer of that product
has no contact with other than the fact that their product entered
that state, is not sufficient contact to allow for an exercise of in
personam jurisdiction over that manufacturer.
ii. Facts: , NY residents purchased their car from  in NY, the next year
when moving to AZ they were hit by another car in OK causing a
fire w/ injuries resulting from a product defect in the car. Suit was
brought in OK state court.
1. Ct. is concerned with: - ruling the other way would result in
unlimited jurisdiction over product manufacturers, also w/ state
sovereignty.
2. Injected idea of control/purposefulness of contact into minimum
contacts test. Unless contacts are purposive it does not matter
about fairness/benefits to the .
a. Ct. was attempting to restore balance and equity to the
process since when evaluating minimum contacts judges
always seemed to favor the s.
3. Kulko v. Superior Ct. – Ct. held minimum contacts test only
applies to a tort pr commercial activity affecting state residents, not
to cases that arise from personal or domestic relations. These are
not based on interstate commerce and thus should be decided in the
’s domicile.
4. Keeton v. Hustler Magazine – Ct. held selling thousands of
magazines a month in the state is sufficient contact for Hustler, and
OH corporation to be subject to NH jurisdiction.
5. Franchise Contacts
a. Burger King v. Rudzewicz
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i. Holding: Ct. held provision of the franchise contract stating all disputes
would be subject to FL jurisdiction is not itself enough to establish
jurisdiction, however there were sufficient types of other contacts
to establish the necessary “minimum contacts” for an assertion of
jurisdiction.
ii. Facts: , MI residents, entered into a franchise agreement with BK, a
Florida corporation. BK instituted a diversity action
in FL Dist. Ct. and  challenged for lack of
jurisdiction. ’s established a substantial and
continuing relationship with BK’s Miami HQ, and
failed to demonstrate how jurisdiction in FL would
be “fundamentally unfair”.
6. If to confer jurisdiction is unreasonable then Ct. will not do so despite existence of
minimum contacts
a. Asahi Metal Industry Co. v. Superior Ct.
i.
Holding: Where the burden of asserting jurisdiction on the  outweighs any
interest of the , or forum state jurisdiction cannot be asserted
despite the fact  has met the minimum contacts test.
ii. Facts: Zurcher was injured by defective motorcycle tire and sued Taiwanese
tube manufacturer, Cheng Shin, who then impleaded Asahi. Main
claims were settled leaving only Taiwanese company’s indemnity
claim against Asahi. Asahi me contacts test b/c they sold their
products throughout the U.S., including CA.
7. A greater degree of contacts are required if cause of action arises outside forum
State
a. Helicopteros Nacionales de Colombia S.A. v. Hall
i.
Holding: A greater degree of “continuous and systematic” contacts are
required if the cause of action does not arise out of or relate to the
’s activities within the forum State.
ii. Facts:  is Colombian corporation w/ its principal place of business in Peru.
4 were killed when one of ’s helicopters crashed. ’s single trip to
TX for training, and acceptance of checks written from a TX bank
account do not meet the necessary standard for minimum contacts in
this case.
iv. In rem Jurisdiction and other Single-Factor Tests
1. Jurisdiction In Rem – state has jurisdiction affecting the interests of all persons
owning property when it has jurisdiction over that property (i.e. property within a
state, land, bank account, etc.) This does not mean the state has jurisdiction over
the owner – just the owner’s interest in that “thing”
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a. Tyler v. Judges of the Ct. of Registration – Ct. held an in rem proceeding may
be carried to judgment w/out personal service against the claimants, b/c
jurisdiction is secured by the court’s power over the res (property)
2. Jurisdiction Quasi In Rem – State can render a valid judgment affecting the interests
of a person on property when the state has jurisdiction over the property, even
though it may have no jurisdiction over the person. This often arises in  seeking
to enforce a pre-existing interest in property (i.e. and action to quiet a title), or
where the  is seeking to enforce a claim by applying the thing owned by the  to
satisfy the claim (i.e. a creditor’s bill)
3. Debtus Situs re: the foreign debtor – obligation of a debt clings to the debtor thus
jurisdiction over the debt can be asserted wherever the debtor is.
a. Harris v. Balk – Debtor is just as bound to pay his debt if sued by his debtor in a
foreign state as in the state where the debt was contracted. A 3d party garnishee
can attach the debt as long as he gives the creditor notice.
4. Reconciliation – Problems with classification types of jurisdiction
a. Shaffer v. Heitner
i. Holding: The minimum contacts test set forth in Intl. Shoe governs in rem
actions and quasi in rem actions as well as in personam actions. A balancing
test, as opposed to a flat, statutory rule must be used to assert jurisdiction over
property
ii. Facts: In shareholder’s derivative suit  seized 28 shares of ’s stock. Fact
that by DE statute all stock of a company incorporated in DE is deemed to be
“in” DE, in rem jurisdiction is granted in DE. DE statute automatically assert
jurisdiction in this case. S. Ct. reversed holding minimum contacts in correct
test
b. Divorce jurisdiction – divorces are classifies as in rem proceedings and property
is to be deemed located wherever husband and wife are domiciled.
i. Burnham v. Superior Ct. – Service of process is valid against  husband
who when visiting wife and child in CA on business, was served w/ papers.
Transient jurisdiction is held to be constitutional when it passes the
minimum contacts and reasonableness tests. Int’l. Shoe test is correct again
ii. Milliken (’s domicile as a basis of jurisdiction) vs. International Shoe
(minimum contacts test) – Milliken is the traditional approach however the
dominant theory is Int’l. Shoe.
c. Agreements concerning jurisdiction in advance of litigation
- Ct. is indulgent of forum-selecting clauses
i. M/S Bremen v. Zapata Off-Shore Co. – Ct. held no jurisdiction in FL b/c of
forum-selecting clause all litigation to be in High Ct. in London. To rule the
opposite would have had an adverse effect on American business and
industry.
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ii. Carnival Cruise Lines Inc. v. Shute – Ct. enforced forum-selecting clause
between injured  and defendant corporation requiring litigation to be in
FL. Ct. reasoned passengers who purchase tickets w/ this clause enjoy a
fare reduction compared to what prices would be with added expenses of
corporation having to carry on distant litigation.
v. Personal Jurisdiction in Federal Court
1. There is no federal law which speaks to service of process thus the Ct. can look to
the service of process laws from the state.
a. DeJames v. Magnificence Carriers –  brought suit in admiralty jurisdiction
for injuries suffered while working on board the Magnificence. Injuries resulted
from work done on the ship by Hitachi in Japan. The Ct. held b/c there is no
federal service of process law NJ service law is applicable. B/c the minimum
contacts of the  w/ NJ were not sufficient to invoke service under the NJ
longarm statute service is invalid and there is no jurisdiction.
vi. Challenging Personal Jurisdiction
General Appearance -  appears in Ct. to defend merits of case
Special Appearance -  appears in Ct. only to protest jurisdiction of the Ct.
1. Generally – jurisdiction over the person of the  and over the subject matter of the
suit are mandatory so that any action taken w/out jurisdiction are totally void and
thus subject to collateral attack (varies slightly federally)
a. State Ct. – lack of jurisdiction can be waived at any time any time in the course
of an action; there is no “wavier” of objection to lack of personal or subject
matter jurisdiction
b. Federal Ct. – FRCP hold objection to lack of personal jurisdiction is deemed
waived if it is not raised timely prior to trial. However lack of subject matter
jurisdiction is never waived.
i. Data Disk v. Systems Technology Inc. – where  makes a pre-trial motion to
dismiss for lack of personal jurisdiction  must make a prima facie showing
of jurisdictional facts through submitted materials in order to avoid ’s
motion. If the  makes their showing and it raises questions w/ regard to
jurisdiction the district court can hold a preliminary hearing to resolve the
contested jurisdictional claims. See also Orange Theater
2. Effect of Judgments Lacking Jurisdiction
a. Default Judgments – when no appearance by  to either contest jurisdiction or
defend upon the merits  may attack the judgment of the court collaterally, in
another separate proceeding.
b. Judgments Upon the Merits – when  has appeared to either contest jurisdiction
or defend upon the merits, and judgment has been finalized by appeal the lack
of original jurisdiction of the trial court cannot be attacked collaterally and must
be given full faith and credit in all other state courts.
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i.
III.
Baldwin v. Iowa State Traveling Men’s Assn. -  sued won judgment
against  in MO federal ct.  contested jurisdiction but was denied and lost.
 then brought suit in IA federal court to enforce the judgment.  asserted
lack of jurisdiction and  won.  then brought case to U.S. S. Ct. which
upheld the validity of the MO judgment. S. Ct. reiterated the rule:  who
makes no appearance
personal jurisdiction, however even if a special appearance is made  cannot
later object.
NOTICE AND SERVICE OF PROCESS
a. Requirement of Reasonable Notice – due process requires that in every suit a
“reasonable method of notification given the individual circumstances” must be supplied.
i. Reasonable method is defined as “that method which, given the circumstances,
resources, nature of the court and the pending suit, is most likely to reach the , or
insure that his side of the case does not go unpresented”
ii. Constitutional Standards – as defined by the 14th amendment and case law
interpretations of it are the ultimate standards and must be followed by all cts.
1. Mullane v. Central Hanover Bank and Trust – Mullane was appointed as
guardian for 113 holders of a common trust for which  was trustee.  was
petitioning Ct. for settlement of the trust and in accordance with state law
published notice in the newspaper of the trust and all its beneficiaries. Mullane
objected on the ground this notice was not adequate under the 14th amendment,
and S. Ct. agreed in so far as notifying the beneficiaries whose names and
addresses were known
2. S. Ct. allowed bank to cut corners for beneficiaries whose names and addresses
were unknown b/c hiring a detective to find out all the info is unfeasible, also the
80% who know about it probably have similar claims as the unrepresented 20%.
3. Greene v. Lindsay – posting on place of residence is not adequate to satisfy the
minimum standards of due process, in order to be allowable this must be
supplemented by notice through the mail as well
4. Covey v. Town of Somers – if notice is sent to someone who is known to be
insane, illiterate, etc, it is not valid.
5. Mennonite Bd. of Admissions v. Adams – when addresses are a matter of public
record and thus easily ascertainable constructive notice must be supplemented
with personal service or service through the mail.
b. Mechanics of Giving Notice
i. Three Requirements for a Judgment to be Valid:
1. Parties must have had adequate notice (provided by service of process)
2. Ct. must have had territorial jurisdiction over the parties
3. Ct. must have had subject matter jurisdiction over the parties
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ii. Service of Process – summons orders  to appear at a risk of losing by default. Must
be accompanied by copy of the complaint and info re: the statute of limitations.
Governed by FRCP 4.
1. Issuance and Service – Issued by Ct clerk. Some states require service by sheriff
others allow it by any non-party over the age of 18. In federal ct. U.S. Marshall
serves unless Ct. designates another to do so.
2. Personal Service – individual  or authorized agent of  are physically given the
papers
3. Substituted Service:
FRCP (4) – service can be made at ’s usual place of abode with a person of
suitable age and discretion residing there. Any other means authorized by the state
in which the federal ct. is located is also allowed.
State Law – Varies, normally best available means must be used, these include
mailing w/ acknowledgement of receipt, or publication.
a. Rovinski v. Rowe – Ct. allows service to be made at ’s legal residence by his
mother, even though  has not lived there for 2 years. Ct. held rule should be
liberally construed when logical and bases its decision on the policy service
should be freely allowed.
b. S/S Hellenic Challenger v. Ins. Co. – U.S. Marshall deposited papers w/ claims
adjuster at ’s office even though adjuster is not person expressly authorized by
 to accept service (see rule 4(h)). Ct. interpreted rule broadly and held service
was valid b/c the rules are designed for a person in a corporation to receive
service who knows what to do about it and this adjuster did. Ct. looks past strict
construction to purpose of the rule, that is, to give the company proper notice.
c. MSFA v. Chaves -  served , but that service did not conform to the new
FRCP 4, the old FRCP 4, of the state of MD rule. There is not serious doubt the
 received notice however the Ct. refuses to acknowledge it. This is an area
where Cts. demand strict adherence and do not allow for harmless mistakes.
4. Service by Fraud, Force, or Involuntary Entry into the Forum – can be quashed by
. However, if  voluntarily enters forum without fraud by , the perpetration of a
deception by  in order to induce  to come out of hiding will usually not
invalidate the service (i.e. yelling “Fire!)
a. Wyman v. Newhouse -  sued  to recover money and lied to  that her mother
was dying and that she needed to return to Ireland, would he please come see
her in FL before he left. As soon as  stepped off plane he was served.  did
not appear in Ct. and judgment was entered against him. A sister state’s ct.
refused to enforce the judgment of the other state against the  b/c it was
procured by fraudulent service.
IV.
FEDERAL SUBJECT MATTER JURISDICITION
a. Federal Question Jurisdiction
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28 USC §1331(a): “The district ct. shall have original jurisdiction of all civil actions
arising under the constitution, laws or treaties of the United States…” (and this must be
determined from the complaint alone)
1. Federal Question arising from an anticipated defense does not provide federal
question jurisdiction
i. Louisville & Nashville RR Co. v. Mottley – Mottley sued RR after they cancelled
his “free ride for a lifetime” ticket. In order to gain federal jurisdiction Mottley
stated in his complaint RR would assert a law recently passed by Congress as a
defense. U.S. S. Ct. held there was no federal jurisdiction to hear the case b/c in
the absence of diversity of citizenship the ’s original cause of action as stated in
the complaint must arise from federal law.
a. The Ct. wants to be able to tell from the moment the case is filed whether the
case has federal jurisdiction. This cuts back on litigation and avoids
speculation.
b. “Well-pleaded complaint rule” – if  writes a well-pleaded complaint that
outlines federal law as its cause of action then the case is subject to federal
jurisdiction.
c. Skelly Oil v. Phillips Petroleum Co. -  brought suit in federal court under the
Declaratory Judgment act for a declaration certain contracts had not been
terminated. If  had simply sued to enforce the contract there would have
been no federal jurisdiction. Ct. denied jurisdiction holding that to sanction
suits for declaratory relief simply b/c artful pleading anticipates a defense
based on federal law which is not an allowable basis for federal jurisdiction.
d. Smith v. Kansas City Title & Trust – Smith sued to enjoin trust company from
investing in certain federal bonds on the ground that an act of Congress
authorizing their issuance was unconstitutional .  claimed there was no
federal jurisdiction b/c state law would not allow the issuance and thus the
cause of action was state created. The S.Ct. disagreed and held where it
appears from the bill … of the that the right to relief depends upon the
construction … of the constitution …, and that federal claim is not merely
colorable, and rests upon a reasonable jurisdiction, the D.Ct. has jurisdiction.
e. Shoshone Mining v. Rutter – federal statute held that local customs/ rules
provide for miners’ right to possession so long as they do not conflict with
federal laws. Ct. held issues such as these relate primarily to local
customs/rules first and thus do not necessarily arise under federal law.
f. Shoshone and Smith are opposites of one another. Smith arose from a state
created cause of action which turned on federal law while Shoshone arose
from a federally created cause of action which turned on state law.
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g. Moore v. Chespaeake & Ohio -  brought suit under KY statute which
provided  cannot be held responsible for any contributory negligence where
the injury results from a violation of any federal safety statute. Cause of
action was state created but turned on whether federal statute had been
violated. S. Ct. held that in the absence of diversity of citizenship there is no
federal jurisdiction for this specific situation only.
2. “Arising under” test
i. Merrell Dow Pharmaceuticals v. Thompson -  brought 5 count complaint in
state ct. against  for injuries resulting from drug used during pregnancy
manufactured by . Count 5 asserted  breached the FDCA a federal statute. 
filed for removal to federal court on the ground the complaint was founded on a
claim “arising under” a federal statute. S. Ct. held the incorporation of a federal
standard into a private state law action, where Congress has specifically intended
there be no federal private action, does not make the action “arising under”
federal law for purposes of federal jurisdiction.
b. Diversity Jurisdiction
28 USC §1332 (Generally): federal judicial power extends to controversies where 
and  are citizens of different states and the amount in controversy exceeds to sum of
$75,000.
- Corporations are usually treated as citizens in the state in which they are
incorporated, or at the principal place of business
(principal place of business can be either (1) the locus of corporate
decision making, (2) the location of a corporation’s production or service
activities, or (3) a hybrid of 1 and 2.)
- Citizenship of individuals is established by the same criteria as domicile.
- In a suit against 2  both  must have diversity of citizenship from the .
1. Domicile is not changed by marriage alone; Mas v. Perry – Jean Mas, a citizen of
France, and Judy Mas, a citizen of MI were married at Judy’s home in MI. They then
returned to their studies at LSU w/ no intent to return to MI. Mas’ brought suit for
damages against  and won,  appealed claiming ’s were residents and thus citizens
of LA, and thus there was no basis for federal jurisdiction. D. Ct. denied holding
until Judy changes here domicile it remains in MI and since husband is French there
no basis for her domicile changing to his. Furthermore both are in LA only as
students and lack the requisite intention to remain in LA.
c. Jurisdictional Amount
1. Amount in controversy must exceed $75,000 (§1332):
i. Generally, In most cases if the prayer for relief in the complaint is above $75,000
and not in bad faith jurisdiction will be allowed even if the  recovers less than
the required amount.
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ii. However if an affirmative showing of bad faith is proven this is enough to
disallow federal jurisdiction. If the complaint is “artfully pleaded” or “inflated”
the  can be assessed for costs if his recovery is less than the jurisdictional
amount.
iii. Tongook v. Shipton – Appellate Ct. held that despite the fact the  had a good
faith belief the amount in controversy exceeded the jurisdictional requirement, if
there is no legal basis for  to support a claim in excess of the jurisdictional
amount then no federal diversity jurisdiction.
a. This clashes with holding of McNulty, that once jurisdictional amount is
established it cannot be destroyed by subsequent events. The reason for the
lenient rule here is in large tort actions ’s make a “gamble”
iv. §1359 disallows jurisdiction where it has been improperly made or collusively
joined. Kraemer v. Caribbean Mills,  assigned company to a TX attny. for
purposes of establishing federal diversity.
v. Diversity of nominal parties shall be disregarded (Pete Rose Case) Also, MLB is
a unincorporated company so its citizenship is that of its members.
vi. Aggregation of claims to meet the jurisdictional amount is allowed when: (1) a
single  seeks to aggregate one or more of his own claims against a single , and
(2) where 2 or more ’s unite to enforce a single title/right in which they have a
common/undivided interest.
vii. In assessing intangible amounts courts can take either the ’s viewpoint or the
’s viewpoint. Although ’s viewpoint typically results in more certainty  was
able to prove by means of an unchallenged affidavit, that the judgment prayed for
would exceed the jurisdictional amount. McCarty v. Amoco Pipeline
c. Federal and Non-Federal Claims in Combination
General: federal courts can hear nonfederal and non-diverse questions when the
determination of such is necessary for the complete adjudication of a suit legitimately
before the federal court. Formerly known as pendant an ancillary these doctrines were
collectively named “supplemental” in 1990.
Pendant Jurisdiction: based on logical notion consideration of nonfederal claims is
necessary for the complete disposition of a case before federal courts; federal jurisdiction
is said to extend to the whole litigation, not just isolated federal parts of it.
Ancillary Jurisdiction: based on notion federal courts acquire the jurisdiction of a case in
its entirety and hence may possess jurisdiction over matters such as cross-claims, 3d party
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claims, etc., which they would otherwise not have jurisdiction over if presented
independently.
Supplemental Jurisdiction: §1367 grants supplemental jurisdiction over all claims that
“form part of the same case or controversy under Article III” and explicitly authorizes
jurisdiction over claims that involve “joinder or intervention of additional parties”.
However, when jurisdiction is based on diversity there is no supplemental jurisdiction
over claims by s for persons made parties under FRCP 14, 19, 20, or 24
1. “Common nucleus of operative fact” test
i. United Mine Workers of America v. Gibbs – Gibbs sued  for interference w/ his
mining contract and a separate haulage contract. Gibbs’ claims were based on
both federal and state law. After a jury verdict for  on both claims the D. Ct. set
aside the damages under the haulage contracts and held that the damages under
the employment contract were sustainable only as a state law claim. (Fed. claim
failed, fed. ct. ruled only on state claim).  appealed, and S. Ct. upheld the
decision.
a. Rule - federal courts can hear state claims when they are derived from a
common nucleus of operative fact that gives rise to a substantial federal claim
b. Pendant (supplemental) jurisdiction is discretionary to the federal ct., and
requires consideration of fairness, judicial economy, convenience, and comity
ii. Aldinger v. Howard -  sought to join a state county as a  in an action under the
Civil Rights Act, but at the time counties were not subject to the Act, so  sued
under state law and then argued for pendant jurisdiction. S. Ct. held Congress had
specified the parties that could be involved in such actions (incl. pendant
jurisdiction), so ’s state claim could not be heard in federal ct.
a. Distinguishable from Gibbs in 2 ways:
1. In Gibbs Congress is silent as to what  can be called to court re:
nonfederal claims , whereas in Aldinger a statute specified it.
2. If a 3d party  re: a state claim arises from the same nucleus of operative
fact as a pending federal claim the 3d pty.  can be enjoined in federal
ct.
2. Asserting claims against 3d pty ’s in federal jurisdiction based on diversity
i. Owen Equip. & Elec. v. Kroger – Kroger’s widow, and IA resident brought suit
against OPPD based on diversity of citizenship, for negligence. OPPD brought 3d
pty. complaint against Owen Equip. (a NE corporation). Kroger amended
complaint by adding Owen as a . Summary Judgment was granted for OPPD
and trial went on between  and . On 3d day it was discovered  had its
principal place of business in IA and  moved to dismiss, this was denied and a
jury found for . Ct. of appeals affirmed but S. Ct. then reversed holding:
In an action where federal jurisdiction is based on diversity a  cannot
assert a claim against a 3d pty.  when there is no independent basis for
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federal jurisdiction over that claim. (The case should have been dismissed
to state ct.)
d. Removal
Generally: exclusive federal jurisdiction is rare, most cases brought in federal court can
also be brought in state ct. If this happens  has option of remaining in st. ct. or
removing the case to federal ct.
Removal of Federal Question Cases: §1441(b) when cause of action is based on a
substantial federal question  can remove the action to federal district ct. w/out regard
to the citizenship of the parties.
Removal of Diversity Cases: §1441(b) removable to corresponding federal district only
if none of the parties properly joined and served as s are a citizen of the state in which
the  has brought the action. This is b/c purpose of diversity is to prevent out of state
s from being subject to prejudice, thus if  is citizen of that state  is “protected”.
1. Bright v. Bechtel Petroleum -  brought action against his employer in CA state ct.
alleging his employer had paid his then what was required by his contracts. What
really happened was that  had filed an incorrect W-4 and fed. govt. and CA govt.
had instructed employer to withhold the money from ’s wages.  employer
petitioned for removal to federal ct. b/c the case involved compliance w/ federal tax
laws.  requested remand through desire to litigate only st. ct. issue. Dist. Ct.
denied this and imposed attnys. fees and sanctions on  for bringing a frivolous
suit.
i. “Artful pleading doctrine” – federal claim cannot be disguised as a state claim
in the complaint.
2. §1441(c) “whenever a separate and distinct claim…within federal question
jurisdiction as conferred by §1331 is joined w/ one or more otherwise nonremovable state law claims…, the entire case may be removed and the district court
may determine all issues therein, or remand all matter in which st. law
predominates” (not available for diversity cases)
e. Attacks on Subject Matter Jurisdiction
Direct Attack: lack of subject matter jurisdiction can be asserted at any time by an
interested party in federal ct. It can be made in the answer, by notice prior to final
judgment, or on appeal.
Capron v. Van Noorden -  sued  in federal ct. for trespass and damage. In
complaint  alleged  was a citizen of NC but failed to allege his own citizenship. 
won.  appeals claiming lack of jurisdiction. Ct. held diversity of citizenship must be
shown affirmatively in the pleadings, thus judgment is void.
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Collateral Attack: results when a challenge is made in a subsequent trial level action to the
jurisdictional basis of the prior action. Usually more successful against a prior default
judgment than prior contested action (b/c of full faith and credit)
1. FRCP 12(h)(1) defense of lack of jurisdiction over person, improper venue,
insufficiency of service or service of process is waived if not made by motion under
rule 12 or included in a pleading.
2. FRCP 12(h)(3) whenever it appears by suggestion of the parties or otherwise that the
ct. lacks jurisdiction over the subject matter of the case, the ct. shall dismiss the action.
3. Lack of jurisdiction over person is treated differently than lack of jurisdiction over
subject matter but are treated with the same underlying logic. Levity is allowed w/
lack of subj. matter jurisdiction so if the ct. notices it the case can be dismissed at any
time. Policy of finality (res judicata) weighs heavier than the policy of uncovering
jurisdictional defects in a case that has been fully adjudicated.
V.
VENUE AND FORUM NON CONVENIENS
Venue vs. Jurisdiction: Jurisdiction means the inherent power of a court to hear the case
whereas venue refers to the specific city, county, or district ct. among a set of cts. with
jurisdiction that may hear and decide a case. Doctrine of venue is a set of rules which are
technically applied to isolate one particular ct. to bring the action. (§1391 applies)
Comparative Considerations for some state venue statutes:
1. Where the subject action or part thereof is situated
2. Where the cause of action or part thereof accrued
3. Where some fact is present or happened
4. Where  resides
5. Where  is doing business
6. Where  has office, agent, representative, etc.
7. Where  resides
8. Where  is doing business
9. Where  may be found (CL doctrine, really serves no modern purpose)
10. Where  may be summoned or served (same as above)
11. In county designated in ’s complaint (really gives  unfair advantage)
12. In any county
13. Where seat of government is locates (usually for actions against govt. and its
agencies, etc.)
1. Determination of venue in federal actions
i. Bates v. C&S Adjustors – Bates rec’d collection notice from  in NY and filed action
in NY for ’s violation of the FDCPA. Bates incurred the debt in PA, and the
creditor, who does no business in NY mailed notice to Bates in PA. The mail was
forwarded to Bates in NY.  moved to dismiss for improper venue and ct. granted.
Was reversed on appeal. Applying §1391(b)(2) “where jurisdiction is not founded
solely on diversity of citizenship”…case may be brought in “judicial district where a
15
substantial part of the events or omissions giving rise to the claim occurred”. Receipt
of letter by Bates in NY is substantial event thus proper venue is NY.
ii. §1391(a) refers to cases based solely on diversity of citizenship
§1391(b) refers to cases not based solely on diversity
iii. Hypotheticals – Cld. ’s have objected to venue?:
a. Cresswell v. Disneyland -  brought suit in PA for injuries suffered at
Disneyworld, §1391(a) applied b/c it is a diversity case, venue is not proper
b/c  does not reside in PA, accident did not occur in PA, and  is not subject
to personal jurisdiction in PA. Thus proper venue would be appropriate
judicial district in FL.
b. Helicopteros Case – 1391(a) governs, (1) does not apply b/c ’s do not reside
in the same state, (2) does not apply b/c there were insufficient contacts w/ the
forum state, (3) applies b/c one  could be served, and there is no other place
where suit can be brought, thus venue was proper.
c. Burger King Case - §1391(a) applies, MI would be proper b/c for (1), (3) ’s
reside and are subject to service in MI, and events leading to suit happened in
MI. Thus venue in FL is improper.
2. Federal Transfer of Venue - §1404(a) provides for transfer of a civil action to any other
district or division, for the convenience of parties and witnesses, in the interest of justice,
where the suit might have been brought originally.
i.
Hoffman v. Blaski – Blaski (IL) sued Hoffman (TX) for patent infringement. 
brought action in TX,  asked for transfer to IL Ct. in the “interests of justice”. 
objected that b/c there was a federal question involved the only proper venue was TX,
the state where the cause of action occurred, and where the  resided, and that by the
plain words of §1404a suit could not be in IL b/c  could not have brought suit there
originally. The S.Ct. agreed.
a. Note: to prevent forum-shopping the S.Ct. has ruled that in federal transfer of
venue cases the substantive law that is applied in the transferee ct. must be the
same that would have been applied in the transferor ct.
b. §1406(a) permits a D.Ct. to dismiss or transfer a case that has been brought in
the wrong venue, to a venue where the case could have been properly brought.
This rule was devised so that if a mistake is made and the interest of justice
requires it, the suit need not be dismissed but can be transferred so the  is not
penalized.
c. §1407 provides for the temporary transfer, for consolidation of pretrial
proceedings, of multi-district complex cases, such as large antitrust actions,
when the cases involve common issues of fact and law and it is in the interest
of justice and convenience of the witnesses and parties to do so.
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3. Forum Non Conveniens – if a ct. has proper jurisdiction and venue to hear a case they
still retain the power to refuse to hear the case if, in the opinion of the court, justice
would be better served if it were to be tried in another venue.
i. Gulf Oil v. Gilbert – elucidates a balancing test, “ordinarily there is a strong
presumption in favor of the ’s choice of forum which may be disturbed only when the
private interests and public interests clearly point toward litigation in an alternative
forum.
Private Interest factors: interests of the litigants, such as availability of processes
and witness and other things that make litigating inconvenient and expensive. Must
be strongly burdensome to  to the point it inhibits ’s ability to a fair trial to
outweigh the ’s choice of forum.
Public Interest factors: administrative factors for the ct., local interests re: litigating
the trial at home rather than far away, difficulties w/ Cts. determining what laws to
apply, etc.
ii. Piper Aircraft v. Reyno – Aircraft manufactured by Piper (OH corp.) crashed in
Scotland killing the pilot and 5 passengers. Reyno filed wrongful death actions in CA
against , and was appointed as administratix of decedents’ estates. Decedents’
survivors filed a separate action in England against the British owner and operator of
the aircraft. Reyno admits she filed in CA for purpose of taking advantage of American
strict liability law which is not recognized under Scottish law. The case was removed
to a CA district ct. and then transferred to a PA district ct., where  moved t dismiss on
grounds of forum non conveniens. Motion was granted but then reversed b/c the
substantive law that would be applied in the convenient forum was less favorable to the
 than the present forum. The S. Ct. held that this possibility of the application of
unfavorable law does not bar dismissal on forum non conveniens and that the district
court did not abuse its discretion in dismissing the case.
a. Unfavorable Law – Possibility of an unfavorable change in substantive law
should be given conclusive or even substantial weight in a forum non conveniens
decision, however if the remedy provided by the alternative forum is so clearly
inadequate or unsatisfactory that it is no remedy at all then the ct. may conclude
that dismissal would not be in the interests of justice.
b. Abuse of Discretion – the forum non conveniens determination is at the sound
discretion of the trial ct. and may be reversed only when the is a clear abuse of
discretion.
VI.
THE ERIE DOCTRINE
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A. Federal vs. State Law in Diversity Cases
Goal of choice of law rules: prevent forum-shopping by either of the parties to the suit b/c
this contradicts the underlying rule that procedure should not be determinative of outcome
1. Historical Background – Swift v. Tyson
a. §1652 states “The laws of the U.S., except where the constitution or treaties of the
U.S., or Acts of Congress otherwise provide, shall be regarded as rules of decision in
civil actions in the courts of the U.S.”
b. The S.Ct. interpreted this statute narrowly holding state rules of decision had to be
applied in federal cts. only when they were in the form of statutes, thus state
decisional law did not have to be applied in federal cts.
c. Shortcomings w/ this interpretation: a  then had a choice between 2 bodies of
substantive law, one state and one federal, which were often directly the opposite.
Thus a ’s choice of Ct. could pretty much guarantee the outcome of the case
2. The Erie Doctrine (Swift overruled)
“While federal cts. are free to apply their own rules of procedure any issue of substantive
law (other than a federal question) must be determined according to the laws of the state
in which the D.Ct. is located.”
a. Erie RR Co. v. Tompkins -  (PA) was waking along RR Co.’s (NY) right-of-way
when he was struck by a train and injured.  sued in a diversity suit in NY D.Ct. 
argued general federal common law should apply while  argued state common law
should apply, Applying Swift ct. used general federal common law and found for .
 appealed but appellate ct. affirmed. U.S. S.Ct. the reversed holding, where a
federal ct. has diversity jurisdiction it must apply the applicable state substantive law
to resolve the merits of the case.
i. Persistence of state cts. in following their own decision led to no uniform general
law. The vast differences between the state and “general” law encouraged forum
shopping by s
ii. Ct. pointed to the fact there is no federal common law b/c neither Congress nor
the federal cts. have the power to declare substantive rules of common law in a
state.
iii. Hinderlander v. La Plata River – in a property dispute over waters running
between CO and NM Ct. chose to apply federal common law which was different
from the substantive law of each state. This is distinguishable from Erie b/c it
dealt w/ an issue involving U.S. and state sovereignty, and not merely property or
tort issues.
3. The Outcome-Determinative Test (Erie Doc. is refined)
“ A rule of law is substantive within the Erie mandate if it has a substantial effect on the
eventual outcome of the case”
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a. Guaranty Trust Co. v. York – York sued Trust Co under federal diversity
jurisdiction, for failure to protect their interests in a trust.  moved for SJ on the
grounds state statute of limitations should control the action and that statute had run.
 argued statutes of limitations are a procedural issue and thus governed by federal
law. Trial ct. granted SJ for , appellate ct. reversed, and S. CT. held, where
adoption of a federal procedural rule in a federal court will lead to a substantially
different outcome than if the case had been brought in state ct., the state procedural
rule should be followed.
i. question for ct. was not whether the statute of limitations is an issue of procedure
but rather whether the statute involves a matter of substance in that the outcome
of the suit is significantly affected by the federal cts. disregard for the state law.
ii. under the outcome determinative test of York federal cts. have been required to
follow state law in quasi-procedural area such as sol, effect of res judicata,
determination of date of commencement of a lawsuit, sufficiency if minimal
jurisdictional contacts, burden of proof, etc.
iii. Cohen v. Beneficial Indus. Loan Corp. – held federal ct. must apply a NJ rule
requiring a  in a shareholder suit to post a bond even though FRCP 23 which
governs these cases does not require it. Ct. was applying a policy of narrow
interpretation of federal rules to avoid a collision w/ state “substantive” law on
that issue.
4. An outcome determinative state rule cannot override a parties’ essential constitutional
rights. (Refining the York test)
“The outcome determinative test is not binding if application of the state law would
deprive a party of a strongly protected federal right”
a. Byrd v. Blue Ridge Rural Elec. - , employed by , was injured on the job. In a
diversity action  claimed ’s sole recourse was through a workers’ comp. state law
which would have decided the case on the pleadings alone, without a jury.  argued
he was entitled to a jury trial, and the trial ct. agreed. Appellate ct. reversed, the S.Ct.
held state procedural rules cannot be applied if they will override an essential federal
right.
i. This is a separate test that is intended to augment the outcome determinative test
of York.
ii. Trial by jury is an essential characteristic of the federal ct. system, and thus when
balanced strong federal policy outweighs the states interest in furthering its rule.
Also, it is not clear that a different outcome would have resulted if state law had
been followed.
iii. This “balancing of interests” test has been rarely applied outside the realm of the
judge/jury. Many recent decisions examine whether state or federal longarm
statutes should be followed in order to obtain jurisdiction over foreign
corporations. The majority view is relevant state rules should be followed b/c
there is no separate federal longarm power in diversity action.
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iv. State arbitration laws which allow arbitration to end at any time and the case to go
to ct. substantially effect the outcome of the case so state law should be followed
even though it contradicts federal arbitration laws. (Bernhardt v. Polygraphic)
5. Federal rules must be followed when they do not effect a choice of forum.
a. Hanna v. Plumer – In a diversity action service of process was made against  by
leaving it at his place of residence w/ his wife. While allowable under FRCP, Mass.
law requires service be made upon  personally.  moved for dismissal on the grounds
that state law was controlling and that the statute of limitations had run so  could no
longer adhere w/ Mass. service requirements. Lower cts. found for  but S.Ct. reversed
holding service of process must be governed by the federal rules.
i. FRCP are enacted by Congress with an advisory bd. by the means of a
constitutional provision (and Rules Enabling Act §2071, 2072), to hold these rules
cease to function when they alter state law would be to ignore this federal power.
ii. This does not conflict w/ the York test b/c ordinarily how service is made on a  is
not outcome determinative, nor is it relevant in the choice of forum a the outset of a
case – it just happens to have an effect at the point in this case.
iii. Since Hanna it has never been decided that any of the FRCP are invalid
iv. Hanna accomplished 2 things:
- created a safe haven that all rules which regulate procedure under
the Rules Enabling Act govern over state law (even a rule which is
mostly substantive but partly procedural falls within this category)
- clarifies state law application by construing the Rules of Decision
act as applying to re-defined outcome determinative cases only
§2071 – gives S. Ct. (and other cts.) the power to proscribe rules which can then be
modified or abrogated by judicial conference. This power originates in the N&P cl.
of the constitution.
§2072 – such rules shall not enlarge/abridge/modify any substantive right. All laws
in conflict w/ these rules will be invalid after the rules take effect. As long as the
rule has a procedural component it will be enforceable.
6. Federal Rules govern a change of venue in a diversity suit
a. Stewart Org. v. Ricoh Corp. -  sued  in a diversity suit in AL, alleging breach of
contract. The contract contained a clause specifying venue only in Manhattan. 
brought motion for a change of venue,  asserted state law which disfavors venue
selecting clauses should be applied,  argues the federal rules govern. Dist. Ct. applied
state law and the S.Ct. reversed holding in a diversity suit federal rules should apply to
change of venue.
i. When sitting in diversity federal rules re: venue should apply as long as enacted
w/in limits of constitutional authority
ii. §1404(a) governs venue and is w/in constitutional authority as explained in Hanna.
7. Allowing state law to be applied when there is no “direct” clash w/ federal law
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a. Gasperini v. Ctr. For Humanities – under NY law appellate cts. are allowed to review
the size of jury verdicts and grant new trials when the award deviates substantially from
what is typical compensation in the state. The 7th amendment, which governs
proceedings in federal ct. holds no fact tried by a jury can be re-examined in any U.S.
ct. S. Ct. held the NY law can be upheld as long as it is the trial judge that reviews the
verdict rather than the appellate judge, where appellate review is limited to abuse of
discretion.
B. Problem of Ascertaining State Law
General Rule: Sometimes it can be difficult for a federal court to ascertain exactly what the
state law is on a specific issue. The federal court must apply the law of the state as either
(1) declared by statute and interpreted by the highest ct. of the state, or (2) as judicially
declared by the highest ct. of the state.
(When decisions are old or nonexistent the federal ct. may turn to lower state ct.
decisions or, as a last result, try to declare the law as the highest ct. in the state would
if presented with the case)
1. Klaxon Co. v. Stentor Elec. Mfg. – In order to promote uniform application of
substantive law within a state federal cts. must apply the conflict of laws rules of the
states in which they sit. This discourages forum shopping.
2. Van Dusen v. Barrack – S. Ct. held that in federal transfer of venue cases the
substantive law that is applied in the transferee ct, must be the same that would have
been applied in the transferor ct. This ensure that change of venue is only a change of
courtroom rather than a change of law and possibly of outcome. (Affirmed by Ferens,
regardless of outcome)
3. Mason v. Emery Wheel Works – Mason sued  in a federal district ct. based on
diversity alleging a wheel negligently manufactured by  caused ’s injuries. 
manufacturer the wheel in RI but then sent it to NJ for modification by another
corporation when it was eventually purchased by ’s employer, thus there is not privity
of K between  and .  moved to dismiss under FRCP 41(b) and it was granted. The
 appeals on the ground that the state law applied, although not specifically overruled
has undergone changes, and that under the modern trend the  would be entitled to
relief. The S.Ct. agreed and remanded the case. The fact that this new case was a
modern trend and departure from the old case was noted by the MS S.Ct. in an
intermediate decision.
VII.
PLEADINGS
Traditionally: The purposes of pleading rules were to (1)provide notice of the nature of the claim
or defense (2) identify baseless claims, (3) delineate each party’s view of the facts, and (4) to
narrow the issues.
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Under the Modern Rules: Only the 1st of the traditional purposes is maintained. There are 3
pleading stages, the complaint, answer, and reply
A. The Complaint – typically has 5 parts: caption, pldg. Of jurisdiction, body. Prayer for relief,
and subscription/verification
1. FRCP 8(a): “ A pleading which sets forth a claim for relief …shall contain (1) a short
statement upon which the court’s jurisdiction depends, (2) short statement of the claim
showing the pleader is entitled to relief, (3) demand for judgment for the relief the
pleader seeks (alt. Forms of relief can be requested)
2. Detail Required
a. Black Letter requirements
i. All major elements constituting the cause of action of the 
ii. Ultimate facts which led the pleader to conclude these elements are
present
iii. Statutory elements such as docket #, identity of ptys. and their attnys,
name of action, etc.
iv. Relief sought by 
b. FRCP requirements (see 8a above): Much less detail. Typically a complaint
under the rules is sufficient if the ct. is satisfied the  is attempting to set forth an
action that has the possibility of resulting in relief no matter how unskillfully this
is done.
c. Dioguardi v. Durning -  filed a complaint against  that was in poorly written
English, and very unclear. The general tone was  had confiscated ’s imports
without paying the correct amount. In response to ’s motion to dismiss  was
given leave to amend his complaint but all he provided was a more detailed
explanation of the confiscated goods. Ct. held even though unclear the general
claim was sufficient enough to identify a cause of action and provide sufficient
notice to , but  needs to amend his complaint to clarify the details.
d. FRCP 12(e): “If a pleading…is so vague or ambiguous that a party cannot be
reasonably required to frame a responsive pleading, he may move for a more
definite statement before interposing his responsive pleading.
B. Responding to the Complaint (Motions to Dismiss)
1. FRCP 12 governs defenses and objection to pleadings and provides 20 days from service
of the complaint to the  for a response. However counsel usually request, and are
granted, extension by opposing counsel. This is governed by rule 6(a)
2. Motions to Dismiss: Rule 12(b) lists the defenses that can be made by motion:
a. Lack of jurisdiction over subject matter (1)
b. Lack of jurisdiction over person (2)
c. Improper venue (3)
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d.
e.
f.
g.
Insufficiency of process (4)
Insufficiency of service of process (5)
Failure to state a claim upon which relief can be granted (6)
Failure to join a party under rule 19 (joinder of persons needed for just
adjudication) (7)
3. FRCP 12(b)(6) is the modern interpretation of the common law demurrer
a. American Nurses Assn v. Illinois -  brought class action suit against IL
claiming sex discrimination in employment. An essential element of the
complaint is a comparable worth violation which in and of itself is not a violation
of federal law. The D. Ct. dismissed the case.  appealed on the grounds that
suit had other elements to it besides comparable worth. The trial ct. agreed and
held it is not necessary a complaint set forth a complete and convincing picture of
the alleged wrongdoing. The rule simply require the  to indicate the nature of
the claim and show how the  may be entitled to relief.
4. Answering the complaint – function for  is to either deny the allegations themselves or
set forth new facts that avoid the legal consequences sought in the complaint.
a. Denials: May be general or specific. Some codes provide a  may file a general
denial which denies (and asks the  to prove) “each and every allegation before a
court of law
i. FRCP 8(b) Defenses and Form of Denials -  shall admit or deny all
averments upon which the adverse party relies.  shall state those matters
to which he possess insufficient knowledge and this shall act as a defense.
Specificity of the defense is important (see last 3 sent. of rule)
ii. FRCP 8(f) Construction of Pleadings – All pleadings shall be construed as
to do substantial justice.
b. Improper use of general denials, Zelinski v. PPI -  sued PPI for injuries arising
out of the collision of 2 forklifts that had ’s initials painted on their sides. 
answered the complaint with a general denial. It later was discovered that another
company owned the forklifts but it was after the sol had run so the other party
could not be brought in as a . Ct. held should have complied with rule 8(b)
which requires  to answer more specifically than with simple a general denial.
A specific denial would have warned the  they sued the wrong defendant.
c. Affirmative Defense – In addition to denying allegations of the complaint  may
introduce new information in their answer which avoids the legal consequences
sought by the .  carries the burden of proof for such.
i. FRCP 8(c) Affirmative Defenses – In a pleading to a preceding pleading a
party may set forth (their affirmative defenses) When a party has
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mistakenly designated a defense as a counterclaim… the ct. shall treat the
pleading as if there had been proper designation.
ii. Ingraham v. U.S. -  and others sued the Govt. under the FTCA for
injuries arising from the negligence of government physicians. After entry
of adverse judgments the govt. appealed on the grounds the verdicts
exceeded the damage caps imposed by state law. The District ct. denied
these motions and the government appealed. The ct. of appeals held an
affirmative defense may not be raised for the first time on appeal.
According to rule 8(c) this defense should have been pleaded in a timely
manner and failure to do so constitutes a waiver.
iii. Taylor v. U.S. – held a state statute limiting liability is not an affirmative
defense and thus the ct. allowed a post-trial motion to enforce the cap.
iv. Ct. considerations in classifying something as an affirmative defense (for
those not expressly mentioned in FRCP 8):
1. whether the matter at issue is a necessary or extrinsic element in
P’s case
2. which party has better access to relevant evidence
3. policy considerations
C. Amending the Pleadings
1. Generally: Once a party has filed a pleading they may be allowed to amend it. A  can
pretty much amend anything from factual information to their legal theory. The rules are
relatively liberal in this matter and amendments will usually be allowed unless the other
party can show why the amendment should not be allowed.
(while the FRCP allow party to state a new cause of action in their amendments
most state code typically do not)
2. FRCP 15 Amendments and Supplemental Pleadings:
a. 15(a) – parties may amend their complaints before and during trial, at any time a
response has been served, or w/in 20 days of the original pleadings if no response
has been filed. Otherwise the amending party must obtain consent from the
opposing party or leave of court.
b. 15(b) – during trial parties may amend to conform to issues raised by unexpected
evidence
c. 15(c) – an amended pleading must relate back to the original pleading, and
amended pleadings are considered as if they had been pled in the original
pleadings
d. 15(d) – a party may add supplemental pleadings to their original pleadings to
cover events which occur after the original pleadings.
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3. Notice to the Opposing Party – Moore v. Moore –  and  were divorced.  filed for
custody. After trial  moved to conform the pleadings to the evidence; the ct. granted the
motion and was awarded custody, child support, separate maintenance and attorneys fees.
 received visitation rights subject to a bond.  appealed on the grounds the relief
granted to the  was improper b/c it was not claimed in the pretrial pleadings or any
subsequent amendments. The Ct. held all relief (except separate maintenance) was valid
b/c all of the other issues are those which typically arise in a child custody case and thus
P’s consent was implied.
a. As a rule, where consent to amend is to be implied, careful examination of the
record is required to see whether the opposing party received actual notice of the
unpleaded matters and had adequate opportunity to litigate them.
4. Amendments and the Statute of Limitations – Issue typically arises whether or not ’s
claim should be barred where the statute of limitations has run between the time the
original complaint was filed and the time the cause of action was added by amendment.
The relation back doctrine governs this.
a. Relation Back Doctrine: (15c) when the claim or defense asserted by the amended
pleading arose out of the same conduct, occurrence, or transaction set forth or
attempted to be set forth in the original complaint, the amendment relates back to
the time of filing the original complaint.
b. Failure to name correct ; Beeck v. Aquaslide & Dive Corp. -  sued  claiming
he was injured while using ’s slide. The statute of limitations on P’s complaint
then expired. In its initial answer  admitted manufacture of the slide, however
after the s.o.l had run  moved to amend that it had not manufactured the slide
after new evidence was uncovered by an investigation. D. Ct. allowed the motion
finding the ’s motion was made in good faith, and b/c  failed to show it would
be unable to proceed against any other party.
i. This was affirmed on the grounds the decision is one of discretion for the
trial court, and rule 15(a) provides leave to amend should be freely granted
in the interest of substantial justice and the burden is on the opposing party
to show why the amendment should be disallowed.
c. Mistake concerning party identity; Worthington v. Wilson -  was arrested by
two police officers during the course of which he was injured. Two years later 
sued the city and “three unknown police officers” claiming a CRA violation. 4
mo. Later  amended the complaint to identify the officers by name. ’s
challenged the amendment and moved to dismiss on the grounds the s.o.l had run.
The Ct. granted the motion to dismiss and held the amended complaint did not
relate back where failure to name the ’s in the original complaint was not due to
mistake but rather to being unaware of the identities of the .
i. 15(c) governs and states it relates back if…the party knew or should have
known that but for a mistake concerning proper identity the action would
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have been brought against the correct party, and if the new party has
notice of the action w/in 120 days of the filing of the original complaint.
ii. Schiavone v. Fortune -  must have notice of the action before the s.o.l.
runs. In the case above b/c ’s were not named until after s.o.l. ran there
was no notice and it cannot be allowed.
D. Sanctions
1. FRCP 11:
a. 11(a) – Signature: Every pleading (and other papers)..shall be signed by at least
one attny of record. Except when otherwise noted in the rules a signed pleading
need not be accompanied by an affidavit. An unsigned paper shall be stricken
unless it is not promptly corrected.
b. 11(b) – Representations to the Court: By presenting w/ signature that party is
representing the paper is not being submitted for any improper purpose, the
claims, etc. are warranted by existing law or are accompanied by a nonfrivolous
argument for an extension/modification/reversal of existing law, the allegations
have evidentiary support or are likely to after reasonable investigation, denials are
supported by evidence or are reasonably based on a lack of information.
c. 11(c) – Sanctions – If after notice and a reasonable opportunity to respond the ct.
has determined that any of the above provisions have been violated the ct. may
impose appropriate sanctions against the attnys, law firms, or parties that have
violated them.
2. Verification by nominal  in a class action; Surowitz v. Hilton Hotels Corp. - , in a
long, technical , extensively researched complaint, brought action against  alleging
illegal withholding of dividend funds.  had limited education and English speaking
skills but thought she was being defrauded and thus asked her son-in-law, an attorney, to
investigate the matter for her.  then deposed nominal  and afterwards moved for a
motion to dismiss on the grounds rule 11 had been violated b/c  did not understand all
the details of the complaint. Dismissal was granted by D.Ct. and App. Ct. but then
reversed by the S.Ct. which held the purpose behind rules 11 and 23 are not to discourage
complex class action suits brought by nominal ’s in good faith. Fact that legal counsel
had sufficiently represented the matter was enough.
3. Ethical Limitations; Hadges v. Yonkers Racing Corp. – sanctions were not justified b/c 
did not follow the rules and give  proper “safe harbor. Rule 11(c)(1)(A) states if the
matter is not withdrawn/corrected within 21 days then a motion to dismiss may be granted
and sanctions levied. If an allegation has evidentiary (i.e. affidavit) support then there
must be overwhelming support that evidence was wrong.
VIII. JOINDER
Joinder of Claims by 
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Generally: Cl allowed  to join in one action several separate and distinct claims against a 
when they were of the same quality (i.e. legal vs. equitable). This rule has since
evolved and is governed by FRCP 18.
1. FRCP 18 Joinder of Claims and Remedies – A pty. asserting a claim to relief as an
original claim, counterclaim, cross-claim, or 3rd pty. claim may join either an independent
or alternate claims as many claims (legal, equitable or maritime) as it has against the
opposing party.
2. FRCP 20 Permissions Joinder of Parties – All persons may join in one action as s if
they assert the right to relief jointly, alternatively, or severally, in respect of or arising out
of the same occurrence or transaction, and if any question of law or fact common to all
these persons will arise in the action.
3. Different Actions Arising Under the Same Transaction; Harris v. Avery -  sued  to
recover damages for imprisonment and slander. Both of these causes of action arose out
of the same incident. KS code read “ a  may unite in a single action in the same
petition several causes of action arising out of the same transaction” Ct. allowed  to join
these causes of action in one petition. KS state code abolished the old CL rule that 
must have 2 causes of action to invoke joinder.
4. Single Action Rule; Rush v. City of Maple Heights -  was injured when she fell from
her motorcycle, she sued the city for negligent maintenance of its streets. In the 1st action
she sued for damages to her bike and recovered $100. In her 2nd action she sued for
personal injuries and recovered $12,000.  appealed on the grounds she had already
recovered in her first action on these same set of facts and thus this precluded her from
asserting a second action. The Ct. agreed w/ .
a. Binding Effects of Prior Decisions: Res Judicata and Collateral Estoppel
Res Judicata: claim preclusion; A judgment once rendered is the full measure of
relief to be accorded between the same parties on the same claim/cause of action. It
aims to avoid multiple and vexatious litigation. There are 3 requirements:
1. Judgment must be final, valid, and on the merits
2. Parties must be the same
3. Claim in 2nd suit must involve matters properly considered w/in the 1st action.
Collateral Estoppel: issue preclusion; this bars re-litigation of issues adjudicated and
essential to judgment in a prior litigation between the same parties.
5. Defense Preclusion; Mitchell v. Federal Int. Credit Bank -  assigned the proceeds from
his sale of potatoes to  as security for 2 notes.  sued on the notes and  asserted
sales proceeds of the potatoes as a defense.  now sues for the amount of the proceeds
of his sales that were in excess of the amount previously asserted as his defense. Trial
ct. held this was precluded by the fact ’s claim had merged w/ the earlier judgment,
App. Ct. agreed.  should have counterclaimed in the first suit in order to recover.
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B. Counterclaims
Generally: A  may set forth certain causes of action they possess against the . Under
FRCP 13 counterclaims are either compulsory or permissive.
Compulsory – These arise out of the same transaction or occurrence the  has
sued on. This is usually determined by a “compelling logical relationship”
between the ’s and ’s claims. A  must assert these in their answer, they
require no independent basis of jurisdiction from that which supports the ’s
claim.
Permissive – these are deemed ancillary to ’s jurisdiction.  may choose to
assert these as they desire. These require independent, adequate grounds for
jurisdiction before they can be entertained.
FRCP 13 Counterclaims and Cross-Claims
13(a) Compulsory Counterclaims – A pleading shall state a claims against an opposing
party if it arises out of the same transaction or occurrence that is the subject
matter of the opposing party’s claim, if it does not require for its adjudication 3rd
parties of whom the ct. cannot acquire jurisdiction. The pleader need not assert
the claim if (1) at the time the action was commences it was the subject of another
pending action or (2) if the opposing party brought suit by a method that did not
require personal jurisdiction
13(b) Permissive Counterclaims- a pleading may state a claim against an opposing
party not arising out of the same transaction or occurrence.
13(c) – a counterclaim may not diminish or defeat the recovery/relief sought by the
opposing party
13(d) – these rules shall not be construed as to enlarge beyond the limits the right to
assert counterclaims against the U.S. govt.
13(h) – Joinder of Additional Parties – persons other than those made parties to the
original action may be made parties to a counterclaim or cross-claim in
accordance w/ rule 19 (Joinder of persons needed for just adjudication)
1. Test for ancillary jurisdiction of a counterclaim; Great Lakes Rubber Corp. v.
Herbert Cooper Corp. -  filed complaint in fed dist ct. alleging  engaged in unfair
competition, unfair business practices, patent infringement, etc.  counterclaimed
alleging  violated the Sherman Act, and moved to dismiss the case for lack of
diversity of citizenship. The D.Ct. granted the motion to dismiss but retained
jurisdiction over ’s counterclaim b/c it had an independent basis of jurisdiction (it
was federal based as it arose under federal law).  then counterclaimed against 
more or less re-asserting its original complaint in the form of a counter-claim. 
defended its counterclaim on the basis of ancillary jurisdiction (it arose out of the
same transaction/occurrence as ’s claim).The ct. dismissed the counter-claim for
lack of jurisdiction over subject matter stating the counterclaim was not compulsory.
App. Ct. reversed:
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a. App. Ct. said the counter-claim was compulsory b/c it bore a logical
relationship to the opposing party’s claim, and b/c separate trials on each
party’s claims would lead to duplication.
b. 4 tests have been developed to determine what constitutes a transaction or
occurrence:
i. Are issues of fact and law in the claim and counterclaim largely the
same?
ii. Would res judicata bar a subsequent suit on ’s claim absent the
compulsory counterclaim rule?
iii. Will substantially the same evidence support/refute ’s claim and ’s
counterclaim?
iv. In there a logical relationship between the claim and counterclaim?
2. Failure to plead a counterclaim
a. Compulsory claims – if  fails to include this in their action they are barred
from ever asserting the same claim in another action. It carries with it the
same res judicata effect as if it had been asserted. B/c of this cts. are liberal in
their allowance of counterclaims to be asserted up to the late stages of trial.
b. Permissive counterclaims – can be brought at any time, failure to bring them
has no res judicata effect.
3.
Test for ancillary jurisdiction in 13(a) is the same as in §1367; “(supplemental
jurisdiction is allowed over) all other claims related to claims in action within such
original jurisdiction that they form part of the same case or controversy under Art.
III”
C. Cross-Claims
FRCP 13(g) Cross-Claim Against Co-Party – a party may assert in their pleading a crossclaim against a co-party arising out of the transaction or occurrence that is the subject matter
of either the original action or an asserted counterclaim (by the cross-claiming party). The
cross-claim may include a claim that the co-party is wholly or partially liable to the crossclaimant for the claim asserted against the cross-claimant.
1. Jurisdiction over cross-claims: Cross-claims need no independent grounds of jurisdiction
b/c they are always closely related to the original cause of action, or to a jurisdictionally
supported permissive counterclaim.
2. Generally a cross-claim between parties may not directly involved persons not parties to
the original action of the  or the counterclaim of the . However, if for fair
adjudication of a cross-claim a 3rd party is necessary the court may summon that party if
they a w/in jurisdiction of the ct. (See FRCP 13(h), 19, 20)
3. Cross-Claims involving different legal theories; LASA v. Alexander -  had contract to
supply marble to  under a construction contract.  sued 1, 2, and others for a
balance due under the contract. 1 cross-claimed against 2, who in turn cross-claimed
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against 1. 1 also filed a 3rd party complaint against the architect. 1’s claims were
based mostly on negligence and slander. The D.Ct. dismissed all but the original claim
and 1 appealed. The App. Ct. reversed holding where cross-claims involved different
legal theories but arise out of related (but not identical) transaction the cross-claims can
be maintained.
a. Ct. stated “same transaction or occurrence” should be construed liberally; Ct. relied
on the fact that much of the same evidence was involved in all of the cross-claims.
Also adjudication in one suit will prevent a multiplicity of suits later.
4. Cross-claims are generally disfavored in state courts. The rationale is that they unduly
confuse the jury and obscure the legal issues involved.
D. Impleader
Generally: Once a  has sued in a civil action he may cause a summons and complaint to
issue to a 3rd party and thereby implead that party into that action. The 3rd party must(may)
be liable to  for all or part of the claim the  has filed against him.
FRCP 14 Third Party Practice
14 (a) When  May Bring in a 3rd Party:
 at any time after commencement of the action a , acting as a 3rd party , may serve
a summons and complaint upon a person not a party to the action who is or may be
liable for all or part of ’s claim against 3rd party  ( in the original action.
 Person then served w/ 3rd party complaint will be “3rd party ” and shall make any
defenses or counterclaims against 3rd party  or cross-claim against other 3rd party
s.
 3rd party  may also assert any claim against the  which the 3rd party plaintiff has
made, but also may assert any claim against  that is arising out of the transaction or
occurrence that is the subject matter of the ’s claim against the 3rd party .
  can also assert claims arising from the same transaction or occurrence against the
3rd party .
 A 3rd party  may proceed under this rule against any person not a party to the action
who is or may be liable to the 3rd party  for all or part of the claim made against the
3rd party .
14(b) When  May Bring in a 3rd Party:  may do so under any circumstances under this
rule that would entitle  to do so.
1. Impleader is limited to situations where3d pty. is or may be liable to original  for
indemnification, Jeub v. B/G Foods, Inc. -  and others were poisoned by ham served in
’s restaurant.  impleaded Swift, seeking complete indemnity, from whom it had
bought the canned ham.  declined to amend their complaint to include Swift as a
original . Minnesota state law allowed impleader only on a “demonstrated right to
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indemnity”. However under the FRCP impleader is allowed when there “may be” a right
to indemnity. Swift moved to vacate the order making it a 3rd party . The Ct. denied the
motion holding the right to implead is a procedural matter and is thus governed by federal
law and the FRCP.
a. Whether a ct. will allow impleader is typically an exercise of judicial discretion.
2 policies are considered. First, the underlying policy for rule 14 is avoiding
multiplicity of litigation. However 3rd party procedure is not to be used as a
vehicle to tie together separate and distinct causes of action.
b. There must be a logical relationship between the claim asserted and the original
claim.
c. 2 questions need to be asked:
i. Do the joinder rules permit it?
- Rule 13(a) allows a “3d pty.  to assert any claim against the  arising out
of the transaction or occurrence that is the subject matter of the ’s claim
against the 3d pty. 
ii. Do the jurisdictional rules permit it?
- Case authority provides this is allowable b/c  has the option of
selecting the forum and unlike 3d pty.,  has not been brought
involuntarily to the forum.
2.
A counterclaim brought by a 3d pty.  is supported ancillary jurisdiction as long as it
bears a logical relationship to the original action. Revere Copper & Brass v. Aetna – F
entered into 2 construction contracts to supply materials to Revere () who was
constructing a manufacturing plant. F executed 14 million in performance bonds with
Aetna (), their insurer. When F failed to perform  sued  on the bonds in federal ct.
on the grounds of diversity jurisdiction.  impleaded F as a 3d pty. . F then
counterclaimed against  arising out of ’s alleged breach to .  moved to dismiss the
suit b/c  and 3d pty.  were citizens of MD. Ct. held that as long 3d pty. ’s
counterclaim is logically related to the main action independent jurisdiction is not needed
and the counterclaim will be supported by ancillary jurisdiction.
3. In an action where federal jurisdiction is based on diversity of citizenship and  asserts a
claim against a 3d pty. D that is not dependant upon the original claim ’s claim must
have an independent basis of federal jurisdiction. (See Owen Erection where  brought
independent claim against 3d pty.  and there was no diversity between the parties, the ct.
held this was not jurisdictionally allowed)
4.
In cases where a 3d pty.  cannot be brought in b/c they cannot meet the minimum
contacts test and thus are not subject to personal jurisdiction FRCP 4(k) allows for a
pty. to be joined under FRCP 14 or 19 where the pty. is not more than 100 miles form
where the summons issues.
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E.
Interpleader a procedure where a pty. who has had several mutually exclusive claims
brought against them w/ respect to the same debt, property, etc. may join the claimants in
the same action and require them to litigate among themselves.
FRCP 22: Requires complete diversity between  and all adverse parties, or the
involvement of a federal question, and all other jurisdictional, venue, and procedural
requirements of a civil action under the rule.
F. Necessary and Indispensable Parties
Generally: The Ct. must compel joinder of any non-party whose interests are so identified
with those being litigated that fair adjudication on the merits requires her presence and failure
to join her will be prejudicial. However if the person to be joined outside the jurisdiction of
the ct. then compulsory joinder is not possible. If this occurs, and if the action cannot
proceed in good faith the nonjoined party is considered indispensable. If the action may
proceed w/out joinder the non-party is considered necessary.
FRCP 19 Joinder of Persons Needed for Just Adjudication
19(a) Persons to be Joined if Feasible: A person subject to service of process and whose
joinder shall not deprive the Ct. of jurisdiction shall be joined if:
(1) In the person’s absence complete relief cannot be accorded among those already
parties;
(2) The person’s interest is so situated that disposition of the suit in the person’s
absence would:
i.Impair that person’s ability to protect their interest
ii.Leave any persons already parties subject to the risk of multiple, inconsistent
obligations.
19(b)Determination by Ct. When Joinder Not Feasible: If a person (as described) cannot
be made a party the Ct. shall determine whether in equity or good conscious the actions
should proceed among the current parties, or should be dismissed, the absent person
being regarded as indispensable.
1.
Bank of CA v. Superior Ct. – Bank of CA was appointed administrator of the Boyd
estate. St. Luke’s hospital received the bulk of the estate w/ other legatees receiving
varying smaller amounts.  brought suit claiming prior to death Boyd had executed a
contract with her promising to make a new will leaving her the entire estate. In ’s
action only the Bank and hospital appeared, all other legatees were outside the
jurisdiction of the Ct.  obtained an injunction until all the other legatees could be
served,  obtained a dissolution of the injunction on the grounds the other legatees
were necessary, but not indispensable parties to the action.  sought an order to
prevent trial until all other parties were brought in and from its denial  appeals. CA
Ct. held the other legatees were only necessary, and the action could proceed. The Ct.
noted:
a. Tendency of Cts. is to limit the expansion of indispensable parties when possible.
In this case the claims of the other legatees were easily separable from the
hospital’s claim.
32
b. The other legatees interests will be adequately handled in this case by the Bank, the
primary legatee.
c. Shields v. Barrow - parties classified as necessary vs. indispensable based on
whether the substantive rights were joint or severable. If absent indispensable
parties when brought in, will destroy diversity, the Cts. are reluctant to label absent
parties indispensable if it is unlikely to affect the outcome of the case.
d. Warner v. Pacific Telephone – phone book contained multiple listings for “Mrs.
Caryl Warner”. 2nd Mrs. Warner brought suit claiming defamation. Lower Ct.
demurred ’s complaint on the ground that she failed to join the 1s Mrs. Warner
who was an indispensable party to the action, b/c resolving the suit in her absence
would unduly prejudice her.
2. Haas v. Jefferson National Bank -  sought an injunction directing  to issue him 169
shares of stock that he had jointly purchased w/ G, a FL citizen. When purchased they
had put to stocks under G’s name and then when G attempted to issue half of the stocks
over to  the bank refused due to an outstanding debt of G. At trial the  claimed G was
an indispensable party and the trial ct. agreed joining G as a . However after that the
case was dismissed for lack of diversity b/c  and were citizens of the same state. The
App. Ct. affirmed trial ct. had correctly found was indispensable b/c:
a. W/out G as a party the  would have risked multiple, inconsistent litigation by
reason of G’s claimed interest b/c any judgment rendered would not have been res
judicata w/ respect to G.
b. Dismissal of the suit due to lack of diversity was did not violate the test of equity
and good conscience b/c  could adjudicate the title question
c. Equity and Good Conscience Balancing Test
i. To what extent will a judgment rendered in a person’s absence be prejudicial to
him or to the present parties?
ii. To what extent, through the use of protective provisions, can the prejudice be
avoided?
iii. Will the judgment rendered in the person’s absence be adequate?
iv. Will  have an adequate remedy if the action is dismissed under 19(b)?
G. Intervention
Generally: A procedure where a nonparty, upon timely application, may interpose himself
into a lawsuit pending between other parties in order to protect his interests from being
adversely affected by any judgment in that action. It is favored when necessary to avoid a
multiplicity of suits.
FRCP 24: Intervention
24(a) Intervention of Right: Anyone shall be permitted to intervene in an action (upon
timely application) when:
(1) when a statute of the U.S. confers an unconditional right to intervene, or
(2) when the applicant claims an interest relating to the property or transaction which is
the subject of the action, and, the applicant is situated so disposition as a practical
matter may impair the applicant’s ability to protect that interest
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24(b) Permissive Intervention: Anyone shall be permitted to intervene in an action, upon
timely application when:
(1) when a U.S. statute confers the unconditional right to do so, or
(2) when the applicant’s claim or defense and the main action have a question of law or
fact in common
Jurisdiction: In intervention as a matter of right (24a) the intervenor’s claim is deemed
ancillary to the main action, however under permissive intervention (24b) intervenor is in
effect bringing a new claim and thus must meet jurisdiction requirements w/ regard to
citizenship and jurisdictional amount.
1. Intervention is possible after initial judgment, Smuck v. Hobson – Hobson () brought a
class action against local Bd. of Education for economic discrimination in its schools. 
won and Bd. of Education chose not to appeal. Smuck, an individual Bd. member named
in the suit did want to appeal, former superintendent also wanted to intervene and moved
to appeal. 20 parents of affected schoolchildren also moved to intervene. The D.Ct.
granted the motions. The App. Ct. held that both Smuck and the superintendent have no
separate interest in the litigation capable of being affected by appeal and thus their
motions to intervene were denied. The Right of intervention of the parents however was
granted. The Ct. held the parents met the three criteria:
(1) the parents have an interest in the action (a prerequisite)
(2) disposition of the action might impede the parents’ ability to protect their interest
unless they are allowed to intervene
(3) Although the Bd. adequately represented the parents’ at trial their decision not to
appeal may not have adequately represented these parents.
- Ct. was also willing to grant a large amount of leeway here based
on the nature of the suit as a civil rights one. (See API where Ct.
was much less willing to let a private corporation intervene)
2. Stare Decisis may function as a practical disadvantage that warrants intervention of right,
Atlantis Dev. Corp. v. U.S. -  made a claim to offshore reefs from FL and began
developing them for commercial use. U.S. demanded that permission was needed to erect
structures on the reef and  attempted to convince the U.S. that these reefs were beyond U.S.
jurisdiction. Meanwhile Acme began erecting structures on the reef and the U.S. brought suit
against acme for trespass. Atlantis moved to intervene claiming it has an interest in the
subject matter of the action and that a decision will impair their ability to protect that interest.
The impediment was asserted that if an adverse judgment were entered against Acme stare
decisis will prevent Atlantis’ case from being heard. The App Ct. agreed.
a. Ct. placed emphasis on the fact the 5th Cir. follows the doctrine of stare decisis and since
there are not a lot of suit involving the outercontinental shelf this would be only
controlling precedent.
IX. CLASS ACTIONS
FRCP 23 requires the 4 conditions to be established:
23(a) Prerequisites to a Class Action: One or more members of a class may sue or be sued as
representative parties on behalf of all only if:
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(1) the class is so numerous that joinder of all members in impractical
(2) there are questions of law and fact common to the class
(3) the claims/defenses of the representative parties are typical of those of the class, and
(4) the representative parties will fairly and adequately protect the interests of the class.
23(b) Class Maintainable: A class may be maintained if, in addition to the prerequisites,
(1) prosecution of separate actions by or against individual member of the class
would create a risk of,
(a) inconsistent or varying adjudications w/ respect to individual members of the
class which would establish incompatible standards for the party opposing the
class, or
(b) adjudications with respect to individual members would not, as a practical
matter, be dispositive of the interests of the other members not parties, or it
would substantially impair their ability to protect their interests, or
(2) the party opposing the class has acted or refused to act on grounds generally
applicable to the whole class, making appropriate final injunctive or declaratory
relief applicable to the class as a whole, or
(3) the questions of law or fact common to the members of the class predominate
over any questions affecting only individual members, and a class action is
superior to other available methods for fair and efficient adjudication of the
controversy
23(c) Determination by Order Whether Class Action to be Maintained, Notice,
Judgment, Actions conducted partially as Class Actions
(1) Order: As soon as practicable after commencement, the Court shall determine by
order whether it is to be so maintained. It may be conditional, altered, amended
prior to a decision on the merits.
(2) Notice: A class maintained under subdivision (b)(3) (common questions of law or
fact) the Ct. shall direct to the members the best notice practicable under the
circumstances including individual notice to all members that can be identified with
a reasonable effort. The notice must inform that a) the member can request to be
excluded, b) judgment will be binding on all member not excluded, c) any member
who does not request exclusion may enter an appearance through counsel if they
desire.
(3) Judgment: obtained in (b)(1) or (b)(2) shall include and describe those whom the
Ct. finds to be members of the class. In a (b)(3) action judgment shall specify those
whom notice was provided to, those who did not request exclusion, and those who
the Ct. finds to be a member of the class.
(4) Division: when appropriate an action may be brought or maintained with respect to
particular issues, or the class may be divided into subclasses and each subclass
treated as a class.
A. Class Certification
1. Requirements for a 23(b)(2) action; Holland v. Steele -  seeks to have all persons who
are or will be detained in the Dade Cty. jail certified as a class. The Ct. held the class met
the prerequisites; 1) the numerosity requirement, that the in that there were at least 40
inmates and detainees and b/c joined was impossible as to future inmates who are to be
35
included in the class. 2) there were common questions of law and fact and that there may
arise distinguishing issues between detainees and sentences, but that presents no problem
at the class certification stage. 3) the requirement that the representative party’s claims be
typical of the class does not require that they be identical, rather whether the class
representative “possess the same interests and suffers the same injuries as other
members”, and 4) b/c the representative has a common interest w/other unnamed class
members their interests will be adequately represented and counsel is adequate b/c they
are from a statewide legal services program w/ experience in the field of class action
suits. Regarding the 23(b)(2) requirement it is met b/c the failure of the opposing party to
provide counsel to both detainees and sentences is the denial of a right both parties are
entitled to.
a. If it turned out later that the difference between detainees and sentences was more
significant then the Ct. could order to have the class broken into 2 subclasses under
23(c)(3)
b.There is no “magic number” for the numerosity requirement, rather, the Ct. will
compare the relative difficulties of joinder vs. class treatment.
2. Whether a class action provides for “fair and efficient” adjudication (23(b)(3)); Causey
v. Pan Am Airways -  brought suit in ED on VA of behalf of his deceased parents and
for all other next of kin of 95 passengers killed when the plane crashed in Indonesia. 
contends suit is to be a 23(b)(1) suit b/c both requirements (A) and (B) are satisfied.
- Ct. states action is not appropriate for a 23(b)(2)action b/c instead of seeking declaratory
relief the  here seeks money damages.
- Furthermore it is no appropriate under 23(b)(1), b/c the criteria cannot be met in mass
accident suits. In these cases the  is not subject to incompatible standards, he will
simply compensate some s but not others, also s cannot be adversely affected by a
judgment against another  b/c not having their day in Ct. they cannot be bound.
- The Ct. then went on to consider whether the action would be maintainable under
23(b)(3) and the Ct. concluded that as a class action the matter could not be fairly or
efficiently adjudicated. Out of the 95 passengers only 3 were American citizens thus the
conflict of laws questions would be extremely complex. Furthermore each  has a
strong interest to be able to individually control the prosecution of their separate actions.
Lastly, out of the 3 Americans none of them have any apparent connection with the
Commonwealth of VA, and none of the evidence, etc. is located here.
e. Policy Arguments for mass accident class actions
Against: not appropriate b/c of the likelihood that significant questions of
damages, liability, and defenses to liability would affect individuals in different
ways, also permitting class action will bring a “rush” to bring the first case and
provide a form of “legalized ambulance chasing”
For: Could be useful for mass disasters, such as airplane crashes, where there is
little chance of individual defenses being presented
B. Due Process
1. In order for a previous class action to bind a member of he class the member must have
had notice of the action, and must have been adequately represented by the previous
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class members; Hansberry v. Lee – L brought suit to enjoin the sale of land to H, a black.
The sale was being made by a party who had restrictive covenant not to sell to blacks. H
argued that the covenant could not be enforced b/c it had not been signed by the required
95% of landowners, but only 54%. L argued that issue was res judicata b/c a previous
action had found 95% had signed. H responded that he and the seller were not bound by
this judgment b/c they were not parties to that action, but the lower Ct. found that they
were, b/c as present and future homeowners they would have been members of the class.
The S.Ct. reversed holding:
a. Class action is an exception to the rule from in personam litigation where a party cannot
be bound by a judgment they were not a party to. A class action may bind some
members who were represented by that class, but not made a party to the action.
However, this one cannot be bound where the interests of the absent parties were not
fairly protected.
b.It cannot be said that simply b/c a party signed a restrictive covenant they fall w/in a
class with all others who signed. Rather, class members must have substantially similar
interest, i.e. wanting the covenant enforced, or not wanting it enforced. If the interests
of the representative parties are not the same as those whom they are supposed to
represent, the non-representative parties are no afforded the protection due process
requires.
2. No “duty” to intervene; Martin v. Wilkes – Certain blacks filed class action complaints
against the government claiming racial discrimination in the hiring and promotion
practices of the fire department. The parties entered consent decrees providing for hiring
and promotion goals for blacks. The firefighters association sought unsuccessfully to
intervene. Seven white firefighters sued for injunctive relief which the district ct. denied.
Then  and other sued claiming discrimination as a result of the remedial scheme. The
S. Ct. held that the subsequent suit should be allowed b/c while Martin could have
intervened in the first action he did not have a burden to do so. (Rule 24).
C. Class Action Practice
1. Where contact info is known notice must be given (23(b)(3)); Eisen v. Carlisle -  sued 
for antitrust and securities violations.  brought a class action which turned out to
contain 6 million members. Contact information was known for roughly 2 million
members. After  argues this would be a unreasonable expense the trial ct. devised a
scheme where 2,000 members who had 10 or more transactions, and 5,000 other
members chosen at random receive individual notice and all the others would receive
notice by publication. The Ct. would then distribute the cost of notification between the
 and  after a mini-hearing on the merits of the case based on who the ct. thought
would prevail. The S.Ct. held that rule 23 requires individual notice to all class members
reasonably identifiable regardless of burden. This rule is not subject to interpretation and
cannot be applied at the discretion of the trial ct. Also, the  must bear all the costs of
notice. However if the  wins the case he may be able to recover notification costs from
the , but not until after the judgment is made.
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2. If a suit is brought as 23(b)(2) but it is later determined it could also be a 23(b)(3) the Ct.
will not require  to comply w/ 23(b)(3) procedural requirements; Wetzel v. Liberty
Mutual - ’s were employed as claims representatives for .  both wanted to apply for
positions as claims adjusters but were told those jobs were not open to women, thus they
filed suit w/ the EEOC and PAHRC. Subsequently  hired to offer the women as claims
adjusters but s refused.  commenced a Title VII class action in federal district ct.
claiming  violated the CRA of 1964 and the Equal Pay Act of 1963. The Ct. certified
the action as a 23(b)(2) suit but later saw that it could also be maintained as a 23(b)(3)
action. The S.Ct held the s would not have to meet the procedural requirements of
23(b)(3) suit b/c:
- Title VII actions are particularly fit for 23(b)(2) treatment,
- 23(b)(2) actions are not limited to injunctive, declaratory relief (can also be monetary)
- actions that can be maintained under either 23(b)(2) or 23(b)(3) should be treated as
(b)(2) b/c of its superior res judicata effect, and less complex procedural requirements
- in a 23(b)(2) action is it up to the Ct. to set out the notice requirements; furthermore a
(b)(2) class is, by definition, homogenous thus as long as there is adequate
representation all of its members will be bound .
3. General Telephone v. Falcone – Ct. held the complaint for class certification was
insufficient b/c the class which claimed discrimination as to both hiring and promotion
practices, and where the representative had been denied a promotion did not meet the
requirement that the representative’s interest and injury be the same.
D. Mass Tort Class Actions – multiplicity of asbestos litigation is one of the major judicial
headaches of the past decade. Many feel Congress should come up with an alternative
compensation scheme instead of litigation.
1. Amchem Products v. Windsor – D.Ct. attempted to solve so much pending litigation by
consolidating many of the pending class action suits and then entering a global
settlement. The S.Ct. reversed on the grounds the currently injured class members had
different interests than the class members who might suffer future injury. The Ct. also
felt there was inadequate representation for all of the involved sub-classes. Dissent felt
the majority understated the importance of having a settlement in that the class action
process reduces the ultimate burden on the s re: legal and transaction fees and increases
their possibility of settlement. (Levin – either way it is a judgment call)
2. Ortiz v. Fibreboard Corp. – Company had set aside a certain amount of money for the
settlement of claims, a “limited fund”. 23(b)(1)(B) is traditionally used as a basis for
class action treatment when there is a limited fund b/c it makes sense to settle all of the
pending claims at once. The Ct. does not allow the class action in this case b/c the fund
was not truly limited (the company’s insurance co. was threatening to back out and if
they did they would lose money) and also b/c there were insufficient findings that this
type of settlement best served the interests of the .
E. Jurisdictional Complications
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General Rule (Aggregation of Claims for jurisdictional amount): Aggregation is
permitted when:
1) single  seeks to aggregate 2 or more claims against a single ,
2) 2 or more s unite to enforce a single title/right with a
common/undivided interest.
1. Snyder v. Harris – Each petitioner’s individual claim must meet the jurisdictional
requirement, separate and distinct claims cannot be aggregated.
Zahn v. Int’l. Paper – when ’s seek to enforce a single title or right their claims can be
aggregated to meet the jurisdictional amount.
2. Each P must meet jurisdictional amount; Leonhardt v. Western Sugar - s brought a
class action suit against  but D.Ct. dismissed b/c s could not each meet the
jurisdictional amount required. Under a historical interpretation is it required, however
s argue that so long as one  can meet the amount required then §1367 allows the Ct. to
exercise supplemental jurisdiction over all of the other s. The 5th and 7th Cir. have both
agreed with this interpretation, that the rules in which §1367 does not apply, involving
cases where a party is seeking to be added as a party, are different than rule 23 b/c rule 23
involves the initial bringing of the action. However, the D.Ct. here (10th Cir.) disagreed
with this interpretation and felt §1367 cannot be used in class actions as a means for the
Ct. to exercise jurisdiction over the s who cannot meet the jurisdictional amount. The
Ct. supported this interpretation with evidence on Congressional intent that they did not
intend to overrule cases like Zahn that require each  to meet the jurisdictional
requirement.
a. Abbot Labs came to exactly the opposite conclusion. Under a literal reading of §1367
rule 23 is not included and thus the Ct. could assert supplemental jurisdiction.
3. Phillips Petroleum v. Shutts – Diverse class representative and  will satisfy the diversity
requirement. Also, a forum state may exercise jurisdiction over the claims of absent class
action s even if they do not meet the minimum contacts requirement with the . This is
b/c an absent class  has relatively few burdens placed on them.
X.
DISCOVERY
A. General Scope of Discovery
3 Main Purposes of Discovery:
1. To preserve information that might otherwise not be available at trial
2. To narrow the scope of trial (traditionally pleadings were meant to do this, however,
modern pleading rules have been liberalized thus it is up to discovery procedures to
isolate the issues of law and fact that are actually being disputed)
3. To uncover information, and minimize “secret-keeping”
FRCP 26 governs discovery proceedings
1. Scope of Discovery is limited to “relevant” matters; Blank v. Sullivan and Cromwell , a young law school grad, brought a Title VII suit against  alleging they used
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discriminatory hiring practices and them moved for discovery of materials relating to ’s
practices for promoting employees to partner. The Ct. allowed the materials to be
discoverable b/c they might be indicative of a “discriminatory pattern”.
a. FRCP 26 (b)(1) – allows for discovery where “for good cause shown the Ct. may order
the discovery of any information relevant to the subject matter involved in the action.”
(This suggests the Ct. is willing to allow in information as long as the party seeking it
make a showing of why they need it.)
b.There is a need to balance the privacy implications with the evidentiary implications, it
is a judgment call about giving a party enough of the information they need to make
their case without violating the privacy of the other party.
2. Ct. has discretion as whether to allow discovery or not; Maresse v. Am. Academy of
Orthopedic Surgeons -  filed actions alleging they were denied membership from 
organization and it violated the Sherman Act.  refused to allow  access to
membership files for discovery. Ct. entered a protective order that would allow ’s to
read the files however the  repeatedly refused to turn over the files, the Ct. held the  in
criminal contempt and fined  $10,000. App. Ct. held that ’s purely private interests
deserved less weight than social values, such as 1st a.’s protection of freedom of
association. Furthermore, there were other options available to the Judge, he could have
examined s files in camera and then given  only the relevant materials of even
redacted versions of the files. He may have also controlled the sequence of discovery
under 26(d).
B. Specific Discovery Devices
a. Depositions
FRCP 30: Depositions Upon Oral Examination, a party may take the deposition of any
other person (a party or non-party), they must provide that person w/ reasonable notice, it
must be taken under oath and recorded by an officer of the Ct. A 30(b)(6) deposition
allows you to depose an officer, manager, etc. of a corporation without having to name
that person, it will be up to the opposing party to designate that person. Depositions may
also be taking in written form, over the phone, etc.
1. Haviland & Co. vs. Montgomery Ward -  served notice to take deposition of  and
 kept refusing to comply.  lived and resided in France and claimed b/c of his
health he could not travel to the US to be deposed. The Ct. (somewhat doubting the
truth of ’s claim) ordered  to be deposed in France, as his Dr.’s advice permits, but
he will have to pay the costs of bringing the s to France and housing them there until
the deposition is complete.
b. Interrogatories
FRCP 33: A party may serve interrogatories on any other party, each shall be answered
or objected to. All objections shall be stated w/ specificity…(c) “any interrogatory
otherwise proper is not objectionable b/c the answer involves an opinion or contention
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that relates to the application of law or fact, but the Ct. may order that such interrogatory
need no be answered until after discovery has been completed or until a pre-trial
conference or some other time”
1.Leumi Financial Corp. v. Hartford -  sought to recover on a bond issued by . The
bond purported to indemnify  against “any loss through dishonest, fraudulent or
criminal act”. P sent interrogatories to D asking D to define “dishonest act” and
“fraudulent act”. D objected to these b/c they sought legal opinions and thus were
beyond the scope of discoverable material and could prejudice the  at trial. D also
objected that other interrogatories were burdensome. The Ct. held opinion-seeking
interrogatories were allowable where they served to narrow the issues but should not be
allowed if they prejudice the  (as in the case here) W/ regard to the burdensome
interrogatories the  has not shown any reason why he needs that information, thus 
does not need to answer them.
c. Production of Things
FRCP 34: Allows for one party to request of another party to inspect/copy any
designated documents, etc., or any other tangible things which constitute matters within
the scope of 26(b). A person not a party to an action may be compelled to produce
documents and things for inspection by a subpoena (see rule 45).
1.Hart v. Wolf –  sued , during discovery  sought to force  to produce documents
from a corporation that he had once been an officer of but currently no longer was. The
Ct. ordered production holding that  is required to exercise any influence they have to
produce documents even if they do not have direct possession. (Rule 45 was no in
existence at the time this case was decided)
d. Physical and Mental Examinations
FRCP 35: When mental or physical condition of a party or other person under the legal
control of a party is in controversy the Ct. can order that party to undergo a physical or
mental exam. The order must be made only upon a motion for good cause shown.
1. Exams ordered must be reasonable; Schlagenhauf v. Holder -  was a bus-driver
involved in a collisions w/ a truck. Another  cross-claimed against the trucking
co. and trucking co. petitioned the Ct. for the  to undergo 4 separate mental and
physical exams and provided a list of 9 possible physicians. The Ct. order the 
undergo nine separate exams in a variety of practices. The  objected. The App.
Ct. held trucking co. did not make any good cause showing as to why a mental
exam would be required, and that any exams ordered under rule 35 must be “limited
and reasonable”, and these were not.
e. Requests for Admissions
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FRCP 36: a party may serve any other pty. w/ a request to admit the truth of any matter
w/in the scope of 26(b)(1). Answering party must answer or object, lack of knowledge is
not denial without a reasonable inquiry. Pty. who made the request can move to
determine the sufficiency of the action/objection. Any admissions are relevant to the
pending action only, and cannot be used in any other action.
1. McSparran, Ehrich – Answer to requests for admissions are conclusively binding, a
failure to answer a request to admit functions as an affirmative denial.
B. Mandatory Disclosure
FRCP 37(c)(1) a party that without substantial justification fails to disclose information as
required by rule 26 shall not, unless such failure is harmless, be allowed to use that evidence
at trial, hearing, etc.
1. Comas v. United Telephone – Under 26(a)(1) parties agreed to voluntarily produce all
relative materials as an alternative to issuing discovery, the purpose of this rule is to
allow each other to examine evidence so they can make determinations about what they
want to see. Only the descriptions of documents are required at this stage. After this a
party will then need to make requests under rule 34 for what they want.
C. Work Product
FRCP 26(b)(3): A party may obtain discovery of documents otherwise discoverable
prepared in anticipation of litigation or for trial by or for another party or by or for another
party’s representative (attny., insurer, etc.) only upon showing that the party seeking the
discovery has a substantial need of the materials, and is unable, without undue hardship, to
obtain a substantial equivalent of the materials by other means. The Ct. shall protect against
opinions, legal theories conclusions of an attorney or other representative concerning the
litigation.
1. Hickman v. Taylor – Tugboat J.M. Taylor sank but several crew survived. Shortly after
the accident, in anticipation of litigation, the attorneys of the owners of the boat privately
interviewed the survivors and others. Later some of the survivors filed suit and asked for
that information through interrogatories. The Ct. protected the attorney’s work product
b/c it contained personal ideas in preparation for trial, and because at the time the
attorney interviewed the witnesses they were equally accessible to both parties, the others
just chose no to interview.
D. Sanctions
FRCP 37: If a party fails to make a disclosure the party seeking it can make a motion to
compel them to disclose it. If the motion is granted the Ct. shall require the party at fault to
pay the reasonable expenses incurred in making the motion, such as attorney’s fees. A
failure to disclose may also prevent that party from using the evidence at trial (see above).
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1. Cine 42nd St. v. Allied Artists Pictures Corp. -  sued  for antitrust violations. 
secured s consent to defer discovery on damages until  could get an expert. Two yrs.
later when  still had not acted they were warned by the Ct. to get the expert or the case
would be dismissed. After another year the ’s noncompliance was determined willful
and the suit was dismissed. The Ct. held the ’s grossly negligent behavior was to be
considered as “fault” warranting the severest disciplinary measure available, dismissal.
XI.
ADJUDICATION WITHOUT TRIAL
FRCP 56: Summary Judgment
56(a) For Claimant: after 20 days after commencement of the action, or after service of an SJ
motion by the adverse pty. may move, with or without supporting affidavits for SJ.
56(b) For Defending Party: may move for SJ at any time with or without supporting affidavits
56(c) Motion and Proceedings Thereon: SJ motion must be served at least 10 days prior to
trial. SJ shall be rendered if the pleadings, discovery, together with the affidavits show that there
is no genuine issue as to material fact so that the moving party is entitled to judgment as a matter
of law.
56(d) Cases Not Fully Adjudicated on Motion: If an SJ motion is not rendered upon the whole
case the Ct. may ascertain what facts exist without material controversy and make an order
specifying those facts so they are established as so at the trial
56(e-f) Affidavits: Supporting and opposing affidavits shall set forth such facts that would be
admissible as evidence. When an SJ motion is made the adverse party may not rest upon the
denials or allegations, their response must set forth specific facts showing that there is a general
issue for trial. If the adverse party does not reply summary judgment will be entered against
them. If an affidavit is made in bad faith the party at fault will have to pay the other part
reasonable expenses and they may be guilty of contempt.
SJ is appropriate when one party’s affidavits are conclusive and uncontested; Lunden v.
Cordner -  sued an insurance co. for benefits allegedly due to her under her ex-husband’s
life insurance policy.  (current wife) intervened and claimed that the deceased had named
her as the beneficiary just before he died.  filed for SJ accompanied by affidavits from
deceased broker (key witness), doctor, attorney, etc. that deceased filed the necessary forms
for a change on beneficiary. However the formal notice from the ins. co. that the policy had
been changed was never mailed. Under the state law the change became effective when the
ins. co. received the change of notice forms from the . Ct. granted SJ b/c the  had shown
beyond any doubt that she was the correct beneficiary.  was unable to submit any
affidavits countering the obvious conclusions of the s affidavits.
a. Hypo: If deceased had mailed  a letter that she is actually the beneficiary and  will try to
sue her, and then lost the letter, SJ cannot be granted b/c there is an issue of material fact,
that is whether to believe on party over the other.
1.
2. If there are facts at issue over which reasonable people could disagree SJ cannot be granted;
Cross v. U.S. –  a romance language professor went to Europe with his wife and dog for
the summer and then proceeded to write off the whole trip as a tax exemption b/c IRS code
allows a deduction when the income is used to “improve the performance skills used in
business”. The govt. argued that this was not a business trip but rather a vacation. The Ct.
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held that SJ for the  was improper b/c there was a triable controversy presented by the facts
of the case. SJ should never be used when “personal feeling, intent, or motives” are at issue
3. The SJ movant carries the burden if showing no triable issue of fact; Adickes v. Kress - 
went to eat at ’s restaurant w/ blacks but was denied service, she sued  alleging a violation
of the civil rights act. She claimed the denial of service and her subsequent arrest were a
conspiracy between the  and the police, but she failed to prove that there were no police in
the restaurant when she entered. The Ct. granted SJ for the  and the S.Ct. reversed b/c the
moving party failed to prove there no genuine factual dispute existed.
4. When there is proof the non-moving party cannot prove an essential element of their case the
SJ movant does not need to come forward with proof of an absence of a material fact;
Celotex Corp. v. Catrett – P filed a wrongful death suit claiming her husband died from
exposure to asbestos manufactured by . After one year of discovery D moved for SJ after 
failed to produce any evidence that her husband had been exposed to ’s product. In response
the  produced documents the  countered that these were hearsay and thus inadmissible at
trial. The Ct. granted ’s SJ motion. In this case the only burden upon the movant is to point
out to the Ct. that there is no evidence to support the non-moving party’s case.
a. The dissent noted that if the  had intended to call the authors of those documents as
witnesses at trial then there would be a triable issue. (She should have gotten them to
submit affidavits)
b. Rule 56(f) allows for SJ motion to be denied if the non-moving party has not had the
opportunity to make full discovery
FRCP 60 Mistake: A Ct. may relieve a party from final judgment for the following; 1) mistake,
inadvertence, or excusable neglect 2) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial under 59(b) 3) fraud, misrepresentation
or misconduct by another party 4) the judgment is void 5) the judgment has been released,
discharged, satisfied, or a prior judgment on which it was based has been reversed or otherwise
vacated 6) or for any other reason justifiable. The motion must be made within a reasonable time
and not more than one year after the judgment was entered.
1. Coulas v. Smith -  filed 2 counts on overdue notes against  and cross-claimant. Both 
and cross-claimant answered denying liability on the notes. Cross-claimant appeared and
judgment was entered against him,  failed to appear and a default judgment was entered
against him. This was incorrect, b/c  had already answered the case a judgment should have
been entered against him on the merits. However it was a year after, so the judgment could
not be amended.
XII.
THE TRIAL STAGE
A. Trial By Jury
a. The Right to a Jury Trial
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7th a. – Right to jury trial on certain issue comes from the 7th a., “In suits at common law,
where the value of the controversy shall exceed $20, the right to a trial by jury shall
be preserved, an no fact tried by a jury shall be examined by any other court of law in
the US, than according to the rules of common law”
- this has been interpreted to mean that the right to a jury trial exists whenever
correspondingly, in 1791 English common law, such a right would have existed.
- Loosely, all actions at law have a right to a jury trial, in equity actions there is no
such right
- In many of the new legal actions will specifically state whether or not such a right
exists
1. A party is entitled to a jury trial where they otherwise would be entitled to it; Beacon
Theaters v. Westover – Beacon was preparing a treble damages antitrust suit against Fox,
when in an effort to pre-empt the suit Fox filed for a declaratory judgment action against
Beacon asking for a judgment of non-liability. Beacon counterclaimed with its original
suit. The trial ct. held that Beacon was not entitled to a jury trial b/c the action was a
declaratory judgment action and the declaratory judgment statute has no provision for a
jury. Thus the whole suit, including the antitrust claim was tried to the ct. without a jury.
Beacon appealed the S.Ct. reversed, holding:
a. Even thought the Declaratory Judgment Act does not make a provision for a right to a
trial by jury it should not be read to deprive a litigant to the right for a jury trial where
it would have otherwise existed. In this case to not allow Beacon a jury would be
unjust b/c if they had succeeded in bringing their suit as they had planned they would
have had a jury
b. The Declaratory Judgment Act should thus be read as neutral and where a declaratory
judgment is sought upon an issue that is essentially “legal” (rather than equitable) a
court trial with a jury is proper.
c. Clean-Up Doctrine: at common law where legal issues where incidental to primary
equity issues the equity ct. could dispose of the legal issue w/out a trial. This was
carried over to the common law (until Dairy Queen) where legal disputes that
appeared in equity claims could be disposed of by the Ct. without a jury. Today it is a
general rule that all legal issues, incidental to an equitable claim or not, carry the right
to a jury trial.
2. Every legal issue carries the right to a jury trial; Dairy Queen v. Wood – DQ Inc. ()
sued a franchisee () in federal ct. seeking an injunction to restrain  from future use of
’s trademark, and to prevent  from collecting money from any of the DQ stores in the
area.  also brought an accounting action to determine the exact amount of money 
owed .  requested a jury trial which the trial ct. denied on the grounds the suit was in
equity, with an incidental action at law. The S.Ct. reversed and held:
a. that a right to a jury trial exists regardless of whether or not the trial judge chooses to
characterize the legal issues as “incidental” or not.
b. “Ever since Beacon Theaters it has been required that any legal issues for which a
trial by jury is timely demanded must be submitted to a jury”, and the S.Ct. ordered a
jury for the entire trial, not just the legal issues.
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3. Right to jury trial in derivative actions; Ross v. Bernhard -  shareholders brought a
derivative action claiming that the corporation’s brokers had an unlawfully large
representation on the company’s Bd. of Dir.’s and had been extracting excessive fees.
The suit involved both legal and equitable issues. The Ct. held “the right to a jury trial
attaches to those issues in derivative actions to which the corporation, if it had been suing
in its own right, would have been entitled to a jury”.
a. Ct is essentially saying that if you were seeking an injunction in your capacity as a
shareholder you would not be entitled to a jury, however b/c this suit involves legal
issues a jury trial is allowed.
b. Factors the Ct. weighs to determine whether an issue is legal or equitable are 1) the
pre-merger custom, 2) the remedy being suit 3) the practical abilities and limitations
of juries.
4. Chauffers, Teamsters & Helpers v. Terry -  sued their employers and their Union
seeking back pay for an alleged violation of a collective bargaining agreement, and a
breach of duty for fair representation. When the employer filed for bankruptcy the ’s
voluntarily dismissed the collective bargaining agreement claim. The lower Ct. ruled that
the fair representation claim should be heard by a jury and the S.Ct. agreed. The ’s
duty of fair representation claim is analogous to a breach of fiduciary duty claim in a trust
action which is an equitable claim. However the s are also seeking back pay which is
legal, not restitutionary, thus they should have the right to a jury trial.
a. Collectively speaking, Cts. are at a loss when it comes to a single doctrinal
approach on how to classify claims as legal vs. equitable. Cts. generally place the
most emphasis on the type of remedy sought.
b. Jury Selection - FRCP 48 requires a person jury and the S.Ct. has held that federal cts.
may not have non-unanimous verdicts. Jurors are supposed to be free
from bias, prejudice, or preconceived notions. During voir dire if
counsel can demonstrate that a there is reasonable doubt a juror may be
able to maintain objective neutrality about the subject matter or the
action the juror may be “challenged for cause”. In addition, in federal
ct., each side gets 3 preemptory challenges to be used at their discretion
(although it must be grounded on good cause)
1. Jury must represent a “cross-section” of the community -  brought suit against . 
demanded a jury trial and then attempted to withdraw his request but  refused to
consent. At trial  challenged the composition of the panel on the grounds that they
were mostly businessmen and executives and thus not representative of the community.
A verdict was rendered for the  and the  appealed. The S.Ct. held the case must be
reversed b/c federal law prohibits intentional or deliberate exclusion of any class persons
on account of race, creed, or previous condition of servitude, and there was evidence that
the Ct. clerk, when compiling the roll of prospective jurors excluded those who could not
afford to serve for only $4 a day, resulting in the exclusion of working class members.
2. If a juror shows bias they must be excluded; Flowers v. Flowers – during voir dire in a
child custody case juror showed prejudice that she was prejudiced against the wife, the
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Ct. held that when a reasonable bias is shown the court must permit disqualification for
cause, it is not something that is within the discretion of the Ct. to exercise.
B. Judicial Control Over Jury Decision
c. The Province of the Jury – it is up to the Ct. to determine the rules of substantive law
that govern a case and it is up to the jury to determine the facts on the basis of evidence
presented. Yet the two are not always so easy to clearly discern.
1. Dobson v. Masonite Corp. -  made an oral agreement w/  that  would clear ’s land
of timber, sell it at the market price, and then be entitled to keep any profits he made. 
then terminated the contract and  sued for profits he would have netted had he been able
to complete the contract. The  claimed it was a contract for services, the  claimed it
was a contract for the sale of goods, thus the Statute of Frauds applied making it
unenforceable. The questions was submitted to the jury in the form of special
interrogatories as to whether it was for sale of goods or services. Jury returned a verdict
for the  and the  appealed. The App. Ct. held that the interpretation of the contract
was a question of fact for the jury and that there was ample evidence to support the jury’s
finding it should be affirmed.
a. Deciding whether to treat an issue as law or as fact is a policy questions and you
should ask whether the Ct. should make the law narrow, or whether they should dive
instructions to the jury that give them a lot of leeway.
b. If it is an issue of law the Ct. will be able to use caselaw to guide them in finding the
answer, it will prevent the jury from making a decision based on who they “like” and
it will prevent the common practice of the jury favoring the individual over the “deeppocket” corporation. On the other side the inherent reasoning that supports jury trials
in the 1st place is “popular justice”
d. Jury Misconduct
1. Robb v. John C. Hickey, Inc. -  sued  in a negligence action. The State had a law
that contributory negligence was a complete bar to recovery for the  and the jury
instructions indicated so. The jury rendered a verdict for the  and stated that both 
and  were negligent, but the  was more so. Both  and  objected and sought to
set aside the verdict the Ct. said no and granted a new trial. A Ct. cannot mold a
verdict that is self-contradictory into a formal verdict b/c with a self-contradictory
verdict the intent of the jury is unclear. The Cts. only alternative is to set aside the
verdict and grant a new trial.
2. Hukle v. Kimble – In a negligence action evidence presented by one of the jurors
showed that b/c the jury was having trouble agreeing on the proper verdict they added
together all the damages each member would have given and divided it by 12. 
appealed and the S.Ct. agreed this was grounds for reversal. Award averaging is
condemned in almost every state.
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3. Sopp v. Smith – Ct. held that the fact jurors went to an accident site to see if visibility
really was “obscured was not grounds for a new trial.
4. S.Ct. held in a case where it came out after the fact that all of the jurors were
drunk/stoned was not grounds for review. They did this to prevent a broad allowance
of jury review. 5 reasons for supporting the strict rule of exclusion are the need for
stability of verdict, need to protect jurors from harassment by unsatisfied litigants, the
desire to prevent prolonged litigation, the desire to prevent verdict being set aside on
the account of subsequent doubts by jurors, or jurors changing their minds, and to
preserve the sanctity of the jury room.
e. Judicial Power to Override the Jury
Motion for a Directed Verdict – may be made at the close of ’s evidence or at the close
of all evidence
Motion for a Judgment Notwithstanding the Verdict – may only be made after entry of a
verdict by the jury. Either motion should be granted whenever, with all
evidence considered most favorably upon the non-moving party, the moving
party is entitled to judgment as a matter of law (i.e. “reasonable persons could
not differ that the moving party deserves judgment). Both of these motions
are now referred to as “judgment as a matter of law”.
FRCP 50 Judgment as a Matter of Law in Jury Trials
50(a) Judgment as a Matter of Law: If at trial, a party has been fully heard on an issue
and there is no legally sufficient evidentiary basis for a reasonable jury to find for that
part on that issue, the Ct. may determine the issue against that party and grant judgment
as a matter of law w/ respect to it.
1. Failure to carry the burden of proof; Denman v. Spain –  sued the  (estate of auto
driver) for damages resulting from a collision in which everyone was killed except
the . ’s only evidence was 2 witnesses, neither of whom saw the accident, and
some photos from the scene.  presented no evidence. Verdict was returned for the
,  moved for JNOV on the grounds the verdict was unjustified based on the
evidence, the Ct. granted the motion. App. Ct. affirmed holding that  carried the
burden of proving negligence on the part of the  and failed to do so, thus ’s JNOV
motion was justified.
2. Kircher – Under appellate review it was necessary for the judge to consider whether it
was reasonable on the part of the jury to believe that facts as they appeared at trial (
fell through a hole and then rolled unconscious for 13 feet onto the train tracks)
FRCP provides that the Ct. can substitute their judgment for the jury’s when they
believe there is no reasonable basis, given the evidence, that the jury could have come
to the conclusion they did.
3. Aetna Casualty Co. v. Yeatts – During an abortion  caused injury to a patient. 
refused to compensate  alleging  performed the abortion criminally. ’s own
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testimony was that the abortion was necessary to save the life of the mother.
Preponderance of the evidence tended to show that  did not obtain a Ct. order
allowing him to perform the abortion, but  testified that he had obtained written
permission. Verdict was for ,  moved for a new trial on the grounds the verdict
was against the weight of the evidence. On appeal the Ct. held that a federal trial
judge may set aside a jury’s verdict where the verdict “constituted a miscarriage of
justice”. But affirmed b/c that was not the case here.
C. Extraordinary Relief From Judgment
See FRCP 60 (above)
1. Hulson v. Atchinson -  sued . Verdict was granted for .  notified the Ct. that he
would submit a motion for a new trial but he failed to do so w/ in the 10-day time limit in
the FRCP. Weeks later  made the motion. When it was denied he asserted that he
made an error of law that could be remedied under FRCP 60. The Ct. said this did not
constitute “excusable neglect” as stated in the rules. If  had read the rules he would
have been aware of the time limit thus his mistake is not excusable.
a. 60(b) warrants narrow interpretation b/c there is a desire for finality in accordance
w/ the principle of res judicata, otherwise people will be asking for new
judgments all the time. It is not to say that this is never allowed, it is up to the
discretion of the Ct.
XIII. THE BINDING EFFECT OF DECISIONS
A. Res Judicata (Claim Preclusion)
Claim preclusion arises when the following 3 things are met:
1. there is a final, valid judgment on the merits
2. the parties in the subsequent action are identical to those in the prior action
3. the claim in the subsequent suit involves matters properly considered in the prior
action
Merger: The fusion of 2 causes of action into a single right of action. A party is required to
assert all of his causes of action that arise out of the same transaction in a single suit. Failure
to do so results in wavier of the causes not so joined (the unjoined causes of action merger
into the asserted causes of action). The judgment is thus valid against all ’s claims and all
of ’s defenses.
Bar: If a  prevails upon his cause of action any other unasserted causes of action are
merged and thereby waived. If a  loses on the merits he is barred from asserting in any
other action the same or similar causes of action.
1. Rush v. City of Maple Hts. –  cannot sue in 2 separate actions for damages resulting
from a single accident.
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2. Jones v. Morris Plan Bank -  purchased an automobile financed by . The finance
agreement. The agreement contained an acceleration clause that if the  was late on one
payment the entire balance became payable.  missed 2 payments thus  repossessed
the car.  then sued  for the 2 late payments. In a separate action  sued  for
conversion of the car. The Ct. held that when  sued payment for only part of the amount
due ’s failure to sue for the full amount constituted a wavier of the right to sue on the
amount of the remainder. Thus ’s later repossession of the car and its later action to
force payment of the remainder of the contract were not allowed.
a.  could have avoided the problem if he had included an option in the agreement
to sue for either the full amount or just the outstanding payments.
3. Federated Dept. Stores v. Moitie -  and 6 others sued  in federal ct. for alleged price
fixing under the Clayton Act. The case was dismissed for failure to allege an injury. The
other 5 appealed, but  and one other did not. They brought an action in St. Ct. which
was removed to federal ct. and then dismissed on the grounds of res judicata. In the
meantime the S.Ct. rendered a decision that you could sue under the Clayton Act so the 5
s who appealed were able to have their cases tried. However Moitie and the other 
could not b/c they did not appeal, thus that judgment as to them was final. Res judicata is
a fundamental and substantial rule of justice and cannot be bent or undone due to public
policy considerations or b/c of the simple justice concerns of one specific case.
3. Smith v. Kirkpatrick -  originally sued  for money allegedly due under an
employment contract.  denied existence of the agreement and the complaint was
dismissed b/c the agreement did not comply w/ the Statute of Frauds.  then filed an
amended (second) complaint alleging that  and  had an informal oral agreement for
employment and that also that agreement was a joint venture, and  sought an
accounting as monetary relief. The D.Ct. found that this was essentially the same cause
of action as asserted in the original complaint and thus it was barred by res judicata. 
did not appeal but rather filed a separate cause of action seeking to recover the reasonable
values of his services rendered to . The Ct. held the first action was an action in equity,
seeking to enforce a right which arose out of an express agreement, while the current
action is one at law, resting upon an implied contract thus the actions involve 2 different
“rights” and “wrongs”. The Ct. held while res judicata did apply to the first action the
narrow judgment in that action did not preclude the present action, thus ’s current suit is
allowable.
4. Heany v. Bd. of Trustees -  brought a mandamus action for  to reinstate him under his
teaching contract, or to show cause why it could not. During the course of the action ’s
contract expired, and he was not tenured thus  had no obligation to renew and the suit
became moot. The Ct. noted the judgment was “on the merits” and entered judgment
against .  then brought a separate action for alleged breach of his employment
contract and sought damages. The Ct. held that this suit was not barred by the previous
one. Res Judicata applies only to those issues actually litigated in the previous action. In
the prior suit wrongful discharge was never fully adjudicated as an issue.  could have
combined his 2 actions in this case, but this does not necessarily mean he had to.
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a. Ct. noted that this is a policy determination. The objective is to avoid repetitious
and inefficient litigation that results from needless fragmentation of suits.
Separation of trials is common in mandamus actions b/c the issue of the
injunction is dealt with long before any facts re: the amount of damages are even
discussed.
5. Bogard v. Cook - , an inmate was part of a previous class action, he did not opt out of
the class. Ct. held that  was not barred from asserting a claim for damages that resulted
after the class action trial had been concluded. ’s in the class action could not have
determined from the notice given that inclusion in the suit would bar all future claims.
Also,  would have to have brought his suit w/in the 3 months after the conclusion of the
class action trial and during this time he was in the hospital. Furthermore ’s new suit
presented uncommon questions of fact to the class.
6. Rinehardt v. Locke – under rule 41, when the D.Ct. dismisses a case for a failure to state a
claim, but does not specify that the dismissal is without prejudice, the existing claim (as
re-brought) is barred and considered res judicata.
B. Collateral Estoppel (Issue Preclusion)
Generally: A right, question, or issue of fact that is determined by a Ct. to be grounds for
recovery cannot be disputed in a subsequent suit between the same parties or parties in
privity with them. This differs from claim preclusion b/c this will never apply to matters not
argued or decided in a previous action. The issue has to actually be litigated.
1. Cromwell v. County of Sac – In an earlier action a party had brought suit against the
county () for payment due on the maturation of coupons attached to bonds issued by .
The Ct. in that action held the that  held the bonds fraudulently ant thus no payment
was required.  then brought an action seeking payment due on the same bonds. The Ct.
held there was no issue preclusion b/c the issue in the first action was whether or not the
 held the bonds fraudulently where the issue in this action is whether or not the  was a
bonified purchaser for value.
a. Rule: You cannot re-litigate the same issue a previous judgment rests on. For a
judgment to rest upon an issue the Ct. has to make reference in its holding to that
specific issue. The determination of the issue must have been vital for the Ct. to
render its previous judgment in order for collateral estoppel to apply.
2. Requirement of Certainty; Russell v. Place – In an earlier suit  sued  for patent
infringement on several different counts, any one of which could have resulted in a
verdict for the . Ct. rendered judgment for  but did not state which count it based its
decision on.  then brought a suit under the same counts for subsequent infringement.
The Ct. held the  was not estopped from making the case b/c when there is uncertainty
as to what the Ct. based its decision on the entire group of issues may be re-litigated.
a. Rule: Unless you can tell an issue was specifically decided upon in a previous case
you can re-litigate it in a subsequent case.
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3. The issue in the previous action must be necessary to support the judgment entered; Rios
v. Davis – In a previous action the employer of the  sued the  for damages sustained in
a truck accident between  and . The  was brought in as a 3d-pty . In denying
recovery to the employer the Ct. noted that all parties had been negligent.  then brought
suit against  and  claims that it is barred by the prior judgment. The Ct. held it is not
barred b/c in the previous action it was not necessary for the Ct. to decide that  had
been personally negligent – it did so as a kind of dictum. For the previous suit all that
was necessary to bar the recovery of the employer was an finding of contributory
negligence.
a. Rule : estoppel is proper when the issue is the exact issue the prior Ct. based their
judgment on.
4. Patterson – Holds the opposite of Rios. ALR suggests a middle road that says if you
have 2 findings and they are both explicit as to the issue judgment was based upon then
neither issue is estopped. If the losing party appeals and the Ct. affirms it as to both
issues that would give the parties enough confidence to treat both of the issues as
estopped.
5. Old Rule re: “Mutuality of Estoppel”; Ralph Wolff & Sons v. New Zealand Ins. - 
had insured its business with 14 different insurance companies. When the business was
destroyed by fire  brought suit against 9 of the 14 companies.  got compensation but
the judgment on each policy, when aggregated, was far below the actual losses sustained
in the fire.  thus brought suit against . Even though  was a stranger to the 1st action
they asserted collateral estoppel. The Ct. held collateral estoppel did not apply where the
 was asserting collateral estoppel and the parties did not have “mutuality of estoppel”
(this requires that both  and  were parties in the former suit)
6. New Rule re: “Mutuality of Estoppel”; Bernhard v. Bank of America – S gave C money
to deposit in her bank account, C did so, but then withdrew the money and pocketed it. S
died and S’s heirs () brought suit against C for embezzlement. This was denied and the
Ct. ruled the money from S to C had been a gift.  then brought suit against the bank
asserting the bank had illegally allowed to make withdrawal out of S’s account. The
bank asserted collateral estoppel. The Ct. overruled the mutuality of estoppel
requirement and held that three questions need to be asked instead:
1. Was the issue decided in both cases identical?
2. Was the adjudication of the issue final and necessary?
3. Was the party against whom the plea is to be asserted a party to the original
action?
(Ct. thus allowed collateral estoppel to be asserted)
7. Parklane Hoisery Co. v. Shore -  brought a stockholder’s class action against  for
damages arising from a false proxy statement. Prior to trial the SEC brought suit against
 on the same issues and won a declaratory judgment in a non-jury trial.  moved for
partial SJ against  as to the issues litigated in the SEC action, on the grounds of
collateral estoppel. Te Ct. held that when collateral estoppel is used offensively it should
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not be allowed of  could have been joined as a  in the previous case. However here 
probably could not have been joined b/c it was a government action. Furthermore ’s
rights to a jury trial are not violated.
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