Civil Procedure – Levin
Outline
Jessica Sherman
For a judgment to be valid, the parties must have adequate notice, the court must have had territorial
jurisdiction and subject-matter jurisdiction, and venue must be proper.
I. PERSONAL JURISDICTION: in what states can pl. sue def.?
A. Basics
1. The Court must have power over something to give it personal jurisdiction, to render a
binding, enforceable judgment defining or declaring rights and duties of the parties
(substantive due process):
a) The defendant himself
b)Power of defendant’s property
2. Three types of personal jurisdiction
a) In personam: the court’s power is over the defendant himself
b) In rem: power over def. property
c) Quasi in rem: power over an out-of-state def. property
3. Statute must also give power to hear the case
a) Just because it falls within the Due Process clause, does not mean state has
jurisdiction – state must have a statute [First thing to ask is whether a statute
allows for personal jurisdiction (ex. long arm statute); then ask whether it falls
within the Due Process Clause]
b) such a statute allows the courts of a state to obtain jurisdiction over persons
not physically present within the state at the time of service.
4. Once jurisdiction over the parties is gained, it continues during the entire litigation. At
each new step of the litigation process, notice and opportunity to appear must be given
B. In Personam jurisdiction
1. General v. Specific
a) General in personam jurisdiction: def. can be sued in the forum on a claim that
arises anywhere in the world
i) continuous systematic or substantial ties with the forum  general
jurisdiction
ii) ex. domicile; place where incorporated
iii) makes Burnham seem unfitting
b) Specific in personam jurisdiction: def. can only be sued in the forum for a
claim that has some connection with the forum
c) Perkins v. Benguet Consolidated Mining: where there are systematic and
continuous minimum contacts, a state may assert jurisdiction over a defendant
even for causes of action arising outside the jurisdiction (stockholder sued
Philippine mining co. in Ohio based on the company president’s presence and
activities there)
d) Helicoptros Nacionales de Colombia v. Hall: general in personam jurisdiction
requires sufficiently substantial and continuous minimum contacts with the
forum state (Decedents’ representatives sued owner of helicopter that crashed in
Peru. Court said not enough contacts)
i) def. purchases in the forum state, even if they occurred regularly, will
not be sufficient to establish the requisite minimum contacts
2. Constitutional Limits
a) Pennoyer v. Neff: boundary theory: state has power over people and property
within its physical boundaries; Traditional bases of jurisdiction:
i) def is served with process in the forum (presence)  General
Jurisdiction
ii) def. agent is served with process in the forum
iii) def. is domiciled in the forum (General Jurisdiction)
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Civil Procedure – Levin
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Jessica Sherman
o
State courts have in personam jurisdiction over all
domiciliaries of the state, wherever they are residing and
wherever they are served with process. Milliken v. Meyer
(pl., sued def, a Wyo. domiciliary, in Wyo. court, but served
him in Co. where he was vacationing)
o Rationale: a state which accords privileges and affords
protection to a person and his property by virtue of domicile
may exact reciprocal duties
iv) consent by def.
o Adam v. Saenger: if you bring suit in a state court in which
you are not a resident, you consent to counter-suit in that
state.
o Carnival Cruise Lines v. Schutte: forum selection clause
validly establishes jurisdiction by consent and will be
enforced so long as they are fundamentally fair (pl. injured
by fall that occurs on the cruise ship and sues in Wash, when
contract selected Florida for suits)
o M/S Bremen v. Zapata Off-Shore Co.: reasonable forumselection clauses in contracts establishes jurisdiction by
consent, even if leads to foreign court (pl. sued def. in Fla.
fed. court for damage to its rig, def. moved to dismiss b/c
forum selection clause mandated jurisdiction in London)
v) Nationality: US citizenship is probably sufficient contact with the US
to subject citizens abroad to in personam jurisdiction of Am. courts
without violating due process. Blackmer v. United States (US citizen in
France refused to comply with a subpoena and was convicted in absentia
for contempt)
vi) DIFFICULT to get in personam jurisdiction over non-residents…. so
S.C. expands
b) IMPLIED CONSENT: Expanding personal jurisdiction: Hess v. Palowski: Pa.
citizen in Mass. and gets into car accident in Mass. Mass. statute appoints
secretary of state as agent for service of process for anyone using hwys in Mass.
and gets into car accident. Def. not served while in Mass. Long-arm statute =
consent; expands notion of consent from actual to implied
c) International Shoe v. Washington: doctrinal shift
i) “There is jurisdiction if the def. has such minimum contacts with the
forum so that the exercise of jurisdiction does not offend traditional
notions of fair play and substantial justice”
ii) more flexible standard than Pennoyer and has led to an expansion of
jurisdiction
iii) you can get in personam jurisdiction over a non-resident WITHOUT
serving process in the forum, as long as def. has minimum contacts with
the forum (here, solicitation of orders w/in the forum state is sufficient)
iv) Does not overrule Pennoyer; it is the test if def. is not present in the
forum
v) Two part test (1) contact; (2) fairness – balance of interests (burden of
defending in a foreign state v. extent of corporate contact)
d) McGee v. Int’l Life Insurance (1957): TX corp. sells one contract in CA; it
gets sued in CA. CA had a statute granting jurisdiction over companies writing
insurance policies on California residents, even though the statute was enacted
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Civil Procedure – Levin
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Jessica Sherman
after the policy in question was written. Court says one contract is enough for
jurisdiction
i) def. solicited the contract from CA (mailing premiums)
ii) RELATEDNESS: pl. claim arose from the def. contact w/ CA.
iii) STATE’S INTEREST: Ca. had an interest in the case
iv) this case represents the least contact with the forum state that has
been approved by the Supreme Court
e) Hanson v. Denkla: Pa. woman sets up trust in DE, then moves to Fla. She
continues to do business in Fla. and Del. Woman dies in Fla. Court says Fla. has
no jurisdiction over Del. Bank b/c bank did not avail itself of Fla. jurisdiction
i) to be a relevant contact under test, it must result from def. purposeful
availment of the forum
ii) Del. Bank had no ties w/ Fla. except that woman moved there
f) World Wide Volkswagen: family buys car in NY, move to Az. and drive though
OK and get into car accident there. Family wants to sue WWV, who only did
business in NY, CT, NJ and Seeway, who only does business in NY. Court says
no purposeful availment and thus, no jurisdiction.
i) foreseeability is relevant; but not foreseeability that the car will get
there. IT MUST BE FORESEEABLE THAT DEF. WOULD BE
HAILED INTO COURT IN OKLAHOMA
ii) def. did not make any effort to serve directly or indirectly market for
its products in Oklahoma
iii) unilateral activity of pl, here, an isolated occurrence
g) Kulko v. Superior Court: A state cannot exercise jurisdiction over a def. who
did not personally avail himself to the benefits of the state, even if the state has a
strong interest in the litigation (NY Father sends kids to live with mom in CA,
and mom sues him in CA; jurisdiction struck down; plane ticket purchase
insufficient)
h) Burger King: franchisees in Mich., corp. in Fla. Corp. sues franchisees in Fla.
Court says that there was jurisdiction.
i) emphasizes that there are two parts of Int’l Shoe
ii) must have relevant contact with the forum b/f fairness looked at
iii) if there is a lot of fairness, lesser showing of contact okay
iv) Court said there was contact: franchisees purposefully reached out to
Fla. Court said that it was fair too – the burden is on the defendant to
show that the forum is unconstitutional (grossly unfair); wealth of the
parties is irrelevant
v) def. had fair warning that a particular activity could subject thtem to
jurisdiction of a foreign sovereign
j) Asahi Metal: stream of commerce case (Seller 1 in state A sells his parts to
manufacturer in State B, who incorporates them into his product and sells them to
state C and D)
i) NO LAW that comes out of the case 4-4 split
ii) Brennan approach: it is a contact if def. puts the product into the
stream of commerce and reasonably anticipate that it will reach the other
states -- FORESEEABILITY
iii) O’Connor: you need Brennan’s requirement, and also and INTENT
to serve the other states
iv) In stream of commerce question, talk about both theories
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Civil Procedure – Levin
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Jessica Sherman
k) Burnham v. Superior Court: NJ def. sued in Ca. by his wife (for divorce) and
served with process in Ca. while on vacation (but stopped to visit his children),
but claim did not arise in Ca. Did Ca. have general jurisdiction?
i) NO LAW that comes out of the case, 4-4 split
ii) Scalia: jurisdiction b/c of history; service of process in the forum is
sufficient; in-state service of process sufficient
iii) Brennan: jurisdiction; but “minimum contacts” must be applied;
simply by being in Ca. for three days, def. had availed himself to be
subject to general jurisdiction (but never says how much time is enough)
iv) Grace v. MacArthur (1959): service on an airplane flying over the
forum state is valid, since the plane was present in the state.
l) When applying minimum contacts analysis of a foreign company, its not
whether the company has minimum contacts with the country, but with the forum
state (DeJames v. Magnificence Carriers: def, Japanese Co., negligent in
manufacturing boat in Japan. No office in NJ where sued. Court says no
jurisdiction)
3. Statutory Basis (ask this question first)
a) every state has statutes covering the traditional basis
b) every state has a non-resident motorist statute (Hess v. Palowski), which gives
SPECIFIC jurisdiction
c) every state has a long-arm statute; two models
i) CA approach: we have jurisdiction to the extent of the constitution
ii) Laundry list statute: lists certain things that will subject a nonresident to jurisdiction. Almost always SPECIFIC jurisdiction.
d) vary from state-to-state
e) the same language can mean different things in different ways
i) ex. “we have jurisdiction if the def. commits a tortuous act in the
forum”
o If, def. sells products to one in state A, product blows up in state
B
o Gray v. American Radiator: injury in state B constitutes a tort in
state B
f) Keeton v. Hustler: Pl. sued in NH b/c most lenient long-arm statute. SC upheld
jurisdiction b/c sale of thousands of magazines in a state are not random, isolated,
fortuitous. Pl. lack of contacts with the forum state will not block jurisdiction.
4. Recap of Constitutional analysis
a) Does one of the traditional basis apply (Pennoyer); they still may be alive,
may need minimum contacts (Burnham)
b) International Shoe test:
i) Must relevant contact with the def. and the forum
o PURPOSEFUL AVAILMENT of the forum; def. must reach out
to the forum in some way
o FORESEEABILITY: must be foreseeable that def. would be
hailed into the forum
ii) Fairness
o relatedness of claim and forum(McGee); OR
o continuous and substantial ties with the forum
o inconvenience for the def. – but burden is on def. to show that its
unconstitutionally and grossly unfair (Burger King – tough to
show)
o state’s interest in case
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Civil Procedure – Levin
Outline
Jessica Sherman
o
not much done with these
 pl. interest
 legal system’s interest in efficiency
 shared substantive policies of the states
C. In Rem and Quasi in rem: property
1. Difference b/w in rem and quasi in rem
a) in rem: dispute itself about who owns the property
b) quasi in rem: the lawsuit has nothing to do with who owns the property; it is
one that would be in personam if it could be
i) Pennoyer v. Neff – quasi in rem was okay if court had attached (seized)
the property at the outset of the case
2. Must have an attachment statute
a) every state has an attachment statute
b) “We can attach property that a non-resident owns”
c) Before 1963, quasi in rem action had to be commenced in a state court
d) Rule 4(n)(2): federal quasi-in-rem jurisdiction may only be used if the law on
the state in which the federal court sits permits such jurisdiction
3. Constitutional (?)
a) Tyler v. Judges of the Court of Registration: personal notice to all adverse
claimants is not required in a motion in rem to quiet title to property (pl. claimed
an interest adverse to property at issue and sought a writ prohibiting judges from
adjudicating an application to quiet title); in rem jurisdiction only requires power
over property
b) Pennington v. Fourth Nat’l Bank: in rem jurisdiction requires seizure of
property within the borders of the forum state (Pl. objected to exercise of in rem
jurisdiction over his personal intangible property); tangible and intangible
property the same
c) Harris v. Balk: its okay to attach even intangible property (ex. debts); the situs
of a debt travels with the debtor
d) Schafer v. Heitner: EVERY CASE HAS TO MEET MINIMUM CONTACTS.
Minimum contacts must exist for in rem jurisdiction. (H brought shareholders
derivative suit against officers and directors of Greyhound by attaching their
stock; reversed)
i) in most cases, property’s presence in the forum will meet minimum
contacts for in rem jurisdiction
ii) quasi in rem, have to show that def. meets the minimum contacts test
of International Shoe
II. NOTICE AND OPPORTUNITY TO BE HEARD
A. Service of Process [Rule 4]
1. Process consists of a summons and a copy of complaint
a) summons is from the court as an official notification of the suit; 4(a) and (b)
b) service on the def. must be made within 120 days after filing the complaint
[Rule 4(m)]
2. The defendant must have adequate notice of the action against him and an opportunity
to be heard as required by procedural due process
3. Process can be made by any non-party at least 18 years old; Rule 4(c)(2)
4. Rule 4(e)(2); Can serve individual by:
a) personal service: hand it to defendant anywhere in the state through a
procedure reasonably probable to reach the defendant
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Civil Procedure – Levin
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b) substituted service: must be done at defendant’s usual place of abode, and
must serve someone of suitable age and discretion who resides there
i) Rovinski v. Rowe: Service was left with the def. mother at an address
he had given in an affidavit in a prior state action against him based on
the same incident; court held “usual place of abode” should be
constructed liberally – service upheld
c) serve the defendant’s agent
i) Insurance Co. of North America v. Hellenic Challenger: service upon a
corporation is effective when delivered to anyone so integrated with the
organization that he knows what to do w/ the papers, even if not
expressly authorized to receive process
d) State law: Rule 4(e)(1) allows pl. any method for serving process that is
allowed by state law, either the state where the federal court sits OR where the
service is effected (ex. mailing)
e) if the defendant cannot be sued in any state (i.e. a foreigner), Rule 4(k)(2)
allows a federal question suit to be brought if the exercise of jurisdiction is
consistent with the Constitution and laws of the United States.
f) Pennoyer v. Neff: cannot give notice by publication upon a non-resident;
defendant must be served w/ process w/in the state in which the court is sitting.
5. Waiver of service [Rule 4(d)]: send summons, complaint, waiver form, and SASE, and
if def. sends it back, then def. waives service
a) DO NOT CALL waiver by mail
b) MD State Firemen’s Assoc. v. Chaves [MD]: a plaintiff must strictly comply
with service provisions, even if the def. has actual notice of the lawsuit (default
judgment entered against def.; service sent by first class mail to the address on
the def. letterhead)
c) incentives:
i) if the def. grants waiver, he gets 60 days following the date on which
request for waiver was sent which to answer (compared with 20 days
from service of process)
ii) if the def. does not waive service, the court shall impose the costs
subsequently incurred in effectuating service [4(d)(2)]
iii) a def. who grants waiver will not be deemed to have waived any
objection to venue or personal jurisdiction over him.
6. Geographic limits [Rule 4(k)(1)(A)]: you can serve process throughout the state in
which the federal court sits, and can serve process out-of-state ONLY if the state court in
which the federal court sits could (where long-arm statute of the state in which the district
court sits permits)
a) two exceptions
i) by federal statute: there may be a federal statutory exception [ex.
statutory interpleader 4(k)(1)(c) and (d)]
ii) Bulge rule: you can serve process out of state without a state statute as
long as it is within 100 miles of the federal courthouse [Rule 4(k)(1)(b)];
DOES NOT APPLY to an original defendant – ONLY applies to
PARTIES JOINED LATER [Rule 14 (third-party defendants), Rule 19
(indispensable parties)]
7. Nationwide service of process: 28 U.S.C. § 1391(e): permits service by registered mail
anywhere in the country in a suit against federal officers and agencies
8. Other requirements
a) person making service must make proof of service by promptly filing an
affidavit with the court setting forth the manner in which service was made.
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Civil Procedure – Levin
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b) service of process must be made w/in 120 days of filing the complaint or the
action can be dismissed
B. Constitutional Standard for Notice
a) Mullane v. Central Hanover Bank: notice must be reasonably calculated under all of
the circumstances to apprise the party of the proceeding (Bank petitioned for a judicial
settlement and provided notice by publication)
i) watch out for notice by publication (constructive notice); almost never good
under Mullane, but not automatically invalid
ii) Mullane upheld notice by publication for some people who couldn’t be found
and were unidentifiable; invalid where the names and addresses of the parties is
known
iii) test under due process is whether reasonable effort has been made, not
whether it succeeds.
b) If you meet Rule 4, generally no constitutional problem
c) Dusenbery v. United States: (FBI sent certified mail to Dusenbery where he was
incarcerated, Def. never received it; default judgment upheld); courts have never required
actual notice as long as attempt complied w/ Rules
d) Service of process is improper when service is rendered through trickery or fraud.
Wyman v. Newhouse (pl. fraudulently induced def. to come to Fla. by telling him she was
leaving the country for good and wanted to see him, and then served him with process)
C. Opportunity to be heard
a) Prejudgment seizure of property
i) OLD WAY: classic ex: buys item on installment payments; fails to pay; sheriff
seizes the property
ii) MODERN: there are safeguards that due process will require (but we don’t
know how many and to what extend they must be present)
 pl. must give an affidavit of his claim (sworn statement) before property
seized
 must get the writ from the judge, not the sheriff
 pl. must post a bond for the value of the repo item, that way p. can
repossess but if later found wrong at hearing, def. can get money back
 ** defendant gets a hearing on the merits at some point
b) Fuentes v. Shevin: In order to comply with procedural due process, notice and
opportunity to be heard must be provided prior to seizure of property; statutes that fail to
provide for an initial hearing before a creditor can replevy goods are unconstitutional
i) can seize goods before a final judgment in order to protect the security interests
of creditors, as long as those creditors have tested their cliam to the goods
through the process of a fair, prior hearing.
c) Mitchell v. W.T. Grant: statutes allowing for attachment without a hearing do not
violate due process if safeguards exist (verified petition, had to make showing to judge,
etc.)
d) North Georgia Finishing v. Di-Chem: in order to comply with procedural due process,
attachment by garnishment requires a prior adversarial hearing or certain procedural
safeguards
III. SUBJECT MATTER JURISDICTION (SMJ) – which court to go to (state/federal)
A. Basics
1. Federal Courts are of limited subject-matter jurisdiction
2. State Courts have general subject-matter jurisdiction
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3. Most courts hold that subject matter jurisdiction may NOT be conferred by consent of
the parties
4. Rule 12(h)(3) states that the parties or the court on its own initiative may ALWAYS
object to the court’s lack of subject matter jurisdiction.
B. Diversity of Citizenship
1. governed by 28 U.S.C. § 1332 (a)(1) and Art. III, §2 of Constitution
2. must be a case b/w citizens of different states and amount in controversy must exceed
$75,000
a) there is no diversity if ANY pl. is a citizen of the same state as ANY def.
Strawbridge v. Curtis (1806)
b) citizenship determined by:
i) if a US citizen, citizenship is of the state where domiciled
o Domicile established by
 Physical presence in the state
 ** Intent to make it your permanent home
o can only be domiciled in one state at a time
ii) HYPO: person born in OK; goes to college for 4 years in Mass.; goes
to law school in NY, goes to CA for PhD. OK is still his domicile b/c he
has never intended to make other states his permanent home
iii) Mas v. Perry: a party changes domicile only by taking up residence in
another state with the intention to remain there; a wife’s domicile is not
necessarily the same as her husband’s
c) citizenship of a corporation defined in §1332(c)(1): corporation is a citizen of:
i) all states it is incorporated (most only incorporated in one state)
ii) AND of the ONE state where it has its principle place of business
(ppb). PPB is determined dif. by courts:
o the nerve center: where decisions are made (corporate
headquarters/home office)
o the muscle center: the place of activities (where corporation does
the bulk of its activity)
o total activities test: use the nerve center unless all of the
corporate activity is ALL in one state
iii) can be a citizen of more than one state
iv) unincorporated associations, such as partnerships and labor unions do
not fall under the §1332(c) definition of corporation
v) White v. Halstead Industries, 750 F. Supp 395 (E.D. Ark. 1990)
corporations are citizens (1) of the state in which they are incorporated
and (2) the state in which it has its principal place of business
d) Exception: Ankenbrandt v. Richards: some areas of the law that even if
jurisdiction exists, federal courts will not hear because these are areas of the law
in which the states have an especially strong interest and a well-developed
competence for dealing with them (divorce, alimony, child custody, etc.)
3. Amount in controversy must EXCEED $75,000
a) does not count interest and costs
b) in determining whether pl. met the amount, court defers to pl. good faith claim
unless it appears to a legal certainty that pl. cannot recover that amount.
c) Aggregation:
i) def: where you must add two or more claims to get over $75,000
ii) aggregate claims if one pl. v. one def.
o cannot aggregate if multiple parties
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d) with joint claims, use the total value of the claim (pl. v. multiple defendants
for same wrong)
i) claims in class-action suit cannot be added up to meet jurisdictional
amount. Snyder v. Harris
e) Dismiss as soon as it is evident that pl. does not meet jurisdictional amount
(Tonghook America v. Shipton Sportswear)
C. Federal Question
1. 28 U.S.C. § 1331, “cases arising under the Const., laws, or treaties of the US”
2. Citizenship and amount are irrelevant
3. Must arise under a federal law
a) Look ONLY at the PL.’S COMPLAINT and to the CLAIM ITSELF – NOT to
EXTRANEOUS stuff (Well-pleaded Complaint Rule); from Mottley
b) Is the plaintiff enforcing a federal right?
c) Louisville and Nat’l Railroad v. Mottley: pl. had lifetime pass on the RR; in
1906, Congress passed a statute that said RR cannot give away free passes.
Motleys sue the RR and in their complaint they mention the new law and states
that it does not apply and is unconstitutional. There was no federal question
jurisdiction b/c Motleys not suing under the federal statute, but rather, breach of
contract.
i) Federal question jurisdiction cannot be obtained by anticipating a
defense def. will raise
ii) Appellate court can dismiss a suit already tried for lack of subject
matter jurisdiction.
d) Merrell Dow Pharmaceuticals v. Thompson: If a federal law does not give the
right (Congress did not intend) to bring a cause of action, it is not sufficient to get
the case into federal court. (Series of state actions but also one alleging violation
of FDA labeling laws; Court ruled that the violation of the FDA law did not
provide for a private cause of action and thus, the case should not be allowed in
federal court.)
D. Supplemental Jurisdiction (ancillary jurisdiction)
1. Pl. must have asserted diversity or federal question to get case into federal court; once
pl. is in the federal court, the court can take jurisdiction over other claims pl. has against
def, even if they wouldn’t normally get into federal court. This promotes efficiency.
2. United Mine Workers v. Gibbs: pl. citizen of Tn., def. citizen of Tn. Pl asserts two
claims: (1) federal question (federal labor laws) (2) state law question. Case in federal
court; but claim (2) does not meet federal jurisdiction requirement, BUT it meets
supplemental jurisdiction, and thus, can be in federal court. Must:
a) Share a common nucleus of operative fact with the original claim (that got into
federal court);
b) nucleus of operative facts: same transaction or occurrence
3. Owen v. Kroger: Court say couldn’t assert jurisdiction over non-diverse third-party
joined under Rule 14
4. 28 U.S.C. § 1367
a) § 1367(a) grants supplemental jurisdiction over all other claims that are so
related to the claim in the original action as they form the same case or
controversy
i) codifies Gibbs
b) § 1367 (b) cuts back on supplemental jurisdiction
i) ONLY applies to DIVERSITY cases
ii) kills supplemental jurisdiction in diversity cases of claims asserted by
plaintiffs:
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o against persons joined under Rule 14, 19, 20 and 24
o claims by Rule 19 plaintiffs (persons joined if feasible)
o claims by Rule 24 intervener plaintiffs
4. TEST: (1) Same common nucleus of operative fact? (2) Does § 1367 kill supplemental
jurisdiction. But ONLY ask if it does not get in based on diversity or federal question
5. HYPO: Suppose 2nd claim (state law) is against a second defendant. GETS
SUPPLEMENTAL jurisdiction.
a) § 1367(a) applies EVEN if adding other parties
E. Removal
1. The defendant removes the case state trial court to federal trial court
a) one way street: can only remove from state to federal court
b) simply a transfer
c) [§1441(a)] remove only to the federal district embracing the state court was it
filed and only if federal court would have original jurisdiction
d) MUST remove within 30 days of service of the document that makes the case
removable
e) can remove if the case has federal subject matter jurisdiction, but two
EXCEPTIONS which apply ONLY IN DIVERSITY cases
i) there is no removal if any defendant is a citizen of the forum
[§1441(b)]
ii) there is no removal of a diversity case more than one year after the
case was filed
f) Hypothetical: Pl. (Ala.) sues D1 (NY) and D2 (Ga.) and amount in controversy
is $200,000. Claim is filed in a Ga. state court. Can the defendants remove?
i) NO: There is no removal if any def. is a citizen of the forum
ii) If the pl. dismisses the claim against the GA defendant, the case is
now removable; remaining def. must remove w/in 30 days, and it must
be less than a year before claim was made.
g) Rose v. Giamatti: removal is proper even though the Reds and MLB are
citizens of Ohio, as is the pl (Rose), because neither of those 2 def. are important
to the case – they are both formal or nominal parties with no actual interest or
control over the subject matter of the litigation. Since they are fraudulently
joined, their joinder will not prevent removal.
2. Bright v. Bechtel Petroleum: when case is removed, federal court can hear both state
and federal claims, even if federal claims are dismissed when claims arose under a
common nucleus of operative fact
3. Statutes
a) §1441: (a) when a cases is removed, it passes to the district court of the that
embraces the place where the state action is pending; ONLY if the state action
could have been brought in federal court; (b) the action is removable only if NO
defendant is a citizen of the state in which the action was brought; (c) where a
separate, removable federal question claim is joined with one or more otherwise
non-removable claims, the entire claim may be removed and the district court can
determine all issues therein
b) §1446: procedure for removal
c) §1447: if the federal judge concludes that the removal did not satisfy the
statutory requirements, he must remand the case to the state court from which it
came.; the judge’s decision to remand is not appealable
F. Attacks on Subject Matter Jurisdiction
1. Direct Attack
a) parties may not create the jurisdiction of a federal court by agreement
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b) lack of subject-matter jurisdiction may be asserted at any time by any
interested party, either in the answer, or as a motion.
c) Ruhrgras Ag. V. Marathon Oil, Held: since both subject-matter and personal
jurisdiction are required by the constitution and affect a federal court’s power to
hear a case, there is no reason to require a district court to decide subject-matter
jurisdiction first.
d) DiFrischia v. NY Central R. Co., def. waited to question jurisdiction until
statute of limitations ran out in state court; Circuit Court held that def. cannot
play fast and loose with the judicial machinery and deceive the courts
2. Collateral Attack
a) If the court in the original action determined that it had subject-matter
jurisdiction, the permissibility of collateral attack depended on the weighing of a
non-exclusive list of factors:
i) The lack of jurisdiction was clear
ii) The determination as to jurisdiction depended upon a question of law
rather than of fact
iii) The court was one of limited and not general jurisdiction
iv) The question of jurisdiction was not actually litigated
v) The policy against the court’s acting beyond its jurisdiction
b) Supreme Court in Chicot County Drainage Dist. v. Baxter State Bank, (1940)
did not allow for collateral attack on jurisdiction but did allow it in Kalb v.
Feuerstein, (1940), but the decision was based on policy and congressional intent
with bankruptcy legislation.
IV. VENUE – which federal district is proper?
A. Basic Provisions for Venue (when pl. files in federal court)
1. 28 U.S.C. §1391 (a) for diversity; (b) for federal question
2. Two choices for venue:
a) any district in which all defendants reside, OR
i) IF they all reside in different districts of the same state, venue is proper
in any of those districts
ii) Residence:
o for a human, domicile
o for a corporation, residence is [§ 1391(c)] in ALL districts where
it subject to personal jurisdiction
b) any district where a substantial part of the claim arose
c) § 1391(a)(3) (any jurisdiction which the def. is subject to personal jurisdiction
at the time the action is brought) or (b)(3) (a judicial district in which any def.
may be found) ONLY applies if there is no district in the country where claim
can be brought; usually only applies to foreign def.
3. Bates v. C & S Adjusters, Inc: venue is proper in the district in which a debtor resides
and to which a collection notice was forwarded (applies § 1391)
4. may be waived
a) def. waives his objection to venue by failing to raise it on response to pl.
complaint (Rule 12)
B. Transfer of venue
1. Original court is the transferor; new court is the transferee
2. Two statutes: §1404, § 1406
a) under both statutes, the transferee court must be a proper venue AND have
personal jurisdiction over the defendants without wavier. Hoffman v. Blaski: a
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federal court in which suit was properly commenced was not entitled under
§1404(a) to transfer a case to a district in which the pl. could not have properly
commenced a suit.
b) § 1404: the transferor is a proper venue
i) from proper venue to proper venue)
ii) can transfer for convenience and interests of justice
iii) either party can initiate the transfer
c) § 1406: the transferor is an improper venue
i) Can transfer OR dismiss
C. Forum non conveniens
1. Court dismisses because litigation would be more appropriate elsewhere
a) NOT a transfer; a dismissal because the other court is in a different judicial
system
b) usually comes up where the better is a foreign country
c) Piper Aircraft v. Reyno: Plane crash in Scotland; all decedents Scottish;
Scottish law to apply; plane manufactured in Pa. Supreme Court dismisses.
i) based on public and private factors
ii) private interests: a large portion of the relevant evidence is located in
UK, evidentiary problems if held in the US
iii) public interests: Scotland w/ high interest in the litigation
2. Takes a very strong showing that other forum is better
3. Factors in decision:
a) is the pl. a resident and taxpayer?
b) in which forum are the witnesses and sources of proof most available?
c) which forum will be familiar with the state law that must govern the case?
4. If the court dismisses, the court usually imposes conditions on the defendants
a) defendant must waive certain defenses (ex. statute of limitations, American
style-discovery)
5. Islamic Republic of Iran v. Pahalvi (1984 NY): courts are not required to entertain
suits that they have no connection with and would be a tremendous burden.
a) Rather than forum non conveniens., def may institute a suit in another court to
enjoin pl. from proceeding in the objectionable forum.
b) alternative: a court may grant motion by def. to stay the proceedings on the
condition that he make himself available in the alternative forum
V. CHALLENGING PERSONAL JURISDICTION
A. In some states, challenge personal jurisdiction through a special appearance
1. Allows def. to go into court and object, without waiving bar on jurisdiction
2. Usually ONLY allows def. to object to personal jurisdiction; if def. brings up ANY
other issue, waives personal jurisdiction
B. Federal System
1. No special appearance in federal court by Rule 12 (Orange Theater Corp v. Rayherztz
Amusement Corp)
2. Want to force def. various defenses and early
3. Governed by Rule 12: def can respond in 2 ways:
a) answer
b) bring a motion
c) Rule 12(b) lists defenses, which can be in answer or motion
i) subject matter jurisdiction
ii) personal jurisdiction
iii) venue
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iv) insufficient process (problem with the papers)
v) insufficient service of process (right documents, served wrong)
vi) failure to state a claim upon which relief can be granted
vii) failure to join an indispensable party
d) Rule 12(g) and 12(h) impose strict rules
i) defenses 12(b)(2),(3),(4), and (5) MUST be put in first Rule 12
response, whether a motion or an answer, or they cannot be brought at all
ii) 12(b)(6) or (7) can be raised for the first time any time through trial
iii) 12(b)(1) can be raised AT ANY TIME
4. HYPO: pl. sues def. def. moves to dismiss for insufficient service of process, which is
denied. He now has waived personal jurisdiction
5. Trial courts with broad leeway in determining the procedures they will follow in
resolving jurisdictional issues (Data Disc, Inc. v. Systems Technology Associates)
6. Baldwin v. Iowa State Traveling Men’s Assoc.: If a defendant makes a special
appearance contesting the jurisdiction of the first forum and he loses, he may not later
contest the same issue in a later suit (collateral attack). Def. must directly attack
jurisdiction in the first action by appeal (def. made a special appearance in a MO District
Court, loses on his jurisdictional objection, then declines to answer. A default judgment
is entered. Pl. sues in Iowa district court to enforce the judgment. Def. is bared from
raising the jurisdictional objection a second time)
ATTACK ON JURISDICTION
DEF. RESPONSE TO
ACTION IN RENDERING
ORIGINAL SUIT
COURT
Scenario One
Judgment entered for pl.
Def. appears, defends on
the merits, and loses
Scenario Two
In most cases, dismissed for
Def. makes special
lack of jurisdiction; Some courts
appearance or 12(b)
may order service to cure
motion; Court agrees no jurisdictional defect
jurisdiction
Scenario Three:
Enters judgment for pl.
Def. makes special
appearance or 12(b)
motion; court upholds
jurisdiction and def.
defaults
Scenario Four:
App. court may review the
Def. loses on objection
jurisdiction question, although
to jurisdiction, defends
some still view a defense on the
action on the merits,
merits as a waiver of personal
loses and appeals
jurisdiction
Scenario Five:
Enters default judgment for pl.
Def. defaults, contests
unless lack of jurisdiction is
jurisdiction in enforcing clear from complaint
court
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ACTION IN ENFORCING COURT
Court must enforce the rendering court’s
judgment, even if def. challenges personal
jurisdiction b/c he has waived his objection
If the original suit was dismissed, there
will be no judgment to enforce, However,
pl. can file a new suit in a court that has
jurisdiction over the def.
Must enforce the judgment because the def.
has already litigated the jurisdiction issue
and lost
If jurisdiction was upheld, on appeal, or
waived, the court must enforce the
rendering court’s decision
THIS IS A COLLATERAL ATTACK –
enforcing court may decide whether
rendering court had jurisdiction. If it holds
that it did not, it refuses enforcement. If it
holds that it did, it enforces.
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VI. ERIE DOCTRINE
A. Problem usually comes up in diversity cases – occurs when the federal judge should apply
state law on an issue or federal law
1. Swift v. Tyson: federal courts must follow only state statutory laws, not state judgemade common-law, in cases which state law applies (pl. sued def to collect on a note, and
the decision hinged on whether NY common law governed the action; narrow view of
“laws of the several states in RDA) – OVERTURNED
B. BLACK LETTER PRINCIPLE (Erie R Co. v. Thompkins: pl, PA citizen, was struck by train,
incorporated in NY. PA common law favored the railroad, Court held for pl.): Federal judge
must apply state law (even state common law) if it is a matter of substantive law. If not
(procedural instead), federal court can do either. Based on:
1. Rules of Decision Act: § 1652 (RDA): where there is no federal substantive law on
point, must use state law
2. Constitution (10th Amendment): if it is an area where there is no federal law on point,
it is reserved for the states
C. What is substantive
1. Easy: elements of what constitutes a claim or defense or cause of action
2. Hard: must have an analytical approach
3. Hannah v. Plummer: is there FRCP that governs this issue? If there is, apply it –
federal rule ALWAYS takes precedence
a) Facts: MA case in which service to the executor of a state was served
according the FRCP 3, but in violation of MA law. Which law should apply
b) Rules Enabling Act – allows the federal courts to apply the Federal Rules; §
2072
c) Supremacy Clause – if there is a federal directive on point, it governs
i) federal constitution provision that mandates a court procedure trumps
all state laws, whether substantive or procedural.
ii) A federal statute that governs federal practice trumps conflicting state
law so long as it is arguable procedural; a federal law governing a
substantive matter in federal practice would fail b/c Congress would not
have the authority to enact it
iii) FRCP provision conflicting w/ state law is valid unless it abridges,
modifies, or enlarges a substantive right – FRCP almost always valid
d) If it meets this prong, then end of issue (no Erie)
4. If there is no federal directive on point, then Erie problem
a) substantive matter  state law
b) outcome determinative
i) Guaranty Trust v. York: (state statute of limitations ran out so pl.
brought suit in federal court) SC said that statute of limitations is
substantive b/c it is outcome determinative; thus, have to apply state
statute of limitations.
ii) if ignoring the state law affects the outcome of the case
iii) want the same basic outcome in state and federal court
iv) never further defined by SC and most things outcome-determinative
c) balance of the interests
i) Byrd v. Blue Ridge Rural Electric Cooperative: (issue was whether pl.
was an employee of the state.) state law said issue to be decided by
judge, not jury. Federal law favored jury to decide. May or may not be
outcome determinative. Held: if it is not clearly substantive, then state
law is applied UNLESS the federal system has some interest in doing it
differently (balance federal and state interests). Here, state had no
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compelling interest in judge decision and federal importance of 7th
Amendment.
i) Federal Courts may apply federal rules, even if state rules are
outcome determinative, if federal policy in enacting the rules
outweighs the state policy
ii) state laws that are basically procedural, even if outcome
determinative, are not necessarily controlling
d) Twin Aims of Erie (Hanna v. Plumer): Federal Rules of Civil Procedure
triumph over state outcome-determinative rules
ii) Pl. sued in Mass. district court for negligence following an auto
accident, using a substituted service of process rather than in-hand
service as required by Mass law.
ii) At the outset of the case, ask if the federal judge ignores state law,
will it cause litigants to flock to federal court. If so, apply state law
because forum shopping is bad and discriminatory (favors out-of-staters).
Erie is not controlling when a valid Federal Rule is in conflict with a
state common-law policy
e) federal and state law that are not in direct conflict
i) Some issues must be only for federal common law to decide.
Hinderlider v. La Plata River & Cherry Creek Ditch: whether the water
of an interstate stream must be apportioned b/w two States is a question
of federal common law upon which neither the statutes not the decisions
of either State can be conclusive.
ii) Walker v. Armco Steel Corp. Federal Rules may not be read broadly
so as to bring them in imminent conflict with state rules (carpenter
injured by faulty nail brought suit in federal court within 2 years of the
injury, but failed to serve process w/in the time period required by OK
statute); fed. rule narrowly construed so not in conflict w/ state law
iii) Burlington R. Co. v. Woods: Test is whether, when fairly construed,
the Federal rule is sufficiently broad to cause a direct collision with the
state law, or to control the issue b/f the court, thereby leaving no room
for the operation of that law. Rule 38’s discretionary provision in
assessing unmistakably conflicts with the mandatory provision of
Alabama’s statute that imposes a fine always and always at 10%
iv) Stewart v. Ricoh: a federal rule, established within the limits of the
constitution, prevails over conflicting state law provided the federal rule
is sufficiently broad to cover the issue (motion for a change of venue;
federal rules should apply)
v) Gasperini: NY law set a standard for how to order a new trial (dif.
than federal); Appellate courts in NY could apply the standard de novo.
United States Supreme Court stated:
o standard for setting standard was substantive and federal judge
must apply it
o de novo review was not substantive (allocation of power b/w trial
and appellate courts); federal judge does not have to apply
D. Ascertaining State law
1. Apply law of state in which court sits
a) In order to promote the desired uniform application of substantive law within
a state, federal courts must apply the conflicts-of-laws rules of the states in which
they sit (Klaxon v. Stentor Electric Mfg. Co.).
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2. In transfer, apply the law of the court in which the action was filed, not where the
action was transferred.
a) Van Dusen v. Barrack: Defendants sought to transfer the action from federal
court in PA to federal court in MA, where the state law was more favorable to
their case. The Supreme Court that the “critical identity” is b/w the federal court
that decides the case and the courts of the state in which the action was filed. A
change in venue under § 1404 (a) generally should be, with respect to state law,
but a change of courtrooms
b) Ferens v. John Deere Co: Court held that in a diversity suit, the transferee
forum is required to apply the law of the transferor court, regardless of who
initiates the transfer
3. Mason v. American Emery Wheel Works: A federal court may apply recent trends in
state law over outdated common law (pl njured by def. product and sued def., although he
was not in privity of contract w/ manuf., which was required by OK precedent; Court
applied dif. law under trend taken by most states)
E. HYPOS
1. Federal Rule 23 would allow diversity case to go forward as a class action. State law
would not. What happens?
a) Hannah: federal law on point (Rule 23) which clashes with state law; federal
rule applies if valid
b) Class action allowed to go forward
2. States cutting back on recovery in medical malpractice cases, so passes a statute that
says when you file malpractice case, it goes to arbitration panel (drs. and lawyers) before
it goes into the court system. If you don’t like the outcome of the arbitration panel, you
can proceed and go to trial. Out-of-state person injured by dr. and claims medical
malpractice and sues dr. in federal court under diversity. Does the federal judge follow
state law (arbitration) or federal law?
a) Hannah: no federal directive on point
b) Erie: is it substantive?
i) outcome determinative: unknown. Can be assumed that pl. will get
less in arbitration, but don’t know
ii) balance the interests: federal interest in jury trial, but state law does
not do away with jury trial right altogether; and state has a huge interest
in reducing cost of medical care and insurance in the state – tilts toward
applying state law
iii) twin aims of Erie: ignoring the state law would surely cause pl. to go
to federal court; pl. don’t want to go to arbitration – want a jury who will
give a lot of $$$.
c) balancing interest in favor of state; don’t want to encourage forum shopping 
State law applies
VII. PLEADINGS
A. Complaint
1. Rule 8(a), complaint must contain
a) grounds of subject matter jurisdiction
b) a short and plain statement of the claim
i) Federal Court based on notice pleading: a general summary of the
party’s position, sufficient to advise the party for which incident he is
being sued, to show what was decided for purposes of res judicata , and
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to indicate whether the case should be tired to the court or to a jury –
doesn’t require a lot of detail
ii) must touch on elements of each claim
iii) Diogardi v. Durning: A complaint must state just enough facts to
sufficiently notify the opposing party of the claims against him to begin
preparing a defense; does not need to include his legal theory
o Rule 12(e): if a pleading to which a responsive pleading is
permitted is so ague or ambiguous that a party cannot reasonably
be required too frame a responsive pleading, he may move for
more definitive statement b/f interposing his responsive
pleading. The motion shall point out the defects complained of
and details desired
iv) EXCEPTIONS [Rule 9(b) and (g)]
o fraud or mistake must be stated w/ particularity
o elements of special damage (those that do not normally flow
from the case) must be pleaded w/ specificity
c) a demand for judgment (what relief sought)
d) the elements required by Rule 8(a) apply to a defendant’s counterclaim, any
third-party claim, any party’s cross-claim, as well as the pl. complaint.
e) Rule 10(b): each individual claim must be set forth in a separate count
f) American Nurses Assoc. v. IL: a complaint need not be dismissed if it does not
set forth a complete and convincing picture of the alleged wrongdoing; a
multiple-charge complaint is neither dismissible nor invalid merely because
along with stated facts, which state a claim, there are a number of stated facts that
do not state a claim. (Nurses suing for comparable worth and discrimination)
g) Rule 84: Forms in Appendix of Forms are sufficient under the Rules
B. Defendant’s Response
1. Within 20 days of being served with process, must answer OR bring a motion
2. Answer
a) Under Rule 8(b), must be respond to the allegations of the complaint
i) admit, deny, or state insufficient information
o general: referring to every claim in the complaint
o specific: referring to particular claims
o A def. that generally admits or denies must be careful to
understand everything being claimed
ii) failure to deny can constitute an admission, except as to damages
b) Zielinski v. Philadelphia Piers: When the def. makes a general denial when a
specific denial (only denying one aspect of the complain) was called for and the
result is that the pl. learns he has sued the wrong person, the pl. may be granted a
declaratory judgment that the def. is the proper def. Def. had the information –
needed to disclose it
c) Under Rule 8(c) must state affirmative defenses
i) statute of limitations, statute of frauds, etc.
ii) must state them or they are waived.
iii) Ingraham v. United States: an affirmative defense cannot be raised
for the first time on appeal [5th Cir.]
iv) Taylor v. United States: a def. does not waive the right to an appeal
of a statutory limit on damages if he did not raise it in the pleadings
(here, jury warded greater damages than pl. requested and thus, US did
not include limit in answer, so perhaps and exception here) [9th Cir.]
rare
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d) a reply to the def. answer is allowable by pl:
i) where the answer contains a counterclaim
ii) by order of the court
C. Amending Pleadings
1. Rule 15 sets forth very liberal policy on amended pleadings
2. Rule 15(a)
a) pl. has a right to amend once, before def. serves answer
i) can be amended after motion made
b) def. has a right to amend once within 20 days of serving answer
c) if there is no right to amend, party can seek leave to amend, which “shall be
freely given in the interests of justice”
3. Rule 15 (b): variance
a) variance: where the evidence at trial does not match what pleaded (ex. raising
an affirmative defense not raised in the pleadings)
b) other side will or will not object
i) if other side does not object, evidence comes in as if it were pleaded
ii) if the other side objects, the evidence is inadmissible. However, party
can seek leave to amend to include the info introduced at trial into the
pleadings
4. Rule 15(c): amend after statute of limitations has run b/w filing of complaint and
amendment
a) add a new claim
i) must get relationship back: treat the amended pleading as though it was
filed when the original pleading was filed.
ii) Test for relation back: If the amended complaint involves the same
transaction, occurrence, or conduct as the original complaint
b) join a new party
i) must get relation back as well; Rule 15(c)(3)
ii)Worthington v. Wilson: can amend a complaint, as long as there is
relation back, regardless if state law prohibits, since federal law triumphs
in procedure over state law (Def.’s hand injured by police; named “three
unknown police officers” in complaint. Statute of limitations ran out b/f
pl. had def. names.)
5. Amendments during and after trial
a) Moore v. Moore: even after trial, pleadings can be amended to include issues
not raised in the pretrial pleadings as long as these issues were tried with the
implied consent of the adverse party (Court grants mother custody of daughter,
child support, maintenance, and attorney’s fees, even though these were only
requested in post-trial motion.)
i) determining implied consent: whether the adverse party received actual
notice of the injection of the unpleaded materials as well as adequate
opportunity to litigate them.
ii) Here, custody asserted in answer; evidence of financial need  child
support and its inherent part of such an action; discretion of court to
award attorney’s fees. Maintenance not implied.
b) Hayes v. Richfield Oil Co.: a variance b/w the allegations of a pleading and the
proof will not be deemed material unless it has actually misled the adverse party
to his prejudice. Def. continued insistence that the issue was not presented by the
pleadings indicates that he was fully aware.
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c) Beeck v. Aquaslide: A court does not abuse its discretion by allowing an
amendment to an answer, which initially admitted responsibility for the
manufacture of the product, but now seeks to deny manufacturing it.
i) Rule 15(a) “Leave to amend should be freely given when justice so
requires”
ii) leave to amend will generally be denied only where granting it would
result in actual prejudice to the other party, and the burden is on that
other party to show such prejudice
iii) the def. did not wait in bad faith, so amendment should be granted
D. Sanctions
1. Rule 11 requires the pl. lawyer to sign off on the complaint to certify that the
complaint is a good-faith, truthful complaint. Establishes strict guidelines for sanctioning
parties and attorneys for submitting misrepresentations to court or for bringing frivolous
lawsuits
2. Hadges v. Yonkers Racing Corp.: Rule 11 sanctions require compliance with the 21day safe-harbor, and an attorney may rely on the objectively reasonable representations
of his client in avoiding Rule 11 sanctions for submitting false statements to a court
a) safe harbor: if a party filed a motion for sanctions, the other party has 21 days
to fix complaint w/o sanctions imposed; after 21 days, sanctions can be imposed.
VIII. JOINDER
A. Basics
1. Determine scope of the litigation
2. REMEMBER SUBJECT MATTER JURISDICTION in this section – every single
claim in federal court must be assessed for smj
B. Proper Parties [Rule 20(a): who may be joined]
1. TEST: co-pl./co-def. may sue together if each pl. claims
a) arise from same transaction or occurrence AND
b) raise at least one common question
2. then make sure there is subject matter jurisdiction
C. Claim joinder by pl.
1. Rule 18(a): pl. may join any claims against the def, regardless to whether they are
related, but it is not required to
2. But still must meet subject matter jurisdiction
3. Harris v. Avery: causes of action arising from the same transaction may be joined in
one suit (Avery sued Harris for slander and false imprisonment)
a) now Rule 18(a) allows for joinder of all claims, even if unrelated
b) Sporn v. Hudson Transit Lines: if all of the joined claims involve different
rules of law, testimony, evidence, and would confuse a jury, in the interests of
justice, they should be severed [NY], [Rule 42(b)]
4. Applies to any “pleader,” any party seeking relief from another party by counterclaim,
cross-claim, or third-party claim. However, a cross-claimant must have a valid claim
arising out of the same transaction or occurrence first, then may join unrelated claims
D. Claim joinder by def.
1. Counterclaim
a) claim against an opposing party
b) Compulsory counterclaim
i) Rule 13(a)
ii) arises from same transaction or occurrence as pl. claim
iii) must assert or it is waived
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iv) always filed with answer
v) Mitchell v. Federal Intermediate Credit Bank: a party cannot use part
of a contract as a defense in one suit and the remainder as an offense in a
subsequent suit. (Mitchell used the proceeds from the sale of his potato
crop as security for two loans, and then claimed the bank kept the
proceeds for itself and never gave him the $).
vi) If a counterclaim is logically related to the opposing claim, it cannot
be dismissed. Great Lakes Rubber Corp. v. Herbert Cooper Co. (Pl.
claims against def. were originally dismissed for lack of smj, but the
federal court maintained def. counterclaim, and then pl. counterclaimed
to counterclaimed.)
o logically related: separate trials on each of their respective
claims would involve a substantial duplication of effort and time
by the parties and the courts
o Moore v. New York Cotton Exchange: Pl. sought to compel def.
to install a price quotation ticker in pl. place of business. Def.
counterclaimed for damages. Court held def. counterclaim
compulsory, stating that “transaction” was a flexible term; need
not have an immediateness of connection. Facts that were
essential to counterclaim alleged in claim; doesn’t matter if they
are not identical
vii) res judicata bars def. from bringing second suit if not brought under
compulsory counterclaim
viii) exceptions: claims by the def. which for just adjudication require
presence of add’l parties of whom the court cannot get personal
jurisdiction, in rem or quasi in rem claims
c) Permissive counterclaim [Rule 13(b)]
i) does not arise from same transaction or occurrence as pl. claim
ii) can sue on it separately if desires, but not required to
e) HYPO: Pl. (NY) and def (Fla.) in car accident, pl. sues for $100,000. Def.
asserts a compulsory counterclaim against pl. for $90,000
i) claim gets in on diversity
ii) counterclaim gets in on diversity
CHANGE: same facts except compulsory counterclaim is for $45,000
i) counterclaim does not exceed $75,000 and is not a federal question.
Can only get in on supplemental jurisdiction.
o § 1367(a) grants supp. jur. b/c arises out of same transaction or
occurrence as pl. claim
o § 1367 (b) does not take it away – only kills claims by pl.
CHANGE: Suppose it was a permissive counterclaim  No supp. jur. b/c §
1367(a) does not grant if not out of same occurrence
2. Cross-claim [Rule 13(g)]
a) claim against a co-party
b) MUST arise from the same transaction of occurrence as the underlying dispute
(that got into federal court). LASA Per L’Industria Del Marmo Societa Per
Azioni v. Alexander (several claims arose out of contracts to construct Memphis
City Hall)
i) The words “transaction or occurrence” should be liberally interpreted –
if it arises out of a related transaction, still allowed
ii) Here, all of the claims deal with the marble and who is responsible for
the defects. Many of the same factual and legal issues will be presented.
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iii) The mere fact that the two occurrences were nearly contemporaneous
in time does not mean that they arise out of the same transaction.
Liebhauser v. Milwaukee Elec. Ry. & Light Co.
iv) Rule 13(g) does not authorize a pl. to state a cross-claim against a copl. a claim arising out of the transaction or occurrence which is also the
subject matter of their common complaint against the defendant. Danner
v. Anskis.
c) NEVER compulsory
d) Once cross-claim made, the parties are opposing parties and the other party
must assert any compulsory counterclaims that would arise
3. HYPO: Three-way car-crash; pl (NY) sues def1 (Pa.) and def2 (Pa.). Each claims
$80,000 in damages against each.
a) in federal court b/c every pl. diverse from every def.
b) D1 must file a counterclaim over pl.
i) Gets into federal court under diversity
c) D1 may file a cross-claim against D2.
i) No federal question
ii) No diversity – Pa. v. Pa.
iii) Can only get in on supplemental jurisdiction
o § 1367(a) grants supplemental jurisdiction (same transaction or
occurrence)
o § 1367 (b) applies only in diversity cases, but only kills
jurisdiction by PLAINTIFF.
o Therefore, supplemental jurisdiction
E. Necessary and indispensable parties [Rule 19: who must be joined]
1. If an absentee (non-party) is necessary, the court may force him in
a) Bank of California v. Superior Court: mandatory joinder only arises where
parties are necessary and indispensable to an action (Pl. claimed entitlement to
decedent’s estate and sued the executor and the residuary legatee. The defs.
motioned to join other beneficiaries, denied)
i) necessary: a party so interested in the controversy that they should be
made parties to enable the court to do complete justice
ii) indispensable: non-party’s rights or duties would be adversely
affected by a judgment.
2. First, ask if absentee is a necessary party. Necessary party (three tests) is:
a) 19(a)(1): without absentee, the court cannot accord complete relief; efficiency
policy; avoid multiple litigation
b) 19(a)(2)(1): absentee’s interest may be harmed if she is not joined. (avoiding
harm to absentee)
c) 19(a)(2)(2): absentee’s interest may subject def. to multiple or inconsistent
obligations (avoiding harm to def.)
d) Temple v. Synthis: joint tortfeasors are not necessary parties
e) HYPO: A has 1,000 shares of stock. B claims says he owns the stock jointly
and paid half of it. B sues the corporation, C and ask the corporation to cancel
A’s stock.  A is a necessary party.
3. Then ask if joinder of the absentee is feasible
a) joinder is feasible if absentee is subject to personal jurisdiction and does not
destroy complete diversity
b) [Rule 19(b)] If joinder is not feasible, must determine if (1) proceed w/o
absentee, or (2) dismiss the case
i) decide by weighing Rule 19(b) factors
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to what extent judgment in person’s absence would be
prejudicial to the person or the other parties
o the extent which protective provisions would lessen or avoid the
prejudice
o whether a judgment rendered in the person’s absence would be
adequate
o whether pl. will have an adequate remedy if the action is
dismissed
ii) If case is dismissed, absentee is indispensable
c) Haas v. Jefferson Nat’l Bank: pl. and Glueck bought shares of stock together
from bank and each owned half; pl. wanted to put his name on half of the stock
so sues the bank. Held: case dismissed b/c Glueck a necessary and indispensable
party and cannot be joined.
o
F. Impleader
1. The defendant is joining someone new who owes her indemnity or contribution on the
underlying claim (ex. Insurance Co., joint tortfeasor)
2. Governed by Rule 14
a) Under Rule 14(a), a party may implead a third-party defendant for indemnity
even where the state law does not recognize accelerated indemnity proceedings
(as long as rights under law still protected). Jeub v. B/G Foods (pl. sued def. for
contaminated ham, and obtained an order impleading producer for indemnity)
[also Erie question]
i) right to implead is procedural, and therefore governed by federal law
in diversity cases
b) can ONLY implead another party liable to him (ex. a policeman cannot
implead another policeman in a battersuit b/c pl. mistook one for the other b/c the
second policeman is not liable to the first; def. has to ride out mistaken identity)
c) allows the impleaded party to try to escape liability by asserting defenses
against both the pl. and def. trying to implead him
d) Under Rule 14, must implead w/in 10 days on answering the complaint or up
to the court’s discretion
i) uphold: efficiency, avoidance of multiple suits
ii) deny: undue delay, complication of issues, potential prejudice to pl.
from impleading a sympathetic third party
3. Claims can be asserted by third-party defendant against the original pl. w/o an
independent jurisdictional basis if supplemental jurisdiction is appropriate. Revere
Copper & Brass v. Aetna Cas. & Sur. (Def. was sued in connection w/ a construction
contract, impleaded Fuller, the builder, who brought a counterclaim against pl.)
a) Rule 4(k)(1)(B): 100 mile bulge rule
4. § 1367 prohibits pl. from impleading a third-party def. on a cross-claim if no basis for
federal jurisdiction exists.
5. HYPO: Pl sues Def. in federal court. Def. impleads TPD (third
party def.). Pl. then claims against TPD (Rule 14(a) says that’s permissible if it arises
from same transaction or occurrence). TPD can assert a claim against pl. (Rule 14(a) if
arises from same transaction or occurrence).
a) subject matter jurisdiction must be determine for each and every one
G. Intervention [Rule 24]
1. Absentee brings himself in on own initiative, and chooses which side to come in on.
2. Two types:
a) intervention of right [Rule 24(a)(2)]: A has a right to intervene if statute
confers an unconditional right to intervene OR his claim is related to the property
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or transaction which is the subject of the action, his interests may be harmed if
not joined, AND his interest is not adequately represented.
i) Smuck v. Hobson: third parties may intervene after a judgment on the
merits, provided that the conditions in Rule 24(a) are satisfied. (Board of
Education sued for discriminatory practices; rights of minority children
not adequately represented)
ii) “motive” (ex. economic v. governmental) different than interest.”
National Resources Defense Council Inc v. New York State Department
of Environmental Conservation (not allowing API to intervene)
iii) can also intervene under Rule 24(a) if a statute gives him that right
(ex. statutes that allow the US to intervene)
b) permissive intervention [Rule 24(b)(2)]: A must show that his claim or defense
has at least one common question with the pending case (discretionary with the
court) or a statute confers a conditional right to intervene
c) must assess subject matter jurisdiction over these claims
d) If the case may set an adverse precedent whose stare decisis effect will hamper
him, pl. permitted intervention of right. Atlantis Dev. Corp. v. U.S. (If Acme
does not prevail on its basic contentions, which are part and parcel of Pl. claim,
the only way by which pl. can win is to secure a rehearing en banc, with a
successful overruling of the prior decision, or failing in either or both of these
efforts a reversal of the earlier decision by the Supreme Court –formidable)
3. Decision whether to allow a party to intervene is based on a balancing of needs of the
interests of the intervenor against the burdens on existing parties if intervention is
allowed; the intervenor must only show that their interest may be impaired. Timeliness
of the motion is also important in deciding whether it would be allowed.
IX. CLASS ACTION [Rule 23]
A. Initial requirements [Rule 23(a)]
1. numerosity: too numerous for practicable joinder (~60+)
2. commonality: there must be some questions in common to the class
3. the representatives’ claim must be typical of those of the class members
a) General Telephone Co. v. Falcon: a specific link must exist b/w a class
representative’s claims and the claims of the entire class (pl. brought suit on
behalf of Mexican-American employees and applicants who were denied
positions or promotions; Court says he does not adequately represent everyone)
4. the representative (and his lawyer) must adequately represent the class
a) Hansberry v. Lee: Where a class member was not adequately represented,
giving res judicata effect to the judgment violates due process
(Def. the black purchaser of land subject to racially restrictive sales covenant,
avoided prior class action holding the covenant was valid)
B. Types of Class Action [Rule 23(b)]; 3 types of class actions, must fit into one of them
1. 23(b)(1) classes are those in which the prosecution of separate actions by or against
individual members 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 of conduct for the party
opposing the claim, OR
b) adjudications w/ respect to individual members of the class which would as a
practical matter be dispositive of the interests of the other members not parties to
the adjudications or substantially impair or impeded their ability to protect their
interest
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2. 23 (b)(2)
a) 23(b)(2) “party opposing the class has acted or refused to act on grounds
generally applicable to the class, thereby making appropriate final injunctive
relief or corresponding declaratory relief w/ respect to the class as a whole.”
b) Marisol v. Giuliani: 23(b)(2) class certified of all children who are the child
welfare system and those not who are at risk of neglect or abuse.
i) district court with discretion
ii) need to split up into subclasses [Rule 23(c)(4)]
3. 23(b)(3) Questions of law or fact common to the members of the class predominate
over any questions affecting only individual members, that a class action is superior to
other available methods for fair and efficient adjudication of the controversy. Must show:
a) common questions predominate
b) the class action is the superior method for resolving the suit
C. Mass-torts
1. difficult to certify
2. can certify sub-issues
3. Causey v. Pan American World Airlines: Mass-accident tort litigation not appropriate
as a class action, usually
a) plane crash w/ people from dif. states and countries  too hard to apply all of
the different laws
b) strong interest for each person (personally affected) to litigate own claims b/c
nature of issue
D. If 23(a) and (b) are met, then the court certifies the action. If the class is certified:
1. the court must define the class (12/1/2003 amendment)
2. the court must appoint class council
3. If the class is certified under (b)(2), and the court determines that it had to have been a
(b)(3) certification, notice to all class members is not required. Wetzel v. Liberty Mutual
Insurance Co.
E. Due Process
1. For (b)(1) and (2) class actions, adequate notice is required (must conform to due
process standards); but class members may not opt out  all class members are bound by
the decision
2. In 23(b)(3) class action, the court must give individual notice to all members
reasonably identifiable [as stated in 23(c)(2)(B)]
a) must give them right to opt out of the class
b) Eisen v. Carlisle & Jacquelin: individual notice must be given to all members
who can be identified with a reasonable effort – best notice practicable under
the circumstances. (Pl . alleged that def. conspired to fix the commissions
charged on trades of odd lots of shares on the New York Stock Exchange in
violation of antitrust and securities laws.)
i) mail notice to all class members whose names can be obtained w/
reasonable certainty
ii) the named pl. bears the initial cost of notification; if they won’t or
can’t, the class action will be dismissed.
3. All members bound except those who opt out of a 23(b)(3) motion
a) Under Due Process, class members must be notified by “Best notice
practicable under the circumstances” – Rule 23 (c)(2)
4. Cannot be bound if were not joined. Martin v. Wilks (black firefighters entered into
consent judgment to city; then tried to bind white firefighters by the decision)
F. Settlement or dismissal must be approved by the court [Rule 23(e)]
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1. In EVERY class action, there must be adequate notice to every class member, before
the case is settled or dismissed (12/1/2003 amendment)
2. In the notice, under 23(b)(3) class action, must give ANOTHER chance to OPT OUT.
3. Amchem Products, Inc.: class action settlement offers must meet the Rule 23
requirements of predominance, superiority, adequate representation, and notice before
they may be certified (classes of asbestos victims cannot combine ill plaintiffs with pl.
who were exposed, but are not yet ill)
G. Subject Matter Jurisdiction
1. federal question
2. Under diversity jurisdiction
a) for citizenship of the class, look ONLY at the representative (He must be
diverse from the defendant). Supreme Tribe of Ben-Hur v Caulble.
b) Amount in controversy (law unclear)
i) Zahn: every member must claim more than $75,000, so does
Leonhardt v. Western Sugar Co, holding § 1367 provision for
supplemental jurisdiction did not allow for pl. who did not meet
jurisdictional amounts to be pl. in class action suits
ii) Snyder v. Harris, 394 U.S. 332 (1969): separate and distinct claims
cannot be aggregated, and thus the class members’ claims cannot be
aggregated to satisfy jurisdictional amount requirements. Aggregation
has only been permitted (1) in cases in which a single pl. seeks to
aggregate two or more of his claims against a single defendant; and (2) in
cases where two or more pl. unite to enforce a single title or right in
which they have a common or undivided interest.
iii) There is an argument that supplemental jurisdiction statute (§1367)
has overruled Zahn
o 5 Circuits say its okay as long as the representative meets the
amnt. in controversy (4th, 5th, 7th, 9th 11th)
 In re Abbott Laboratories, 51 F.3d 524 (5th Cir. 1995):
Lousianna statute vested the right to attorney’s fees in
the named pl. directly, rather than as a class as a whole.
Thus, the Fifth Cir. held that it had diversity jurisdiction
over the named pl., even though their individual claims
were well-under the amount in controversy requirement.
The addition of attorney’s fees brought each named pl.
over the jurisdictional amount, so the holding was
consistent with Zahn.
o 3 Circuits say that EVERY member must meet the amount in
jurisdiction (3d, 8th, 10th)
o 2d Cir. has not taken a stance
iv) Came to SC in 1999, but 4-4 split with NO opinion
d) Phillips Petroleum v. Shutts: minimum contacts are not required for personal
jurisdiction in class actions, but the forum state must have sufficient interests in
the claims to assert its state law to all claims (pl. brought class action to recover
royalty payments) and there are some safeguards necessary to protect the
members
i) notice must be the best practicable (Mullane v. Central Hanover Bank)
ii) opt out provision
iii) adequate representation (Hansberry v. Lee)
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X. DISCOVERY
A. Rules very liberal about discovery
B. Required Disclosures [Rule 26(a)] (even if no one asks for it): 3 types
1. 26(a)(1) Initial disclosure: id relevant people and documents (only need to describe
documents) and basis for damages sought
2. 26(a)(2): Experts
3. 26(a)(3): Pre-trial disclosures
4. Comas v. United Telephone Co. of Kansas: the court will enforce an unequivocal
agreement b/w two parties to produce documents, but will not enforce disputed or unclear
terms of such agreements
C. Discovery tools
1. Deposition (Rules 30 and 31)
a) deponent gives oral testimony under oath
b) can depose a party or non-party
c) should subpoena a non-party, otherwise not required to show up
d) Cannot use the excuse that deponent is in bad health or too old to avoid
deposition. Haviland v. Montgomery Ward
e) each side is limited to 10 depositions unless the adversary agrees to more or
the court issues an order allowing more and limited to 7 hours and one day
2. Interrogatories (Rule 33)
a) written questions answered in writing under oath and signed
b) limited to 25 questions
c) can only be sent to parties; cannot use w/ non-parties
d) Interrogatories that require statements of opinion in non-complex lawsuits or
interrogatories that are burdensome may not be compelled. Leumi Financial v.
Hartford Indemnity Corp.
e) in interrogatories, statements can be changed within 30 days, if the person
requests to make handwritten changes.
3. Requests to produce (Rule 34)
a) documents, products, evidence, etc.
b) available against a party or non-party, but MUST subpoena the non-party or he
doesn’t have to produce the evidence
c) A prima facie showing that someone has control over documents, even if they
are not in his actual possession, is sufficient to force the party to comply with a
request to produce those documents (pl. sued def, but failed to comply with an
order to produce documents which someone else possessed, but pl. could
exercise influence to obtain). Hart v. Wolff.
4. Medical exam (Rule 35)
a) must be court-ordered
b) can take medical exam of party or someone under the party’s control
c) a physical or mental examination may be ordered when good cause exists and
when a party’s physical or mental condition is in controversy. Schlagenhauf v.
Holder (bus driver caused accident and objected to request to submit to a number
of physical and mental examinations)
5. Request for admission (Rule 36)
a) can only be sent to parties
b) “admit or deny” certain facts
c) if not denied, it can be considered admitted.
d) once an admission is made, it cannot be retracted in court. McSparran v.
Hanigan (pl. admitted ownership, which was the only issue in question; retracted
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it during trial. Def. moved for summary judgment. Went to jury. Court said it
should not have gone to jury).
D. Scope of Discovery
1. Rule 26(b)(1): you can discover anything relevant to a claim or defense of any party
a) relevant = reasonably calculated to lead to admissible evidence
b) can discover things that are not admissible at trial, except:
c) Blank v. Sullivan & Cromwell: Court allowed discovery of
employer’s past hiring and promotion procedures for Title VII suit, even though
they were not directly related to the instant case, because it was relevant
2. Privileged matter is not discoverable
a) attorney-client, doctor-patient, spousal
b) protects confidential communications
c) Marrese v. American Academy of Orthopedic Surgeons: b/f allowing
discovery of confidential material, court can view in camera, only allow redacted
version, do other discovery first, etc. (Drs. wanted to see member’s applications
in suit when denied membership) Judges have broad discretionary authority to
shape the scope and sequence of discovery
3. Work product immunity (trial preparation materials [Rule 26(b)(3)])
a) material prepared in anticipation of litigation immune from discovery
b) Does not have to be generated by an attorney.
i) Ex. Boat operator hired by A for trip, and boat sinks, injuring A.
Knowing that lawsuit is coming, detective goes and does work. This
work is protected from discovery
ii) Avoids parasite product – other lawyers should do own work
c) Can override work product protection if (qualified immunity):
i) substantial need
ii) not otherwise available
iii) still, some work product is absolutely protected: mental impressions,
conclusions, opinions, and legal theories
d) Hickman v. Taylor: absent a showing of need, a party is not entitled to obtain
copies of an opposing attorney’s notes and memoranda acquired through
interviews with witnesses (Boat sank, and pl. sought to obtain copies of written
statements and interviews acquired by opposing counsel)
e) absolute immunity: the court shall protect against the disclosure of mental
impressions, conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation
E. Orders and Sanctions
1. A party who exhibits gross negligence in responding to discovery requests is subject to
the most severe discover sanctions. Cine Forty-Second Street Theater Corp v. Allied
Artists Pictures Corp. (Pl continuously failed to adequately respond to interrogatories,
case dismissed)
2. Under Rule 26(b)(1), an objection may be made to a discovery order
3. Protective order [Rule 26(c)]
4. Compelling discovery [Rule 37(a)]; sanctions under Rule 37(b)
XI. PRETRIAL ADJUDICATION (ADJUDICATION W/O TRIAL)
A. Rule 12(b)(6): Motion to dismiss for failure to state a claim (demurrer)
1. Court does not look at evidence – looks only at the complaint
2. If all the facts in the compliant were true, would she be entitled to judgment as a
matter of law?
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a) if not, dismiss the case (usually w/o prejudice so pl. can fix)
b) if so, then motion to dismiss is denied
B. Summary Judgment [Rule 56]
1. The Court can look at evidence (affidavits and the “fruits of discovery”)
2. Standard for summary judgment [Rule 56(c)]: moving party must show that
a) no dispute as to material fact
b) entitled to judgment as a matter of law
c) weed out cases in which trial is not necessary
3. If the evidence shows that there is no dispute as to the facts, the court can enter
judgment as a matter of law
a) moving party bears the heavy burden of proving that there is no genuine issue
as to any material facts. Adickes v. S.H. Kress Co (pl., a white teacher at a
freedom school, was denied service in def. restaurant, and then arrested; pl.
claimed conspiracy; def. motion for summary judgment reversed)
b) non-moving party then bears the burden of showing that a factual dispute
exists. Lundeen v. Corner (def., wife of decedent, sought summary judgment
against a claim for payment of life insurance proceeds by former beneficiaries to
decedent’s policy; pl. denied cross-examination). Where one party’s affidavits
and exhibits are conclusive, summary judgment is appropriate.
c) It is improper to grant summary judgment based on pl. explanation of his
intent, which is disputed by def, but not contradicted by def. evidence. Where
facts reside in the mind of a party, cross-examination should be allowed. Cross
v. United States (pl. challenged educational deductions taken by Cross on his tax
return, alleging that some of the expenses were vaction-related)
4. Parties give the evidence to the court (usually by affidavits, depositions,
interrogatories, admissions)
5. Not entered into lightly, but SC in 1980s sent message to lower courts to grant
summary judgment more easily
a) Celotex Corp. v. Catrett: a moving party may meet the burden of persuasion
by demonstrating that the nonmoving party failed to supply sufficient evidence of
a genuine dispute of material fact or an essential element of their claim. (pl. filed
wrongful death motion against def. but pl. failed to produce any evidence to
support allegation that decedent had been exposed to def. asbestos).
b) def. can motion for summary judgment by arguing that the pl. lacks evidence
supporting an element of her claim
c) If the judge sees an inference on the facts as more plausible, the judge can
grant summary judgment on that basis
d) Still, discretionary
i) rarely granted for the party with the burden at trial
ii) its usually tougher in tort than contract
iii) NEVER resolve dispute of facts on summary judgment
– don’t weigh the value of the evidence or credibility
C. Default Judgment
1. A default judgment may not be entered against a defendant who has answered a
complaint and yet fails to appear at trial. Coulas v. Smith
2. Governed by Rule 55
XII. TRIAL
A. The right to a jury trial
1. Jury resolves dispute of fact and damages; judge decides the law
2. In federal court, the 7th Amendment preserves right to jury trial in civil cases
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a) applies only to Federal Courts
b) preserves the right to jury at law, but not equity
i) locks into historical test – as of 1791
ii) Determination of right to jury trial today is determined by the English
Common Law in 1791
iii) difference b/w law and equity mostly based on remedies
o at law, principle remedy is damages
o at equity, remedies available in situations where damages would
not be sufficient
 injunction
 specific performance
 rescission
 reformation
iv) If one case has claim for equitable and legal remedies:
o B/f 1959: no jury on any issue if the equitable remedy was more
important and central to the relief sought
o Beacon Theaters (1959): a prior determination of equitable
claims may not be used to deprive a right to jury trial on legal
issues; most legal issues should be tried b/f equitable ones (def.
sought jury determination of antitrust claims raised in response
to equitable claims for declaratory judgment brought by pl)
o Dairy Queen (1960): an action seeking money damages, even
phrased in equitable terms, cannot be considered purely
equitable and thus, a jury should decide legal, factual issues (def
sought an injunction and damages for breach of contract when a
licensee and franchise owner failed to comply with the payment
scheme. Pl. was denied a jury trial on the grounds that the relief
sought was purely equitable)
 Overruled the clean-up doctrine
o Rules:
 Jury right determined issue-by-issue
 If an issue of fact underlies both questions of law and
equity, right to a jury exists
 Jury issues usually tried first
c) Rule 38(b): jury must be demanded in writing, otherwise waived; if either
party requests jury trial, and it meets the test, then there will be a jury trial
d) Ross v. Bernhard: to determine if legal or equitable, first look at the premerger custom, second to the remedy sought, and third to the practicable abilities
and limitations of juries.
i) Some lower federal courts have read the third consideration as a basis
for denying jury trials in cases which the number of parties, complexity
of the issues, or conceptual sophistication of the evidence and applicable
substantive law support a finding that a jury would not be a rational and
capable fact-finder
ii) Markman v. Westview Instruments: the construction of a patent is a
legal question to be decided by a judge rather than by a jury; decision
rests partially on complicatedness of patents (pl. sued for violation of
patent for dry-cleaning inventory tracking system)
e) Court very liberal in applying 7th Amendment right to jury
i) An action for breach of fair representation, although analogous to
equitable claims at common law, carries a right to jury trial. Chauffeurs,
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Teamsters, and Helpers Local 391 v. Terry (employees sued union for
violations of fair representation.). Court places a lot of emphasis on
remedy
B. Jury Selection [Rule 48]
1. Voir Dire
a) each side has unlimited strikes for cause: potential jurors is bias
i) Flowers v. Flowers: a prospective juror who demonstrates bias or
prejudice toward the litigants or subject matter of the action should be
excluded from the jury pool (divorce case, mother drank; prospective
juror said she was completely opposed to alcohol; court says she should
have been dismissed)
b) each side w/ 3 peremptory strikes: no reason necessary
i) Supreme Court said that peremptory strikes must be used in a race and
gender-neutral way. Edmonson v. Leesville Concrete, JEB v. Alabama.
ii) Once the party raising the race/gender challenge establishes a prima
facie case of discrimination, the proponent of the preemptory strike must
submit a racially-neutral explanation. The party raising the challenge
must then be given the opportunity to show pretext. The trial court must
decide whether the party raising the challenge has proven purposeful
discrimination. The party brining the challenge bears the ultimate
burden of persuasion. Hidalgo v. Fagen.
2. Number of People
a) Juries of less than 12 permitted. Juries of six are permissible for civil cases.
Williams v. Florida, Colgrove v. Battin
C. Motions
1. Motion for judgment as a matter of law (directed verdict) [Rule 50(a)]
a) takes case away from the jury
b) standard: reasonable minds could not disagree on the result; motion for at the
close of pl. evidence
c) Denman v. Spain: a directed verdict is proper when the party bearing the
burden of proof fails to meet that burden (pl. sued the executrix of an estate of
Ross, who allegedly caused an accident on a foggy day)
d) Kircher v. Atchison, Topeka, & Santa Fe. Co: pl sued for the loss of a hand
which had been run over by def. train when pl. tripped over hole 13 ft. from
tracks. A judgment for the pl. was affirmed. The courts will not permit judgment
n.o.v. if there is a possibility that the evidence supports the jury verdict
2. Renewed motion for judgment as a matter of law (j.n.o.v.) [Rule 50(b)]
a) let the case go to the jury and let them decide, but they reach a decision that
reasonable people could not reach
b) judge enters judgment for other party
c) *At the close of ALL evidence, party must move for judgment as a matter of
law, otherwise waives right for renewed motion for judgment as a matter of law
(Must make 50(a) motion at close of all evidence or waive 50(b) motion)
3. Motion for new trial [Rule 59(a)]
a) judgment entered, but the court is convinced that there was error and there
should be a new trial
b) almost limitless grounds for a new trial and judge has wide discretion
i) judge made a serious error at trial
ii) prejudicial misconduct (ex. jury misconduct)
iii) trial judges may grant or deny new trials under circumstances which
would prevent j.n.o.v. or directed verdict. Aetna Cas. & Sur. v. Yeatts (pl.
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sought declaratory judgment that def. was engaged in illegal abortion at
time liability arose.)
o Dyer v. MacDougall, (2d Cir. 1952): The important difference
b/w a trial judge’s power on motion for a new trial and motion
for directed verdict is that on the new trial motion, he may base
his action on his belief or disbelief of the witnesses, but on a
directed-verdict motion he may not
c) can grant entire new trial or just partial (damages or liability)
d) can also be conditional
i) liability assessment is correct (no doubt)
ii) damages are way off
o Remittitur: jury assesses damages too high  court can tell pl.
that new trial will be granted unless pl. will remit and accept
lower damages
 Permissible in the federal courts and in most state courts
 Powers v. Allstate Ins. Co. the trial court or appellate
court can set the reasonable amount for remittitur
[Wisc.]
o Additur: jury assesses damages too low  court can tell def.
that def. must add to damages or a new trial will be granted
 Unconstitutional in the federal courts (violates 7th
Amendment)
 States can permit additur
 Fisch v. Manger: a court may practice additur
w/o violating constitutional right to a jury trial
[NJ]
e) Jury Misconduct
i) a judge may mold an incoherent jury verdict to coincide with the
substance of the jury’s declaration only if the verdict clearly expresses
the intent of the jury. Robb v. Hickey (jury held that pl. was
contributorily negligent, but still assessed damages, in conflict with the
law; new trial granted b/c too ambiguous to mold)
ii) a juror’s affidavit cannot be used to attack the verdict Sopp v. Smith
iii) damages assessed by an average of what each juror assesses damages
at (quotient verdicts) is misconduct by the jury and grounds for a new
trial. Huckle v. Kimble
f) Relief from Judgment
i) Rule 60 (a): relief from clerical mistakes may be corrected at any time
by the court or by motion of any party
ii) mistake, excusable neglect [Rule 60(b)(1)]
o Hulson v. Atchison, Topeka & Santa Fe Ry :Under Rule 6(b), the
trial court cannot extend the time for taking any action under
rules 50(b), 59(b) and others. If the motion for a new trial is
untimely, the trial court must deny the motion. Ignorance of the
rules resulting in an agreement for an unauthorized extension of
time cannot serve to furnish grounds for relief under 60(b).
o Briones v. Riviera Hotel & Casino: SC test articulated that,
“although inadvertence, ignorance of the rules, or mistakes
construing the rules do not usually constitute excusable neglect,
it is clear the “excusable neglect” concept is somewhat elastic
and not limited strictly to omissions caused by circumstances
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beyond the control of the movant. Four factors should be
considered in determining if the neglect was excusable:
 the danger of prejudice to the opposing party
 the length of the delay and its potential
impact on judicial proceedings
 the reason for the delay
 whether the moving party acted in good
faith
iii) newly discovered evidence [Rule 60(b)(2)]
o Patrick v. Sedwick: pl. injured in accident caused by def.
negligence. During the years of trial and appeal, new
medical technique developed that would lessen pl. injury.
Court say damages could not be mitigated b/c newly
discovered evidence must be in existence at the time trial
took place
o Swift Agricultural Chemical Corp. v. Usamex Fertilizers:
patent infringement suit based on reaction time; court held
for pl. Subsequently, def. brought forth evidence to new
device to more accurately measure rxn time – his was shorter
than pl. Court reversed b/c rxn time was in existence at time
of trial; only the way to measure it was not
iv) Fraud [Rule 60(b)(3)]
o Smith v. Great Lakes Airlines, Inc: Action can only be set
aside for extrinsic (ex. fraudulently inducing an opposing
party not to file suit until after the statute of limitations bars
suit), not intrinsic fraud (ex. lying witness) which trial is
designed to discover
XIII. RES JUDICATA AND COLLATERAL ESTOPPEL
A. Res judicata (Claim Preclusion)
1. Only get one suit per claim
a) Rush v. City of Maple Heights: a pl. may only maintain one action to enforce
rights for damage to property and self (Rush in accident and sued in two courts:
one for property, one for personal injuries)
b) no principle of law or equity allows a federal court to reject res judicata
principles. Federated Dept. Stores v. Moitie (9th Cir. did not apply res judicata to
actions that were dismissed on the basis of an opinion that had later been
effectively overruled. Reversed.)
c) A single cause of action stemming from a breach of single, indivisible contract
cannot be split into separate, distinct causes of action. Jones v. Morris Plan Bank
of Portsmouth (Bank won a judgment against Jones for 2 missed car payments
and tried to sue Jones again after the sold the automobile w/o consent)
2. Must show that both cases were brought by the same claimant against same def.
3. Must show that case ended in a valid final judgment on the merits
a) does not matter if anything was litigated
i) default judgment is on the merits
ii) jurisdiction, venue, and indispensable parties NOT on the merits [Rule
41 (b)]
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iii) Anguiano v. Transcontinental Bus System: [Az.] first suit dismissed
for failure to comply w/ a court order (did not give costs); barred
subsequent suit for same issue by pl.
iv) Rinehart v. Locke: [7th Cir.] dismissal for failure to state a claim is res
judicata to subsequent suits – Rule 41(b) taken literally
v) Semtek: Court in the 2nd case applies law re: preclusion used
by ct. in the first case. Here, 1st suit in fed. ct, 2nd suit in state
court. Under general rule, state court should use the federal ct’s
rule of preclusion. However, ct. adopts preclusion rule of state
in which it sits.
 state court (Md.) had to apply the law of Cal. where
the first suit was held.
 In Cal., dismissal for statute of limitations not on the
merits. Therefore, case should be reheard.
b) agency decisions – United States v. Utah Construction and Mining Co
i) courts apply res judicata if agency was acting in judicial capacity
ii) To determine if agency is acting in a judicial capacity, look at
o Whether adequate notice was given to parties
o Right of parties to present evidence
o A formulation of issues of law and fact
o A rule of finality
o Other procedural elements
iii) University of Tennessee v. Elliott: specific Congressional intent to
prohibit state agency decisions from precluding Title VII claims 
agency decision does not effect Title VII lawsuit
4. Must show that both cases involve the same claim
a) different definitions of “claim”
b) majority view (federal law adopts): the claim is all rights arising from the
transaction or occurrence
c) minority view (“Primary Rights”): separate claims for each right that’s been
invaded
i) Smith v. Kirkpatrick [NY]: pl. brought suit for breach of contract but
didn’t comply w/ Statute of Frauds, so dismissed. Pl. than brought suit in
quantum meriut to recover. Def. claimed res judicata. Court reversed
dismissal. Test of “same claim” is whether the same right invaded and
same evidence to be used. Here, no.
ii) Heaney v. Board of Trustees: a previous mandamus suit for
reinstatement, which was denied, does not bar a subsequent suit for
damages for wrongful dismissal.
iii) Bogard v. Cook: member of a class action is not barred from bringing
suit for personal injuries because (a) did not know he could claim injuries
in first suit (2) if he could, may have not been maintainable as class
action; (3) some injuries occurred after the close of evidence.
5. HYPO: L and E get into car accident, both injured.
a) L sues E for personal injuries from wreck. A valid final judgment on the
merits is entered. L then sues E for property damage for the same wreck. Do we
dismiss case #2?
i) Both cases brought by L against E
ii) First suit ended in a final judgment on the merits
iii) Same claim?
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o
majority view: yes, because only one accident, and L sued twice.
Second suit is res judicata.
o Minority view: no, because suing on a different right (personal
injury and property damage)
b) Same accident. Case #1: L sues E and there is judgment on the merits. Case
#2: E sues L. Res Judicata?
i) both cases NOT brought by the same parties – fails
ii) Second case is barred by compulsory counterclaim [Rule 13(a)]
6. merger: res judicata where the claimant won case #1
7. Bar: res judicata where the claimant lost case #1
B. Collateral Estoppel (Issue Preclusion)
1. Narrower than res judicata – focuses on issue litigated in case one that comes up in
case one
2. Must show (1) that case 1 ended in a valid final judgment on the merits
3. Must show (2) that the same issue was actually litigated & determined in case 1
a) Cromwell v. County of Sac: must show that the issue in question was actually
litigated. Here, evidence that one bond was not paid value for is not conclusive
that pl. did not pay value for another bond.
b) Russell v. Place: collateral estoppel only applies if the precise issue in question
has been litigated and determined in the former suit (pl. sued def. for patent
infringement. Jury did not say which part of patent was infringed. Pl. brought
second suit for patent infringement. Court says that b/c don’t know what part
was infringed, there is no issue preclusion in second suit.
4. Must show (3) that the issue was essential to the judgment in case 1
a) Rios v. Davis: A finding of fact which was not material or essential to the
judgment of a suit b/w two parties is not binding on the parties in a later suit.
(pl. employer brought action against def. for damages in auto accident; ct.
determined all negligent. Pl then sued def. Court said that pl. negligence in the
prior suit was not necessary and thus, did not bind pl. in the subsequent suit)
5. Ask (4) against who collateral estoppel used
a) ONLY AGAINST someone that was a PARTY IN CASE ONE (or someone in
privity with a party)
b) required by Due Process (so only one approach)
6. Must ask (5) by whom collateral estoppel is used
a) not required by due process, so different approaches allowed
b) mutuality: can only be used by someone that was a party in case one
i) Ralph Wolff v. New Zealand Ins. Co: must have mutuality b/w parties
in order to assert collateral estoppel
c) new trend allows non-mutual collateral estoppel: by someone that was not a
party in case one (ex. Barnhard v. Bank of American Nat. Trust & Saving Co
[Ca.]: pl. sued def for unauthorized w/drawal; prior court said withdrawal was
authorized)
i) non-mutual defensive: the person using it is the def. in case two, and
not a party in case one
ii) non-mutual offensive: the person using it is the pl. in case two, and
not a party in case one
iii) Parklane Hosiery Co. v. Shore: trial courts have broad discretion to
apply the doctrine of offensive collateral estoppel, even when def. may
be denied jury trial
7. HYPOS: B driving C’s car and collides w/ A (who is in own car). C is vicariously
liable for B’s accident.
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Civil Procedure – Levin
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a) Case 1: A sues B. B wins b/c A was negligent.
b) Case 2: A sues C. C wants to claim collateral estoppel on the finding that A
was negligent in case 1.
i) case 1 ended in valid final judgment on the merits
ii) the same issue was actually litigated (A’s negligence)
iii) the issue is essential to the judgment (reason why B won)
iv) being used against a party in case 1, so due process not violated
v) being used a non-party  non-mutual defensive
o under traditional approach, C cannot use collateral estoppel
o today, most courts, including federal, will allow non-mutual
defensive collateral estoppel if the party against whom it is being
used had a full, fair opportunity to litigate.
c) Same facts. Case 1: A sues B. B wins b/c A negligent and judgment entered.
Case 2: C sues A for property damage to her car. C wants collateral estoppel on
issue of A’s negligence
i) first 4 elements met as in prior hypothetical
ii) By whom is it being used: non-mutual offensive
o most courts reject non-mutual offensive collateral estoppel
o federal courts leading a trend that offensive collateral estoppel is
okay as long as it is fair
o What is “fair”?
 A had a full opportunity to litigate
 C could not have joined easily in case 1 (if she could,
then should not allow)
 A could foresee multiple litigation
 There are no inconsistent judgments
 Like Parklane
 “Heads you win, tails I lose” – multiple pl. anomoly
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