CIVIL PROCEDURE
I. Introductory Material
A. Opportunity to be Heard
1. Fuentes v. Shevin – Under FL law, Fuentes’s stove and stereo were seized by
the sheriff when she defaulted after paying $400 on a $600 installment contract →
Due process requires an opportunity for hearing before a deprivation of
property can take place
 A statute allowing a creditor to obtain repossession of goods before a
hearing violates due process where it (1) allows repossession merely on
the creditor’s conclusory statement that he owns the property (2) provides
for a write of possession issued by a clerk rather than a judge (3) does not
provide for an immediate post-repossession hearing
2. Mitchell v. W.T. Grant – court upheld a LA sequestration procedure that
provided for dissolution of the writ upon the debtor’s request, unless the creditor
could prove his grounds and post a bond
 No one in the Fuentes majority voted for the result in Mitchell.
 In LA the creditor at least needs to present reasonable evidence. In FL, a
reasonable argument does not need to be put forward.
 But a statute allowing repossession by a creditor will be valid if it requires
presentation of specific facts about the claim, requires that the facts be
presented to a judge rather than a clerk, and provides for an immediate
post hearing at which the D can present the case
3. North Georgia Finishing, Inc. v. Di-Chem, Inc. – a GA garnishment procedure
was struck down because there was no hearing, no notice, and the debtor could
recover his property only by posting a bon for the debt amount
 A D’s bank account may not be attached unless he is given the right to
argue against the attachment either before it occurs or immediately after
 Mitchell seems to be methodically superior because it recognizes interest
on both sides. Gives significant protection and isn’t too costly against
whom it operates.
<<How to think about a procedural question:
1.
2.
3.
4.
If feel in my heart this D should get a better deal (not intellectually satisfying).
How strong an interest does the P have in receiving this procedural benefit.
Is the D’s interest being protected?
How much good does this enhanced procedural ___ produce better results. >>
II. Getting the Defendant Into Court
A. Personal Jurisdiction → Minimum Contacts Test
1.
Pennoyer v. Neff – Neff brought suit in federal court to recover possession
of a parcel of land purchased at a sheriff’s sale by Pennoyer
 (Old Rule) For a court to obtain valid personam jurisdiction over a D, it
was absolutely necessary that the D be served with process with the state
in which the court was sitting
2.
Hess v. Pawloski – A former MA statute held that MA had jurisdiction
over anyone who operated a motor vehicle within the state, on the grounds that
such a person could be said to have impliedly consented to jurisdiction by the act
of operating the vehicle
3.
International Shoe, Inc. v. Washington – (minimum contacts test) – state
of WA sought to collect unemployment taxes based on commissions paid by the
firm to its WA-based salesmen
 Minimum Contacts Standard – Jurisdiction is valid whenever a D’s
contacts w/in the state are such as to make it “reasonable and just” and
“not offensive to the traditional notions of fair play” that the D be forced
to defends within the state
B. Long Arm Statute
1. Gray v. American Radiator Corp. (?) – Titan (an OH co) makes valves which it
sells to another company which incorporates them into a boiler which it sells to P;
the boiler explodes in IL, injuring a P who sues Titan in IL; the IL long arm
allows suit in IL based upon a “tortuous act within the sate.” → “in law the place
of the wrong is where the last event takes place which is necessary to render the
actor liable.”
2. World-wide Volkswagen Corp. v. Woodson – VW manufactured in NY but
fatal injury occurred in OK – P sue NY, but attempt to sue in OK court
 Certainly the mere fact that a product made out of state has found its
way into the forum state, and has caused injury there, is not sufficient
for the assertion of jurisdiction under Volkswagen. However, the
majority opinion in Volkswagen noted that jurisdiction in permissible over
a corporation that “delivers its products into the stream of commerce with
the expectation that they will be purchased by consumers in the forum
state.” If the defendant in Gray had reason to expect that IL customers
would buy a product containing its valves, Gray may survive the
Volkswagen decision.
 Court distinguishes b/t a product being sold in the state (Gray) rather than
just winding up there in this case D had done nothing
3. Keeton v. Hustler Magazine, Inc. – D’s contacts w/ the forum state (NH)
consisted solely of the circulation there of from 10-15,000 copies per month of its
mag; P who was not a resident of NH and had not other contacts with it, claimed
that articles in Hustler injured her reputation in NH and elsewhere
 The Court found that there was jurisdiction because the cause of action
arose out of the very activity being conducted in part in NH.
 Noted that D’s activities in the forum may no be so substantial as to
support jurisdiction over a cause of action unrelated to those activities
<< Must satisfy:
1. Activity (some times referred to as minimum contacts test)
•
Activity
•
relation
•
purposeful
2. Balancing (reasonableness test)
>>
4. Kulko v. Superior Court – SC held that a father residing in NY does not
acquire “minimum contacts” w/ CA merely by permitting his minor daughter to
go there to live with her mother
 Did not avail himself of the benefits of the state
 Though CA state interest in making sure minors are provided for,
legislation in place to allow wife to obtain NY adjudication
5. Burger King Corp. v. Rudzewicz – SC held that the courts of FL could
constitutionally exercise jurisdiction over a MI resident who had signed a
franchise contract with a FL franchiser, even though the franchise was operated in
MI
 Once min. contacts are established, it is presumed that the forum is fair
unless D proves that the forum is fundamentally unfair (BK D failed to do
so and had to defend in FL)
o D was not unfairly surprised by being required to defend in FL
against a suit; both contractual provisions and the course of dealing
should have put D on notice that the franchise relationship would
be supervised from FL
6. Asahi Metal Industry Co. v. Superior Court – Zurcher lost control of his
motorcycle while riding in CA, and was seriously injured. He brought a products
liability suit in CA state court, claiming that the cycle’s rear tire and tube were
defective. Asahi made no direct sales in CA, had no offices or agents there, and
did not control the system of distribution that carried its products into the state
 Majority believed that Asahi had minimum contacts with CA because it
put its goods into a stream of commerce that it knew would lead many of
them to that state
 Despite MC, it would be unreasonable and unfair for CA to hear the case
because (1) the burden to A of defending in a foreign legal system (2) the
slenderness of CA’s and Cheng Shin’s interest in having the indemnity
claim heard in CA; and (3) the strong federal and state interest in not
creating foreign relations problems by deciding an indemnity claim
between two foreign Ds.
<<NOTES: In order to consider reasonableness of practicing personal jurisdiction, it has to
consider several factors:
1. Burden on the defendant
2. Interests of the forum state
3. Plaintiff’s interest in obtaining relief
4. Shared interest of the several States in furthering fundamental substantive social policies>>
C. General Jurisdiction and State Long-Arm Laws
1. Perkins v. Benguet Consolidated Mining Co. – D was out of state mining
company in Philippines, during WWII the president returned home to OH, where
he maintained an office and did business on behalf of the co, the P was suing for
dividends she claimed the company owed her based on its profits from its
Philippine operation (the cause of action did not involve the OH activities)
 The court held that where the cause of action does not arise from business
done within the forum state, Constitutional due process requires that the
instate business actually conducted be so systematic and continuous as to
make it not unjust that the corporation be forced to defend a suit there.
2. Helicopteros Nacionales de Coombia, S.A. v. Hall- Columbian corp in the
business of providing helicopter transportation in South America for oil
construction companies signed a contract to provide such services to Consorcio.
Ps were estates of employees of Consorcio who were killed when a helicopter
supplied by and piloted by D crashed in Peru
 Single trip to negotiate was not a contact of a continuous and systematic
nature
 The Wrongful death claims did not arise out of the D’s in-TX activities;
those activities were not of a continuous and systematic nature
 Establishes that where the claim does not arise out of the d’s in-state
activities, the mere fact that the purchases been made by the D in the
forum state, even if they have occurred regularly will not be sufficient to
establish the requisite mere contacts
 Mere purchases even if occurring at regular intervals are not enough to
warrant a State’s assertion of in personam jurisdiction over a non
resident
<<General jurisdiction where you look for the type of contacts that will allow you to sue on
extensive contacts; specific jurisdiction only requires an isolated contact>>
D. Jurisdiction Based Upon Power Over Property
1. Tyler – P argued that a land registration proceeding which registered land in
the name of a third person violated P’s due process rights, since he was not
personally notified; the in rem proceedings in question provided for notification
by mail to all persons known to claim an interest in the land, and for newspaper
publication announcing the proceedings in the hopes of reaching known claimants
 Constitutionally upheld b/c must get rid of unknown as well as known
claims
2. Harris v. Balk – Harris (NC resident), owed money to Balk (also NC resident).
Epstein (MD resident) claimed Balk owed him money. Epstein garnished Harris’
debt to Balk by serving Harris with process in MD. This furnished the MD court
w/ quasi in rem jurisdiction to consider Balk’s debt to Epstein, and to satisfy a
possible judgment in Epstein’s favor
 Obligation of a debtor follows him, court may assert jurisdiction over
debtor as long as it personally serves him
3. Shaffer v. Heitner – P owner of one share of stock in Greyhound, a DL corp w/
principal place of business in AZ, filed a shareholder’s derivative suit against
Greyhound and 28 officers
 Overturns Harris – requires min. contacts b/t debtor and state for
jurisdiction to exist
 Since P failed to allege any of the types of contacts required by
constitutional minimum contacts standards, DL cannot exercise
jurisdiction over the case
 Full Faith and Credit Clause would allow P (in the event D moved assets
to where no in personam jurisdiction) to bring an in personam suit where
the D resides regardless of the presence of his assets and then after
recovering judgment sue to enforce that judgment in the state where the
assets are
E. Jurisdiction Based on Physical Presence
1. Burnham v. Superior Court – P brought suit for divorce in CA state court
against her husband D from whom she had been sepatated for 18 months, D a
resident of NJ, was served in CA while visiting on business
 Presence in state is grounds for that state’s jurisdiction (b/c doesn’t
violate traditional notions of fairness)
F. Expanding Personal Jurisdiction
1. Milliken v. Meyer – Meyer was domiciled in Wyoming and was served in CO,
pursuant to a WY statute allowing out-of-state service on a resident defendant
who has attempted either to escape his creditors or to avoid being served process
 DOMICILE IS ALWAYS ENOUGH
2. NOTE: The SC in Shaffer held it would be unfair to make the D
personally liable in the forum state merely because he was domiciled there, if
he has subsequently moved his residence somewhere else but has not
established a new residence.
G. Jurisdiction Over Parties or Property (Consent)
1. M/S Bremen v. Zapata Off-Shore Co. – Zapata- London-American trae
relationship, US can be brought before London jurisdiction as provided in a forum
selection clause- jurisdiction by consent
 It has always been permissible for P and D to consent to jurisdiction in a
particular forum state in advance of litigation, provided that there is no
overweening on the part of the stronger party.
2. Carnival Cruise Lines, Inc. v. Shute – P receive tickets issued by D state that
any dispute in connection with the trip shall be litigated if at all in and before a
Court located in the State of FL. Injury occurs in Mexico.
 A dispute forum clause will be enforced when it is reasonable and satisfies
requirements of fundamental fairness
H. Personal Jurisdiction in Federal Court
1. DeJames v. Magnificence – NJ citizen brought suit under the admiralty
jurisdiction to recover damages for personal injures suffered while working abrad
the vessel was moored at a pier in Camden, NJ
 Usually fed. Court uses the LAS of the state Rule 4(k) however if ther is
not state LAS, then Congress has enacted some statutes that allow
nationwide service and effectively supercede R. 4K
 Rule 4(k)(1) Authorizes the federal court to reach only as far as the forum
state could under the Fourteenth Amendment and the state’s long-arm
provisions.
<<Rule 4 (K) (1) (a)
Service of a summons or filing a waiver of service is effective to establish jurisdiction over the
person of a D
(a) who could be subjected to the jurisdiction of a court of general jurisdiction in the state
in which the district court is located or >>
I. Challenging Personal Jurisdiction
1. FRCP 12 (b) – Lists the defenses that may be raised either in the answer, or by
motion
 Lack of jurisdiction over the subject matter
 Lack of jurisdiction over the person
 Improper venue
 Insufficiency of processes
 Insufficiency of service of process
 Failure to state a claim upon which relief may be granted
 Failure to join a necessary party under Rule 19
2. FRCP 12(g) – Consolidation of Defenses If a party makes a motion under this
rule but omits there from any defense or objection then available to the party
which this rule permits to be raised by motion, the party shall not thereafter make
a motion based on the defense or objection so omitted, except a motion as
provided in subdivision (h)(2)
3. FRCP 12(h) sets out premise of time requirements for defenses; *consult rule
but most must be made before trial except defense of a lack of subject matter
jurisdiction which can be made after the trial
4. Special appearance = appear to contest jurisdiction only (if you argue merits,
you waive right to contest jurisdiction)
 No equivalent appearance in federal court, however similar to R. 12gmove for defect of jurisdiction as a defense (12b lists lack of jurisdiction
as a defect); if fail to do so, you waive this defense R. 12h
J. Challenging a Court’s Exercise of Jurisdiction Over the Person or Property
1. Baldwin v. Iowa State Traveling Men’s Ass’n – D makes a special appearance
in MO DC, loses on his jurisdictional objection, then declines to answer. A
default judgment is entered against him. P then sues in IA DC to enforce the
judgment. D raises the jurisdictional objection again.
 Generally, if the D 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.
 Once you appear before court and contest jurisdiction-the ruling as to jur.
is binding.
 One can choose not to appear, but risk default judgment which will be
binding OR appeal to SC and take chances there.
II. Notice and Service of Process
A. The Requirement of Reasonable Notice
1. Mullane v. Central Hanover Bank & Trust Co – Bank administered numerous
small trust fund and wished to settle the year’s accounts for the funds, which it
had pooled together for investment purposes; the court appointed Mullane to
represent all those who had an interest in trust funds *the only notice given to the
beneficiaries of the trust funds was through a newspaper announcement → where
the names and address of those effected are known, notice by publication is
unacceptable
 Actual notice is not required: all that is required is “notice reasonable
calculated under all circumstances, to apprise interested parties of the
pendency of the action…”
 Court used a balancing test and held that the expense of notification by
mail, the availability of names and addresses of beneficiaries, were factors
to be taken into account in determining whether publication was sufficient
notice
2. Dusenbery v. United States – notice arrived at prison, FBI didn’t have to make
sure inmate actually got it- the method was reasonably certain
 the court says that actual receipt is not required
 reasonable means to contact them is enough (even though it might not
succeed)
3. FRCP 4 – Governs many of the technical aspects of federal court jurisdiction
over the parties; note 4f: foreign service is made by whatever means is legal in
that nation
D. Waiver of Service
1. Maryland State Firemen’s Association v. Chaves - Complaint was filed on Jan.
2, on March 4, MSFA filed a Motion for Judgment by Default. March 11,Clerk
entered default judgment. They sent by 1st class mail to the Δ. There was no
acknowledgement by the Δ, even though the lawyers spoke to each other, so
service was not valid. → applies the strict rule; service was improper
 Service of process must be effective under the Federal Rules of Civil
Procedure before a default or a default judgment may be entered against a
Δ.
 A P must strictly comply w/ service provisions, even if D has actual notice
of lawsuit
C. Service on a Person Residing n D’s Dwelling House or Usual place of Abode
1. Rovinski v. Rowe – service mailed to his mother’s house sufficient
 Argued it wasn’t his dwelling according to FRCP Rule 4 (e)(2), but
court’s construe the rule liberally.
 Rule 4 (e)(2) – service can be made to the individuals dwelling house or
usual place of abode and left w/ some person of suitable age and discretion
then residing there
 Policy R/L everyone must be “reachable” if you didn’t have a reliable
address judgment wouldn’t be able to be rendered against you, no heroic
efforts to contact you are required
D. Service on Artificial Entities: Corporation, Partnerships, and Unincorporated
Associations
1. Insurance Co. of North America v. S/S “Hellenic Challenger” – US marshal
deposited the summons and complain with a claims adjuster at the office of
defendant who was not expressly authorized by D to accept process, agent forgot
to give it to the appropriate person, but upheld
 Court says that service was proper b/c 4h does not require rigid formalism,
so as long as the individual is in a position to render the service fair and
reliable and reasonably calculated to alert Δ to initiation of process, OK.
 Rule 4(h): service on corporations and associations by delivery to an
officer, a managing or general agent, or to any other agent authorized by
appointment or by law to receive service
o
D. Etiquette of Service
1. Wyman v. Newhouse – P sued D to recover money loaned, money advance,
and damages for seduction under promise of marriage; D was induced to enter the
jurisdiction of the court by a letter from the P an old friend of D to the effect that
P’s mother was dying in Ireland, that P was dropping all charged against D, and
that P could not bear to leave the US w/o once more seeing D
 Court said that inducing someone to enter jurisdiction by fraud is not
justifiable and will not be upheld.
 Note: Courts do not have reservations about the method of service when
the D is already within the jurisdiction of the court but is hiding from suit.
III. Federal Subject-Matter Jurisdiction
A. Federal-question Jurisdiction (Types of Cases Court can Hear)
1. Rule 28 USC §1331 – DC has original jur. of all civil actions arising under
Con. Laws or treaties of US
2. R. 28 USC §1337 – DC also over has jurisdiction over actions arising under
any Congressional Act regulating commerce
3. 28 USC §1442 – against federal officers
4. Louisville & Nashville R. Co. v. Mottley – Ps claim in a federal suit that D
breached its agreement to give the Ps free passes in return for their release of tort
claims against it (federal statute recently passed which prohibites the giving of
such passes), Ps anticipating that D will riase the federal statute as a defense,
assert in their complain that the statute does not apply to their case, D raises
federal statute as a defense
 No federal question jurisdiction exited, because the federal statute was no
essential to the P’s cause of action
 It is not sufficient that the complaint mentions some anticipated defense
and asserts that the validity of the defense is governed by federal law
5. Smith v. KC Title & Trust Co. → Federal jurisdiction relief from the state
depends on the construction or application of the Con. Or laws of the US
6. Moore v. Chesapeake → Federal jurisdiction does not extist if the suit is
brought under a state statute, requires construction or application of fed. Law, but
does not have diverse parties (contradicts Smith, Moore)
7. Merrell Dow Pharmaceuticals Inc. v. Thompson → A state law action that also
alleges a violation of a federal statute, comes under Fed. Jur. only if Congress
intended to provide a federal remedy
<<Hypo: Levin and LaPierre bet $20 about whether supreme court will uphold AA in MI.
Levin brings suit in LaPierre to recover.




No federal question.
No diversity of citizenship
Does the federal question have to be the central theme?
Smith - State created federal action that turns on a federal law (contradicts the Moore
case), suggests you would have federal jurisdiction.
o Smith didn’t follow the Holmes test. >>
 Holmes test: “a suit arises under the law that creates the cause of action”
B. Diversity Jurisdiction → 28 §1332
1. 28 USC §1332: provides for original jurisdiction in federal DC of all court
actions that are b/t citizens of different states or citizens of a state and citizen of a
foreign state and in which the amount in controversy is more than $10,000
 Note: For a court to exercise diverse jurisdiction, there must be complete
diversity among the parties; that is, no party on one side may be a citizen
of the same state as any party on the other side
2. Mas v. Perry – P was treated by the court as still being domiciled in MS, even
though she had subsequently moved to LA and then IL, and did not intend ever to
return to MS.
 Break w/ traditional rule- a wife’s domiciliary is not necessarily that of her
husband, party must be completely diverse, one is still a domiciliary of his
home state until one asserts that domiciliary is elsewhere
<<What is the operative test to tell you when you have changed your domicile? You would need
to physically there and say “this really feels like home.” * you must have both to establish
domicile >>
3. Notes:
 R. 1359 no fed jurisdiction when such jurisdiction is obtained improperly
or collusively made or joined
 Only formal parties to the suit must be diverse, nominal members are
immaterial
 R. 1332 a corporation’s home jur is wherever the corp was incorporated
and where its principle business is
C. Jurisdictional amount → 28 §1332
1. 28 USC §1332(b): In addition to diversity, jurisdictional amount requirement
of $75K or over
2. Tongkook America, Inc. v. Shipton Sportswear Co – case dismissed because
though parties thought suit was for $100K, it was actually for $40K, good faith
mistake defense not accepted by court
 Test: If parties made mistake as to amount in good faith, the case may
continue, but if there was no way that the claim could have ever been for
the required amount- dismissal is proper- penalties for doing so – See R.
1332
 settled rule is that whenever you find a jurisdiction error you dismiss
3. Snyder v. Harris – P’s claim was only for $8K, the total claim for all
shareholders was $1.2M
 decides against the rule- court will not allow aggregation
 Traditional Rule: multiple parties may aggregate the amounts to make it
sufficient for fed. Jurisdiction
 If it is brought in state court and the D wants to move it to federal court it
would be on the D. → It would generally fall on whoever wants to invoke
federal jurisdiction.
4. McCarty v. Amaco Pipeline Co. → Amount in question is determined by P’s
viewpoint if it originated in fed. Court, by D’s account if case removed to fed.
Court, either-whichever party estimates at $75K
D. Federal and Non-federal claims in Combination
1. Rule 28 USC §1367 (a): same case or controversy provision (supplemental
jur.) Pendent jurisdiction- at the discretion of the court- a federal court may hear a
P’s state law claims, whenever one claims arises under fed. Law and the state and
fed claims derive from a common nucleus of operative facts
a. Pendent jurisdiction – when P in her complaint, appends a claim
lacking an independent basis for federal subject-matter jurisdiction to a
claim possessing such a basis
b. Ancillary Jurisdiction – when either a P or a D injects a claim lacking
an independent basis for jurisdiction by way of a counterclaim, cross
claim, or 3p claim.
b. United Mine Workers of America v. Gibbs → federal question- fed
court properly exercised jur. over both state and fed. Claim since both
claims arose out of common facts
 TEST: the state and federal claims must “derive from a common
nucleus of operative fact” and must be so closely related that
usually a P would be expected to try them all in one judicial
proceeding
2. Rule 28 USC §1367 (b): no supplemental jur. as to diversity suits; Ancillary
jur (formally pendent jur.) a fed court odes not retain jur. based on diversity when
the P adds a pendent party D who destroys complete diversity
a. Owen Equipment & Erection Co. v. Kroger – diversity suit- no
discretion for court to hear case once complete diversity (all members of
the diverse party must be diverse) has been destroyed
 federal courts are limited jurisdiction courts and we don’t want to
expand the jurisdiction
 P cannot use ancillary jurisdiction to assert a claim against the 3rd
party D even if that 3pd has already been brought into the action
by the ancillary doctrine
3. 28 USC §1367, added in 1990, codifies the ancillary and pendent concepts and
combines them into a single motion of supplemental jurisdiction
E. Removal
1. 28 U.S.C. §1441: Removal Statute—D may remove case to federal court if P
could have brought suit there originally (P has first choice of jur); 1441 C- If state
question is separate and independent it can be removed along w/the federal issue;
P cannot conceal the true nature of a complaint through “artful pleading”
2. Bright v. Bechtel Petroleum – case dismissed; also by pendent jur. entire claim
both federal and state, was dismissed instead of state matter being remanded, a P
cannot sue when D is complying with federal tax law; P here was penalized for
bringing a frivolous suit
F. Attacks on Subject Matter Jurisdiction
1. Capron v. Van Noorden – Capron sued D in federal court for trespass and
damage. In his complaint, P alleged that D was from NC, but failed to allege his
own citizenship.
 Diversity of citizenship must be shown affirmatively in the pleadings.
Since there was no allegation that either party was an alien, or that the
plaintiff was a citizen of a state other than NC, there is no diversity of
citizenship.
 In Federal Ct., a case will be thrown out for lack subject matter jur. even if
it has already made it to the appellate stage; strict rules of dismissaljudgment w/o jurisdiction is a nullity-period
 Direct and collateral attack: Court is not required to decide subject matter
jur. before personal jur; Direct attack = challenging jur. during actual trial
 Hypo: If Capron had let the judgment become final, lost in the first action,
and then filed the 2nd action (i.e. instead of appealing, he files a new suit).
o Collateral attack → separate law suit
o Res judicata – once the case is finished, it is over and done with
and jurisdiction attaches, but not if it is a collateral suit
2. Rule 12 (h) (3) Whenever it appears by suggestion of the parties or otherwise
that the court lacks jurisdiction of the subject matter, the court shall dismiss the
action
o Provides that the parties or the parties or the court on its own initiative can
always object to the court’s lack of subject matter jurisdiction
3. Collateral Attack – The rules allowing collateral attack on the decision of the
court of another jurisdiction are generally the same for both subject matter and
personal jurisdiction.
o It is only where a party to the first action had a default judgment entered
against him that he may claim, when he is sued on the judgment in a
second court, that the first court lacked subject matter jurisdiction
IV. VENUE AND FORUM NON CONVENIENS
A. General Principles
1. Venue refers to the place within a sovereign jurisdiction in which a given
action is to be brought. It becomes a consideration only when jurisdiction over
the parties has been established.
2. 28 USC §1391- “Which federal district court shall try the action?”
o Suit can be brought only in a district that satisfies both the venue
requirements and the personal jurisdiction requirements as to all D
o (Federal application only) V is proper in a location where a substantial
part of the events or omission giving rise to the claim occurred.
3. Venue in local actions. IN “local actions, V is proper only in the district where
the property that is the subject of the action is located. If the property is located in
more than one district of the same state, the action may be brought in any such
district.
o Bates v. C & S Adjusters, Inc – Venue is proper in cases where a P’s home
district if a collection agency had mailed a collection notice to an address
in that district or telephoned in that district.
4. Federal Transfer of V – Transfer on the motion of D may be made only to
those districts “where P would have had the right, independent of the wishes of
the D, to bring the action. This clearly establishes that consent by the D will not
permit transfer to a forum where the action could not originally have been
commenced.” Hoffman.
o In the interest of reduction of forum shopping, the SC has rule that in fed
transfer of V cases, the substantive law that is applied to the transferee
court must be the same substantive law that the transferor court would
have applied. This ruling tends to ensure that a transfer of fed V is only a
change of courtrooms rather than a change of law and possibly of
outcome.
o Even the consent by all Ds would not authorize the action to be transferred
to that district.
5. Venue in today’s law
o According to 28 §1291 (d) an alien may be sued in any district if the
alien does not contest jur. so in Helicopteros there would be
jurisdiction
o In Burger King venue seems impermissible.
o Long arm statute provides for personal jurisdiction but does not
apply to venue
B. Forum Non Conveniens
1. FNC – a court may resist imposition upon its jurisdiction even when
jurisdiction is authorized by the letter of general venue statute; court’s discretion
2. Gulf Oil Corp v. Gilbert – (balancing test) There is ordinarily a strong
presumption in favor of Ps choice of forum, which may be disturbed only when
the private interest (affecting the convenience of the litigants) and the public
interest (affecting the convenience of the forum) clearly point toward trial in
alterative forum.
3. Piper Aircraft – airplane crash in Scotland, but US citizen on board, Scotland
not the most convenient forum, but court upheld the forum using Gilbert
balancing test, in the interest of the private litigants and public interest to have
case in Scotland) → The fact that the substantive law of an alternative forum is
less favorable to P is not conclusive and should not be given substantial weight in
applying doctrine of FNC
V. THE ERIE DOCTRINE
A. Federal v. State Law in Diversity Cases
1. Erie Doctrine – the essence of Erie is that, while federal courts are free to
apply their own rules of “procedure,” any issue of “substantive” law (other than a
federal question) must be determined according to the laws of the state in which
the federal court is located. → procedure v. substance
o Overruled Shift v. Tyson which resulted in forum shopping b/c incentive
to get into federal court.
2. Guaranty Trust Co. v. York (Outcome determinative test 1945) – Here the
running statute of limitations substantially affected the outcome of the litigation.
Therefore, it was substantive within the Erie mandate, and state law controlled.
Since the state statute of limitations had run before commencement of action, the
case was properly dismissed.
o Under the ODT, fed courts have been rqd to follow state practice in such
quasi-procedural areas as the effect of res judicata, determination of date
of official commencement of law suit, sufficiency of minimum
jurisdictional contacts, burden of proof, and conflict-of-law rules
3. Byrd v. Blue Ridge Rural Electric Cooperative, Inc. (Court begins to retreat
from complete acceptance of ODT 1958) – application of state law would deprive
P of jury trial upon a major part of his case. Rather the DC must determine for
itself, using federal guidelines, whether jury trial upon the issue is proper keeping
in mind the strong federal preference for jury trial. → The preference for state
law must be balanced against the deprivation of federal rights resulting form
application of state law, a test that a separate from, and intended to augment, the
ODT.
o The preference for state law is not binding if application of such a law
would deprive one party of a strongly protected federal right, even if the
standard ODT is met.
4. 28 USC 2072: “Enabling Act” allowed the SC to “prescribe, by general
rules…the forms of process, writs, pleadings, and motions, and the practice and
procedure in civil actions at law” for the federal courts
5. Hanna v. Plumer (adherence to federal rules where they do not affect choice of
forum) – left service process with his wife, D claimed that this service conflicted
with a MA statute making special provision for service upon the executor →
Process must be governed by Federal Rules even though it is outcome
determinative because overriding a fed rule would disembowel either the
Constitution’s grant of power over federal procedure or Congress’ attempt to
exercise that power in the Enabling Act
o The modern rule is that in case of conflict between Federal Rules and state
law, the Federal Rules control (i.e. such matters are presumptively
procedural)
6. Walker v. Armco Steel Corp ( No conflict between federal and state laws) –
Issue: In diversity action, should the federal court follow state law in determining
when an action is commenced for the purpose of tolling the state of limitations?
Yes.
o Rule 3 is not intended to toll statutes of limitations or displace tolling
rules. It governs the date from which the various timing requirements of
the FRCP begin to run. It does not replace the policy determination sound
in state law: (1) actual service establishes a deadline (2) after certain
period of time unfair to require defense to old claim
o Hanna v. Plumer does not apply. (Law not intended to overstep)
<<In Walker and Burlington the court is making choices about whether to read the federal statute
broadly or unbroadly. They will take into account state interest when we construe the scope of
our rules and if we think there is an interest that needs to be protected than we can give the rule a
more narrow scope, but if we think the rule is stupid we can just say the federal rule has a
different scope. >>
7. Stewart Organization, Inc. v. Ricoh Corp. (Diversity and change of venue)
where a federal rule covers the point at issue and is valid exercise of
Congressional authority under constitution, a fed. Court can follow its own rule
rather than state rule- here FL prevails over state disfavored such removals
o State law is sufficiently broad to cover the issue
8. Gasperini v. Center for Humanities, Inc. – fed court may apply the state’s
award amount caps; using outcome determinative test and don’t want litigants to
recover more in federal court than they could in state court- would encourage
forum shopping
B. Ascertaining State Law
1. Mason v. American Emery Wheel Works – A federal law court may apply
recent trends in state law over outdated state common law (MS later cases
followed Erie though they had not explicitly overturned the earlier Swift-like
decisions, they were convinced that if a relevant case had come up, MS would
have decided using the modern Erie doctrine, so fed court adopts it as state law
o The dominant view is that the court of appeals should try to do what
would have happened if this was brought before the state court.
2. Ferens v. John Deere - Across the board rule that says that in a diversity suit,
the transferee forum is required to apply the law of the transferor court, regardless
of who initiates the transfer
VI. PLEADINGS
A. The Complaint (and the MD)
1. Definition of complaint – initial pleading in a lawsuit, and is filed by the P
2. Legal theory not required – P need state only facts, not the legal theory he is
relying on
a) Dioguardi v. Durning- the court held that P had stated enough to
withstand a MD. P did not have to state his legal theory (e.g. that the law
recognizes a private right of action for a person aggrieved by a civil
servant’s berach of duty to conduct a fair auction).
- It is sufficient that he gives his adversary enough information
about the claim to allow the latter to frame an answer and to
commence discovery
- Rule (8) (a) (2) says need to submit a plain statement of the claim
3. The SC held that heightened pleading requirements in civil rights cases are
improper and federal courts generally have increasingly reached the same
conclusion as to complex cases.
4. American Nurses’ Association v. Illinois – claim was for comparable worth
pay, no legal theory to base relief, but if case were for discrimination, legal relief
available, court must determine which claim is pleaded
 R. 12(b)(6) failure to state a claim for which relief can be granted
o One of the purposes of the rule 12 motion is to flush out
complaints predicated on unsound legal theory, that decision is
right for decision immediately you don’t need more facts
B. The Answer
1. Generally: D’s response to the P’s complain is called the answer. D “shall
state in short and plain terms his defenses to each claim asserted and shall admit
or deny the averments upon which the adverse party relies” Rule 8(b).
 Same applies to P’s answer to a D’s counterclaim to the answer of a
TPD to a TPC and other such pleadings.
2. Denials: D is permitted to make various kinds of denials, depending on how
much of the P’s complaint he wishes to deny, and on the state of his knowledge
regarding the truth of the P’s claims.
 Kinds of denials are outlined in 8(b): General denial, Specific denial
(denial of allegations contained in a specific paragraph), qualified
denial, denial of knowledge or information
3. Zielinski v. Philadelphia Piers, Inc. – d improperly used a general denial when
the D was really only contesting only one aspect of the complaint
 There is a legal duty to be specific as to defense pleading, if one
intends to deny only part of a pleading, the D must specify what is tru
and “deny only the remainder”
C. Amendments
1. Rule 15 sets forth an extremely liberal policy on the amendment of pleadings.
2. Moore – P filed complaint for custody, after trial D moved to conform
pleadings to the evidence; the court granted the motion and awarded D custody
plus child support, separate maintenance, and counsel fees; grant of separate
maintenance not justified, but all others could have been inferred
 when the opposition amends his pleading and adds more complains
(such as could rationally be expected to accompany the type of suit in
trial) and you do not object you impliedly consent to a finding on that
amended issue, however if the amendment is not an element of the
initial relief sought and prejudices one party, the Amendment will not
be granted)
 A allowed only by discretion of the judge
 One impliedly consents to an amended complaint if one does not
object
 You can’t come forward with a late claim if the other side doesn’t have
a fair chance to defend it.
3. Beeck v. Aquaslide ‘N’ Dive Corp – More than a year after admission of
manufacture of the waterslide, D moves to amend his answer to deny manufacture
→ Since disallowing the A would have been clearly prejudicial to D and since
there was no evidence that D’s delay in moving to amend was motivated by bad
faith, the trial court’s ruling was not an abuse of discretion
 To amend requires leave of the court; can be granted if justice so requires
 15© applies when you are amending a claim to sue a different defendant
4. Worthington v. Wilson - man had injured hand and warned officers and they
were not sensitive to the area; he therefore sued unnamed officers; replaced the
fictitious names with the real names; FR trumped, but modern rule would allow
them to recover
 15© would only apply if there was a mistake; it was ignorance not a
mistake
 15© has been amended –relate back – an amendment of the pleadings
relates back to the date of the original pleading when the A changes the
party or the naming of the party against whom a claim is asserted
D. Affirmative Defenses
1. Ingraham v. United States – P sued for injuries caused by the negligence of
govt physicians; After entry of adverse judgments, the govt moved for relief from
the judgment to the extent that damages exceeded the limit imposed by the TX act
 FRCP 8© requires that a part plead affirmative defenses when pleading to
a preceding pleading
 Failure to raise an AD timely constitutes a waiver of that defense.
<<Reconciling Ingraham and Taylor—in Ingraham, the government reopened the case. In
Taylor, government raised the issue during the actual trial.>>
E. Sanctions
1. Hadges v. Yonkers Racing Corp.- After p and his attorney made incorrect
statement in 60(b) motion (relief from judgment or order), they received sanctions
with little notice and scant time to respond. They had signed affidavits containing
false information and failed to inform the court of state action. → neither p nor his
attorney were given time to retract misstatements and thereby avoid sanctions.
Rule 11(c)(1)(A) provides for 21-day safe harbor period.
 Pursuant to Rule 11, those facing sanctions must receive adequate
notice and the opportunity to respond.
VII. PLEADINGS
A. Joinder of Claims by Plaintiff
1. Harris v. Avery – P met D and in the presence of several other persons called
D a thief and said he had a stolen horse; confined him in the county jail → D
brings an action for false imprisonment and slander and alleges both arose out of
the same transaction. Harris demurred to this petition on the ground several
causes of action are improperly joined. → They should be united because they
rise out of the same transaction.
 Rule 18 – a P may join either as independent or as alternative claims as
many claims…as the party has against an opposing party
o The claims ay later be split under Rule 42(b) if the claims are
widely divergent
2. Mandatory joinder rule – claim preclusion forces P to bring all claims at once
a) Rush v. City of Maple Heights – tried to bring separate actions for
injury and property damage; should have both been brought at same time
o Where a person suffers both personal injuries and property
damage from the same accident most states follow the rule that
P has a single claim, not distinct claims for person injuries on
the one hand and property damage on the other. (R/L being
that a single tortuous act has caused all the injuries so they
could all be litigated together. Also encourages judicial
efficiency.)
o P has to bring all claims arising from a single transaction from
a nucleus of common facts at one time
B. Counterclaims
1. Permissive counterclaim – Rule 13(b) allows assertion as a counterclaim at the
D’s discretion of “any claim…not arising out of the transaction or occurrence that
is the subject matter of the opposing party’s claim.”
2. Compulsory counterclaim – If a claim does arise “out of the transaction or
occurrence that is the subject matter of the opposing party’s claim…” its assertion
is compulsory under Rule 13(a).
 The penalty for failing to state such a compulsory counterclaim is loss
of the claim in future litigation. → a later suit on that claim by the
present defendant will be precluded by the rules of res judicata
 The counterclaim had to be brought in the initial suit and may not be
brought later in a separate suit- cannot spilt a cause of action and use
part as defense and other as an offense (Mitchell)
 Rule 13(a) advocates for efficiency saying that if you have a
counterclaim arising out of the same transaction then you have to bring
it forward.
 When a party is used, a judgment in that suit is not conclusive as to an
affirmative cause of action which the party may have asserted against
the other in a cross-claim (Linderman)
 When there is a state claim logically related to the fed. claim, the fed
court has jurisdiction over the entire matter (Great Lakes)
o Rule 1367 – supplemental jur. allows fed. court jur. over a nonfed claim when it is joined with a fed subject matter suit
C. Cross-claims – Rule 13(g) allows a party to make, in certain situations, a claim
against a co-party, such as a co-D or co-P. A cross claim is made only against a party
who is on the same side of an already-existing claim as is the cross-claimant.
 A cross claim is valid as long as it bears some logical relationship w/
the transaction or occurrence that is the subject matter of the original
action or counterclaim. (LASA)
o Advantages or having them all together
 Discovery all coordinated by one judge
 Use similar evidence
 Must arise from same transaction and ask for actual relief.
D. Impleader – A defendant alleging that a third person is liable to him “for all or part
of the P’s claim against him” may implead such a person as a TPD. Rule 14(a)
1. Jeub v. B/G Foods, Inc. – While the extent of indemnity between parties
should be determined by reference to state law, the right to implead is a
“procedural” matter in the district court and as such is governed by the FRs.
 Only if the state law had recognized no right to indemnity at all would
impleader have been improper—“the fact that federal impleader procedure
is available does not act to create a substantive state right of indemnity.”
But Minnesota recognized a limited right to indemnity; therefore, federal
impleader procedure governed the application of that state doctrine
<<Hypo: suppose that the P had this meal in IL and the supplier of the ham was actually
located across the border in Gary, IN.
o In Rule 14, if you are served not more than 100 miles away then they may join
you. >>
<<Goodhart v. United States Lines Co. p. 652
-
Should G/B be able to implead the chef who cooked the ham.
o S: I don’t think so if it is clear to the court that it is manipulation on the part of
the D, and there is no way that the chef will pay.
o Rule 42 may suggest there should be separate trials. >>
 <<Revere Copper & Brass v. Aetna
P sued d alleging that builder, F, had breached contract. D impleaded F, F asserted
counterclaim against R. R moved to dismiss F’s counterclaim on the ground that
there was no diversity.
Holding: Because the claim fell within the core of aggregate facts upon which the original
claim rested, it was within the court’s ancillary jurisdiction.
Rule :
P has to show independent grounds of jurisdiction because p has the option of
selecting the forum, not been involuntarily brought to a forum—can’t suddenly
bring claim against non-diverse party because of possibility of collusion between p
and d.
Rule :
§1367(b) takes away from what §1367(a) gives—claims by plaintiffs under Rule
14 not in court’s supplemental jurisdiction.
Rule :
Statutory venue limitations have no application to Rule 14 claims.
Rule :
MUST HAVE JURISDICTION AND JOINDER.
Facts:

Noland and Schwab say that can also sue for lost profits, but must be suing for
indemnity also. Schwab says this is allowed by Rule 18.
 Guaranteed Systems Inc. v. American National Can Company
Facts:
Rule :
G filed action in state court against A for failing to pay G for construction work. A
removed to federal court on basis of diversity, answered and filed counterclaim
alleging negligence. G filed 3rd party action against H for indemnity.
P cannot implead 3rd party d when the original action is based solely on diversity
unless shows that the 3rd party d is diverse.

But court didn’t seem to want to do this. It saw the p as more of a d at this
point—didn’t choose the forum because of removal and has counterclaim
against it. But Congress didn’t take this situation into account, so must follow
the statute and prohibit p from impleading nondiverse 3rd party d.
B. Interpleader
1. 28 U.S.C. §1335—Interpleader





Definition—suit to determine a matter of claim or right to property held by a
usually disinterested 3rd party who is in doubt about which claimant should
have to property and who therefore deposits the property with the court over
ownership; typically initiates interpleader both to determine which claimant
should receive delivery or payment and to avoid multiple liability.
(a) DC shall have original jurisdiction of any civil action of interpleader filed
when worth $500 or more if:
(1) 2 or more adverse claimants of diverse citizenship are claiming or may
claim to be entitled to such money or property; and
(2) p has deposited such money or property into registry of the court.
(b) Such an action may be entertained although the titles or claims of the
conflicting claimants don’t have a common origin, or are not identical, but are
adverse to and independent of one another.
2. 28 U.S.C. §1397—Interpleader

Any civil action of interpleader under §1335 may be brought in the judicial
district in which one or more of the claimants reside.
3. 28 U.S.C. §2361—Process and Procedure

DC may issue its process for all claimants and enter its order restraining them
from instituting or prosecuting any proceeding in any state or US court
affecting the property, instrument, or obligation involved in the interpleader
action until further action of the court. Such dc shall hear and determine the
case, and may discharge the p from further liability, make the injunction
permanent, and make all appropriate orders to enforce its judgment.
4. FRCP Rule 4(k)(1)©—Territorial Limits of Effective Service

Service of summons or filing a waiver of service is effective to establish
jurisdiction over to person of a d who is subject to the federal interpleader
jurisdiction under §1335.
5. FRCP Rule 22—Interpleader

Persons having claims against the p may be joined as d and required to
interplead when their claims are such that the p is or may be exposed to double
or multiple liability—not ground for objection to the joinder that claims do not
have a common origin or are not identical but are adverse to and independent
of one another, or that the p avers that the p is not liable in whole or in part to


any or all of the claimants—d exposed to similar liability may obtain such
interpleader by way of cross-claim or counterclaim. Doesn’t limit the joinder
of parties permitted in Rule 20.
This doesn’t supercede or limit §1335.
Statutory interpleader—provides for federal subject matter jurisdiction where there
is minimal diversity between any two rival claimants (§1335). Can be brought in any
district in which any claimant resides (§1397). Provides for nationwide service of
process (§2361).
C. Necessary and Indispensable Parties
 Bank of California v. Superior Court
FRCP 19(a)
S brought action to enforce a k in which decedent promised to leave her entire
estate to S. Brought action against bank, the executor of the will, and hospital, the
residuary legatee who was to recover the bulk of the estate. The will named many
additional legates, who S didn’t name as d.
Rule :
Necessary parties are those who are so interested in the controversy that they
should normally be joined in order to enable the court to do complete justice, but
whose interests are separable so they are not indispensable parties, that is, parties
without whom the court cannot proceed.

Although necessary parties may be affected by the decision, they are not
indispensable to any valid judgment. Considerations of fairness, convenience
and practicability are relevant.
Rule :
A party is deemed indispensable only if complete relief cannot be rendered unless
he is joined or he claims an interest in the subject of the action such that to proceed
without him would impair his ability to protect his interest or expose the existing
parties to the risk of double liability or inconsistent obligations.
Holding: In this case, the other legatees are necessary but not indispensable because the
court can enter a judgment that is binding only to those in the action and not on the
other legatees so their rights won’t be impaired.
Facts:
 Warner v. Pacific Telephone
2 Mrs. Caryl Warners in phonebook. 2nd wife brought action to have the 1st wife
removed. Phone company demurred to complaint on the grounds that the p had
failed to join an indispensable party.
Holding: This is like a property rights case—if decided for 2nd wife, 1st wife could bring
suit—phone company is trying to avoid multiple suits.
Facts:
 Haas v. Jefferson National Bank
P, of OH, brings diversity action against bank, in FL, for shares of stock that were
supposed to be reissued to him by G, also of OH. Stocks not reissued because G
was indebted. Court ordered p to join G as party, then denied his motion to
dismiss G as a party, and dismissed because of incomplete diversity.
Holding: It doesn’t matter that the party joined was indispensable, there still must be
diversity.
Rule :
Under FRCP 19(b), when party cannot be joined, court can decide whether or not
to proceed or be dismissed because the person is indispensable. Must consider: (1)
to what extent a judgment rendered in the person’s absence might be prejudicial to
the person or those already parties; (2) extent to which, by protective provisions in
the judgment, by the shaping of relief, or other measures, the prejudice would be
Facts:
lessened or avoided; (3) whether judgment in their absence would be adequate; (4)
whether p will have adequate remedy if dismissed for nonjoinder.

Here G indispensable because not joining could result in multiplicity of suits,
inconsistent judgment. If dismissed, H can bring suit against G and then
proceed against the bank.
D. Intervention
 FRCP 24




(a) Intervention of Right—permitted to intervene: (1) when statute of US
confers unconditional right; or (2) when applicant claims an interest to
property or transaction which is the subject of the action and applicant is so
situated that disposition of the action may as a practical matter impair or
impede the applicant’s ability to protect that interest unless applicant’s interest
is adequately represented by existing parties.
(b) Permissive Intervention—permitted when: (1) statute confers
unconditional right; or (2) when an applicant’s claim or defense and the main
action have a question of law or fact in common. Court will exercise its
discretion—considers whether the intervention will unduly delay or prejudice
the adjudication of the rights of the original parties.
Intervention must be timely.
When subject-matter jurisdiction is based upon diversity, §1367(b) bars
nondiverse plaintiffs seeking to intervene under 24(a).
 Smuck v. Hobson
Original action was class action against DC schools for racial discrimination.
Found for school children, School Board decides not to appeal. Former
superintendent, dissenting board member, and some parents attempt to intervene.
Rule :
The federal courts allow intervention when the party has an interest to be
protected, denial of intervention would impair the party’s ability to protect the
interest, and the party is not adequately represented by others.
Holding: In this case, only allowed intervention of the parents—their rights would be
impaired and inadequate representation. H no longer superintendent—he lost any
standing to intervene when resigned. S was individual member of the board, but
the principal party was the board as an entity—he has no interest as an individual.

Because motion to intervene was made after judgment, strong showing is
required to justify intervention. Must have an appealable interest plus
inadequate representation and impaired rights.
Facts:
 National Resources Defense Council v. NY Dept. of Conservation
Facts:
Rule :
API wants to intervene in a lawsuit brought by NRDC about air pollution. Has an
economic argument. NRDC has different motive.
A different motive for litigating does not make the interest inadequately
represented.
 Atlantis Development Corp. v. United States
Facts:
Rule :
P attempted to intervene in order to prove ownership and the right to several reefs.
Intervention should be permitted even though the original action would not be
binding on the intervenor if the practical effect of judgment in the original action
would be to establish precedent that would be controlling in an action instituted
later by the intervenor.
Question of whether intervention as a matter of right exists often turns on the
unstated question of whether joinder of the intervenor of the party was required
under Rule 19. Look to whether interest, whether will be impaired if absent,
whether adequate representation.
Holding: This suit will make final determination of who owns the land—if A not allowed in,
then interest will be impaired. Neither party would adequately represent because
both want ownership. Stare decisis in this case would pretty much bar A from
bringing suit—court says this can be the disadvantage which warrants intervention
of right.>>
Rule :
VII. CLASS ACTIONS
A. Class Certification
1. Definition: The class action is a procedure whereby a single person or small
group of parties may represent a large group, or class, of persons sharing a
common interest.
 May be used where joinder of all the potential co-parties is not feasible,
either because the class is simply too large or insuperable difficulties of
person jurisdiction, venue, or diversity.
 In the class action, only the representatives must satisfy the requirements
of personal jurisdiction, subject matter jurisdiction, and venue.
 Rule 23 Criteria:
o Size
o Common Question
o Typical claims (claims of representative must be typical of that
class)
o Representation
2. Marisol A. v. Giuliani - P file suit to complain about child welfare problems in
NY, Ds were appealing certification of class action suit; denied since all the
people complaining will not have a problem with the same aspects of the welfare
system
 This case meets 23b (2) [Giuliani] “the 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/r/t the class as a whole.”
 Class action is meant to adjudicate when many people have the same
claim
3. General Telephone Co. v. Falcon - Mexican wants to sue because he has not
been promoted; wishes to include others including those never hired in a class
action suit; court says he is not typical of the entire class
4. Causey v. Pan American World Airways, Inc - crash in Asia, the person suing
is the son of two of the people who died in the crash→ the courts position here is
that they didn’t represent for everyone in the class since they were VA residence,
there were different applicable laws
 Rule 23 (b) states that class action should be used if it is superior and
more efficient
o Not (b)(1) because no incompatible standards, d just will have
to compensate some and not others. Also, mass accident p not
bound by judgment in another’s separate suit against common
d.
o Not (b)(2) because doesn’t apply to cases where damages are
exclusively or predominantly money damages.
 Court says that ordinarily it is not appropriate to have class actions for
mass accidents
o In general class actions are most useful to deal with
injunctions.
B. Due Process
1. Hansberry v. Lee - D sought to enjoin a sale of land to P on the grounds that
the sale violated a racially restricted covenant. There was a class action that held
that the covenant was in effect. In this suit, P said he shouldn’t be bound by that
decision. →
o The interests of the landowners in the first action were not similar enough
to even be considered members of the same class. They were trying to
restrict blacks from moving in, Hansberry was black.
o Normally a party cannot be bound by a suit to which he was not a party,
but class action is an exception because the members of the party are
normally bound by the decision (because if he wins, they win, if he loses,
so do they), but they will not be bound if they are not adequately
represented
2. Martin v. Wilks - In a reverse discrimination action, it was contended that an
earlier consent decree mandating certain affirmative action procedures barred a
subsequent reverse discrimination action by parties not involved in the prior
action but who knew about the action and didn’t intervene
o A consent decree mandating affirmative action does not have
preclusive effect upon a subsequent challenge to those programs
brought by persons not parties to the prior action.
o People don’t HAVE to intervene even if they know about it—can’t
place burden on potential parties a duty to intervene. This case is
exception because Civil Rights Act of 1991 said parties who can
intervene must, otherwise they will be bound by the judgment.
C. Class Action Practice
1. Eisen v. Carlisle & Jacquelin - P brings (b)(3) action on behalf of people who
traded odd lots shares on NYSE—said d fixed commissions—there would be 6
million potential members, only 2,250,000 identified. Cost to send notice would
be great, court authorized scheme to send notice to random 5,000 and publication
for notice to the rest—and d was to pay.
o In any class action maintained under FRCP 23(b)(3), (c)(2) provides that each
class member shall be advised that he has the right to exclude himself from
the action on request or to enter an appearance and that judgment will be
binding on any member not requesting exclusion.
o Court is required to direct to class members the best notice practicable under
the circumstances including individual notice to all members who can be
identified through reasonable efforts—this is NOT discretionary.
o Mullane directs that the means employed must be such as one desirous of
actually informing the absentee might reasonably adopt to accomplish it and
that publication notice could not satisfy due process where names and
addresses were known.
o Here, would have had to send to all whose names and addresses were known.
o Normal rule is that each side pays for his own costs. Here, p should have paid
for notice to be sent
2. Wetzel v. Liberty Mutual Insurance Co. – 2 claims adjusters bring sexual
discrimination (b)(2) class action for injunctive relief—class was former, present and
future female employees in claim department. After charges were filed, d changed
practices so injunctive relief was no longer necessary.
o In a class action discrimination suit brought for injunctive relief under FRCP
(b)(2), the notice requirements of 23(b)(3) need not be met if events
subsequent to filing make injunctive relief unnecessary.
o Reason for notice under (b)(3) is due to res judicata effect of class
action. Here, each p has common problem, same claim, same
interests, so (b)(2) is fine.
o 23(b)(2) offers a procedural protection for the Ps, the Ps would have to notify
all members and they would have the option to option out
o 23©(2)(A)(iii) For any class certified under Rule 23(b)(3), the court must
direct to class members the best notice practicable under the circumstances,
including individual notice to all members who can be identified through
reasonable effort.
D. Mass Tort Class Actions – two subclasses: mass accident and mass product liability
1. Amchem Prodcuts, Inc. v. Windsor - class action suit over asbestos brought by
Ps who had developed symptoms and who had not yet developed systems → the
Supreme Court held that it wasn’t a class because it didn’t meet the requirements;
they looked at the proposed class strictly under the rule
E. Jurisdictional Complications
1. Subject Matter Jurisdiction – A class action based upon diversity, however,
does raise two special questions: first, to which class members should the court
look in determining whether there is diversity of citizenship and, second, to which
class members should the court look in calculating the jurisdictional-amount
requirements?
a) Synder v. Harris – (none of the Ps had an individual claim over
$10,000) the Court held that each of several plaintiffs asserting separate
and distinct claims must satisfy the jurisdictional amount requirement if
his claim is to survive a motion to dismiss
b) Zahn – multiple Ps with separate and distinct claims must each satisfy
the jurisdictional amount requirement for suits in federal courts
c) Leohardt v. Western Sugar Co. – relies on the statutes legislative
history to support its holding, “not intended to affect the jurisdictional
requirements of 28 U.S.C. §1332 in diversity-only class actions, as those
requirements were interpreted prior to Finley”
o Zahn is the rule—each p must satisfy the jurisdictional amount.
Just because one p meets jurisdictional requirement does not
mean the court has supplemental jurisdiction.
o The court has the correct decision and Zahn should not be
overruled because legislative history says they didn’t intend to.
2. Personal Jurisdiction – do the traditional doctrines of personal jurisdiction
apply to non-representative class members who are beyond the court’s
jurisdiction?
a) Phillips Petroleum Co. v. Shutts – P class was composed of all persons
owning a royalty interest in certain oil and gas leases being exploited by
the D. The claim was for interest alleged to be owed by Phillips to the
class members on account of late royalty payments. On the 28,000
members of the class, fewers than 1,000 lived in KS, in whose state courts
the suit was brought
 KS class action rules, like those of most states and the federal
system, rqd that all prospective members of the class be notified of
the suit, and that they be given the opportunity to “opt out” of the
class. Those who took advantage of the opt out were not bound by
the results in the case, but could not take advantage of the
favorable result either.
 Those to whom notice fo the suit could not be delivered were also
excluded from the class. But those who received notice and who
remained silent were made members of the class.
VIII. Discovery
A. General Scope
1. Scope covered by Rule 26(b): applies to all forms of discovery, provides
generally that parties “may obtain discovery regarding any matter not privileged,
which is relevant to the subject matter involved in the pending action.”
<< Purposes of Modern Discovery:
1) preservation of relevant information that might not be available at trial
2) ascertain and isolate those issues that actually are in controversy between the parties
3) find out what testimony and other evidence is available on each of the disputed factual issues
>>
<<
1) General Scope of Discovery - RULE 26(b)
(1) Either party can discover anything relevant to the SM of the action which is not
privileged
1) “any matter, not privileged, that is relevant to the claim or defense of either
party
2) Two Principle Requirements
(i) not privileged
(ii) relevant to some claim or defense in the suit
1) PRIVILEGE
1. only party who may assert at trial may resist discovery on the
grounds of privilege (i.e. - att/client, dr. patient)
2. note for diversity - state law of priv. usually applies
3) For good cause, court may order discovery of any material relevant to the SM of
the suit
(2) Relevant but not necc. admissible
1) discoverable as long a reasonably calculated to lead to discoverable evidence
(i) i.e. relates to whereabouts of a witness, lead to admissible evidence
(ii) Blank - information re: female partnership in lawsuit found reasonably
calculated to suit alleging discrimination in hiring
(3) Protective Orders 26©
1) court may order to protect person or party from annoyance, embarrassment,
oppression, or undue burden or expense
(i) Marresse - compare the hardship to the party opposing discovery with
the hardship to party seeking if barred access to material party is seeking
2) Purposes of Discovery
(1) Three major purposes
1) preservation of relevant information that might not be available at trial
2) To ascertain and isolate issues in controversy - DEFINE ISSUES IN DISPUTE
3) Find out what testimony & other relevant evidence is available on each of the
disputed factual issues
(2) Broad or Narrow Discovery?
1) Broad
(i) eliminates disparity between wealth and indigent parties
2) Narrow
(i) induces lazy litigant to let other party do all the work
3) Specific Devices
(1) Depositions R. 30, 31, 26(d)
Taking testimony of any person, party or nonparty
NOTE Depos are the only form of discovery that may be addressed to non-parties with
relevant information
1) Normally without leave of court, except
(i) person confined in prison
(ii) more than 10 depos
(iii)previous depo in this case
(iv) party seeking depo is seeking dep before time under 26(d)
1) unless party outside the US
2) Why Oral is helpful
(i) demeanor, candor, may be able to catch off guard, follow-up,
confrontation
3) Other Options
(i) R. 31 Written Dep. - asked by a neutral party
(ii) Via Satellite
(2) Interrogatories
1) written questions, answered under oath and signed by party
(i) Objections to questions may be made and signed by atty.
2) 25 LIMIT without leave of court
(i) Additional int. are limited by 26(b)(2)
(ii) Factors
1) duplicativeness, opportunity, burden vs. benefit
3) Answers must be given within 30 days
4) Scope/Use at trial 33©
(i) re: Legal Opinion
(ii) Court balances the value to the seeker vs. the prejudice to interrogated
party Leumi
1) Factors
1. nature of the case
2. knowledge of the answering party
3. mount of discovery to be completed
4. proximity of issue to the central issue
5. NOTE - burden is on party objecting to show why court
should not allow
(3) Production of Things R. 34,35
1) Any papers, photos, objects relevant to SM
2) Within the possession custody, or control
(i) Hart - construe term broadly - influence may be sufficient “control”>>
4. Physical and mental examinations (Rule 35): When the mental or physical
condition of a party (but non non-parties) or of a person in custody or under the
legal ctrl of a party is in controversy, the court in which the action is pending may
order the party to submit to a physical or mental examination or other examiner,
or to produce for examination the person under his custody or legal control.
 Requirements
o Good cause must be shown
o Notice must be given to the person to be examined and to all other
parties
 Schlagenhauf v. Holder – emphasized that the “good cause” and “in
controversy” requirements were not merely formalities, but “require an
affirmative showing by the movant that each condition as to which the
exam is sought is really and genuinely in controversy and that good cause
exists for ordering each particular exam.”
o In some cases, however the pleadings alone may meet these
requirements (ex: where P alleges personal injury in a negligence
action)
o The fact that the judge signed off on 9 tests put his judgment in
question.
o At some point the privacy concerns become appreciable.
5. Requests for admissions (Rule 36): A party may serve upon any other party
(but not upon non-parties) a written request for the admission, for the purposes of
the pending action only, the truth of any matters within the scope of Rule 26(b).
 The statements the admission of whose genuineness may be requested
include statements or opinions of fact, or of the application of law to fact.
 An admission of the genuineness of any documents described in the
request may also be sought
 McSparran v. Hanigan - McSparran was an employer, made an admission
in pre-trial exchange; P admitted that D was an employer (?);
Interrogatory answer is not binding; The jury went with the P when the P
recanted his previous statement
o Rule 33 interrogatory vs. Rule 36
o Rule 33 seeks to find out what your position is now (it can change
over time); interrogatory requests can be numerous
o 37(c)(2) requires that if you deny something and the other side is
able to prove it, then you have to pay the other side’s expenses of
having to deny
 As long as you have reasonable grounds the sanction will
not apply.
o Rule 36 is there for the purpose of getting rid of both of these
issues.
<< Rule 26(a) says that a party must make certain disclosures on his own at the beginning of a
law suit without waiting for discovery. This would expedite the process by having parties
voluntary. District courts were given the option to opt out and 1/3 did. >>
C. Mandatory disclosure
 Comas - Rule 26 no longer requires you to turn over material that helps the other
side
o The option of opting out was then taken away
D. Work Product: Immunity from discovery is given to the materials prepared by
counsel for trial purposes, and to the opinions of experts that counsel has consulted in
trial preparation
 Immunity grated by Rule 26(b)(3) (material) and 26(b)(4) (expert opinions). Both
work product immunity since the lawyer’s work-product which is in question.
 Hickman v. Taylor - tugboat sank and 5 of 9 crewmen died; Fortenbaugh was
held in contempt for not turning over “work product”; Supreme Court said that
the work shouldn’t be turned over because there is no burden in not allowing the
petitioners access; not entitled to adversary attorney’s mind
o We don’t want the attorney to have to hand over his theories
 26 (b) (3) refers to materials prepared in anticipation of trial
E. Sanctions – Rule 37(b) does not say anything about the degree of culpability
necessary before the various sanction measure may be used. Generally courts have not
used sanctions except on a showing that the offender has willfully rather than merely
negligently, failed to follow the discovery rules.
1) Gross negligence suffices: Court have sometimes distinguished between
“ordinary” negligence and “gross” negligence. For instances, in Cine FortySecond Street Theatre Corp. v. Allied Artists Pictures Corp. the court held that a
severe sanction (the preclusion of the discoveree’s right to introduce evidence on
matters that were the subject of the discovery order) was appropriate where the
discoveree’s failure to comply with the discovery order was grossly negligent.
 trend over time toward strict sanctions because sanctions must be strict in
order to avoid them being abused
IX. Adjudication Without Trial
A. Summary Judgment – burdening of establishing that no factual dispute exists
 Lundeen v. Cordner - 2nd wife challenges first wife’s children’s claim on
life insurance money; witness in question is in Singapore so they will
likely not get him to appear anyway; Should the court grant summary
judgment in the face of the possibility?
o Although there is a dispute, the dispute is one that a trial will not
resolve.
 Cross v. United States - Professor took a vacation for “research”
o Rule 56 (e) “When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not rest
upon the mere party’s response, by affidavits or as otherwise
provided in this rule, must the adverse party does not so respond,
summary judgment, if appropriate, shall be entered against the
adverse party.”
o For summary judgment motion you need to have a statement on
itself that would eliminate all issues of fact.
o Motivation to lie
o If contested, you must ask what do I think the law allows.
 Adickes - Summ. judgment for Δ reversed b/c Δ did not shift burden to Π
 Celotex Corp. v. Catrett - P accused company of being responsible for her
husbands death (asbestos); D moved for summary judgment asserting
there was no issue of material fact; P presented testimonies etc; Should
Celotex be able to obtain summary judgment without producing any
evidence at all? Celotex didn’t produce affidavits, but it doesn’t matter.
o Since Celotex would not have the burden of proof at trial all they
have to show is that Catrett would not have
B. Default Judgment – When D in an action at law omits to plead to the complaint
within the time permitted by statute, and otherwise fails to contest the adjudication of the
suit, and fails to appear at trial, he defaults, and a judgment by default may be entered
against him without the formality of trial upon the merits.
 If the D thereafter within the statutory prescribed period fails to contest the
entering of a default against him, the default judgment because binding,
and carries all the res judicata effects of a judgment upon the merits
(FRCP 55)
 Coulas v. Smith - P filed a complaint against D for certain amounts of
money on a promissory note; D denied receiving notice of the movement
of the trial date, judgment was rendered against D, not a default, but on the
merits; D’s argues that a false judgment was rendered against him because
he didn’t receive notice; Since the case is being considered on its merits
then you want to have him present
o Rule 55 (b)(2) “If the party against whom judgment by default is
sought has appeared in the action, the party (or, if appearing by
representative, the party’s representative) shall be served with
written notice of the application for judgment at least 3 days prior
to the hearing on such application.”
o Failure to give notice could make it void, but he waited too long
anyway to challenge it.
X. The Trial Stage
A. Trial by Jury
 Beacon Theatres, Inc. v. Westover - First filed under anti-trust (which requires
jury) then counterclaim for declaratory judgment / injunction which are in
equity and don’t require a jury trial
o The courts concern is if you decide number 2 or 3 before number 1
then there is nothing left to decide (i.e. effectively cut the jury out of
action)
o legal issues must be tried first and ONLY in the most imperative
circumstances can a party lost the right to a jury trial
o right to jury trial cannot be lost by prior by prior determination of
equitable relief
 Dairy Queen, Inc. v. Wood - Dairy queen pursued the notion of recharacterizing a traditionally equitable claim as a legal claim because of the
remedies available at law
o Rule 53(b) says court can enact a master to assist the jury with what
the rules are.
o court will look to see whether the issue is really legal or equitable →
choice of words is not determinative
 Ross v. Bernhard – P shareholder bought a derivative action claiming that the
corp’s brokers had unlawfully large representation on its board of directors
and that they had abused this control by extracting excessive fees. *involves
both legal and equitable issues
o In determining whether a jury trial was available to Ps in a derivative
action, the Court held that “the right to jury trial attaches to those
issues in derivative actions to which the corporation, if it had been
suing in its own right would have been entitled to a jury.”
o As our cases indicate, the legal nature of an issue is determined by
considering, first, the pre-merger custom with reference to such
questions; second, the remedy sought; and third, the practical abilities
and limitations of juries.
 Chauffeurs, Teamsters and Helpers Local 391 v. Terry – 27 unionized truck
members sued both their employer and their union seeking back pay for
alleged violation of a collective bargaining agreement and breach of the duty
of fair representation. When the employer filed for bankruptcy, Ps voluntarily
dismissed the collective bargaining agreement claims against it.
o Apply a two-part analysis
 Hx.
 Remedy (arguable that this is weighted more b/c not always a
hx. precedent on point)
 Indianhead Truck Lane v. Hvidsten Transport, Inc. - interim damages should
not be classified as damages for a contract breach (not legal)
o it is unsettled whether there should be a complexity exception to jury
trial
B. Number of jurors –
- The number of jurors vary from jurisdiction to jurisdiction
- Federal courts have a rule that a jury must have a minimum of six members
- The seventh amendment doesn’t apply to the states directly
- Is six adequate? What is too few?
- The reasons juries have been reduced in size is efficiency and monetary
arguments.
C. Jury selection
 Flowers v. Flowers - jury member had the opinion that if the mother had
been drinking she would be an unfit mother
 court must exclude those jurors which are bias or prejudice to one
side
 Bias – inclination towards one side
 Prejudice – pre-judgment
 Hidalgo v. Fagen, Inc. - Hidalgo suffered injuries at meat packing plant;
He wanted to keep Hispanic jury members under the guise of keeping
older jury members
 You can legally strike someone for wearing a green tie.
 The juror has a constitutional right not to be evaluated on a
discriminatory basis.
<<JUDICIAL CONTROL OVER THE JURY DECISION
1) THE PROVINCE OF THE JURY
a) What is for the jury, What is for the judge, LAW vs. FACT
i) RULE:
(1) Markman
(a) consider hx, precedent and the interpretive skills of judge vs. jury
(b) consider whether the issue is one where uniformity is needed, and thus a
judge should consider so that there is uniformity in application of law
(i) i.e. the term "inventory" for patent
2) JURY MISCONDUCT
a) Tools
i) Special Verdicts and Verdicts with Interrogatories
(1) Robb – court ordered new trial b/c the jury verdict inconsistent w/ itself
(2) Sopp – Mansfield Rule – jurors cannot impeach themselves
ii) Most Jurisdictions Follow Mansfield, however, some follow....
(1) Modified Mansfield
(a) jurors can testify to overt acts of other jury members
(i) Cannot be beased on state of mind or feelings of ind. juror
(ii) affidavit and prob. must be supported
iii) FR Evidence 606
(1) Jurors can impeach themselves
(2) Allows the introduction of juror testimony only to show that prejudicial
outside evidence was brought into the jury room or extraneous influences
were improperly brought to bear on any juror
(3) Avoids the problem of what is an "act" and recognizes that other things may
taint jury verdicts
iv) Quotient Verdict is NOT ALLOWED in most jurisdictions Huckle
(1) however, the only way to know if by juror testimony, which is not admissible
w/o extraneous influences or prejudicial outside evidence
(2) Is it really that bad?
3) JUDICAL POWER TO OVERRIDE THE JURY
a) JNOV – FRCP 50
i) If a party has been fully heard on the issue and there is no legally sufficient evidence
for a reasonable jury to find in favor of the verdict, the judge can issue JNOV for the
other party upon motion – JUDGMENT as a matter of law (Renewed motion for
directed verdict)
(1) may be made at any time BEFORE the case goes to the jury
(a) Thus, Δ can move after Π is heard, and both may move after both sides
rest
(2) If renewed no later than 10 days after the verdict, the court has options
ii) STANDARD FOR GRANTING
(1) If the evidence is such that no reasonable person could differ as to the result
(see above for fed)
iii) CASES
(1) Denman
(a) when Π has burden of proof, must carry burden or directed verdict for the
Δ >>
C. Judicial Power to Override the Jury
 Kircher v. Atchison - man’s hand run over by RR; the only way he can win is
to persuade the jury that he tripped blacked out and ended up on the other
side; the jury believed the story, and now the defendant is moving for a
judgment not withstanding the verdict
o S: Since it is possible that it could have happen, and jury believed the
story, then the it should be allowed.
o Rule: If a reasonable person could have come to that conclusion
o Rule 50(a)(1) “If during a trial by jury a party has been fully hear on
an issue and there is no legally sufficient evidentiary basis for a
reasonable jury to find for a party on that issue, the court may
determine the issue against that party and may grant a motion for
judgment as a matter of law against that party with respect to a claim
or defense that cannot under the controlling law be maintained or
defeated without a favorable finding on that issue.”
 Denman v. Spain - P, minor, in accident with her grandmother, alleges the
decedent came into land and hit them at 45 degree angle; Testimony indicated
that he was traveling at high speeds in dangerous conditions, but that he
remained in his lane
 Aetna Casualty & Surety Co. v. Yeatts - Aetna wouldn’t recover his
malpractice claim because he was performing an abortion which was a
criminal act; Would the judge want to say that the judge can grant a new trial
in any situation where you can’t grant a MJNOV; Why should they intervene
where a reasonable jury would have said it, but I wouldn’t.
o There ultimately would still be a jury decision
D. Conditional and Partial New Trials
 Fisch v. Manger - automobile accident resulted in back injury, he was
awarded $3K, he applied for a new trial, but judge offered additur to
defendant for $7,500; you can avoid a new trial without having to totally put it
in the party’s hands; should perhaps be allowed; The federal courts have said
that remitors are ok and additur is not; The court says in this case that both
are alright
 Powers v. Allstate Insurance, Co. – jury came in at $5,000 but the judge said
that was too high
o Overruled standard that allowed the minimum that a reasonable jury
could have awarded, the Court went on to follow the practice of
allowing the P the option of avoiding a new trial by remission of the
excess above an amount which the court considers reasonable
o Judgment about what criteria has to use has to do with the purpose
(efficiency, etc.)
E. Relief from Judgment
 Hulson v. Atchison, Topeka & Santa Fe Railway – TC entered judgment for D
based on jury verdict. P’s attorney’s moved for JNOV, court granted 10 day
extension on 6/17/1960. On 6/27/60 counsel filed motion. D moved to strike
the motion because it had not been filed w/in the 10 day period of Rule 50(b)
and Rule 59(b),(d), and (e). Motion to strike was granted.
o Ignorance of the rules resulting in an agreement for an unauthorized
extension of time cannot serve to furnish grounds for relief under Rule
60(b), under the facts before us in this appeal. P. 1108
o A motion under 60(b) could not be utilized to cure a failure to comply
with court rules.
o Rule 6(b) says there are no extensions allowed for Rule 59 and 60
(filing a motion for new trial or JNOV beyond the 10 days) → what
the court did was improper
o Rule 60(b) is discretionary
o <<L: I think you would make the formal motion and then supplement
it later and urge the court in its discretion to indulge, and even if it
wouldn’t able counsel on appeal would argue that it was an abuse of
discretion. It is an usual situation and he can’t help it if he doesn’t
have a transcript. >>
Power to set aside a judgment on grounds discovered after it was rendered
 Briones v. Riviera Hotel & Casino – sued his former employer for unlawful
discharge and failed to respond to MD; P moved for relief under 60(b) on the
ground that the court never informed him that his case might be dismissed and
on the basis that the P failed to notify his translator; Sided with idea that
excusable neglect falls under 60(b); must be remanded to see if excusable
neglect present
o SC gave (in bankruptcy case) four factors to consider:
(1) the danger of prejudice to the opposing party
(2) the length of the delay and its potential impact on the judicial
proceedings,
(3) the reason for the delay, and
(4) whether the moving party acted in good faith
Newly discovered evidence; Fraud
 Patrick v. Sedwick – P brought an action for medical malpractice, alleging
permanent physical injuries; D moved for a new trial on the ground that in
1963 Dr had devised a new treatment that would ameliorate P’s injuries and
therefore would reduce his damages; TC denied motion, COA affirmed
because Lewy technique was not in existence at the time the trial took place
and under the above authorities would not qualify as new discovered evidence
 Motion for new trial on the grounds of newly discovered evidence
must meet the following requirements:
o Must be such as would probably change the result on a new
trial
o Must have been discovered since the trial
o Must be of a such a nature that it could not have been
discovered before trial by due diligence
o Must be material
o Must not be merely cumulative or impeaching
 “newly discovered” – must relate to facts which were in existence at time
of the trial
 Smith v. Great Lakes Airlines, Inc. – Smith sold plane to airline, but never
provided documentation of conducting overhaul, so airline allegedly had to
conduct costly overhaul; Smith contended major overhaul was neither
required nor made and that the govt official who testified had conspired with
the airline to perjure himself; trial judge sustained demurrer to Smith’s
complaint and smith appealed; AC affirmed on the ground that the fraud
alleged was intrinsic
 Action can be set aside only on the basis of extrinsic fraud
 Extrinsic fraud prevents litigant from making a claim or defense
 Intrinsic fraud that which the trial itself should discover
<< RES JUDICATA – CLAIM PRECLUSION
1. After final judgment on the merits, P is barred from bringing same cause of action in
later suit where the issue was raised or could have been raised and involves that same
parties or those in privity
a. Merger  If Π wins – cause of action merges and cannot be brought again to
recover again
b. Bar  If Π loses – Π is "barred" from bringing cause of action again to try to
recover
2. THREE ELEMENTS
a. Judgment must be final, valid and on the merits
b. Parties in Subsequent suit must be identical to those in first action, or privities
c. Claim in 2nd suit MUST involve matters adjudged in the first suit
i. Π cannot "split claims" ag. the same Δ if they come from the same t or o
or wrongful act
1.  If the same evidence will support both, that there is one cause of
action
2. But, if first court would not have had SM of the "split claim", not
barred by res jud.
3. Installment K and notes are each their own cause of action Jones
3. STATE LAW FOLLOWED IN DIVERSITY CASES:
a. In diversity cases, the federal courts follow state law with respect to the
application of the rules of claim preclusion (as well as collateral estoppel).
b. If (and only if) the law of the state where the district court sits would have granted
claim preclusion or collateral estoppel effect to an earlier state ct. judgment, the
feds will do the same.
4. ADJUDICATION ON MERITS:
5.
6.
7.
8.
a. Π will be barred only if the original adjudication in favor of the Δ was "on the
merits."
i. Non-prejudicial grounds: In other words, some of the ways that a
plaintiff may "lose" the first suit are deemed to be "without prejudice" to
future suits.
ii.  if the first suit is brought in federal court, plaintiff will not be barred
from bringing a new action if the first action is dismissed because of: (1)
lack of jurisdiction; (2) improper venue; or (3) failure to join an
indispensable party. See FRCP 41(b).
iii. Any other type of dismissal (e.g., dismissal for failure to state a claim
under 12(b)(6)) does bar a future claim by P, unless the court granting the
dismissal specifies otherwise in its order. FRCP 41(b), last sentence.
(NOTE: Π Must appeal in these cases)
COUNTERCLAIMS:
a. A defendant who pleads a counterclaim is, in effect, a plaintiff with respect to
that claim. He is bound by the outcome, just as a plaintiff is bound by the outcome
of his original claim.
i. No splitting: Thus D may not split his counterclaim into two parts.
1. Example: P sues D for damages from an auto accident. D
counterclaims for his property damage from that same accident,
but not for personal injuries. Whether D wins or loses with the
counter-claim, D may not bring a 2nd suit against P for personal
injury arising from that same accident.)
b. COMPULSORY COUNTERCLAIM:
i. Observe that state and federal rules making certain counterclaims
"compulsory" serve a similar function to the merger or bar doctrine.
ii. Example: P sues D for damages arising out of an auto accident. Although
merger and bar do not force D to assert either his claim for property
damage, or for personal injury, arising out of that same accident. But in
the federal court and in most state courts, any counterclaim by D for either
of these things would be "compulsory," so that D would not be able to use
that claim in a subsequent suit against P.)
Change of law: Once a final judgment is rendered (and appeals resolved), not even a
change in the applicable law will prevent claim preclusion from operating. The fact that
the losing party would, because of such an overruling of legal precedent, win the lawsuit
if she were allowed to start it again, is irrelevant. Moitie v. Brown
Modern Trends:
a. You only get one shot, and because there are so many new procedural rules, i.e.
pleading in the alternative, if you try to come back on another theory – court has
discretion to find res jud. Smith
Heaney - The Δ was not barred by suing school district for wrongful term. b/c issue in
first case was not fully litigated
>>
X. The Binding Effect of Decisions
A. Res Judicata (Claim Preclusion)
 Anguilano v. Transcontinental Bus System, Inc. - claim dismissed on failure
to file ______ not on the merits, but res judicata barred him from bringing the
claim
o gross negligence and the court has to bar him from coming back
because otherwise you encourage that behavior, must get punished for
violating the court’s authority and the punishment needs to mean
something
 Rinehart v. Locke - in first suit P brought a claim for an unlawful suit for
unlawful arrest, he failed to bring probable cause; res judicata applies despite
the fact that it wasn’t tried on the merits; Rule 41b might be construed in a
way that permits him to bring the suit again if we follow Costello; He had
other remedies available
 Semtek International Inc. v. Lockheed - Semtek International filed a
complaint against Lockheed Martin Corporation in California state court,
alleging breach of contract and various business torts. Based on diversity of
citizenship, Lockheed Martin moved the case to the District Court. In the
District Court, Lockheed Martin successfully moved to dismiss Semtek's
claims, as they were barred by California's 2-year statute of limitations.
o Consider issue of forum shopping (*look in legal lines)
o Traditional doctrine that statute of limitations only relates to remedy
and not to right
B. Collateral Estoppel (Issue Preclusion)
 Cromwell v. County of Sac - bonds case, first case lost because didn’t prove
that he had gotten the bond value (?), the second case was allowed to be
brought because he brought the evidence ;
o Can you switch theories and bring another suit? We have said up until
now that you have to bring all theories and if you skip one then you
are out of luck.
o There is a special rule for bonds that says they are different causes
of action. → No claim preclusion.
 Russel v. Place - in second suit, P tried to bar D bringing defenses because
had lost in previous actions, but the record of the first action didn’t disclose
the intention of the court; there can only be preclusion where the issue was
litigated; D sues the first time and says you are infringing my patent and wins,
also says he is infringing patent in second suit; The first court didn’t say what
was infringed upon
o Ambiguous as to what the basis of the first judgment was so there is no
preclusion
o You can’t have preclusion unless you know unambiguously what was
ruled on
 Rios v. Davis - Case 1: Davis wins; Case 2: Claim of recovery on his own
injuries, Rios won; Davis claims there is not estoppel because it has been
established that Rios is contributory negligent; COA says that it should not be
estopped because the previous judgment wasn’t appeallable
o The finding that he was negligent might be completely unfounded, but
since he did win there is nothing he can do about the claim that he was
negligent, can’t ask them to set it aside because he’s already won
o Rule 13(a) compulsory counterclaim – it seems Rios should have
brought the claim in the first place
 Patterson v. Saunders - in original suit he was denied recovery because he
failed to prove ownership of the land that they alleged the timber was cut
down on; P fails in second suit to say anything different, offers no proof of
title; A strong finding might be shielding a weak finding from appellate
review
C. Mutuality
 Ralph Wolff & Sons v. New Zealand Ins. Co. - the Wolffs who were
brothers/partners had a candy factory and they had insurance coverage and the
candy factor was partially burned down in fire and they originally brought a
suit against 9 of the insurance companies, the verdict was for the P’s to
recover damages for their property loss; they again brought a suit against two
new insurance companies whom each insured them for $1000
 Issue: If the two companies in the second case are bound by the first
case.
 Why does the court think he should get his day in court?
 The courts position is the doctrine of mutuality.
 The also recognized that there was a notion of privity.
 The enforce the principle of mutuality even though it looks shady.
Bernhard v. Bank of America Nat. Trust & Sav. Ass’n p. 1284
- old woman moved in with Cooks who opened bank account for her, then transferred the
money to themselves
- Case 1: HB → Cook
- Case 2: HB → B of A
- In determining the validity of a plea of res judicata three questions are pertinent:
o Was the issue decided in the prior adjudication identical with the one presented in
the action in question?
o Was there a final judgment on the merits?
o Was the party against whom the plea is asserted a party or in privity with a party
to the prior adjudication?
- She has already been told the money was a gift
- The difference between a non-,usual estoppel principle is that it creates litigation risks for
litigants who face a number of similar situated adversaries
o First suit that gets tried can only help them, it can’t hurt them.
o There need to be restraints on potential abuses
Parklane Hosiery Co. v. Shore p. 1291
- SEC* → Parklane
- Shore → Parklane (shore tried to use the SEC verdict as collateral estoppel)
- Court said this would be an offensive
o Cases where a P could easily have joined in the earlier action or where, either for
the reasons discussed above or for other reasons, the application of offensive
estoppel would be unfair to a D, a trial judge should not allow the use of offensive
collateral estoppel.