CIVIL PROCEDURE OUTLINE
EVALUATION OF SYSTEMS OF PROCEDURE FOR RESOLVING CONFLICT
A. Values Criteria
1. efficiency - economic value.
Does system deter problems at lowest possible cost?
Does it make economic sense?
2. perception - psychological impact
Do people feel they've been treated fairly?
Would they submit problem to system again?
3. political - question of legitimacy
More or less government intervention?
B. Examples of Systems
1. bargaining - 2 people sit down and talk; settle dispute
themselves
2. mediation - 3rd person mediator acts as go-between but
doesn't decide dispute
3. moot/concensus - everyone takes a vote--bring in
outsiders who have a role in decision. 'Parties and
outsiders must agree - unanimity. Example: U.N. Security
Council
4. arbitration - bring in a 3rd person and let him decide.
Our system, adjudication, is a form of arbitration.
5. inquisitorial - autocractic, parental model - One person
says how it will be.
6. violence - not an option for us.
C. Variable common to these systems: CONTROL
1. control over process - information. what problem is
about and who can tell about it and how much they can
say.
2. control over decision - outcome
D. Objectives of Systems of Procedure
1. Truth - getting it right
2. Justice - allocation of rights
a. procedural justice (process)
b. distributive justice (outcome)
PRE-TRIAL REMEDIES (solution provided by judge; operates until
final judgment)
A. ATTACHMENT - remedy at LAW
1. Requirements for writ of attachment (Mitchell v. W.T.
Grant- p. 32)
a. issued by judge (rall&Rm„ ILtkanA,cvur aut.k)
9AL,014,144,tmeLkg,4 bup_A=110410
b. based on affidavit (e.
c. bond posted in case anything should happen to the
property
d. right to immediate post-seizure hearing
2. Threshold of adversarial model is immediately after the
seizure (before seizure the model is inquisitorial) Why?
We want to credit to be available. If one guy skips town
with his goods because they weren't seized by the court,
then everyone's costs will go up and merchants will be
less likely to sell goods on time.
B. INJUNCTIONS - remedy at EQUITY (no jury, ad hoc, to do or not
to do a certain act) See Rule 65.
1. Temporary Restraining Order - can be issued without any
notice to the defendant or opportunity to be heard if
the plaintiff's need is sufficiently compelling to
warrant restraint for a brief period (usually not more
than 10 days) Ex parte TRO's must have good cause.
In the area of 1st Amendment Rights, you have to show
that it was IMPOSSIBLE to give notice. See Carroll v.
Princess Anne.
2. Preliminary Injunction - entered by court for term of
lawsuit, only after notice and participation
3. Injunction - a coerced remedy "Don't make any more
speeches in Princess
County forever!"
4. The '`c r iteria Cfor
'
are about the same as those
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attachment (jua,
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PLEADING
A. Common Law Pleading - Goal: define the issues and come up =tt
with one single issue in dispute. In order to bring a suit, przcedivigie•00,4
;11,1,..004 the plaintiff had to determine which "form of action" was
best suited to facts of his case and obtain the proper
writ. "A case law system of procedure" kutu_cl tojwy .it
/ tAtetars,:e---B. Code Pleading - Goal: reveal the underlying facts on which 014.a20Aolataik_
claim rested. 1848 New York Code of Civil Procedure
1. 1st integrated set of rules for CP in the USA ctiso-&-attictto ►-vnAlt
ackierv,
2. merged law and equity
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3. goal of presenting facts, not conclusions of law
C. Federal Rules of Civil Procedure -Goal: give notice to all ADA
parties of the nature of the lawsuit, sufficient to allow
A
tA .e,
other parties to make pre-trial and trial preparation
A
tt:a,
wit
11'‘A-1A 1. Fact stating (goal of codes) - This is now
tlitced.
accomplished by use of DISCOVERY
2. Defining issues (goal of common law) -Issues now
SAApftcatifto/defined through discovery and pre-trial conference
used
3. Notice giving - Pleadings under FRCP may be a
3.
S3generalized summary of the party's position, sufficient
to advise the party for which incident he is being sued,
to show what was decided for purposes of res judicata,
to indicate whether case should be tried to court or to
jury.
4. Pleading - form discussed in RULE 8.
D. Minimum Requirements for Pleading
1. Minimum Threshold: Dioguardi v. Durning (1944) Dioguardi
'did it with no legal training. Court: "However
inartistically the claims may have been stated, the
plaintiff has disclosed his claims. We require notice
pleading without significant formal requirements. No
need to state facts for cause of action, only enough to
show cause for relief." Haines v. Kerner, p. 739, is a
replay of Dioguardi--once more with emphasis. (This was
a pro se complaint by a prison inmate--court reiterates
that we can only dismiss when it appears BEYOND DOUBT
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that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief."
2. Standard for Pleading: Conley v. Gibson (1957) Complaint
should not be dismissed unless it appears beyond doubt
that there is no set of facts that could support a claim
that would entitle plaintiff to relief. Complaint should
give fair notice of the content of the claims and
grounds upon which it rests. No requirement that the
plaintiff set out a detailed set of facts.
3. Motion to Dismiss for Failure to State a Claim
a. See Rule 12(b)(6) - Failure to state a claim upon
which relief can be granted.
b. Mitchell v. EZ-Way Towers Defendant charged with
violating the FLSA because no record of minimum wage,
overtime hours, and selling goods produced in
interstate commerce. Files a motion for a more
definite statement. Court says that a complaint
either does or does not have a claim and that this
complaint gives enough information for the defendant
to frame a responsive pleading. The defendant also
moved for dismissal for failure to state a claim.
Court held that vagueness is not a ground for
dismissal, but for amendment of the complaint. The
court emphasized that there are other pretrial
techniques for gathering evidence. Rule: "A complaint
should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which
would entitle him to relief" Quote from Conley v.
Gibson. This is a speculative standard. Question is
whether judge can speculate as to some facts that
would justify a claim.
c. Cook & Nichol v. Plimsoll Club - P makes fatal
)1,14-kt.
mistake of pleading a defense to his claim in the
complaint - Judge Brown throws it out. "A motion to
W-11-01C0-f
dismiss for failure to state a claim should not be
act-et
cer tainty that the
a ppears
df &1014/14.,
granted
re cover under
o f facts wh:o2dbeprZed
1"
ciaA
his claim.' 6tvt Yq/Ltto. ,0-14.t.&
4. Motion for a more definite statement - Rule 12e - This
is almost NEVER granted - Walker has never seen it. We
don't need this because we have discovery. IMPORTANT
POINT: Defense attorneys thought they had a good
compromise when they got these two motions but in
practice they are seldom granted. Why not? Because the
issues can be defined through the discovery process and
the pretrial conference.
•
111
THEORY OF LITIGATION
A. Courts do not intervene in all disputes. Thus, it is very
important that you go to the substantive law and determine
whether your client has a claim for relief. What are the
elements of this claim? The law, for example, divides
battery into three elements. Litigation is the process of
determining which elements and which defenses exist. To
learn what the elements of the claim are, what affirmative
defenses exist, and who has the burden of production and
persuasion, go to the library and look for cases or
statutes with similar fact patterns.
B. The theory of litigation boils down to which aspects of the
case are assigned to which party. The pleadings (incl.
pretrial conference) set out who has responsibility of
burden of production and burden of persuasion. If equal
evidence is produced for both sides, one party has a burden
of persuasion. In civil law, the standard is probability-more likely than not. Ex.
eArLICk2A-411,
A
waretp4
elements of p's case incl. prayer for relief
B
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C
D
laui)
affirmative defenses
C. Three assignments: SiruCh4AL bn4A 11)(11:PtdazAktitrfAX-Kell. , e C"0 4 efAx2. t
1. burden of pleading - responsibility to tell court about
these elements
2. burden of production - ultimate determination of whether
A & B happened, law assigns risk of losing to one party
if empirical evidence is not brought forward. If
assigned to p and he can't produce, he loses.
3. burden of persuasion - one party or other has risk of
losing in a tie. if it could go one way or other, law
assigns loser in case of tie.
-
- -
d 1. 64:64-5, C-4.11414a4.11At (A1144-etrk
THE COMPLAINT A. Form of Complaint - see rule 10
1. caption = name of court
2. names of parties
3. file no. and designation (complaint)
kjk 4. jurisdiction
5. statement of claim
8 a. 6. demand for relief
7. atty's signature (rule 11)
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A. Jurisdiction - Art. III of Constitution gives limited basis
for federal jurisdiction EX:
1. P is a citizen of Va.
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2. D is a citizen of Pa.
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3. The matter in controversy exceeds $10,000. (1715"6-1" 57-C.--)cS'bk
4. This court has jurisdiction under 28 USC 1332.
NOTE: Such allegation is not usually required in state court
practice, since state courts usually have general
jurisdiction.
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B. Statement of Claim
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1. D touched P.
cud be ciA.444tct_
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2. Touching was without permission.
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3. D has committed battery against P.
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C. Relief - see Rule 9--cyam4 spec-ea_ cta.vvLase„
1. P demands judgment against P in amt of $20,000.
D. Attorney's Signature. Rule 11 - "The signature of the attorney
constitutes a certificate by the signer that he has read the
pleading, motion or other paper; that to the best of his
knowledge, info. and belief formed after reasonable inquiry it
is well grounded in fact and is warranted by existing law or a
good faith argument of the extension, modification, or
reversal of existing law, and that it is not interposed for
any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of
litigation." Be aware of this. You as atty must sign this
paper. There might be a tendency to fudge a little. It must be
well-grounded in fact! When you sign it you're saying this.
Obligation more than just taking your client's word. If you
sign it in violation, atty may have to pay other party's legal
fees. Judges like this rule because it lets them off the hook.
They don't have to tell P you don't have a case.
CASES ON PLEADING
eat 9 Frattctd- 4leceed Devwkaps 44kvy1 /6-e. pe-eadid-1. Special Damages: Great American Indemnity v. Brown - Special
damages are those that do not result every time, that are ad
hoc, for example lost wages (different to every case b/c
everyone has different job) or personal injuries (b/c everyone
has a different body). General damages would include injury to
property b/c there is always a diminishment in asset value.
Under Rule 9(g) p. 26 "When items of special damage are
claimed, they shall be specifically stated." The writers of
the rules put the burden on the plaintiff to state these, but
this court put the burden on the defendant to ask. Court held
that the D had sufficient notice of the special damages and
that if they had wanted to know more about them, they should
have asked earlier. Walker: "Rule 9 has little importance. It
only has serious effect if you're pleading at the threshold."
Liberal Amendments of the Pleadings kttle )56L,
a. Hodgson v. Colonnades - Sec. of Labor brought a suit for
back wages for 64 employees against Colonnades. From the
records submitted by Colonnades, Sec. Labor adds additional
employees to requests for relief; the amendment was allowed
because the opposing party was not prejudiced. Key:
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Colonnades had all the records in their hands; they knew
that other employees were covered by the records. If it had
prejudiced Colonnades, amendment would have still been
granted, but Colonnades would have had a continuance to
prepare, ie main remedy for changing horses in mid stream
is to give the other side time to get ready.
b. Stacy v. Aetna - In its original pleading, Aetna said it
■L`e° inspected the entire plant where Stacy worked; the evidence
4;17,
it presented showed limited inspections; if the evidence
presented does not conform to the pleadings, the pleadings
44, are automatically amended to conform. SEE RULE 15(b). If
4 the amendment prejudices the case of the other party, they
can request a continuance. Walker: "You can amend the
pleadings right up to the time the instructions are made to
the jury."
c. Key ideas: Rae. V;
1. If you can beat other party (before they get their
answer to court) you can amend any time--just submit.
2. If there is to be no responsive pleading, you can amend
any time within 20 days.
3. After that, if there has been a responsive pleading, by
leave of court or by consent of the other party (and
this must be freely given) you can amend.
EVALUATION OF OUR SYSTEM OF PLEADING
1. Efficiency Criterion - It's not as efficient as it could be.
Transaction costs are higher than they would be otherwise
because poorly pleaded cases stay in the system longer.
Relatively easy for a plaintiff to start a lawsuit.
2. Perceptive Criterion - This value is well served. People feel
like they're being treated fairly.
3. Political Criterion - State-sanctioned redistribution. This
part of system favors plaintiffs=people trying to upset status
quo. Tilted more in their favor than were previous systems.
Rule 11 is a tilt back in the other direction.
THE DEFENDANT'S RESPONSE TO THE COMPLAINT
This is the "move or answer" stage of the lawsuit. Either a
motion under Rule 12 or an answer under Rule 8. Motion to dismiss
always optional with the D since he can always raise the same
objections in his answer.
A. MOTIONS - Rule 12 p. 27.
1. Within 20 days of the filing of an action, a party may file
a motion. In federal court motions are filed with a
memorandum or a brief to support the request. Answer
process stops until the motion is ruled on. If the motion
is denied, the party has 10 days to make a responsive
pleading (answer).
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2. MOTION TO DISMISS. Defendant can move the following 4/5vtaaWtpa41
,defenses:
\a. no jurisdiction over subject matter-'b. no jurisdiction over individual - waived p-en.44scna dwk.i.ocia -vtc. improper venue (geography) - waived
insufficiency of process - document wrong -waived
t u4a10-1-61,) failure to state a claim 16Itc. iZLO(.6)ikaatd4SwissaSoo-viguAalkecut ha/14444.,
\f. insufficiency of service of process - waived
g. failure to join a party = not everyone necessary for
L lawsuit can get together
3. Trap for Defendant: Under rule 12(h), if D fails to move
for dismissal based on improper jurisdiction over person or
venue, or insufficiency of process or service of process,
he loses the right to these motions. The rule saves failure
to state a claim and jurisdiction over subject matter.
7144.
c `s"
4. Other motions--"of marginal utility"
44.44444 fie_
a. Motion for more definite statement - not granted aaa-k lUtiAgcteuve,2_
b. Motion to strike - delays requirement to answer. Walker u
has never seen. Rarely filed. -5 4rke spec4.64-61t fs
c. Motion for judgment on pleadings doesn't delay
obligation to answer since it can only be filed after
pleadings i e
ctitz
empeco:..(
41- trt
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REMEMBER THE FOUR THINGS IN NO. 3 THAT YOU HAVE TO PUT ON PAPER
THE FIRST TIME YOU HAND IT TO COURT--OTHERWISE YOU LOSE THEM.
,'REF-ENSES ► KIM MDT oT1
ricr
kOwtve,r, V■ vt etok'
(ose ra-auxe, et, I-rae ct,x4,t.t, or SA4.7B. ANSWER - Rule 86
1. If you don't file a motion, you have to put everything you
know in the answer.
2. You have three basic choices:
a. Deny - general or specific
( twat
b. Admit
c. No info. or knowledge sufficient to form belief as to sa%/c_op
C
truth of allegation. The rules make this a denial.
acities-tao ar
d. If you don't respond at all, rule counts this as
-
-
-
admission.
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3. Specific denial: You can admit specific things and deny the
complaint in general or you can admit the complaint in
general and deny specific things.
4. Form of answer found in Rule 10. 1st thing would typically
be to admit or deny (generally or specifically) or claim
insufficient knowledge. BE CAREFUL with gg eral den' al - if cx44.4-60,_
you deny everything, make sure that you mean that you deny km-elevery word (this is unlikely). Rather, admit paragraphs
1,2,5 of complaint and deny all other allegations. Then put
down your defenses.
5. Affirmative defenses -- Examples: 84tetace• msj w14x4112.
r a. Contributory Negligence
ASSUA 4.1 ham, of tiSt
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b. Statute of Frauds
4.1),
c. Bankruptcy
044d. statute of limitations
e. IF YOU DO NOT INCLUDE AFFIRMATIVE DEFENSE IN YOUR
faas
Ilk
ANSWER, YOU LOSE YOUR RIGHT TO IT. These are elements of
the case with respect to which the burden of pleading is
assigned to the defendant. If he can show one of these,
ketp':vv.
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it/tirD,LiAce_ 0249
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even if P has shown all elements of his own case, the D
wins.
Counterclaims - claims that the D has against the P. YOU
WAIVE THESE IF YOU FAIL TO STATE THEM. Counterclaims are
/
compulsory when they arise from the matter described in the
\ 4) pleadings; if you waive a required counterclaim, it is gone
forever. Rule 13 also permits counterclaims arising out of
Lother transactions. avw-i44.i..4.0
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EVALUATION OF THE "MOVE OR ANSWER" STAGE
PactdA:Kg (-curry) Ir--6„4,,,,Fte
t corr-va. A
.
Why are we making it hard for D?
Efficiency - System has to produce outcome at reasonable cost.
The more steps down the path we take, the tougher the system
becomes.
Perceptive - Improves the impression of accessibility. Plaintiffs
feel that they can be heard. Judgment was made in the 1930's at
time of drafting of FRCP that more P's should win lawsuits.
BUT...it is generally believed that it is easier to represent
defendants than plaintiffs because if a defendant can prove just
one of the defenses, he wins. This favors status quo, leaving
things the way they are. Notion that if a private individual
wants to get his relationships reordered by the govt, he's got
his work cut out for him.
FINAL SUMMARY OF PLEADING
Federal Rules de-emphasize pleading. See Rule 7a for kinds:
1. complaint & answer
2. counterclaim and reply
3. answer to cross-claim- G() Tr 5/ 61 Go 6S ; e.5 . 0-n tc0A
4. third party complaint--rule 14. P can bring in 3rd party who
might be liable to D. Answer to third party complaint. Court
can order this, as well as a reply to an answer.
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DISCOVERY 6) 4
A Walk Through the Federal Rules
4,4644trytii
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1. Rule 26 - page 46 - spells out the form
1. 26(a) spells out methods of discovery:
a.
app
2.
3.
4.
•
depositions Ramdoyi 1t tR4A.1-0Aaelubot64 1711)
b. written interrogatories
c. production of documents
d. permission to enter land
e. physical and mental exams
Haviamt QA
f. requests for admission Of r-CLCIS
2. 26(b) spells out what can be discovered: Z11--eaP44a. anything not priviledged (where relationship is more
important than the evidence)
b. relevant to the subject matter i.e. relates to the case
in that it would make proof of element of case more or
less likely.
c. does not have to be admissible i.e. can discover hearsay
on grounds that it might lead to something usable.
d. contains provision for court protection from discovery
3. 26(b) 2-4 limits on discovery of insurance (can discover
policies but not applications); work product of attorney
privileged to a point
4. 26 c,d,e - protective order
5. 26(f) allows for discovery conference--not mandatory, but
increasingly allowed. Gives judge more control than pretrial conference; judge defines issues and therefore the
party control is diminished as is adversarial nature of
system.
Rule 33: INTERROGATORIES page 61 ,vd44v pAra.414,0-thie444b4.a. Advantages?
1. cheap ("dime discovery") "gets first olive out of the
jar"
2. good for concrete info.: -* Wsi L444qut 4_0 etzocevscl- 61-8-6-24-act"`9-11kvi,c-wee4v_44,4thtlt cooKiof I-equ-OT Sett-taLcks
a. Who are the witnesses?
ee-ipmAre_ iteco-ireta_.
b. What and where are the key documents?
c. What are contentions of the parties?
Pezial
d. What are the key facts? Fc4.4 ait kJ-et:al:a ituott
crAdtt_i-o tz.vvu-v-e-AGtlo teco-reto
b. Disadvantages?
Iv sea
1. Atty drafts answer and gives as little info as possible.
2. No chance to follow up and ask another question.
3. Cannot be sent to a non-party witness!
Rule 34: DOCUMENTS p age 62
a. Show me the documents; I want to copy them OR Show me the C4)4+710
real estate. (
Q("- "4444"i-144414 f‘t-eArIAA.4-14- PlA4- P'141)1:66.fit T
b. This is dramatic change--these provisions did not exist at
ood catts
common law. A lot of this used to be a total surprise. Has
become a huge consumer of lawyers' time.
B ° c&ar v.
(-cue-66 paA at Led-ku+A-,4Rule 30: DEPOSITIONS page 54 e
zW"
a. Most effective and most expensive. Deposition may be taken
anytime after the action is begun. Take place a long way
from the court...all the elements of a trial without a
judge. WE'RE PRACTICALLY TRYING THE CASE.
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b. Ingredients:
1. Witness can be party or non-party
2. Court reporter licensed to swear in and take testimony
3. Lawyers from both sides asking questions relevant to the
elements of his case.
c. How to stage a deposition - rule 30(b)--Arranging
depositions takes about as much effort as organizing a
modest-sized dinner party.
1. party - notice
fle i 60
2. nonparty -subpoena
d. OBJECTIONS DURING DEPOSITION - two kinds:
1. objection to correct the record - These are objections
to the way the deposition is being conducted and are
waived if they are not made at the time of the
deposition. Include questions which are leading (i.e.
suggest their answer--"You did so-and-so yesterday,
didn't you?") or questions which cover protected
te9 &)
information
2. objection to mark the record - These relate to
admissiblity of evidence (e.g. hearsay is discoverable
but not admissible) These are not waived but should be
made at deposition if you can. At && 3g(b)
3. Possible scenarios:
*Your client is asked a leading question?
You must persist in the objection or the objection is
r0-14:01:0- ,-+v cet, L,cr-(4L., rtLeict)
waived.
*Your client is asked about hearsay evidence?
You object, but only for the purpose of marking the
record. Your client must answer the question. Cobfeukol-L
*Your client is asked about advice his attorney gave
him?
You object and the client does not answer. This is
privileged information. To answer is to let the horse
c
rk,)/crut;
i. ,.4. ; ccrieik
out of the barn.
vecor0)
4. If attorneys disagree over correctable objection, a
motion to compel may be filed and the deposition
adjourned until resolved. Judges are the big stick which
make discovery run, but judges do not like to get
involved in the discovery process. If objections are
used to wreck a deposition, rule 37 sanctions can be
invoked.
5. Rule 28: Who can administer oath and take deposition.
6. Rule 27: Deposition before action or pending appeal. p.
51 - Allows a person to preserve testimony or may
provide info. on which to base a claim. Walker has never
seen this used. All you need to know is that it is
possible to do this, but it is not very significant in
the big picture.
7. Rule 31: Depositions upon written questions p. 58.
Not very important. Still have to answer questions
before a court reporter. Walker has seen only once.
8. Rule 32: Use of Depositions in Court Proceedings p. 59
-
•
L
kukt 26 (c) Putc.th;v-e_
•
•
— prz) cf- a pct..t &AA etico-v-eAv •
9. Rule 37: Sanctions p. 66
a. Motion to compel discovery
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b. Attorney's fees -60, iltZeitAt 4,0"nZ.
c. lost defenses
d. lost claims in pleadings
5. Rule 35 - PHYSICAL AND MENTAL EXAMS p. 63
owl4 Plicrws.
a. Different from every other rule procedurally: can only be
done when there is good cause. Only with court order.
b. Under Schlagenhauf, the condition that is the subject of
the examination must be raised directly by the pleadings or
by the factual contents of the parties through discover;
and the court-ordered examination must be limited to such
conditions.
6. System designed to work without judge. Court can get involved
in two ways:
1. Use of 26(c)--protective order to protect privileged info.
before expense of deposition. Should only be granted on a
showing of good cause by party seeking protection.
2. Use of 37 --sanctions. After-the-fact involvement of court.
The most appropriate sanction for noncompliance with a
court order regarding discovery is to attach substantive
consequences to the noncompliance. Thus, for example, facts
may be taken to be established, the offending party may be
prohibited from supporting particular claims or defenses,
or part of the offender's pleadings may be stricken.
CASES ON DISCOVERY
1. Sackler v. Sackler - A husband discovered evidence of his
wife's guilt by using private investigators who broke into
house by illegal forcible entry. While the government cannot
conduct illegal search and seizure under Mapp v. Ohio, private
individuals are not subject to this rule. Exclusion of
evidence applies only to criminal cases. [The private
detectives are still subject to breaking-and-entering charges-This is not a freebee!] POINT OF SACKLER: Private
investigation is the proper way to start finding out about a
lawsuit. Civil litigants may use material as proof even though
it was obtained by tortious means.
2. Kozlowski v. Sears Roebuck - Plaintiff suing for damages
resulting from flammable pajamas. He requests records from
Sears of other similar complaints (produce under rule 34).
Sears says impossible because complaints are filed in
alphabetical order by complaintants' names. The court rules
that Sears is not excused by virtue of a bad filing system,
and that althought the info. in the files might not be
admissible, it still may lead to valuable evidence. Court also
prevents Sears from imposing costs of discovery on
impoverished plaintiff. BOTTOM LINE: Sears should treat this
as if they were looking for papers to support their own side.
Because they didn't play by the rules, they lose, even though
the p hasn't brought a shread of evidence.
4
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•
•
•
3. PHYSICAL EXAMS (Rule 35a) Schlagenhauf v. Holder - GOOD CAUSE
MUST BE SHOWN. Prior to rule 35, you couldn't get info. about
party's physical condition because it was privileged. Rule 35
made it possible because this is an exam for info, not for
treatment, which would still be privileged. Suit for damages
in a accident involving a Greyhound bus. In a counterclaim
against the driver (Schlagenhauf) allegations made of
negligence and bad vision. Request made for 4 medical exams
(internal medicine, opthamology, neurology, and psychiatry).
Key issue in this case is that Schlagenhauf is a defendant.
This rule was written for defendants to use on plaintiffs.
Here the court finds the request too invasive and is concerned
that all suits regarding auto accidents will turn into fishing
expeditions. Court also concerned that party to undergo exams
is a defendant. When plaintiffs are required to undergo exams,
at least they were the ones bringing the action. Holding here:
the D could only be ordered to have an exam relevant to issue
in controvery--here an eye exam.
NOTE: Rule 35(b) allows discovery of the actual medical report
produced through a Rule 35 examination. This is an important
exception to the rule that expert's reports are generally not
discoverable.
TT re_quISiS
4-11e4.1 A kuts
a. Who may receive: A party against whom an order is made
under Rule 35(a), or the person examined, may request and trt r"-4have delivered from the party causing the exam to be made, A ca, 46
re.portS of
a copy of a detailed written report of the examining
am.41 v At"
physician detailing his findings.
tica444s Arr.
b. Other examinations: After delivery of the report, the party sow..f
u4t,a4 LT
who caused the examination is entitled on request to
71-44Au,
receive from the party against whom the order was made a
wculits.
report of any other examination made for the same condition pqaL
at the requestee's behest.
c. Waiver of objection: By requesting and obtaining a report
of the examination ordered or by deposing the examiner, the
party examined waives any privilege he may have in that
action or any other involving the same controversy,
regarding the testimony of everyone who has examined or
will examine him.
d. Where examination made by agreement: a,b,and c above apply
also to an examination made by agreement of the parties
without court intervention, unless the agreeement expressly
provides otherwise.
-
4 Edwards v. Superior Court of Santa Clara County - Calif.
Supreme Court held that a person has no right to have an atty
present during psychiatric exam required by discovery. Walker
disagrees, claiming that atty ought to be present to protect
client's interest. Counterargument: Atty presence would
destroy atmosphere needed for successful exam.
5. Attorney's Work Product: Hickman v. Taylor - VERY FAMOUS CASE.
Defense atty interviews all witnesses of a tugboat accident
out of concern of possible litigation. Plaintiff requests
•
•
•
transcriptions of the interviews. Court held that this info.
was protected. It is important to note that the witnesses were
not the atty's clients and were not covered by the attorneyclient priviledge. Now we have Rule 26(b)3. Court seemed
concerned that if the atty work product were not protected,
the adversarial quality of the system would be diminished and
that attys would rely on the effort of the other party. US v.
Noble: "At its core the work product doctrine shelters the
mental processes of the atty, providing a privileged area
within which he can analyze and prepare his case."
1. A qualified privilege: Materials prepared by or under the
direction of a party or his atty in anticipation of
litigation are subject to discovery ONLY IF the discovering
party can show a substantial need and an inability to
obtain equivalent material by other means.
2. Purpose: This qualified privilege is designed to maintain
the adversary process by enabling each party to prepare his
own case; with free rein to develop his own theory of the
case and his own trial strategy; but such purpose must be
reconciled with the overriding need to require full
disclosure of the facts.
3. Privilege absolute in part: Under no circumstances is a
party required to disclose the mental impressions,
conclusions, or opinions of his attorney. Rule 26b3.
4. Compare atty-client privilege: The work product rule must
be distinguished from the absolute privilege afforded
confidential communications from client to counsel, i.e.
what you've told your lawyer.
6. Upjohn v. U.S. - US sues Upjohn for illegal foreign payments
(bribes) made by its subsidiaries. General Counsel sends out
questionnaire asking Upjohn employees to detail activity. US
Govt. request copies of the answers. Court holds that
corporate client-atty work product is protected. This case
broadened the categories covered from senior management (the
control group) to all corporate employees. Walker: You can
still request info. about the event; you just cannot request a
letter from the corporation's employee to the counsel about
the event. Court is concerned about notes on the documents
which would indicate the atty's mental processes.
7. EXPERT WITNESSES: Breedlove v. Beech - Plaintiffs turn over
propeller from airplane crash for examination by defendants'
experts. Plaintiffs request reports of experts during
deposition. Court says that the documents are protected trial
preparation materials, that plaintiffs can use the deposition
to prepare for cross examination, and that plaintiffs can get
their own examination of the propeller. See Rule 26(B)4.
You can discover the name and substance of the testimony of
any expert retained to testify at trial. You can also discover
experts who will not testify at trial if there are exceptional
circumstances why you can't obtain like evidence by any other
means. There were no exceptional circumstances in Breedlove.
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-
•
•
•
PRETRIAL CONFERENCE - point at which case becomes crystallized
1.
2.
3.
4.
Rule 16 - innovation in FRCP - pride of rule makers.
Purpose: "What is this trial all about?"
Rules permit, do not require, pretrial conference.
Most localities have their own rules about this. Since rule
16, almost all district courts supplement with specific rules
about pre-trial conference. At the pre-trial conference,
things that you and the other attorney can't agree on are
taken to judge. Like a little hearing. Draft final pre-trial
order...Everything you don't take care of in pleading, you
take care of in pre-trial conference. You can't go to trial if
issues aren't defined.
Case: Life Music v. Edelstein - Judge Edelstein by entry of order
finally defined the issues after 23 pre-trial conferences. P
seeks writ of mandamus against judge, claiming judge limited his
claims. Rule 16e - pre-trial order trumps the pleadings. Makes
them the issues for trial. Ad hoc judge specific process-can't
agree on issues so judge decides. Since the pretrial order is not
a final judgment, it is not appealable and not reviewable on
mandamus.
•
DISCOVERY CONFERENCE
Rule 26f - Judge becomes case manager rather than traditional
umpire.
EVALUATION OF DISCOVERY PROCESS
1. Introduction: Discovery process virtually unknown before FRCP.
Now attorneys spend half of their time doing something that
was unknown before the 1930's. Takes away element of surprise
from the trial. Doing justice in the individual case. Derives
from equity. Pay attnetion to every case.
2. Efficiency Criterion - It's not efficient; it's very expensive.
3. Political Criterion - lets people get in the system and stay
longer. Redistributional element.
4. Perceptive Criterion - system results in higher degree of
satisfaction, but very expensive.
5. Implications for trial - Makes it a formality. We've almost
already had the trial. Trial by jury in collision with this
system. Leads to battle over summary judgment.
•
•
•
SUMMARY JUDGMENT
Summary judgment enables the court to look behind the pleadings
to determine whether contentions are so lacking in substance that
judgment can properly be rendered against the party making such
contentions without the delay and expense of a full trial.
SJ differs from motion to dismiss or motion for judgment on the
pleadings because outside evidence has been produced and court is
not limited to pleadings in making decision. It differs from
directed verdict, which is a motion at trial. SJ occurs before
trial.
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A. Key Cases
ouct,01,010
1. Arnstein v. Porter
2. Dyer v. McDougal
3. Adickes v. Kress
4. Celotex v. Catrett
B. Rule 56 - Test.
1. No genuine
a
te
material fact
2. Entitled to judgment by law
C. Theory of litigation - Summary judgment brings theory of
litigation into the forefront because it has to do with who
has what burdens of proof and persuasion regarding particular
elements of the case. Do the elements of the P's or D's case
exist?
1. Defendant moves for summary judgment
a. shows that one critical element of plaintiff's case does
not exist.
b. proves an affirmative defense (ex. statute of
limitations has run)
2. Plaintiff moves for summary judgment (rarely happens)
must show all elements of his claim are met
D. Arnstein v. Porter - Arnstein accuses Cole Porter of
plagiarizing his songs; shows evidence that his music had been
( 100) widely distributed but shows no evidence that Porter heard
' them. Porter moves for summary judgment, claiming that there
1,06em' is no evidence he ever heard the music. He categorically
denied ever having seen or heard any zLeiis music. Key
here is saying that
301-, problem: Porter's credibility. Judge
issues of credibility are always issues for jury, apparently
VO4 so that jury could watch D's demeanor and find affirmative
a&
the
that he had heard it. Notion that purely through
of. evidence
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demeanor evidence jury might glean enough evidence. BOTTOM
or
LINE ISSUE: Who is going to do redistributional job?
judge? BOTTOM LINE RULE: Unless you can get the other side's
personal evidence, you can't get summary judgment.
E. Dyer v. McDougal (1952)- P accuses D of slander. Every witness
at meeting to alleged slander swears it didn't happen. Even
though twelve people's credibility could be doubtful, D gets
summary judgment. Otherwise in such cases there couldn't be an
effective appeal of judge's disposition of motion for directed
verdict. The appellate court would have no access to demeanor
evidence. This case changes things for summary judgment. Under
144414
•
•
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•
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A v. P, you caliad use other party's e idence (i.e. get him to
admit that you never heard the music) Under D v. Mc, you
could use your own evidence.
Adickes v. Kress (1970) - Civil Rights damages actions. Suit
that Kress was conspiring with police to throw Mrs.
l ia r alleged
Adickes
out of the store. Trial court awards summary judgment
i.€14`
for Kress. The store manager submitted a sworn statement that
bA,2
he had not communicated with the policeman, but there were no
v. X441, sworn statements (only unsworn) from the waitress and manager
P of food services. Supreme Court overturned summary judgment
fft0V
because Kress had failed to foreclose every possibility that
there was an issue of fact. BOTTOM LINE: Moving party has to
touch every evidentiary base. You have to foreclose the
possibility that there is a genuine issue of fact.
G. Celotex v. Catrett (1986) - Between 1970 and 1986 very few
summary judgments granted because of the Adickes rule. Celotex
was action for wrongful death of decedent because of asbestos.
Issue: Had decedent ever been exposed to asbestos? There was
no evidence to show exposure, so D moved for summary judgment.
The Ct. of Appeals held that under Adickes, the D had to show
no possibility of exposure. Just as in Arnstein v. Porter, it
would have been practically impossible to show no possibility.
In this case neither the P nor the D had evidence before the
court. The moving party won in this case whereas previously he
would have lost. BOTTOM LINE: shifted the system in favor of
the D. Before Celotex, burden on moving party to foreclose.
After Celotex, burden on non-moving party to produce evidence.
H. Anderson v. Liberty Lobby - (1986) standard for summaryi same
as for directed verdict.
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EVALUATION OF SUMMARY JUDGMENT
1. Celotex is a sign of abandoning the traditional Anglo-American
system of dispute resolution. We are moving away from trial by
jury, which is guaranteed in the Seventh Amendment. System
that is emerging may be similar to that in Western Europe. For
example, juries in civil trials fell into disuse in England
during WWII and were never reinstated.
2. Political criterion: While the New Dealers instigated the
FRCP, the counter-New Dealers may finish off the change.
Summary judgment goes for the D, preserves the status quo, not
redistributional. It would be impossible without the discovery
414'•--techniques instituted by the New Dealers when they wrote the
con-, FRCP. Move toward "judge activist state." We could argue,
however, that when judge issues summary judgment, he is always
dismissing meritless claims, so the system really loses
nothing. We can also point to empirical study showing no
difference between the way judge decides and way jury decides,
and conclude that the real effect of this shift is efficiency.
3. Efficiency criterion: well served by summary judgment. There
is more litigation in the courts than ever before and thus we
need more summary judgment to be more efficient.
4. Perceptive criterion: Folks don't trust this decision. Reduces
the sense of participation and of having told your story. We
S
could counter-argue that people who don't have a story to tell
are the only ones suffering, so why should they feel bad?
Could also point out discovery, where you do get to tell your
story. Why does it necessarily have to be in the presence of a
decision maker?
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JURY TRIAL
The Seventh Amendment gives a right to jury trial in suits at
common law exceeding twenty dollars. This provision is not
binding on the states. Under federal rules, you must demand a
jury trial in the pleadings (Rule 38b) and failure to demand is a
waiver of right to trial by jury (Rule 38d). The Supreme Court
has ruled that directed verdict motions do not violate this
Seventh Amendment provision because there were comparable
procedures (i.e. demurrer to the evidence) at common law.
•
•
Trials are only understandable in terms of the THEORY OF
LITIGATION. When we get to trial, we're at the phase in the
theory where info is put before decision maker as to whether the
elements of the claim existed and whether elements of affirmative
defenses existed. Ordinarily, the elements of the claim (A, B,
and C) will be discussed first as to whether they exist. If A or
B or C doesn't exist, everybody goes home. Each attorney talks
about A, B, and C. P's attorney praises A,B,C and doesn't mention
D (aff. defense). D's attorney says bad things about A,B,C and
praises D. P's attorney says "We must establish A,B, and C by
preponderance of evidence. Evidence must show A existed, B
existed, and C existed." D's attorney will say "If we can show D
exists, we win case. We can win four ways--A doesn't exist, or B
doesn't exist, or C doesn't exist, or D does exist. One of four
only." So whole system favors defendants. The party with the
burden of production calls witnesses as to A,B, and C. At close
of P's case, D's attorney can move for a directed verdict. Argues
that P's atty did not give info in which reasonable men can find
A, B, or C. If directed verdict is granted, trial is over. If
motion denied, Defendant calls witnesses. D's attorney has two
missions: deny A, B, or C; affirm D. D should be brought up only
by Defendant--never by the P. After all evidence is in, D moves
again for Directed verdict. P also moves for directed verdict. If
no directed verdict, judge instructs jury: "If you find A&B&C
existed, you must find for P. Even if you find A&B&C existed, if
D existed, you must find for D." NO WRITTEN INSTRUCTIONS. Jury
comes back with finding. Rule 49 permits judge to ask for special
verdict. Must answer specific questions. Lets us know jury
followed the rules. Then there are two devices available: JNOV
and motion for a new trial.
TEST FOR DIRECTED VERDICT AND JNOV:
If the facts and inferences point so strongly and overwhelmingly
in favor of one party that the Court believes that reasonable men
could not arrive at a contrary verdict, granting of the motions
is proper. On the other hand, if there is substantial evidence
,
opposed to the motions, that is, evidence of such quality and
ykl9SfAikthaL
weight that reasonable and fair-minded men in the exercise of
impartial judgment might reach different conclusions, the motion
should be denied and the case submitted to the jury. A mere
scintilla of evidence is insufficient to present a question for
the jury. The motions for directed verdict and JNOV should not be
decided by which side has the better of the case, nor should they
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be granted only when there is a complete absence of probative
facts to support a jury verdict. There must be a a conflict in
substantial evidence to create a jury question. However, it is
the function of the jury as the traditional finder of the facts,
and not the Court, to weigh conflicting evidence and inferences,
and determine the credibility of the witnesses.
SUMMARY: Thus the rule is not that a case must go to the jury
unless there is not evidence at all. In order to go to the jury,
there must be sufficient evidence to raise a fact issue.
1. Motion for judgment notwithstanding the verdict. Rule 50b. In
1913, the Supreme Court in Slocum v. New York Life held that a
JNOV cannot be made. It violates the 7th amendment. BUT in
Baltimore & Carolina v. Redman (1935) court said that if a
trial judge wants to, he can reserve a directed verdict until
after jury decides. This has same effect as JNOV. A JNOV is
simply a reserved directed verdict. KEY: In order to have a
JNOV, you must first have made a motion for a directed
verdict, which is automatically reserved. RATIONALE: The JNOV
avoids the need for a second trial should the appellate court
overturn the trial court, holding that the evidence was not
sufficient to take the case from the jury. The jury's verdict
can simply be reinstated. (4 0- cikteck-gA Ihtu14.44- 24 (Leve4.4-eik th,t- aff-e-e-if
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2. Motion for a new Trial. Rule 59. Provides trial judge with
opportunity to correct mistakes. Sometimes is a frank
admission that the judge and the jury disagree about weight of
evidence. The remedy is to redo the trial.
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CASES
1. Galloway v. United States - leading case on directed verdicts.
At the close of the evidence United States (D) moved for a
directed verdict. Burden of productions was on the P to show
continuous disability. Court held that reasonable people could
not bridge an 8-year gap in the evidence. Why didn't wife
testify? She was there during the 8 years and stood to gain by
testifying.
2. Urti v. Transport Commercial Corp. There was no evidence as to
contributory negligence? Why no DV or JNOV? Because atty
failed to move for directed verdict, and as a result couldn't
have JNOV. So now he's got to move for a new trial. He would
have preferred a JNOV because it's cheaper and quicker. Motion
for new trial under rule 59a. Here there was no evidence at
all of contributory negligence so court overruled denial of
new trial. You can usually get a new trial only where there
was no evidence.
3. Compton v. Luckenbach Overseas Corp. - Motion for JNOV and new
trial denied because verdict was not against the preponderance
of the evidence.
410
4. Curtis v. Butts (#1) - Issue of remittitur and additur.
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JURISDICTION
The selection of a proper court for civil litigation.
There are three independent, mutually exclusive tests required to
determine the proper location of a lawsuit:
1. Personal Jurisdiction over the D - require him to participate
2. Subject Matter Jurisdiction -right ct. to deal with problem
3. Venue
geographical place acc. to instructions of sovereign
-
You must touch all three bases to get to home plate.
PE RSONAL JURISDICTION
Re quirements for jurisdiction over the parties:
1. Basis - Court must have the power to act either on the person
(in personam) or on the property (in rem) in order to be able
to subject to liability. This is called substantive due
process.
2. Notice - Court must give adequate notice of the action and an
opportunity to be heard. This is called procedural due
process.
Four Cases dealing with Personal Jurisdiction:
•
1. Pennoyer v. Neff (1877)
A. 1st suit - P, Mitchell, an Oregon lawyer, brought suit
against his former client D, Neff, a resident of
California, to recover attorney fees. He brought this suit
in a state court in Oregon and published notice in an
Oregon newspaper, pursuant to Oregon statute. D never
answered and P got default judgment. Later D bought
property in Oregon. P had the sheriff attach this land to
satisfy judgment, then resold it to Pennoyer.
B. 2nd suit - Neff wants his land back. Pennoyer claims that
he has deed from sheriff through Mitchell. Neff says deed
doesn't count since it was rendered after a void lawsuit.
Neff claims that notification of lawsuit by publication was
wrong and that it violated 14th Amendment right to due
process. Thus, even though the case seemed to have a lot to
do with property, the real issue was "Could Oregon validly
summon a Calif. D to Oregon by publishing notice in an
Oregon newspaper?" i.e. constitutionality of Ore. statute.
NOT about property--the D didn't even own the property at
the time of trial.
C. Supreme Court ruled that P had followed Oregon law (i.e.
attachment was OK under Oregon law). The real issue was the
Constitutional Question. Does Constitution allow you to
summon California to Oregon? HELD: Personal jurisdiction
can only be had when D is delivered process (complaint and
summons) while he is physically in the state. Personal
service on D within the state both sufficient and
necessary.
•
•
D. Exceptions to Pennoyer Rule:
1. You can get jurisdiction over person if he has property
in state. He doesn't have to be in state. You can serve
notice by putting ad in paper.
a. In rem jurisdiction - when subject of action is some
(rt )7 item of property located within the state, the court
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no personal jurisiction is required. The judgment in
PAz fle147
such a case may determine claims of all the world to
the property but cannot impose damages or an
injunction against a person unless person also
subject to in personam jurisdiction.
b. Quasi in rem jurisdiction - when object of case is
not to resolve dispute directly about ownership of
property but to collect judgment based on a piece of
land. Judgment satisfied by seizing, selling this one
piece of land. NOTE: This exception was done away
with by Shaffer v. Heitner.
2. Disputes concerning status of people - e.g. status of
child even though parents not present; divorce granted
even though husband is in another state. Walker leaves
this issue to family law course.
3. Disputes where D consents to having disputes litigated
in a certain area, i.e. corporation.
E. Implications of Pennoyer: Favors the D. P has to wait for
him to come back into state. Consistent with 1877-encourage industrial protection; protect capital.
F. NOTE: The p was not remediless--he could go to Calif. and
sue the D there. This rule made the P play on the D's home
turf.
With the coming of the 20th century came the automobile.
Increased mobility clashed with the Pennoyer rule because D could
cruise into one state, bash into somebody, put it in reverse, and
head home. The courts tried to deal with this problem:
Cain v. State of New Jersey (1916) NJ could require person to
stop at state border and sign agreement that NJ official would be
agent to receive process should case be brought against him.
Hess v. Pawloski (1927) - Implied Consent Statute. Massachusetts
could say "if you use our roads, you're agreeing to let someone
accept service of process for you."
DOCTRINAL PROBLEM WITH THESE STATUTES: Constitution says
citizens of one state have all the immunities and privileges of
citizens of all other states. i.e. Const. is clear that citizens
are free to go from to state to state without having to consent.
This problem was ignored.
•
2. International Shoe v. Washington (1945)
A. State of Washington wants to bring suit to collect unpaid
contributions to unemployment insurance from corporation
with home office in Missouri. Notice of the suit was given
B.
C.
•
D.
E.
F.
•
to salesman in Washington and mailed to home Office in
Missouri. Washington claims this is sufficient service of
process. Appellant claims it was improper because it was
not a corporation of that state and was not doing business
in that state. Salesmen could make no contracts in WA; they
only carried around one shoe!
Supreme Court: As long as it is reasonable to assume that
contact will be made with corporation through its agents
and it will know of suit, process has been properly served.
Shoe's business in Washington was not irregular or casual
but systematic and continuous. It also enjoyed protection
of the laws of the state. DUE PROCESS REQUIRES ONLY THAT
THE DEFENDANT HAVE CERTAIN MINIMUM CONTACTS WITH THE STATE
"so that maintenance of the suit does not offend
traditional notions of fair play and substantial justice."
Minimum Contacts Criteria. These are the basis of long-arm
statutes today. They are mutually exclusive.
1. quality and nature of acts
2. Were the activities carried on in the state systematic
and continuous?
3. Does defendant enjoy benefits and protection of laws of
the state?
4. Is it reasonable and just according to notions of fair
play and substantial justice to permit state to enforce
D's obligations? (Ex: In McGee (1957) the court held
that an insurance co. doing business solely by mail may
be sued in the state where the insured resided under
that state's long-arm statute. One important
consideration in this situation is the forum state's
interest in protecting its citizens against insurance
companies. The language of McGee seems to be broadly
applicable to all businesses. Note that this represents
the least contact with forum state that has been
sanctioned by the Court. This involved D's in-state
activities; in cases where the claim does not involve
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forum state have always been required.)
5. Is the contact related to the lawsuit?
What did Shoe change about Pennoyer?--made it easier to
gain jurisdiction over a person. No longer did the person
have to be in the state; now you could gain jurisdiction
over him if he had minimum contacts with the state.
What was left of Pennoyer after Shoe?
1. You could still establish jurisdiction by serving
process while D in the state.
2. You could still establish jurisdiction through D's
property in the state.
3. Other exceptions not changed.
Strong tilt in favor of P's in Shoe. Favored New Deal
redistributional goals.
•
•
•
LONG ARM STATUTES
These developed in response to Shoe. We need these statutes
because personal jurisdiction has two elements: statutory and
constitutional. In fact, if there is no statutory authorization,
the court may not exercise jurisdiction even though it would have
been constitutional for it to do so. Thus, there are always two
questions to ask: (1) Did they follow the statute? (2) Is the
statute constitutional? Lawyers wanted these long arm statutes to
get more business in their states. Illinois was first state to
adopt a long arm statute and the rest of the 50 states followed
suit. A state's interest in judicial enforcement of claims
against foreign corporations doing business within its boundaries
does not have to be limited to the state's own power to enforce
the resulting judgment; the Full Faith and Credit Clause of the
Constitution makes the judgment enforceable in other states as
well. --says that each state must honor the judgments of other
states.
3. Shaffer v. Heitner (1977)
A. Heitner, a holder of one share of stock in Greyhound,
brings a "stockholder's derivative suit" against the
directors of the corporation because they weren't running
it right. Brings the suit in Delaware because Greyhound was
incorporated in Delaware. However, neither Heitner nor the
directors are residents of Delaware. The mismanagement of
the corporation took place in Oregon, and its home office
is in Arizona.
B. Heitner attempted to gain jurisdiction over the directors
by seizing their stock. The stock was in Delaware because
of a Del. law saying that the situs of all stock in a Del.
corporation shall be Delaware. How could he get
jurisdiction this way? Pennoyer and Shoe left quasi in rem
rule intact. You can use property to pay off judgment even
if D is not in state. (This is quasi in rem and not in rem
because the property is not at dispute).
C. HOLDING: Shaffer abolishes the property exceptions to
Pennoyer (i.e. as long as the property in question was
located in the forum state, court could adjudicate all
claims with respect thereto, and personal jurisdiction over
the nonresident claimants was not required) and applies the
Shoe "minimum contacts" test to obtaining jurisdiction by
property. While Shoe made it easier for P to get in
personam jurisdiction, Shaffer made it harder to get W04*
A4W quasi in rem jurisdiction. Now, a party can not be sued
merely because he owns some sort of property in the sate.
There must be minimum contacts.
CLAIMS UNRELATED TO IN-STATE ACTIVITY
All of the cases discussed so far involved claims related to the
defendant's activities within the forum state. Where the cause of
action does not arise from the company's in-state activities,
greater contacts between the defendant and forum state have been
required. The standard seems to be that the in-state activities
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must be systematic and continuous.
Where the claim does not arise from the in-state contacts, the in
personam jurisdiction asserted is sometimes called "general
jurisdiction." This term contrasts with "specific jurisdiction,"
the situation in which the claim arises from the in-state
contacts.
1 Perkins v. Benguet Mining (1952) - This is the leading case on
claims not arising out of in-state activities. Here the D was
an out-of-state mining co. The company's mining operations
were in the Phillippines and were suspended during WWII.
During that time, the pres. of co. returned to Ohio, where he
maintained an office, did business on behalf of the co., and
kept the co. files. The P sued for dividends she claimed the
co. owed her based on its profits from its Philippine
operations. The cause of action did not involve the company's
Ohio activities. HELD: The mining company president's in-state
activities were held to be extensive enough so that Const. due
process neither prohibited nor compelled Ohio's jurisdiction
over the mining company; the matter was to be left to
discretion of Ohio courts. Due process requires that the instate business actually conducted be so systematic and
continous as to make it not unjust to force the corporation to
defend a suit there. Walker: If the D has contacts amounting
to presence in the state (i.e. maintains an office), that may
be a sufficient relationship to permit suit on any and all
claims (even those unrelated to local activities), especially
if D could not be sued conveniently elsewhere.
2. Helicopteros Nacionales de Colombia v. Hall 1984.
A. Wrongful death action brought in Texas. Hall represents
folks who died in helicopter crash in Peru. One defendant
is Colombian. Colombian had negotiated contracts, bought
copters, trained men in Texas, but all on an irregular
basis. LOTS of contacts with Texas, but NONE related to
the subject of the suit = the crash in Peru. Both parties
agreed to this.
B. ISSUE: Were the contacts between the D and Texas sufficient
to allow Texas to assert jurisdiction? NO. HELD: Texas
jurisdiction over a claim arising out of an accident in
Peru cannot be sustained on the basis of minimum contacts
when the D corporation's activity was neither related to
the claim nor extensive enough to support general
jurisdiction there over all claims against the corporation.
Supreme Court said all contacts were of an irregular nature
and unrelated to the lawsuit. HELD: "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 corporation in a cause of aciotn not
related to those purchase transactions."
DIAGRAM
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1. Constitutional requirements- Due Process Clause of 14th-s"
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Amendment. The question is NOT "did the D receive the notice?"
because he can always claim he didn't get it, didn't read it,
didn't understand it, etc. The question is "was the procedure
constitutionally correct?"
2. Statutory requirements--When the statute or rule of court
prescribes a particular notice procedure, plaintiff must
follow the procedure. E.g. if a statute requires that process
be mailed first to the secy. of state and then to an out-ofstate defendant, the notice is invalid if these two steps are
reversed.
Mullane v. Central Hanover Bank (1950) -"Notice must be
reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them
an opportunity to present their objections." The notice must be
the kind you would give if you were really "desirous of actually
informing the absentee." Thus, it's the kind of notice you would
give if you REALLY WANTED the person to know. Application: If you
have absolutely no way of knowing the party's address, notice by
publication is OK. But if you know their address, you should mail
to them.
•
Greene v. Lindsey (1982) - Issue: mail it or nail it? HELD:
Posting of notice on property is not sufficient if an address is
available to which notice could be mailed.
SUBJECT MATTER JURISDICTION
Federal courts are courts of limited jurisdiction. Basic notion:
They don't have jurisdiction except in a few instances. State
courts have general jurisdiction. There's a presumption in state
court, but in federal court the P must show in his pleading that
federal court has jurisdiction [see Rule 8(a)(1)]. Judicial power
is granted by Constitution and by Statutes.
Constitution - Article III (p. 390). Section 2 provides that
judicial power of federal courts shall extend to:
1. Cases in law and equity arising under the Const., the laws of
the United States, and treaties
2. Cases affecting ambassadors, consuls, etc.
3. Cases involving admiralty and maritime jurisdiction
4. Cases to which the U.S. is a party
5. Controversies between two or more states, between a state and
a citizen of another state, between citizens of different
states, or between a state and a foreign state.
Of these, we are concerned with Diversity Jurisdiction and
Federal Question Jurisdiction.
•
Statute - 28 USC §1331 and 1332 further limit federal
jurisdiction. (seeip. 410). L
•
•
DIVERSITY JURISDICTION
28 USC §1332 provides that the subject matter in dispute must
exceed $10,000, and then repeats consitutional requirements for
diversity of citizenship.
1. What consitutes diversity. P and D have diverse citizenship if
one is a citizen of one state and the other a citizen of
another state, or if one is a citizen of a state and the other
is an alien or foreign national. There is no diversity
jurisidiction between two aliens (German v. Canadian).
2. What is citizenship. Citizenship means domicile = the
intention to remain in a state indefinitely. Not to be
confused with resident, which means physically present but
lacking intention to stay there indefinitely. There is no
registration process to become a citizen, but things such as
driver's license, voter registration, are all proof of this
subjective intent. If at any time court thinks it lacks
subject matter jurisdiction it can dismiss suit, unlike
personal jurisdiction, which is waived at the beginning. Case:
Steigleder v. McOuesten.
3. Requirement of Perfect Diversity. All plaintiffs have to be
from state different from all defendants. Some D's can be from
Calif. and some from Ore. as long as no P's are from Calif. or
Ore. Case: Strawbridge v. Curtiss.
4. Citizenship of Corporations. For diversity purposes, a
corporation is deemed to be a citizen both of the state where
it was incorporated and the state in which it has its
principal place of business. [28 USC §1332c]. Thus, many
corporations have two or more citizenships, and their access
to federal court is limited accordingly. If an opposing party
is a citizen of any of the corporate party's states of
citizenship, there is no diversity.
5. Should we have diversity jurisdiction today? Some argue that
the need for this has decreased since the days of the drafting
of the Constitution. Walker says we should still be concerned
about prejudices--the influence of "home cooking." Big
problem: state judges are elected while federal judges are
appointed. Notion that Va. atty might be buddy of judge in Va.
state court--this would give problems to Mass. defendant. A
judge in home jurisdiction might side up with home party if he
is facing re-election. Plaintiff gets first choice as to
federal or state court. But then defendant has option of
removal to federal court if the case was in the original
jurisdiction of the federal court.
FEDERAL QUESTION JURISDICTION
•
1. Pleading requirements. Under Fed. Rule 8, you are required to
plead jurisdiction and plead it well.
a. Anticipation of defense insufficient. An allegation
anticipating a defense based on an Act of Congress is not
sufficient to raise a federal question. Ex: Louisville RR
v. Mottley. Here the p's had a breach of contract claim
against the RR. The elements (A,B,C) of breach of contract
•
•
•
fell under state law. They alleged both that the RR had
breached the contract to provide free passes for life AND
that the RR's reason for reneging (a federal statute
forbidding such passes) did not apply to them. The court
dismissed because P's purported federal question was merely
anticipating a defense which RR would have to plead and
prove.
b. Where declaratory relief is sought. A prospective defendant
may take the initiative and file a suit for declaratory
relief rather than wait for the "real plaintiff" to sue him
(e.g., an ins. co . might file for declaratory judgment
saying that it is not liable to insured on unsettled
claim). If a declaration is properly sought and if the
matter in dispute is based on federal law, a federal
question is presented. This is not the case, however, if
federal law is a basis for avoiding a right created by
state law (i.e. a defense). KEY: Turn the lawsuit around
and look at lawsuit that would have been brought by P. See
if there's federal subject matter jurisdiction in that
lawsuit. Under Mottley, the fed. subj. matter juris. cannot
be based on a defense. Case: Skelly Oil v. Phillips Petro..
Here Phillips brought suit against Skelly b/c it was afraid
Skelly thought its contracts were invalid. Skelly's claim
would have been based on state contract law, so Phillips
claim of validity under Fed. Power Commission was a defense
arising under federal law. Thus, no fed. question juris.
c. Significance of errors in pleading. An incorrect or
incomplete statement of a claim is not necessarily fatal,
if it can be cured by amendment. "Defective allegations of
jurisdiction may be amended in the trial or appellate
courts." (28 USC §1653).
2. How to know a federal issue case when you see one. Just
because a case has something to do with federal law does not
imply federal question jurisdiction. Do your research to see
if federal question issue is central to the case. Look for the
A,B,C elements of your claim. See what books you're holding
when you find these elements. If USC, then federal juris. If
state law, then state jurisdiction. General possibilities:
a. Constitutional cases are hard because there are no elements
in the Constitution. 42 USC §1983 gives elements of claim
for civil relief for violation of Constitution. If A,B,C
exist, you have a claim for relief.
b. Implied claim from federal statute or constitution. Doesn't
address what happens if folks don't follow the law. If fed.
statute or Const. involved, it may be that the court didn't
recognize the implied civil matter and it must be addressed
by another institution.
c. Case law--straightforward common law development of the
federal law. Judges make up elements of claim.
d. Claim in Smith v. Kansas City Title Co. - Missouri law
defined all the elements of the claim. Appears to be state
jurisdiction. But there was federal jurisdiction because
the last element of the claim was the constitutionality of
the state law. In federal court because it was inescapable
•
•
•
to decide whether constitutional. Case probably not rightly
decided. Never followed. This was narrowed by Gully, p.
316. Gully did not turn on federal law. State law
established A,B,C. Gully anticipated a defense to the
defense (F) i.e. a rejoinder. Clear that just having a
federal question does not imply federal subject matter
jurisdiction. Smith limited by Gully to the extent that the
federal question must be inescapable. Smith confined to its
own facts.
3
Pendent Jurisdiction. Claims not ordinarily within the
jurisdiction of a federal court may be determined when they
arise with other claims that are within the jurisdiction of
the court. When the federal court has jurisdiction because a
federal question claim is presented, the court can determine
state law claims by the P based on the same transaction. The
rationale is that having jurisdiction of the "case," the court
can determine all aspects of it, including those that
independently would not be within its jurisdiction. [Art. III
of Const. says "case" should be decided, and cases often
involve several claims.]
a. Example: United Mine Workers v. Gibbs (1966) -Federal claim
under National Labor Relations Act; state claim under
Tennessee common law. Court dismissed the federal claim but
found recovery under state law. This is a pragmatic and
evidence-oriented test. Do both claims arise from "a common
nucleus of operative fact such that you would ordinarily
expect to try these claims at the same time"? This means
you would look at the same documents, same witnesses.
b. Discretionary with court. Exercise of pendent claim
jurisdiction is discretionary. Thus, if the court finds the
federal claim untenable, it may dismiss the state claim for
lack of jurisdiction without deciding its merits; or it may
retain and decide the state claim. Point: this is not a
right that the litigant has.
4. Removal jurisdiction. When federal question or diversity
jurisdiction exists but plaintiff chooses instead to sue in a
state court, defendant may compel removal of the action to
federal court. The right of removal belongs exclusively to the
defendant. Rules set up in 28 USC §1441 A & B.
a. D can remove to federal court if it had original
jurisdiction. Ex: P, an Ohio citizen, brings an action for
$5000 against D, an Illinois citizen, in Illinois state
court. D counterclaims for $50,0l iaspite the size of the
counterclaim, P cannot remove to
court. (only D's can
remove) Note that D cannot remove either since the action
could not have originally been brought in federal court.
b. Cases are removable without regard to citizenship or
residence of parties. No removal of diversity actions is
permitted where any defendant is a citizen of the state in
which the action is filed. The rationale underlying this
statute is that removal jurisdiction exists to assure an
impartial forum for "nonlocal" defendants. Where the
defendant is a local resident, there can be no basis for
such fear and removal to federal court is therefore not
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allowed. Ex: P, a citizen of Illinois, files an action for
$100,000 in Missouri state court against D, a citizen of
Oklahoma, and C, a citizen of Missouri. The case cannot be
removed to fed. court. because one D is a citizen of the
state in which the action was filed. Tactic: A P who has a
claim against a nonresident D, and who wishes to file the
action in state court, can prevent the nonresident from
removing by joining a local resident as a co-defendant on
the same claim. As long as the claim against the resident D
is not completely groundless, removal by nonresident D is
not permitted, even if the D shows that the P's sole motive
was to avoid removal. Further example: Penzoil, a Del.
corp. w/ headquarters in Tex., sues Texaco, a Del. corp. w/
headquarters in NY. Can D remove the case to federal court?
Two questions: (1) Is there a resident D? (2) Did the
federal court have original jurisdiction? NO. Both P and D
were citizens of Delaware and there must be perfect
diversity for diversity jurisdiction. Then Texaco sued
Penzoil in federal court in NY because there was federal
question jurisdiction, thus no need for diversity
jurisdiction.
VENUE
1. Venue refers to the proper place for trial of a lawsuit, to be
chosen from among several courts in which jurisdiction could
be established. Thus, there is no concept of venue as applied
to appellate courts, only a concept of jurisdiction. In state
courts, the question is usually which county in the state is
the proper place for trial. In federal practice, the issue is
the proper federal judicial district for trial.
2. Purpose of requirement: to prevent P from forcing D to trial
where it would be burdensome for him to appear and defend. The
rules thus express a policy of convenience in the
administration of justice.
3. Venue distinguished from jurisdiction: While the standards for
jurisdiction are based in large part on Consitution, venue
requirements are controlled by state statutes and state
constitutions. Subject matter juris. and venue are often
confused. SMJ is the power of the court to adjudicate the
matter before it. Venue relates to the proper district in
which to bring the action. Thus, SMJ is a question of power or
authority; venue is a question of convenience. A court can
have SMJ or PJ without having venue.
4. Waiver. Defendant's failure to object to improper venue at the
earliest possible moment is held to waive the defect. See FRCP
12(b)(3).
5. Key Points on Venue:
a. A matter of careful statutory application.
b. Like personal jurisdiction, it's quite waivable.
c. Devices for easing effects of venue:
1. Transfer. 28 USC §1404a (p. 417). Transfer to any other
district court where it might have been brought. Do the
same analysis in the candidate court (i.e. touch all
three bases)
•
2. Dismissal for forum non conveniens. Common law analog.
Where a case cannot be transferred because there is no
district court to transfer it to. Example: international
disputes. Anticipation that action will then be brought
in the foreign country.
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ADHERENCE TO STATE LAW IN FEDERAL COURTS
"The Erie Problem"
The Erie problem is a problem of vertical conflict of law. Given
overlapping jurisdiction, does state or federal law apply?
Erie RR v. Tompkins (1938) - Tompkins, a citizen of PA, was
injured when a train of the Erie RR, a citizen of NY, went by.
Under PA common law, Tompkins was a trespasser and could only
have recovered if the train's conduct was wanton and willful.
Under federal judge-made law, he could have recovered if the
train was merely negligent. Both district and appellate courts
found for Tompkins because of Swift v. Tyson, which held that
federal courts had to follow written state laws (statutes) but
not state common law. Under Swift federal judges could rule as
they saw fit, even if there decisions were contrary to state
common law. Erie overruled Swift. Two issues in Erie:
1. Statutory Issue: Interpretation of Federal JudiciarLAct of
1789, which says "The laws of the several states, except where
the Constitution, treaties, or statutes of the United States
otherwise require or provide, shall be regarded as rules of
decision in trials at common law, in federal courts." What did
the statute mean by "laws"? HELD: written or unwritten, any
exercise of state authority.
2. Constitutional Issue: Was Swift's interpretation of this word
"laws" as meaning only statutory law constitutional? Can
judges operate outside stated powers of the Constitution?
HELD: No. Judges had been making law outside the delegation of
the federal government. Now federal courts must limit their
lawmaking powers to those specified by the Const. (see Art.
III). Very radical holding since this implied that all those
previous decisions in fed. court were unconstitutional.
RULE of Erie: Except in matters governed by the Federal
Constitution or by Acts of Congress, the law to be applied in any
case is the law of the state.
There is no general federal common law. But there is federal
common law. In an area devoid of federal legislation, but in area
delegated to fed. govt. (ex.: regulating interstate commerce),
the federal courts can make common law. In areas outside those
delegated to fed. govt., there is no federal common law. There is
authority for judges to make rules of law within areas delegated
to fed. govt. Primary area: interstate commerce.
•
Guaranty Trust Co. v. York (1945) - Case in NY District Court
because of diversity jurisdiction. Action by noteholders who sue
trustee for breach of trust in that it failed to protect
interests of noteholders. Summary Judgment was given for Guaranty
Trust because a NY law barred action due to state statute of
limitations. Court of appeals reversed, holding that the suit was
brought in equity in fed. court and that therefore the court was
not required to apply state law. Supreme Court under Justice
Frankfurter reversed, holding that state law held in equity cases
•
•
as well. Walker asked four questions about this case:
1. Does the outcome of this case square with the Erie decision?
Yes. Claim here is about duties of trustees, which are
provided for in state statutes. No question here that state
law would apply if the issue were about this claim since
duties of trustees hasn't been delegated to federal govt.
However, the issue is procedure, i.e. the state statute of
limitations. Two ways of dealing with this:
a. Apply state procedural law. The statute of limitations is
an element of the case. In A,B,C it's a D that the
defendant can play. This makes it look substantive,
especially if the statute of limitations was in the statute
giving them the claim. This is the view taken by the
Supreme Court.
b. Apply federal procedural law. Even though the fed. govt.
has no power to determining claim about trustees, it does
have power to make procedure in federal courts. Art. III of
Constitution sets up federal courts and gives congress
power to write rules. Rules Enabling Act passed by Congress
to make procedural rules. Supreme Court did not use this
argument in Guaranty.
2. Does the rule of Guaranty square with the Erie decision? No.
The rule of Guaranty is known as the "outcome determination"
rule: "the outcome of the litigation in federal court should
be substantially the same, so far as legal rules determine the
outcome of a litigation, as it would be if tried in a state
court." The federal court should be in effect just another
court of the state. While Guaranty tried to do away with the
distinction between state and federal courts, Erie upheld the
distinction, pointing out that federal courts have very
specific delegated powers and state courts have all others.
Walker stresses that the entire reason we have diversity
jurisdiction is to give people a choice. The implication of
having diversity jurisidiction is that case might come out
differently in state court than in federal court because of
local bias, and we're trying to avoid this. This is why we
have two systems on the same turf.
3 What does Guaranty portend for diversity jurisdiction? It
means we don't need diversity jurisdiction anymore. In fact,
Justice Frankfurter was an opponent of div. juris. and wanted
to do away with it.
4. What does Guaranty portend for the FRCP? It threatens them.
Called into question whether there would be a place in FRCP
for diversity jurisdiction. If outcome was to be same in state
and federal courts, then state rules of procedure would have
to be followed. This was seen as potential disaster, because
FRCP were drafted to avoid the very problem of having federal
courts vary in their procedure by applying that of the state
in which they happened to be located.
Byrd v. Blue Ridge Rural Electric (1958) - Held that in federal
court, a worker has a right to trial by jury on the issue of a
local workman's compensation statute in spite of state practice
of trying this issue only in front of a judge. Under federal law
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this would be tried by jury. "Were outcome the only
consideration, a strong case might appear for saying that the
federal court should follow the state practice." Thus this case
narrowed Guaranty in reducing outcome to a factor, but not the
factor. Outcome is not the only factor here. "The federal system
is an independent system of administering justice to litigants
who properly invoke its jurisdiction. The policy of uniform
enforcement of state created rights and obligations cannot in
every case exact compliance with a state rule--not bound up with
rights and obligations--which disrupts the federal system of
allocating functions between judge and jury. A balancing test:
take state and federal interests into account and decide which
rule to follow.
Hanna v. Plumer (1965) - This case protected the FRCP. The
service of process was insufficient under state law and would
have immediately ended the litigation. Under fed. rules, suit
would have gone forward (i.e. service was sufficient under FRCP
4). Rules Enabling Act gave federal courts authority to make
rules of procedure for federal courts so under Erie, it's OK to
follow federal rules of procedure. RULE: In federal courts,
follow state substantive law, and federal procedural law.
•
Walker v. Armco Steel (1980) - P files action five days before
running out of state statute of limitations. Service of process
was not made until 3 months later. The P claims that Hanna
overruled Ragan, which held that state laws regarding when an
action can be filed must be followed in federal courts. In
Walker, the court refused to overrule Ragan because it had been
on the books so long (stare decisis), and Ragan is still good
law. This seeming exception to Hanna is probably OK because a
statute of limitations has both procedural and substantive
qualities, as we saw in Guaranty. Thus the Walker court says that
the manner of commencing an action for purposes of statute of
limitations is substantive and hence controlled by state law, in
spite of FRCP 3.
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RES JUDICATA
The key to knowing that you have a problem in this area is a
reference to two lawsuits. Then you must determine which way to
go on the "tree":
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1. Claim Preclusion (Bar/Merger) - SAME CAUSE OF ACTION.
a. When the plaintiff wins in the first action, his claim is
merged into his judgment. He cannot later sue the same
defendant on the same cause of action for higher damages. A
new claim to enforce the judgment is created.
b. When the plaintiff loses in the first action, his claim is
extinguished, and he is barred from suing again on that
cause of action.
c. Everything adjudicated in the first case and everything
that might have been adjudicated in the first case is
merged or barred in the second case.
d. Ex: P sues D for $1000 damages resulting from an auto
accident. Verdict for P grants him only $500. His claim is
merged and he cannot initiate a new suit for the other
$500. On the other hand, if the D won, P is barred from
making the same claim against D in a second suit. Suppose P
sues D and wins full $1000, but finds that D has no
property within the state upon which execution can be
levied. His remedy is to bring an action on the judgment in
the courts of whatever state he can find where D does have
property. This action will be governed by the rules of Full
Faith and Credit. Unless D defaulted in the first action
and the first court had no jurisdiction over him, the court
of the second state must duplicated the judgment of the
first court. The two judgments do not merge, and P can levy
or sue in yet a third state on either of them.
e. Before any judgment can have claim preclusion effect, it
must be final, on the merits, and valid.
1. Was the judgment final?
2. Was it on the merits--did the court rule on the merits
of the claim, dismiss with prejudice, or enter default
judgment?
3. Was it valid--was it rendered by a court of competent
jurisdiction exercised by constitutionally adequate
notice?
f. "Same claim or cause of action." According to Restatement
of Judgments (sec. 24), these terms refer to factually
related claims: "This is to be determined pragmatically,
giving weight to such considerations as whether the facts
are related in time, space, origin, or motivation, whether
they form a convenient trial unit, and whether their
treatment as a unit conforms to the parties' expectations
or business understanding or usage."
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2. Issue Preclusion (Collateral Estoppel) - DIFFERENT CAUSE OF
ACTION
a. The issue preclusion effect of a prior judgment applies
only to issues actually litigated in the former action (NOT
to those which merely could have been litigated) that were
essential to the court's determination of the prior
judgment. Other matters involved in the earlier lawsuit,
even though "actually litigated," are not binding in a
later action.
b. Example: P sues D over personal injuries sustained in auto
accident. Court finds that P was contributorily negligent
and that D was negligent. The finding that D was negligent
was not necessary (immaterial because P's claim is barred
by his own contributory negligence). Consequently, when D
It*
later sues P for his injuries in the same accident, the
finding in the earlier action that D was negligent is not
binding against D. Thus, an issue is essential to the
court's determination in the former action only if it
appears that the judgment could not have been reached
without determining the issue.
CLAIM PRECLUSION
McConnell v. Travelers
Suit 1 - Louisiana STATE COURT
Wife sues for her personal injuries.
Husband sues for wife's medical expenses, since claim for either
spouse's medical expenses is owned by community, and only husband
can sue on claims belonging to community.
Suit 2 - FEDERAL COURT
Husband sues for his own personal injuries.
Husband sues for his own medical expenses.
•
The first suit is ready for trial in May 1963 but there is no
judgment. In the second suit the D moves for summary judgment
because P has split his claim of action by filing suit for
medical expenses in state court. However, splitting claim of
action rule applies only to judgments, so it is too early for
summary judgment; there has been no judgment in first suit. (Just
because P sues in two courts at once doesn't preclude him in one-only a judgment in one precludes him in the other.) At this
point P moves to dismiss his claim in state court with prejudice,
making it a final judgment. Now the D can get summary judgment.
sttoGad.
Rule: You Twat bring all of your own claims arising out of the
same incident in one lawsuit. Don't try two issues in two courts.
If you lose in one, you're precluded in the other. Claim
preclusion will foreclose you from what you ask for and what you
might have asked for. Here McConnell's $342 claim in state court
precluded his $85,000 claim in federal court--really stupid.
McConnell should have sued for everything in one of the courts
(state or federal) or in both courts at the same time. The latter
idea would have been expensive and subject to equity challenges.
ISSUE PRECLUSION (Collateral Estoppel)
Allen v. McCurry
Suit 1 - Criminal Suit
State v. McCurry. McCurry prosecuted and charged. Judge held that
evidence in plain view was admissible and didn't violate 4th
amendment (illegal search and seizure).
Suit 2 - Civil Suit
McCurry v. Allen et al. Suit under 42 USC 1983 (Civil Rights
suit). Allen et al. moved for summary judgment because issue of
violation of his fourth amendment rights had already been
decided.
Problem: Under Restatement sec. 24, this appears to be the same
cause of action. The facts are the same. However, this claim for
denial of civil rights is not one that might have been brought in
the first suit. The D in a criminal case cannot counterclaim for
damages. The court in the first case lacked subject matter
jurisdiction to provide the relief sought in the second case, so
this is a different cause of action. *Usually where the prior
action is a criminal claim, there is no bar/merger in the second
case because other claim couldn't have been brought in criminal
court.
Federal Law Issue here: Did sec. 1983 mandate exceptions to res
judicata and collateral estoppel concepts? No. Court didn't buy
argument that since sec. 1983 designed to protect D from
unconstitutional state activities, it gave him a right to try
these in federal court. Congress could have said sec. 1983 claims
must be brought in federal court, but it didn't.
MUTUALITY
The mutuality rule prevented a nonparty from having the benefit
of issue preclusion in his favor. The theory was that an estoppel
should apply only if it was mutual--i.e. since the nonparty would
not have been bound by the issue had it been decided the other
way (since he had not had his day in court), he should not be
able to invoke an estoppel in his favor based on the earlier
judgment. Most courts no longer recognize the general principle
of mutuality, i.e. that only parties to the first action could
benefit from findings of fact made against his adversary.
•
Two subcategories of collateral estoppel:
1. Defensive - P loses case 1; he can't bring suit against D2 on
same issue. This D2 will invoke defensive collateral estoppel.
Gives P incentive to join co-defendants and judicial economy
results. Ex: P claims to have been injured by the concurrent
acts of B and C. In an action by P against B, it is found that
P suffered no actual injury. If P later sues C for the same
loss, C can invoke issue preclusion defensively.
a. Bernhard v. Bank of America (1942) - Mrs. Bernhard sued the
executor of an estate to which she was a beneficiary,
claiming that he had wrongfully taken money from the
deceased's bank account and place it in his own. It was
held that the executor had been the legitimate recipient of
a gift from the deceased. Mrs. Bernhard then tried to sue
the bank for allowing this withdrawal. The bank succeeded
in collaterally estopping her from relitigating the issue
of whether the withdrawal was legitimate. HELD: There is no
satisfactory rationale for the requirement of mutuality.
RULE: Loser in suit 1 cannot sue D2 on same issue. Another
10410 example: Driver A and passenger B are injured when A's car
is hit by D's car. A sues D, contending D was negligent,
and wins. If B sues D, D is bound by the first action and
cannot relitigate whether he was negligent.
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2. Offensive - Ex: P1 and P2, passengers in a bus, are hurt when
the bus collides with a train. P1 wins in his suit with the
railroad. P2 can now use the earlier judgment as conclusive
against the railroad in a suit by P2. The Supreme Court has
ruled that at least in some federal cases, offensive nonmutual collateral estoppel is permissible:
a. Parklane Hosiery v. Shore. Suit 1 = SEC v. Parklane. SEC
won on the issue of whether statement was false. Then
Shore, in a stockholders class action suit, sued Parklane
on same issue, saying that it could not relitigate the
falsity of the proxy statement. HELD: The court permitted
use of offensive collateral estoppel (use by plaintiff). It
conceded two problems with offensive collateral estoppel:
1. Plaintiff can adopt a wait-and-see attitude in hopes
that the first action will result in a favorable
judgment. This means an increase in litigation and the
result is bad in terms of ECONOMY/EFFICIENCY.
2. FAIRNESS. This is unfair to defendant. If he is sued for
small amount in first case, he may not defend
vigorously, particularly if future suits are
unforeseeable. (e.g. the first action might have been in
a forum inconvenient for the defendant, preventing him
from making full-scale discovery or calling witnesses).
The D may be surprised when a victim comes along and
sues for $100,000 in whiplash damages.
The Court concluded that these difficulties should not be
resolved by a ban on all non-mutual offensive use of
collateral estoppel, but rather by a case-by-case analysis
of the wisdom of allowing such use. In this case, offensive
use was reasonable; there was no evidence that P had an
incentive to sit out the first litigation (he probably
couldn't have joined the SEC suit even if he had wanted
to). Also, D had every incentive to litigate the SEC case
vigorously (particularly since it knew about P's case,
which had already been filed.)
•
Walker's Hypo: Using collateral estoppel to deny due process.
Suppose in Allen v. McCurry, Allen had convinced judge that there
was an illegal search. Thus the case was terminated because no
evidence. Then Allen sues policeman and moves for summary
judgment because issue of illegal search and seizure had already
been decided. Appears to be like Parklane case but isn't. Here
the policeman is not bound because he has had no opportunity to
defend himself; he's being denied due process, i.e. notice and
opportunity for a hearing. Parklane had defended itself in the
first case when Shore brought a suit against it in the second
case. This is consistent with the notion that everybody gets his
day in court, but only one day.
•
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