Civil Procedure Outline
Prof. A. Wax
Page 1
VF – Fall 2003
JURISDICTION ........................................................................................................................................................ 3
a. Jurisdiction ............................................................................................................................................ 3
b. Federal Courts Jurisdiction ................................................................................................................ 3
c. Supreme Court Jurisdiction ................................................................................................................ 3
SUBJECT MATTER JURISDICTION .................................................................................................................... 3
DIVERSITY JURISDICTION ................................................................................................................................. 4
FEDERAL QUESTION JURISDICTION .................................................................................................................... 6
IMPLIED REMEDY DOCTRINE ........................................................................................................................ 8
SUPPLEMENTAL JURISDICTION – Joinder of Claims vs. Parties................................................................... 10
Joinder of Claims ....................................................................................................................................... 10
Joinder of Parties ....................................................................................................................................... 10
Pre §1367 Case Law: .................................................................................................................................. 13
Supplemental Jurisdiction under 28 U.S.C. § 1367 .............................................................................. 15
REMOVAL JURISDICTION .................................................................................................................................... 19
PERSONAL JURISDICTION................................................................................................................................... 22
TRADITIONAL BASIS FOR PERSONAL JURISDICTION................................................................................... 22
MODERN PERSONAL JURISDICTION AND LONG-ARM STATUTES .............................................................. 24
SPECIFIC JURISDICTION ................................................................................................................................. 29
GENERAL JURISDICTION................................................................................................................................. 30
OTHER BASES FOR JURISDICTION..................................................................................................................... 31
Power over Property .................................................................................................................................. 31
Rules for Challenging In Personam Jurisdiction.................................................................................... 34
JURISDICTIONAL REACH OF FEDERAL COURTS – SERVICE MECHANICS....................................................... 36
NOTICE & OPPORTUNITY TO BE HEARD .......................................................................................................... 39
NOTICE ......................................................................................................................................................... 39
OPPORTUNITY TO BE HEARD .................................................................................................................... 40
VENUE ................................................................................................................................................................... 44
GENERAL PRINCIPLE AND STATUTES ........................................................................................................... 44
FORUM NON CONVENIENS ............................................................................................................................. 47
ASCERTAINING GOVERNING LAW ..................................................................................................................... 49
THE ERIE DOCTRINE ....................................................................................................................................... 49
EVOLUTION OF THE ERIE DOCTRINE ............................................................................................................ 51
Taxonomy: ................................................................................................................................................... 54
Analyzing Erie Problems (Steps) .............................................................................................................. 55
THE “NEW” FEDERAL COMMON LAW ............................................................................................................... 55
PLEADING ............................................................................................................................................................. 57
MODERN APPROACH TO THE COMPLAINT; DISMISSAL ON THE PLEADINGS ........................................... 57
ANSWER, REPLY, AND AMENDMENTS ........................................................................................................... 59
BURDENS OF PRODUCTION, PERSUASION, AND PLEADING .......................................................................... 64
Burden of Production ................................................................................................................................ 64
Burden of Persuasion ................................................................................................................................. 64
Burden of Pleading..................................................................................................................................... 64
TESTING THE SUBSTANTIALITY OF CLAIMS ..................................................................................................... 65
Summary Judgment, Directed Verdict, JML, JNOV ................................................................................. 65
DISCOVERY AND PRE-TRIAL MANAGEMENT ..................................................................................................... 70
SCOPE OF DISCOVERY RULES ........................................................................................................................ 70
RULE 26 REQUIRED DISCLOSURE .............................................................................................................. 71
DISCOVERY MECHANISMS ........................................................................................................................... 72
PRIVILEGES .......................................................................................................................................................... 73
Privileges Generally (Rule 26(b)(5)) ...................................................................................................... 73
Civil Procedure Outline
Prof. A. Wax
Page 2
VF – Fall 2003
Work Product Rule ..................................................................................................................................... 74
EXPERTS ....................................................................................................................................................... 76
RULE 45 – SUBPEONA ......................................................................................................................................... 77
PRIOR ADJUDICATION ........................................................................................................................................ 79
STARE DECISIS ............................................................................................................................................. 79
CLAIM PRECLUSION (RES JUDICATA) ....................................................................................................... 79
ISSUE PRECLUSION (COLLATERAL ESTOPPEL) ........................................................................................ 82
Offensive and Defensive Use of Non-Mutual Collateral Estoppel ...................................................... 85
JURY ..................................................................................................................................................................... 86
INSTRUCTIONS AND VERDICT ........................................................................................................................ 86
Grounds for granting a new trial under Rule 59 based on procedural error:.................................. 86
JURY DELIBERATIONS ................................................................................................................................. 87
APPEALS ............................................................................................................................................................... 88
STANDARDS OF REVIEW ............................................................................................................................. 88
INTERLOCUTORY APPEALS ........................................................................................................................ 88
SUPREME COURT PRACTICE ...................................................................................................................... 88
COURT SYSTEM............................................................................................................................................ 89
Civil Procedure Outline
Prof. A. Wax
Page 3
VF – Fall 2003
JURISDICTION
a. Jurisdiction—The power of a court to adjudicate a case (hear, decide, issue an order, force parties to obey an
order).
b. Federal Courts Jurisdiction—
i. Courts of limited jurisdiction.
ii. Jurisdictional Power given in Article III
 Dormant power given to Congress—must be taken up and exercised
 legislative grant is necessary to convey that power to the courts.
 Appellate courts came into existence in 1891
iii. Jurisdiction limited to:
 Federal questions (§ 1331)
 Diversity cases—complete diversity requirement & $ minimum (§ 1332)
 Citizenship for diversity purposes is established by:
 Person who establishes a domicile in that state
 A person is domiciled in a stated where:
 They can be found and
 They intend to remain indefinite.
 Admiralty cases (§ 1333)
 Bankruptcy (§ 1334)
 Commerce & Antitrust (§1337)
 US as Π (§1345)
 Patents & Copyrights (§ 1338)
c. Supreme Court Jurisdiction (28 U.S.C. § 1251)
i. Original and exclusive jurisdiction:
 Over all controversies between two or more states.
ii. Original but not exclusive jurisdiction:
 Ambassadors or other ministers of foreign states.
 Controversies between U.S. and a State.
 Proceedings by a state against citizens of another state or aliens.
iii. Writs of certiorari (discretionary jurisdiction).
SUBJECT MATTER JURISDICTION
1. SMJ: The extent to which a court can rule on the conduct of persons or the status of things; over the nature of the
case and type of relief sought.
 Primary Responsibility of the parties to establish SMJ—court is passive observer
 Established by 3 players:
o Plaintiff establishes SMJ in the complaint under Rule 8(a)1
o Defendant can question SMJ under Rule 12(B)1
o Court can dismiss case if they realize there is no SMJ under Rule 12(h)3
 (§1653)—Defective allegations of jurisdiction can be amended at any time (while case is
still in progress—before final judgment and where SMJ is present but not stated) If there is
no SMJ, then it doesn’t apply
2. SMJ goes to the heart of the power and authority of the court; to the legitimacy of the courts judgment.
Judgments without SMJ go beyond court’s power and are void—have no force and effect.
a. Founders were wary of centralizing power, so federal courts are courts of limited jurisdiction.
b. Cannot be waived by parties - SMJ is present or not.
c. Rule 12(h)(3) - Lack of SMJ can be noted at any time during a proceeding (by suggestion of parties or noticed
by the court sua sponte).
3. Collateral Estoppel and SMJ:
 If judgment become s final, then even if there was no SMJ, it won’t affect the judgment. Case will not be
re-opened. SMJ can only be fixed if its noticed while case is still in process.
 Des Moines v Iowa—didn’t allow collateral attack for lack of SMJ because case had already run through
appeal to SCOTUS and judgment had been final.
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Prof. A. Wax
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VF – Fall 2003
Capron v. VanNoorden US 1804
∆ won in district ct. π appealed citing lack of SMJ (no diversity). SCOTUS dismisses case for lack of SMJ. Burden of
establishing SMJ is on the π (Rule 8a – complaint must include a statement of the grounds of jurisdiction). Court
dismissed because it went against our system to have a judgment by court without SMJ—goes to the heart of the
court’s power.
Marbury v. Madison US 1803 (Bad Law according to Wax)
Federal law (Judiciary Act of 1789) gave Supreme Ct. original jurisdiction over mandamus actions (under §1361, district
cts. now have original jurisdiction). Ct rules that the statutory grant of authority exceed the Ct’s constitutional power
of jurisdiction.
Marbury’s argument:
Article III, § 2 does not include writs of mandamus in list of cases of original jurisdiction. Congress
must supply original jurisdiction to SCOTUS – not enough for Article III to allow it. §1251 which
supplies jurisdiction to SCOTUS doesn’t allow mandamus.
 Marshall read Art. III § 2 paragraph 2 as “expresio unius est exclusivo alterius”– to express
one thing is to exclude all others – negative pregnant argument (only things on the list
have original jurisdiction) → by reading in negative pregnant the two part structure is not
superfluous
 “These matters in this court and no other matters” –Negative Pregnant
 “These matters in this court and no other court” --§1251 interpretation of Article III
 Arguments against negative pregnant—
 Items in the list formed a Mandatory Minimum
 Grants permission for these case to have original jurisdiction—argument adopted by
Congress
o Congress doesn’t read in negative pregnant—gives federal court concurrent
jurisdiction over these items.
o §1251—validity of statute goes against Madison’s reasoning. Statute breaks
jurisdiction into original and concurrent.
Rule—Establishes the principle of judicial review – acts of Congress can be decided unconstitutional
by Court.
DIVERSITY JURISDICTION
1. Article III, Section 2: Gives federal courts jurisdiction over “controversies between the citizens of different
states.”
a. 28 U.S.C. § 1332 (Diversity Jurisdiction)--the statutory grant of this authority.
b. Article III diversity is broader. Congress failed to use all its power to send diversity cases to federal ct
→ dormant power.
c. Statutory grant does not reach full limits of Article III:
i. Amount in Controversy requirement: Greater than $75,000.
 Doctrine of aggregation  may add up amts. from different claims as b/t same parties
to meet the amt. in controversy requirement. But you can’t add together the amounts of
claims asserted by different parties
ii. Complete Diversity Rule: No diversity jurisdiction if any plaintiff is a citizen of the same state as
any defendant. Must be complete diversity between parties on both sides of the v. (Judicially
constructed rule: Strawbridge v. Curtis, SCOTUS).
iii. Diversity must be established at the time the complaint is filed, but subsequent changes in
diversity don’t destroy the courts diversity jurisdiction.
Civil Procedure Outline
Prof. A. Wax
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VF – Fall 2003
2. Citizenship is determined by Domicile (matter of federal law – unique federal meaning):
a. A person is domiciled where he is found and where he intends to remain (domiciled where you are last
b.
domiciled).
 Hard to show where you intend to remain indefinitely
 Need both for it to be your domicile
 Default Rule—If there is no place that credibly satisfies both criteria then the prior place that satisfies
both of these requirements is your domicile. I.e. no place where you are both found and intend to
remain—then you return to the last place that satisfied that criteria
 Residence is not sufficient to establish domicile
Corporations:
i. Citizen of a state where it is incorporated, and;
ii. Citizen of a state where it has its principle place of business (just one place - “nerve center” or “muscles”
tests).
Citizenship of a Corporation: Domicile is irrelevant with corporations. Corporations citizenship is defined by
statute: §1332(c)(1)  a corp is a citizen of all states where it is incorporated. Most corporations only
incorporate in 1 state. You are also the citizen of the 1 state where the corporation has its principle place of
business. A corporation CAN be a citizen of more than 1 state. DEFINITE EXAM QUESTION.
To figure out a corporation’s principle place of business:
 Look at corporation’s nerve center  where decisions are made (headquarters).
 Look to corporation’s muscle center  where corporation does more “stuff” than anywhere else.
Manufacturing.
 Most court’s look to the total activities of the corporation  we will use the nerve center as the
principle place of business, unless all the activities are in a single state. If there are 5 plants in
different states, then we will look to nerve center, but if all plants are in one state, that is where we
will look.
 You must analyze on exam, talk about nerve, muscle, total activities.
 EXAM HYPO- D is incorporated in Delaware, factory in PA, headquarters in NY, other plants in 6 other
states. We know its Delaware citizenship and also analyze 3 factors to figure out principal place of
business.
c. A resident alien is deemed a citizen of state where he is domiciled.
d. Diversity is determined at the time complaint is filed and is not affected by subsequent changes in the
domicile of the parties.
e. St. Paul Mercury Indemnity v Red Cab—Π’s good faith claim for more than the amount required controls,
unless it appears to a legal certainty that the claim is really for less (Π gets benefit of the doubt)—where there
is debate std is met.
 Π can’t amend complaint to ask for less than the amount in controversy requirement in an attempt to
destroy jurisdiction.
Mas v. Perry (5th Cir., 1974)
a. Defendant appeals on ground of lack of diversity jurisdiction.
b. Plaintiff was a citizen of France, and under common law, his wife would take his residency. Husband is
a citizen of France, but is not domiciled in France cause he is a student—but for federal court he is an
alien. If wife takes his domicile she would be an alien (French citizen), but citizenship doesn’t equal
domicile—she wouldn’t be domiciled in France—not domiciled in any state which means she can’t sue
in federal court. (outside of the reach of § 1332).
c. Court suspends common law rule: When husband is an alien, the common rule no longer applies.
d. General Rule is that you can’t add up amounts for separate parties
e. Exception for husband and wife—people with common interests
f. Court made the exception because it goes against the spirit of the rule to follow it in this case.
Justification of the rule was to allow husband and wife with commonality in interest to sue
together but here following the “letter” of the rule achieves the exact opposite. (Rule to achieve X
is being used to defeat X)
Civil Procedure Outline
Prof. A. Wax
Page 6
VF – Fall 2003
FEDERAL QUESTION JURISDICTION
1. Article III, Section 2: Gives federal courts jurisdiction over cases “arising under this Constitution, the Laws of the
United States, and Treaties…”
a. 28 U.S.C. § 1331 is the statutory grant of this authority.
b. Question as to what constitutes “arising under” (see below).
c. Statutory grant came in 1875, for these reasons:
i. To encourage uniformity of interpretation of federal law.
ii. Federal judges are seen as more qualified/greater expertise.
iii. Provide for vindication of federal rights unpopular in some states.
2. Scope of Constitutional “arising under” power – is greater than the Scope of statutory authority. Constitution
allows for more than the statutes have taken up
3. 2 questions:


Does it come within the constitutional “arising under” power
If yes, does it also come within some statutory grant of “arising under”
4. 3 tests for determining if there is federal question jurisdiction, if case doesn’t fall into one of these three than
there is no jurisdiction:
a. Creation/Cause of Action Theory (Justice Holmes)
i. Case “arises under” federal law only if federal law creates cause of action.
ii. Very limited view of “arising under” power.
iii. Established in American Well Works
iv. When looking at “arising under,” ask yourself what the proper contours of the claim are? Is the complaint
anticipating a defense and using it to base the federal question jurisdiction? Motley
b. Ingredient /”But For” Test (Justice Marshall)
i. A case “arises under” federal law if “but for” the federal law, there would not be jurisdiction (federal law
ii.
iii.
iv.
must convey Constitutional power) - more expansive than Holmes - too expansive.
If federal law was necessary to create some key ingredient of the case → i.e. party of case.
Ingredient power needs to be exercised by Congress with specific language (i.e. sue and be sued)
Osborn v. Bank of the U.S. (SCOTUS, 1824)
 Congress expressly gave power to the Bank to “sue and be sued” in its charter.
 Federal law is an ingredient in the claim, making the suit against the bank possible (“but for” federal
law, bank would not exist—federal law created the bank).
c. Meaning and Application Theory
i. A case “arises under” federal law or the Constitution if a federal law or the Constitution must be
ii.
iii.
interpreted or applied by the court in the course of resolving a case. A question of federal law must be
resolved to decide who should win, but it is not the grounds for relief. Merrell Dow (Smith, Moore)
Flows from the need for expertise/uniformity in interpreting federal law.
Harms v. Eliscu (2nd Cir., 1964) Judge Friendly
 Court rules that there is no “arising under” jurisdiction.
 This is a case that deals with copyright law, but is in reality a contracts case (state law). Parties are
not arguing over copyright infringement, they are arguing over contract rights under the copyright.
 Judge said that in resolving the case court doesn’t even need to look at the copyright statute
(§1338), need not consider federal law.
 Same line of reasoning as under Osborne (creation of the thing in question was by federal law) so
there would be constitutional power to send this case to federal court. Copyright would not exist
without federal law.
 But Friendly says that although Constitution grants the power, Congress has not exercised it. Won’t
interpret §1331 broadly enough to allow federal question jurisdiction when federal law is an
ingredient but not part of the cause of action.
 Relies on Western Land grant cases to show that §1338 doesn’t encompass the
ingredient/but for test of Osborne.
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Prof. A. Wax
Page 7
VF – Fall 2003



Federal law created the land grants (federal law created the copyright) but court
decided that land grant cases could not go to federal court cause they were based on
state law.
Ingredient Test has been rejected as an appropriate interpretation of “arising under” jurisdiction (too
expansive).
§ 1338 – specialized federal grants  language doesn’t go to Article II “arising under” grant. If it did,
it would stay in federal court and satisfy Osborne test.
d. Smith v. Kansas City Title (SCOTUS, 1921)
i. Example of a state law claim that meets “arising under” federal law requirement because it requires the
determination of the meaning of federal law.
ii. Shareholders sued to enjoin corporation from investing in federal bonds on ground that act of Congress
iii.
v.
vi.
issuing the bonds was unconstitutional.
Cause of action was state-created (securities law).
iv. Under state law it was unlawful to invest $ in certain types of securities
However, a determination of federal law was necessary to answer the state law questions (Meaning and
Application Test) – w/in scope of § 1331.
Such a federal claim must not be “merely colorable,” but must rest “upon a reasonable foundation.”
e. Moore v. Chesapeake & Ohio Ry. Co. (SCOTUS, 1934)
i. Similar situation to Smith - Federal law issue must be resolved in determining the state law claim. Π is
ii.
iii.
suing for violation of Kentucky’s Employer Liability Act  and in order to sue and not have Δ assert
contributory negligence, Π must also prove that the Federal Safety Appliance Act was violated.
Here, however, the Court holds this is not a basis for jurisdiction.
Consensus is that Smith and Moore cannot be reconciled - the inconsistent rules have been superseded by
Merrell Dow.
f. Merrell Dow v. Thompson (SCOTUS, 1986)
i. Plaintiffs sue Merrell Dow in state court; Merrell Dow removes the case to federal court; plaintiffs object
on the ground no SMJ.
ii. Federal law did not create the cause of action—it was a simple tort case and Π’s were trying to prove
iii.
iv.
v.
negligence by showing that Δ violated Federal Food Drug and Cosmetics Act.
SCOTUS creates a new theory of Meaning and Application Test:
 Look to see if Congress created a private right of action (expressly or implicitly).
 If Π’s were not suing under state tort law, would they be able, if they wanted, to sue under the
FFDCA? Could someone have a possible independent cause of action directly under the act?
 Court says statute does not create a COA (an independent federal law claim)—meant to
regulate relationships between drug companies and the agency.
 Which means a party couldn’t sue under the Act (standing alone/independently) and therefore
the issue is not “substantial enough” to grant jurisdiction.
 Federal jurisdiction applies if there is an independent cause of action for the underlying federal
question or claim.
 According to Wax, independent cause of action test goes against the 3 rationales for conferring
federal question jurisdiction: (expertise, uniformity, federal rights) Merrell goes against the 3
reasons for having a case in federal court.
 If no independent cause of action on federal source of law, there is no basis for federal jurisdiction.
If federal question wasn’t necessarily decided as part of case, then it doesn’t meet the
meaning/application theory criteria. Necessarily decided test.
“A complaint alleging a violation of a federal statute as an element of a state cause of action, when
Congress has determined that there should be no private, federal cause of action for the violation, does
not state a claim ‘arising under…’”
Civil Procedure Outline
Prof. A. Wax
Page 8
COA Test
Ingredient/ “But
For” Test
Meaning &
Application
VF – Fall 2003
Constitution
Yes
Yes
yes
§1331 etc
Yes
No under
(Harms) but yes
if we are talking
about expressed
cases i.e. “sue
and be sued”
Sometimes
(Merrell)
3. “Well Pleaded Complaint” Rule
a. Federal question jurisdiction must exist from the cause of action itself, not from anticipated defenses.
b. An Anticipated defense based on a federal law issue can not be the basis for bringing the case into federal
court.
c. A complaint must be “well-pleaded,” that is it must state the cause of action and not try to plead defenses,
d.
leaving that for defendant.
Louisville & Nashville R. Co. v. Mottley (SCOTUS, 1908)
i. Court took notice of lack of jurisdiction sua sponte – doesn’t arise under.
ii. Cause of action here was breach of contract - state law.
iii. Plaintiff’s attempt to anticipate defense that federal law would preempt their claim - Court says cannot
do that.
iv. The federal claim must arise on the face of a well-pleaded complaint. The π doesn’t create a federal
question by anticipating, in the complaint, a federal defense.
v. However, Π is not barred from anticipating defenses in the complaint, but that can’t be the basis for SMJ.
IMPLIED REMEDY DOCTRINE
If you have no right of action (expressed or implied) then you can’t even go to federal or state court to sue—implied
right of action doesn’t deal with jurisdiction, it’s worried about whether you even have a right to sue at all.
1. Common Law - rights & causes of action were unified.
 Doctrine of common law arises out of principle that you have the right to sue for you injuries—right and
remedy are not separate
2. Statutory/Positive Law - Set of duties or commands (i.e. Congress passes law restricting freedom of speech)
a. Question: What happens when law is violated? Do you have right to sue? Where do you sue?
b. Implied right of action is quintessential to positive/statutory law
c. Sometimes law will expressly include a cause of action for enforcement.
d. Sometimes law will not include an enforcement mechanism.
i. In these cases, a cause of action may be implied.
ii. An implied cause of action (in absence of express cause of action) is necessary to establish federal question
jurisdiction under Merrell Dow.
e. If there is a positive command (right) and you are in court objecting to its violation, then the court by its very
nature has right to award you damages as a remedy don’t need specific authorization for that remedy Bell v.
Hood Congress just has to give you right to sue for it.
3. Merrell Dow
a. Court found no implied right of action.
b. This lack of an independent cause of action left no basis for jurisdiction.
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Prof. A. Wax
Page 9
VF – Fall 2003
4. Cort v. Ash (SCOTUS, 1975)
a. Creates Implied Right of Action Doctrine
b. Answers question of whether someone could go into court to sue?
c. Shareholder suit against corporation for violating federal law regulating campaign contributions – criminal
statute provided no express private right of action.
d. Court developed a four part test to determine if a private remedy is implicit in a statute not expressly
c.
d.
providing one: use when you get meaning/application problems
i. Is plaintiff one of the class for whose especial benefit the statute was enacted? (no – for the benefit of the
public as a whole)
ii. Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or deny
one? (expectation that relationship b/t corp. and stockholders would be entrusted to state)
iii. Is it consistent with the underlying purpose of the legislative scheme to imply such a right/remedy for
plaintiff? (anti-corruption statute - $$ remedy to private parties wouldn’t ensure that federal elections
were free from corruption  damage already done)
iv. Is the cause of action one traditionally relegated to state law, so that it would be inappropriate to infer a
cause of action based solely on federal law? (YES – corporate law is a state law area)
In this case, Court found no implied private cause of action. Intervening legislation by fed. election
commission created an enforcement mechanism for complaints relating to violations of election law by sending
them to a commission.
Schooner Peggy Doctrine (side note):
i. If between judgment and decision of appellate court, a law intervenes and positively changes the rule
which governs, the intervening law should be applied. Doctrine of retroactivity.
ii. The court must make decision in light of law as it stands when the court makes its decision.
5. Bivens v. Six Unknown Agents of FBI (SCOTUS, 1971)
a. Court creates an implied right of action from the Fourth Amendment of the Constitution – to be free from
unreasonable search and seizures.
b. Says that implied right of action is not limited to statutes—also extends to constitutional issues. If the
constitutional provision has an implied right of action then you have Federal Question Jurisdiction.
c. Bell v. Hood – don’t need an express remedy  Bivens - don’t need an express cause of action either.
d. Black dissents: Congress should create these causes of action; the Courts should not pull them out of nowhere.
6.
Congress specifically granted a statute for federal cause of action against state officials acting under color of
state law - §1983 – why didn’t they create one for federal officials?
Today, courts tend to look to plain meaning of statute to see if a right of action is created, hesitate to imply a
right of action.
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Prof. A. Wax
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VF – Fall 2003
SUPPLEMENTAL JURISDICTION – Joinder of Claims vs. Parties
1. Supplemental Jurisdiction: Jurisdiction over claims between existing parties or between existing parties and new
parties, where there is no independent basis for federal jurisdiction if brought separately. Riding the coattails of
a primary federal claim.
Joinder of Claims
a. Counterclaims and Cross Claims: Rule 13
i. Rule 13(a) - Compulsory Counterclaims:
ii.
iii.
iv.
v.
 Must arise out of same transaction & occurrence – same scope as res judicata.
 Failure to assert results is waiver of counterclaim
 Must be asserted at the pleading stage
Rule 13(b) – Permissive Counterclaims:
 Do not have to arise out of same transaction & occurrence
 Failure to assert does not result in waiver of counterclaim
Rule 13(e) – Counterclaim Maturing or Acquired after Pleading
 Claim not stated in the pleading can be raised later on with permission of the court by supplemental
pleading
Rule 13(f) - Omitted Counterclaims:
 When a counterclaim is omitted, the court may allow amendment
Rule 13(g) - Cross Claims:
 Permissive (no waiver if not asserted)
 Must arise out of same transaction & occurrence
b. Joinder of Claims: Rule 18
i. Liberal rule - allows joinder of all claims one party has against an opposing party. Permissive – may join as
ii.
iii.
iv.
many claims as you have/want not mandatory to join claims not arising out of same T&O, but Rule is
Mandatory – if they arise out of same transaction/occurrence (they’re related to each other)  you must
join them or you’ve waived them.
Works in conjunction with RJ  failure to join claims arising out of the same transaction/occurrence
means you’ve waived right to assert those claims later
In theory you can join as many claims as you have, but as a practical matter you may not be able to do so
because you may not have personal jurisdiction, which is claim specific, or you may not have SMJ over the
other claims.
Aggregation of amts. in controversy  only b/t same parties.
Joinder of Parties
a. Rule 14 - Third Party Practice (Impleader) – joint tortfeasors (rule applies with joint and several liability
cases.)
i. Not as strong as Rule 19 in terms of forcing 3rd party on a case - π can always object.
ii. Even though Δ may implead a 3rd party, Π is not required to assert a claim against the 3rd party  not
mandatory joinder like Rule 19.
iii. If there is a jurisdictional obstacle to bringing in Δs then it can’t be done (bringing them in can’t destroy
SMJ).
iv. Rule 14(a)
 Defendant may implead a third party who is liable to him for all or some of the plaintiff’s claim against
third party plaintiff.
 Third party defendant may assert counterclaims or cross claims; raise defenses against plaintiff’s
original claim; assert claims arising out of the same transaction & occurrence against plaintiff (see Rule
13).
v. Rule 14(b)
 When a counterclaim is asserted against plaintiff, he may implead a third party defendant under the
rules above.
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Prof. A. Wax
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b. Rule 19 - Compulsory Joinder of Parties –
i. “Parties needed for a just adjudication” – parties that must be in case for case to go forward.
ii. Principle mechanism for imposing parties on a Π that doesn’t want them there  Exception to a system
iii.
iv.
v.
that is Permissive!
2 categories: necessary parties and indispensable parties
Rule 19(a) - Requires “necessary” parties to be joined if it will not deprive the court of subject matter
jurisdiction.
Rule 19(b) - When joinder of a “necessary” party is not possible because of jurisdictional defects, then
19(b) provides for dismissal of the case if party is indispensable. If the party is not that necessary, the
lawsuit continues without them.
vi. 19(a) standard—“we really need the party here”
vii. 19(b) standard—“we really really need you here”
viii. Temple v. Synthes (SCOTUS, 1990)









Plaintiff injured by a plate in his spine; sues manufacturer defendant in federal court and sues doctor
in state court. (2 parallel proceedings arising out of the same T&O). Δ tries to get case thrown out by
joining docs under Rule 19.
Defendant moves to dismiss for failure to join necessary parties (the doctor) under Rule 19(b).
SCOTUS says the parties were joint tortfeasors (each was separately liable for the injury) and joint
tortfeasors don’t have to be parties in the same lawsuit (Court says Rule 14 applies to Joint
Tortfeasors)
Court does not allow dismissal as doctor is not a necessary party; joint tortfeasors are always
permissive parties.
No inquiry under Rule 19(b), because requirements under Rule 19(a) not satisfied  not necessary
parties under 19(a).
Reasons barring res judicata for this case include no final judgment and the parties are different—he’s
splitting his claim between two tribunals and different parties (that’s ok—no RJ).
Why would Π split his claims?
 With 2 separate proceedings its possible that Δ will be held fully liable in both proceedings setting
it up so Π can recover twice. In reality Π only recovers once, but once one Δ has paid full amount
then the Δs fight amongst themselves to split the claim and have the other Δ who hasn’t paid chip
in
 Question of who contributes what portion of the $ towards the overall award becomes someone
else’s problem (not Πs)
 When all tortfeasors are together jury will hear a lot of finger pointing—undermining credibility of
each story & making it harder for the Π to recover full amount. If you hear only one story its much
simpler to believe that story
 2 separate proceedings gives Π chance to recover twice. Better odds.
Why didn’t Δ join the doctors under Rule 14?
 He can bring them in, but Π doesn’t have to assert a claim against them.
Implications of Temple—
 Court shrinks Rule 19 Territory
 Because:
 Π is master of the complaint
 Therefore, rules will be interpreted so as to minimize instances in which we are able to force
parties on the Π they don’t want
 Rule 19 goes against our system
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c. Rule 20 - Permissive Joinder of Parties
i. Grants permission for federal lawsuits with multiple parties on either side of the v (multiples plaintiffs or
multiple defendants) – permission for parties to come together and sue.
ii. Rule 20 can be invoked at the beginning (everyone sues together from the start) or it can be invoked
during the trial to amend the complaint to allow another Π/Δ come in during trial judge will decide
when its too late to allow anymore parties to come in.
iii. More restrictive than Rule 18 (claims) because of the two requirements
iv. Two requirements for joinder of parties:
 Claim must arise out of same transaction & occurrence.
 Claim must have a common question of law or fact.
iii. A and B do not have to let C come in  subject to rule of intervention.
d. Rule 22 - Interpleader
i. See also 28 U.S.C. § 1335
ii. Nationwide service of process authorized.
iii. Only used in small subset of cases were there is a stakeholder problem (i.e. property, money in which
multiple parties have potential interests)
a. Rule 23 - Class Actions
One or more members of a class ma sue or be sued as representative parties on behalf of all only if:
23(A)
i. class is so numerous that joinder of all members is practicable
ii. questions of law or fact common to the class
iii. the claims or defenses of the representative parties are typical of the claims or defenses of the class
iv. the representative parties will fairly and adequately protect the interests of the class
v. Rule 23(f) allows for interlocutory appeals of denials to certify a class – Appeals Court has discretion on
whether to take the appeal or not
Rest of Rule 23 on page 63+ of the rule book
b. Rule 24 – Intervention – used by outsiders asking to join the lawsuit
i. Rule 24(a) - Intervention of Right

ii.
Mandatory - party has a right to be in this suit. Never mandatory on the outside party—they choose to
be there. But if they are let in, then it’s mandatory on the parties in the case already.
 Permissive - must get permission from a judge.
 Strict test for mandatory intervention:
 Person must have interest in the property/transaction at issue
 Interest must be or is in danger of impairment by disposition of the action
 And existing parties are unlikely to represent the outsider’s interests
 Or statute must confer a right to intervene.
Rule 24(b) - Permissive Intervention
 Must have a common question of law or fact
 Difficult to get - judge will consult the existing parties. Low threshold for denying permissive
intervention, especially if Π objects  wholly up to the court to allow party in or not!
Primary Claim—Claims that (if taken separately) have SMJ. If taken separately they could go to federal court on their
own
Secondary Claims (Supplemental Claims)—2 kinds—claims between the same parties and claims that involve new parties
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Pre §1367 Case Law:
a. UMWA v. Gibbs (SCOTUS, 1966)
i. Classic pendent claim case; Plaintiff brought a federal law claim (independent basis for federal
jurisdiction) and two state-law contract claims (no independent basis for federal jurisdiction).
ii. If two state-law claims were to get in, must have pendant claim jurisdiction.
iii. Federal law claim failed (judgment JNOV) – dropped out of case at very end.
iv. Court develops new test for pendant claim jurisdiction in Gibbs:



v.
vi.
Pendant claims




Claims for which there is no independent basis for jurisdiction must arise from the same “common
nucleus of operative fact.”
If claims arise from the same “nucleus” they satisfy the Constitutional requirement in Article of “case
or controversy”  test morphed into it being part of same transaction and occurrence. Court then
looks at whether §1331 allows this—no suggestion that it doesn’t.
All the claims you would be expected to bring together under RJ those claims we’ll consider to be
under he common nucleus of facts umbrella.
 Gibbs is expected (under RJ) to bring together all claims arising out of same T&O.
 But pendent jurisdiction says that claims can’t come in.
 Which means that you are forced to go to state court with your federal & state law claims or stay
in federal court but don’t use the state law claims.
 By staying in federal court once a judgment is rendered then you’ll loose your state claims
 So Gibbs can either forgo access to the federal courts or you go to state court and preserve the
state claims.
Goals of harmonizing RJ and Pendent Jurisdiction—
 Avoid piece-meal litigation
 Consolidation and efficiency values
 Don’t want to split up actions leads to the use of more judicial resources
Court still has discretion over whether case should come in:
 Consider factors such as: §1367(c)
 Judicial economy
 Convenience
 Fairness to litigants
 Comity (due respect accorded to state courts) Not trenching on state court rights to
interpret state law
 Have federal claims been dismissed or settled prior to trial so all that’s left is state issues?
 Do state issues predominate?
 Substantiality of the federal claim
 Will jury be confused
 How tightly related are the federal and state law claims
in diversity jurisdiction cases - Rules
A & B are of diverse citizenship, and primary claim meets the amount in controversy requirement.
Can additional claims that do not meet the amount in controversy requirement be allowed?
Yes, only between the same parties (related or unrelated claims).
Practice on the diversity side was more liberal then practice on the federal claim side.
Trend toward the narrow exercise of pendent party jurisdiction
Pendent party: Federal claim against ∆ X and a transactionally-related state claim against ∆ Y, but there is no
independent ground of subject matter jurisdiction (e.g., no diversity) to support the state claim against ∆ Y.
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Substantive Law
Rule
§1983 of the Civil
Rights Act
Presumption of PP
Jurisdiction
Kroger
Jurisdictional
Statute
§1343
(Jurisdiction over
Civil Rights claims)
§1332
Finley
§1346 (b)
§1346 (b)
Aldinger
State law
No jurisdiction unless
complete diversity
requirement is met
Presumption of PP
Jurisdiction
b. Aldinger v. Howard (SCOTUS, 1976)
i. Pendant party case; federal question jurisdiction.
ii. WA Plaintiff brought a federal question cause of action against state officers under § 1983, and attempted
to bring a related state law claim against another defendant – the county.
iii. Court would not allow jurisdiction over this pendant party.
iv. Court said that §1983 didn’t authorize suit against the county—COA against the county would be state
v.
vi.
law because federal law doesn’t allow suit under §1983. Pendent party jurisdiction not permitted under
Civil Rights Act, 42 USC §1983—only allows suits against officers—Congress didn’t extend it any further.
Court says its not a constitutional issue—if Congress wanted, the whole package could come into court.
Generally, assume pendant party jurisdiction unless Congress said otherwise (in this case it appeared
Congress implied otherwise).
Presumption in favor of pendent party jurisdiction  if claims related – unless Congress stated otherwise.
No jurisdiction is the result – but jurisdiction presumed is the rule.
 Unless Congress expressly excludes possibility of pendent party jurisdiction it is allowed
Divergent regimes for PP jurisdiction involving federal questions and PP jurisdiction involving diversity:
 Federal law – Primary claim – presumption that whole case can go to federal court. Economical rule, which
avoided piecemeal litigation.
 Diversity case – opposite presumption – ruled out – fragmented rule – sent a lot of cases to state court – because
attached claims that were not diverse.
c. Owen Equipment & Erection Co v. Kroger (SCOTUS, 1978)
i. Pendant party case; diversity jurisdiction – parallels Gibbs in pendent party context.
ii. Plaintiff sues diverse defendant, who then impleads a third party defendant; plaintiff asserts claim against
third party defendant. Third party defendant destroys diversity jurisdiction—same state as Π.
iii. Original claim drops out on summary judgment, leaving plaintiff’s claim against third party defendant, who
is not of diverse citizenship.
iv. Court does not allow jurisdiction over this pendant party – cause it would allow Πs to get around complete
v.
vi.
diversity rule § 1332 - by waiting for Δ to implead third parties.
 Doesn’t matter that primary diverse claim dropped—it still would not have changed the opinion
Establishes two principles: Can’t use pendent party practice to get around complete diversity
requirement.
 Timing (initially or later) of adding parties does not matter.
 Sequence of when parties join does not matter.
 Only the endpoint matters in deciding SMJ.
 Needs to have complete diversity in the end for §1332 to be satisfied
Also applies to amount in controversy—can’t evade that requirement either. If Δ had stayed in but claim
against 3rd party Δ didn’t meet amount in controversy requirement then it still would have been thrown
out. Cause you couldn’t aggregate amounts for claims between different parties.
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d. Finley v. United States (SCOTUS, 1989)
i. Pendant party case; original claim was under FTCA (§1346(b)) - looks to state law – allows π to sue US and
its agencies for violations of state law.
ii. Claim was that the FAA was negligent under the Federal Torts Act—Π sued FAA (US) and then tried to assert
iii.
iv.
v.
state tort action (supplemental claims) against the city and the utility company
Same result as Aldinger. No pendent party jurisdiction under §1346. Pendant party claims were not based
on diversity and §1346 only allows you to sue the US.
Court (Scalia) refuses to allow pendant party jurisdiction in the absence of an express grant of authority by
Congress (reversal of the presumption under Aldinger).
 Scalia said—Unless Congress spells out that there is pendent jurisdiction we’ll assume that there is
not!
Despite exclusive jurisdiction granted federal cts by Federal Tort Claims Act, 28 USC §1346 b, pendent
party jurisdiction not permitted  piecemeal litigation (worst case scenario)
Supplemental Jurisdiction under 28 U.S.C. § 1367
a. In response to the Finley decision, Congress passes § 1367 to provide an express grant of authority to grant
supplemental jurisdiction.
b. §1367 was meant to codify pre-Finley case law and preserve Kroger (to preserve the complete diversity
c.
d.
requirement)& Gibbs.
§1367 in a nutshell expands supplemental jurisdiction to the full extent permitted by the constitution with
a few exceptions
3 Part Structure of § 1367:
i. § 1367(a)
 Broad, permissive grant of authority for supplemental jurisdiction, incredibly inclusive
 Essentially allows jurisdiction to the limits of Article III.
 Echoes of Gibbs - In a case were there is original jurisdiction over a primary claim, federal courts
will have supplemental jurisdiction over all other claims that are part of the same “case or
controversy” (transaction or occurrence).
 Involves claims between two parties or additional parties (intervening or joined parties).
 Section A only has two requirements:
 Primary claim with independent jurisdiction
 All other claims must relate to the same T&O
ii. § 1367(b)
 What (a) “giveth”, (b) “taketh” away; takes a bite out of (a)’s grant of jurisdiction only over §
1332 diversity claims. Makes no inroads into cases where the primary claim sounds in federal
question.
 Which means that §1367 is generous in regards to cases with an “arising under claim”
 In diversity suits under § 1332, no supplemental jurisdiction over:
 claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24; (i.e. there
needs to be diversity between the third party Π and the original Π)
 claims by persons proposed to be joined as plaintiffs under Rule 19, or intervene as
plaintiffs under Rule 24;
 When exercising such jurisdiction would destroy diversity.
 Amount in controversy rule remains unchanged—each party must satisfy amount in controversy
(Kroger).
 Doesn’t include claims by 3rd party π and 3rd party ∆.
iii. § 1367(c)
 Grants courts discretionary power to exercise supplemental jurisdiction—but court can’t decline to
exercise jurisdiction over the primary claim (which has federal jurisdiction regardless):
 If claim involves a novel question of state law.
 If supplemental claim substantially predominates over primary claims over which there is
independent basis for jurisdiction.
 All claims with jurisdiction have been dismissed.
 Exceptional circumstances with compelling reasons.
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Prof. A. Wax
 Codifies the discretionary factors identified in Gibbs. Once you decide that case could come – have
the option to deny jurisdiction to state claims.
 Decision to not take supplemental claims can be problematic because of Res Judicata. It forces Π
to split up claims and if one is decided first Π looses the others.
 This doesn’t, however, matter if it’s A v B&C&D. If court decides not to exercise supplemental
party jurisdiction, then you can split the claim and sue C & D elsewhere—No RJ problem cause
its between different parties.
iv. § 1367(d) – Tolling Provision – Tolls (stops the clock) the statute of limitations while supplemental
claims are pending in federal court.
 Example—Court procrastinates on decision of whether to keep the secondary claims & statute of
limitations on the state claims runs out. If they are dismissed you would be out of luck, wouldn’t
be able to go to state court. Tolling provision puts statute of limitation on hold while claim is
pending and then if claim is thrown out you have 30 days to re-file the state law claim in state
court.
6. Problems with §1367
a. Does §1367(c) only authorize dismissal over supplemental claims, or can courts dismiss the entire case?
i. Colorado River abstention doctrine (cited in Abbott Labs) - Court in Colorado River says courts retain
the discretion to dismiss entire case.
b. What effect does §1367 have on Aggregation Rules?
i. Courts have held that §1367 does not change aggregation rules.
ii. Get around this by saying whole thing is one “civil action of which the district courts have original
jurisdiction.”
iii. This is one exception for multiple claims between same parties in amount in controversy cases.
iv. Separate state law claims b/t new parties that don’t meet amt. in controversy  can’t bring in –
violates §1367B. NY v. OH (80K) NY v.NJ (20K)
Are the Pre-§1367 Aggregation Rules preserved?
Pre-§1367 Aggregation Rules
 Example 1-- A v B Primary Claim = $50,000 and secondary claim = $50,000 (doesn’t matter whether the
claims are related or unrelated)
 Example 2—A v B Primary Claim = $80,000 & secondary claim = $40,000 (doesn’t matter whether the claims
are related or unrelated)
o all four examples will be allowed in federal court under the aggregation rules as they traditionally
developed
o don’t have to be related to the same nucleus and facts.
o Don’t need a primary claim in isolation that meets the amount in controversy requirement.
o This is how practice developed on diversity pendent claim side
o This is what the world was like when Gibbs was decided




Assuming that none of the
claims involve federal
question
All the claims are based on
diversity jurisdiction
Also assuming that all the
parties are diverse
Only left with problems
going to amount in
controversy
A
A
A
A
$50K
 B same T & O

$50K
A
$50K
 B Not same T & O

$50K
A
$80K
 B same T & O

$30K
A
$80K
 B Not same T & O

$30K
A
$50K
 B same T & O
 C
$30K
$50K
 B Not same T & O
 C
$30K
$80K
 B same T & O
 C
$20K
$80K
 B Not same T & O
 C
$20K
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Prior to §1367 rules which on the left hand side could go to federal courts and which couldn’t?
 All go to federal court
 Courts allowed parties to add up all the claims they had against another party and they didn’t need to relate to the
same transaction and occurrence
 §1332 was interpreted generously under Article 3 which has no amount in controversy requirement and each claim
can stand alone as their own controversy—no one is riding another’s coat tails (cause you are assuming diversity of
citizenship) and rule 18 lets you combine unrelated claims
Prior to §1367 which on the right hand side could come in to Federal Court?
 None could come in
 Each fails of diversity based on amount in controversy
 Kroger situation—Kroger was diversity across the v problem but you can also apply it to amount in controversy
 complete diversity requirement must be satisfied for each claim
 can’t avoid complete diversity requirement by using supplemental jurisdiction rules
 Need separate satisfaction of jurisdictional amount and citizenship diversity for each case.
Under §1367 which of the cases/controversies on the left hand side come in?
 #3 can come in, but no the other three
 Both claims are from the same T&O and the parties are diverse. Key is that the primary claim standing alone can go
to federal court (has original jurisdiction) cause it meets the amount in controversy requirement
 Also, #3 doesn’t come within exceptions listed in B
 None of the joinder rules listed are invoked
 Rule 18 is being used—joinder of claims but that is not one of the exceptions
 Last part of the analysis-- move on to C
 The other 3 claims fail under subsection A
 First two can’t stand alone—no jurisdiction cause it doesn’t meet §1332 requirement
 Last claim doesn’t relate to same case and controversy
Under §1367 which of the controversies on the right hand side could come in?
 #3 could also come in
 Meets A’s requirements—same T&O and primary claim has original jurisdiction
 The only issue would be if B exceptions apply—Which they may cause C could be joined under Rule, 14, 19, 20, 0r
24
Which means that aggregation rules are not preserved if you take §1367 at its word!
 This created problems in the courts
 Lower courts have said they don’t see the drafter of 1367 as meaning to change the aggregation rules
 So they decided to ignore 1367 and apply the old aggregation rules instead
c. Zahn problem/Abbott Labs (5th Cir., 1995)
i. Class action case filed in state court in LA, removed to federal court by the defendant on diversity
jurisdiction.
ii. Plaintiffs seek to remand to state court for lack of SMJ. District court agreed and sent the whole case
back—declined to hear the primary federal claims as well—said that case raised a novel issue of state
law
 Defect in diversity - Class representatives’ claims met the amount in controversy requirement (with
attorney’s fees), but the claims of the remaining class members did not.
 Zahn had held that the claim of each class member must meet the amount in controversy
requirement. (Can’t add together amounts)
 5th circuit said Zahn was not good law--§1367 overruled it
 Effect of § 1367
 § 1367(a) gives unnamed class members jurisdiction riding in on the primary claim of class
representatives.
 Doesn’t matter under A that secondary claims involve new parties
 § 1367(b) does not take this jurisdiction away - Rule 23 (class actions) is not listed.
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 §1367(c)—court says C authorizes you to dismiss the supplemental claims, not the primary
claims.
 Circumstances were abstention is appropriate is extremely rare (abstention involves
sending the whole case back—reject both the primary and secondary claims from federal
court)
 Saying that although they have federal jurisdiction over the primary claim they are
not going to take it.
 Dismissing the supplemental claims alone doesn’t make sense. If it’s a novel and
complex issue why not consider the whole package, instead of splitting up the claims –
better for efficiency purposes.
 Therefore there is jurisdiction over supplemental parties’ claims under § 1367, effectively
overruling Zahn.

If you have a diversity action posing questions of state law it is more likely that the court will
hear the whole case, then if the case is based on federal question jurisdiction for the primary
claim and the subsidiary claim is a state law issue – with federal question its more likely that the
subsidiary claims will be split up.
 Because a case based on diversity is dealing entirely with state law—so why split up the
state law issue between two courts, whereas case based on federal question can be split
between federal and state court to consider the respective federal and state law issues.
d. Leonhardt (1998) - Tenth Circuit did not agree with Fifth Circuit:
i. Held Congress did not intend to change the Zahn rule when a plaintiff can bring an initial suit under
ii.
iii.
iv.
v.
Rule 23.
Read § 1367 as applying to people added to a case.
Literal reading of § 1367 preserves Zahn.
This questions remains unresolved (proposed amendment?).
WE DIDNT READ THIS
e. Patterson (Kansas District Court, 1993)
i. Three KS plaintiffs sue an OH defendant; two of the KS plaintiffs claims are less than the amount in

controversy requirement. In federal court based on diversity—state law issue.
ii. Can these two claims ride the third, sufficient claim into federal court?
iii. Court says yes – all parties were present at commencement of action – wrong reasoning. Rule 20 case
were parties joined together at the begging to sue. (Kroger – timing doesn’t matter – look at end
result.)
 Judge’s reasoning focuses on timing—but Congress in §1367 tried to preserve Kroger, which said
that all that matters is what you have in the end. Also reasoning fails on the fact that if there was
no diversity from the beginning it would still come in cause the parties were joined under rule 20
at the start, but this is not how (b) works
 Pre-§ 1367, these claims could not get in: these are not the same parties so aggregation rules do
not apply. Each claim would have to have met the amount in controversy requirement. Judge’s
reasoning implies that §1367 didn’t keep/adhere to the complete diversity requirement of §1332.
 Correct reasoning: Plaintiffs sued together under Rule 20 (§ 1367(b) only applies to defendants
joined under Rule 20).
 Rule 20 is different than the other rules, because it allows you to use it NOW or LATER—not
like the other rules on the list in (b).
What have courts done?
 Courts have taken the approach that the aggregation rules carry forward. §1367 preserved the
complete diversity requirement of §1332.
 Courts have refused to interpret §1367 literally.
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REMOVAL JURISDICTION
1. Generally, any action brought in state court that the plaintiff could have brought in federal court may be removed
by the defendant to federal court in the same state (§1441(a)).
a. Purpose for removing
 Protect against prejudice of state courts
 Federal courts are better at interpreting federal law
b. Only defendants may remove an action to federal court.
i. Courts have interpreted § 1441 to mean all ’s must agree on removal.
c. In diversity cases, the action may be removed only if no defendant is a citizen of the state in which the action
is pending (§ 1441(b)).
 Why? Idea is that there is no need for removal where the forum is in the Δ’s state of citizenship or in
one of the other Δ’s states (one Δ throws a protective mantle over the others)
d. In federal question cases, action is removable without regard to the residence or citizenship of the parties (§
1441(b)).
e. Removal is subject to the well-pleaded complaint rule - federal question raised in answer cannot confer
jurisdiction—i.e. can’t be basis for removing the claim to federal court because federal defense doesn’t allow
you to go to federal court in the first place (Motley)
f. If Π starts off with a state law claim, then amends later on with a federal law claim, and case wasn’t
removable before then it is still not removable even with the federal law claims amended to the complaint—
only allowed to remove within 30 days of filing complaint
g. If Π adds party after removal to destroy jurisdiction—case must be remanded back to state court
Are these right
i. Shamrock Oil & Gas Corp. v. Sheets (SCOTUS, 1941)



Court held that plaintiff could not remove based on a federal counterclaim by Δ
Plaintiff having submitted to the court’s jurisdiction.
Only Δs can remove cause they have not submitted themselves to the jurisdiction like Πs have cause
they chose the forum
f.
Cases are removed to the federal district court for the district and division embracing the place where the
state cause of action is pending (§1441(a)).
g. § 1441(c) - Removal of Multiple Claims
i. Pretty much a dead letter (unconstitutional).
ii. § 1367(c) does the constitutional work of supplemental jurisdiction.
iii. When removing a case, must look to § 1367(c) to determine if there is jurisdiction over the entire case/all
claims.
h. § 1441(d) - Foreign states as defendants may remove (tried without jury).
i. § 1441(e) - An action removed from a state court that had no jurisdiction to hear the case is not precluded
from being heard in federal court.
2. Defeating Removal Jurisdiction:
a. Add fictional/insubstantial/unnamed parties
i. Subject to the “Real Parties at Interest” Doctrine
ii. Rose v. Giamatti (S.D. Ohio, 1989) - Citizenship of nominal parties may be disregarded for purposes of
iii.
diversity of citizenship. Determine jurisdiction based on the citizenship of the real parties to the
controversy.
Real Party at Interest Doctrine—
 Majority rule—a party is a Δ if there is an arrow from primary Π or Πs to that party
 Π may add party to defeat removal (destroy diversity) or Δ will get someone who is a citizen of the
state.
 Court will look at who has the power to grant the remedy
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Claim amount in controversy less than $75,000.
i. Distinction between pre-removal and post-removal by amendment.
ii. Pre-removal - Plaintiff is the master of his complaint.
iii. Post-removal - Looked at with skepticism by the courts.
c. Additional parties
i. Under a primary federal question claim, §1367(a) gives jurisdiction to pendant state law claims - adding
parties really doesn’t defeat removal.
ii. Under diversity claim, joining a party who is a citizen of the state in which the action is brought can defeat
removal under §1441(b).
iii. Does impleading a citizen of the forum defeat removal? Maj. Rule 3 rd party D does not count for this
rule so you can remove. However, once he becomes a 1 st party D it defeats removal.
d. Additional claims
i. Adding a claim that does not have supplemental jurisdiction under §1367 can defeat removal of the entire
case.
e. Dropping federal claim.
i. See Cohill below, giving courts authority to remand in this case.
3. 28 U.S.C. § 1446- Procedures for Removal
a. Defendant(s) must file notice of removal in federal district court.
b. All defendants must agree on removal.
c. Δs must file notice for removal within 30 days of receipt of claim/complaint (Strictly enforced by courts)
§1446(b)
d. Minute notice is filed case is deemed removed (doesn’t matter whether it passes the removal test or not)
State court no longer has jurisdiction over it. §1447(d)
e. After this then you move to §1447—where Π files for remand motion
4. 28 U.S.C. § 1447 - Procedure After Removal Generally
a. Upon filing of notice, case is deemed removed.
b. Motion for remand must be filed within 30 days.
i. An improperly removed case must be remanded to state court.
ii. Two grounds for remand specified in statute:


c.
Defect in the removal procedures (procedural requirements not met).
Lack of subject matter jurisdiction (never waive right to remand under this ground). It can be raised
at anytime even after district court hears the case and issues a judgment—never waived.
Under § 1447(d), orders to remand to state court are not reviewable on appeal.
i. Two outcomes for order to remand: it can be denied (case stays in federal court) or granted (state goes
back to state court)
ii. If its granted, then the judgment is final, can’t be reviewed on appeal.
iii. If its not granted, then case stays in federal court, and the decision to deny the remand can be
reviewed. Not immediately though cause that’s an interlocutory appeal, must wait till the case is over and
then you bring up the issue.
iv. Denials of orders to remand can be appealed and reviewed – asymmetry in reviewability provision.
v. Why the asymmetry?
 System is more concerned with having a case in federal court that shouldn’t be there, then they
are with keeping cases out of federal court that should be there
 If its wrongly remanded, that’s not good, but at least they have a place to go.
 It’s much worse to have a case in federal court when there is no SMJ—goes to the
heart/authority/power of the federal courts.
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vi. Thermtron v. Hermansdorfer (SCOTUS, 1976)
 In this case, district court remanded a properly removed case (diversity jurisdiction) back to state
court for a reason not authorized by removal statute (judge argued his docket was overcrowded).
 Court noted that remand was only authorized in two cases (above).
 Problem when you have unreviewability: If judge knows they won’t be reviewed then judge might be
tempted to be lawless or arbitrary. If they know they won’t be second guessed then they don’t have to
worry about being sloppy/careless, will allow prejudices to take over.
 Rule—If basis for remand is colorable under the actual letter of the law then it can be reviewed—judge
must make a good faith effort to give a reason for removal (doesn’t matter whether reason was right
or wrong) its not reviewable.
 Reviewable when reason for remand is “ultra vires”—not part/grounded in a statute/law.
 Court implied the legitimate grounds for remand were the ones in the statute §1367(c)
vii. Carnegie Mellon University v. Cohill (SCOTUS, 1988) Interplay of §1441 and §1367

d.
Plaintiffs brought suit in state court, defendants removed to federal court based on federal question
jurisdiction.
 Plaintiffs later dropped federal question claim (primary claim) and sought an order to remand the case
to state court. All that’s left is tail wagging the dog—state tort claims are what is left.
 Like Gibbs were judge through out the federal claims at the very end. Here they drop out early in
the game
 There is no lack of SMJ here:
 SMJ is not the problem cause even though only the state law claims are left, they are really
pendent claims and under Gibbs if the case when its filed has SMJ over the entirety then SMJ
continues through out even if the parts of the claim that were the basis for jurisdiction drop out.
 So what is the statute that’s invoked to convince court to dismiss the case?
 §1367(c)-- Discretionary factors mentioned in Gibbs apply to question of whether after having
federal claim leave the picture the remaining state law claims should stay or not? Having
federal claim leave triggers court’s discretionary power to dismiss the state law claims.
 Should the court keep the case? That’s up to the judge’s discretion.
 Question: Does court have the authority to remand for this reason (which is not one of the two listed
in the statute (lack of SMJ or procedural defect), but is part of the discretionary factors of
§1367
(c))? Should the only options be to keep the remaining claims or dismiss them? Judge has the
discretion to send whole case back or split the claim as per §1367(c).
 Question is when case doesn’t start out in federal court initially, but gets there by removal, does the
judge have the power, as a matter of discretion, to dismiss or remand?
 Δ argues (negative pregnant) that only the reasons given in the statute are the ones that can be used to
remand—can’t add on to them—no expressed authorization to remand.
 Court says that there’s only silence (no authority to dismiss in removal situations mentioned in
§1367(c))—choice is between dismissal and remand.
 Cohill sets up for removal cases same structure of authority that exists if the case had been initially
filed in federal court under OJ.
 Court says that provisions of §1367 can be used in both removal and initial fillings. §1367(c) is
codification of authority in Cohill—common law authority to remand cases were state law claims
predominate.
 Court holds that remand of these cases is allowed for reasons of efficiency, fairness, and comity  are
other grounds for remand  pasted 1367c onto 1441-1446.
§ 1447(e) gives court authority to deny joinder of additional parties by plaintiff if they would destroy
jurisdiction (or allow joinder and remand).
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PERSONAL JURISDICTION

1.
Personal Jurisdiction—power of a particular court/sovereign in a particular location to summon party into court and
issue a judgment against that party that can be enforced
Two requirements for assertion of personal jurisdiction:
a. Power over the Person - Abstract power of the sovereign to bring parties before it and bind them.
 i.e. Under what circumstances do you get power to go forward with the dispute. When do you have
power? Over whom do you have power? And under what circumstances?
b. Perfection of Power over the Person - Court must take steps to assert/perfect their power over the parties.
i. This is effected through service of process.(Rule 4(e) Summons)
ii. Procedures are geared to provide notice and opportunity to be heard.
2. Three forms of personal jurisdiction:
a. In personam - Jurisdiction over the person – full extent of liability for the matter. Establishes full power to
b.
c.
adjudicate any and all disputes having to with personal rights/obligations. Power over the person and
everything they are involved with/in.
In rem - Jurisdiction over a thing to determine the status of the prop. – case actually involves something about
that property – Rule 4n. Dispute must be about/involve the property. Property is within territorial limits.
Quasi in rem - Jurisdiction over prop. – controversy not related to property (damages limited to value of prop.)
– usually when court has within its authority (i.e. within the state) the property owned by person. Presence of
property is a hook that allows you to adjudicate any dispute, even disputes unrelated to the property, but only
up to the value of the actual property that is the basis for jurisdiction.
3. Personal jurisdiction is largely common law set of standards, rather than rules.
4. PJ applies to a particular court in a particular place; its case specific and also claim specific
TRADITIONAL BASIS FOR PERSONAL JURISDICTION
1. Formal, geographical, territorial, physical presence, common law based authority of sovereign.
a. Based on the notion that the jurisdiction of a state’s courts extends to the borders of the state and no further.
b. Usually required:
i. Domicile in the state.
ii. Physical presence in the state.
iii. Consent of the out-of-state party.
2. Tickle v. Barton (Supreme Court of WV, 1956)
a. Plaintiff was injured in an accident in WV, but the defendant car driver was a resident of Virginia.
b. Plaintiff serves process on defendant when he is physically present in WV (question is whether he was
fraudulently induced to come there for that purpose and whether that nullifies the service of process).
c. Δ argues that there is lack of personal jurisdiction-- Rule 12(b) motion, because of the fraud involved in
serving the summons on him.
d. Traditional rule: power of the court extends to the border of that court’s sovereign geographical area and no
farther. The minute you go over border, the court has no power to reach over and summon you.
e. Court holds that this fraud nullifies the service of process – negates PJ.
 Δ can contest authority of court that asserts PJ by making a special appearance—appear to contest
jurisdiction—not a general appearance were you are submitting to the court’s jurisdiction and are
ready to contest the facts/issues.
 Π and Δ are arguing about two different views of the law—does fraud matter or not? Judge decides—
Tickle was like a summary judgment analysis. Applying facts to a legal standard. What’s in dispute is
the application of the law to the facts
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Prof. A. Wax
Page 23
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3. Pennoyer v. Neff (SCOTUS, 1877)
a. First step in Constitutionalization of Personal Jurisdiction law (due process).
b. PJ is acquired by personal service inside the territorial limits of the forum state or by voluntary appearance of
c.
d.
e.
f.
g.
h.
the ∆ there to contest the suit on its merits.
Pennoyer deals more with the “perfection of power” side rather than the actual “power side”
Collateral Attack case.
i. First case: Mitchell sues Neff (CA) in Oregon Court.
 Notice of suit is published in newspaper. (not personal service cause person might be hard to find
and/or not within the state—service outside of the state is no good.)
 Oregon statute allows jurisdiction based on seizure of prop. in the state coupled with notice published
in newspaper. Quasi in rem jurisdiction – property unrelated to issue. Couldn’t start an in personam
jurisdiction cause Neff was not in the state—can’t get PJ when person is out of the territory (traditional
rigid rule).
 Requirement of publication is modern (forward looking)—recognizes that Δ has a right to be heard.
Traditionally seizure was enough.
 Problem: Court did not seize prop. prior to asserting jurisdiction; prop. was seized after judgment to
satisfy judgment.
ii. Second case: Neff sues Pennoyer in federal court to quiet title – action in ejectment. Pennoyer has the
property that Mitchell took in the first case
 Neff collaterally attacks first case on the basis that the court lacked personal jurisdiction. Prior
judgment is void so therefore property didn’t legitimately come to Pennoyer (doesn’t really own it).
 Not at issue was the fact that the property was seized from Neff before he owned it.
 Court agrees and refuses to enforce judgment of first case.
 Introduces idea that there is an interest that procedures be done right—interest of Δ to have
notice and opportunity to be heard.
 On the one hand they are embracing the traditional rules (can’t be in personam cause Neff is
not in the state and can’t be served there—geographical limits hold good)
 Problem with the quasi in rem action was that seizure was done at the wrong time. Seizure
must be up front, before action commences and not later to satisfy the judgment.
 Without this seizure, Neff was deprived of notice and opportunity to be heard, which Court says is a
Constitutional due process right (the Due Process Clause enacted in 1867).
 Court argued notice is given to owner by seizing of prop. - prop. owners are assumed to be aware
of what happens to their prop.
 Court says that traditional procedures of notice by publication and seizure are enough in almost every
case, if complied with properly. Says they’ll hold traditional procedures to a higher test.
 Case forecasts future changes in PJ law. Process of finding traditional forms more and more deficient.
Quasi in rem and in rem jurisdiction are acquired by the presence of the nonresident ∆’s prop. w/in the
forum state and the attachment of the prop. at the start of the action.
Have to protect due process rights of the individual who owns the property  novel idea.
Shift from reliance on formal concepts  to more an emphasis on underlying functional purposes.
After Pennoyer, but before International Shoe, courts moved away from territorial limits because of pressures
of practical concerns increased mobility of society, invention and creation of new commercial forms (placed
pressure on law of PJ)
4. Blackmer v. United States (SCOTUS, 1932) (check to see if we read these cases)
a. PJ authority can be based upon US citizenship.
b. Establishes domicile as a ground for personal jurisdiction.
c. Courts retain jurisdiction over persons domiciled in the state despite their physical absence from the state.
d. Court allows state court to serve process on someone who was a citizen of the state but who was absent.
5. Milliken v. Meyer (SCOTUS, 1940)
a. Citizen of a state who had another residence in another state and living there but had no idea when he would
return to the original state.
b. Domicile in a state is alone sufficient to bring an absent defendant within the reach of the state’s jurisdiction.
c. Court said that you could take jurisdiction and serve process outside of the state.
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Prof. A. Wax
MODERN PERSONAL JURISDICTION AND LONG-ARM STATUTES
VF – Fall 2003
1. Functional, contacts/relational, non-intentional/non-geographic, “rights” - burden on the defendant.
a. Principle of where a person was gave way to the principle of whether there was a relationship between the
person and the jurisdiction.
b. Result of changing conditions:
i. More mobility with automobile, railroads.
ii. More use of corporations - expansion of business.
c. Attention given to fairness and the rights of a defendant.
d. These considerations were Constitutionalized under the 14th Amendment Due Process Clause.
2. Expanding Personal Jurisdiction
a. States resort to “legal fictions” to establish personal jurisdiction over non-residents, while maintaining the
b.
b.
traditional notions of jurisdiction (i.e., presence and consent).
Statutes relied on two legal fictions:
 Implied consent—coming into the state means you impliedly consented to be sued there (hooks on to
pre-existing theory that if you are served in the state then the state has jurisdiction)
 Constructive presence—through appointment of an agent
i. Constructive Consent: Parties were deemed to “consent” to personal jurisdiction by driving in the state.
ii. Consent to appoint state registrar as your agent for receiving process (your agent is thus present in the
state).
Hess v. Pawloski (SCOTUS, 1927)
i. PJ may be acquired by enactment of a non-resident motorist statute (single-act consent statutes). The
decision rests upon state police power.
ii. Massachusetts law provided that operation of a motor vehicle on roads in the state deemed equivalent to
appointing registrar as your agent and consenting to being sued in the state out of COA arising from driving
in the state (i.e. car accident)
iii. Court upholds the Constitutionality of this method.
iv. Problem with basing jurisdiction on legal fictions: inadequate notice issue and on the power side the issue
is there is no limit to what the state can deem to be consent & presence
v. Fear that state’s might go too far with these statutes concern over potential abuse cause of lack of any
clear limits
3. Modern Theory of Personal Jurisdiction
International Shoe v. Washington (SCOTUS, 1945)
i. Minimum contact jurisdiction
ii. Facts:
 Intl Shoe, a DE corporation with HQ in St. Louis, had salesman operating in Washington state, but no
offices, etc.
 State sued to collect taxes from the corporation.
 State used personal service of process—in state personal service
 Intl Shoe makes a “special appearance” to contest jurisdiction (legal fiction - not there for purposes of
presence or contact).
 Shoe argues its activities in state do not amount to presence.
iii. Court here breaks with Hess paradigm.
iv. Decides standard for establishing personal jurisdiction (for corporations) will be “Minimum Contacts”
between defendant and forum state.
 These minimum contacts must be such that “traditional notions of fair play and substantial justice"
are met.
v. Two concepts to fulfill meaning of minimum contacts:
 Defendant’s burden in defending in this forum and his fair expectations of being sued there must be
considered.
 What degree of activity does Δ have in the state and to what extent does that create a
reasonable expectation to be held accountable there?
 Reciprocity - Defendant took advantage of and invoked the protection of the laws of the state, so it’s
not so unfair to have the Δ answer for his actions in the state.
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vi. Classification System:
 Continuous and systematic contacts with the forum and cause of action arises from these contacts: Yes
PJ (Specific Jurisdiction).
 Unquestionably satisfies requirement of due process
 Continuous and systematic contacts and cause of action does not arise from contacts with the state-unrelated to contacts: Won’t rule out PJ (if activities were sufficiently continuous and systematic General Jurisdiction).
 In most cases this will also satisfy due process minimum contacts test
 Sporadic, casual, single act and cause of action arises from the act - could give rise to PJ.
 Depends on the facts, cases by case (borderline category)
 Sporadic, casual, single act and cause of action unrelated to those contacts - No PJ.
 Unlikely to meet minimum contacts test
b. After International Shoe decision, states began to pass “Long Arm Statutes.”
i. International Shoe was an open invitation for the state’s to do so
ii. Problems with the International Shoe rule—highly general/vague. Presents a cover for the exercise of a lot
of judicial discretion and it doesn’t provide much guidance
iii. Long arm statutes allowed states to expand the reach of their courts in asserting personal jurisdiction
reach beyond borders to individuals not physically and continuously present within the borders
iv. Single Act Statutes: point to a single act (jurisdiction for people committing a tortuous act in the state)
and provide a rule for service of process.
v. Single Activity Statutes: “doing business” in the state or entity owning property in the state.
vi. Laundry List Statutes (Omnibus conditional statute): list of acts or activities that qualify.
vii. “Catch-All” Statutes (omnibus catch-all statute): Allow jurisdiction to the limits of Constitution. (Type
that California has)
c. Two kinds of legal challenges to assertion of personal jurisdiction:
i. Statutory language/interpretation grant of authority.
Interpretation of the long arm statute (i.e. Does it apply to me, do I fall under the letter of the
statute?)
Constitutionality of statutory grant of authority.
 i.e. Even if the statute applies, it violates the due process/unconstitutional.

ii.
d. Four key concepts in determining minimum contacts:
i. Reciprocity (International Shoe)—same as purposeful availment
ii. Undue burden on defendant (International Shoe)—is this a forum specific factor???
iii. Volition/purposeful availment (Gray)
iv. Systemic or forum-specific factors (is this forum a good place to litigate? Evidence/witnesses?
Interest state has in providing a forum for vindication or protection of its citizens rights?) (Gray &
WWV)
4. Evolution of Modern PJ Doctrine after International Shoe
a. Gray v. American Radiator (Supreme Court of IL, 1961)
i. Facts—Gray sues American Radiator & Titan (the valve maker). Titan (Ohio) & American (PA) in Illinois
State court. IL statute allows for jurisdiction when tortuous act is committed within the state. Titan argues
that tort was committed in Ohio were the valve was made. Valve is made in Ohio then it goes to PA where
it gets put into radiator and then it reaches customer in IL.
ii. Stream of Commerce caseapplies International Shoe.
iii. Introduces concept of volition in determining minimum contacts - defendant voluntarily injected his
product (valve) into the stream of commerce (purposeful availment).
iv. Defendant contests jurisdiction on two grounds:
 Statute does not apply to it (tortuous act did not occur in state - manufacture of the part occurred
elsewhere).
 If statue does apply, then statute is unconstitutional for going to far to granting authority to assert
personal jurisdiction (single act) cause there are not sufficient contacts to meet the Shoe test .
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v. Court holds that minimum contacts exist where the maker of a product injects that product into the stream
of commerce for ultimate sale in another state; not unreasonable to hold maker responsible in that state.
vi. Court focuses on foreseeability of maker’s products ending up in IL.
 Foreseeability shading over purposeful availment/direction triggers reciprocity. Foreseeable that
product will end up in the state—so its reasonable that you should have to litigate in the state
 Undue burden commercial entity with a distribution chain—not an undue burden
vii. Ultimate limit to which minimum contacts test is stretched in stream of commerce cases.
viii. Court articulates forum specific factors: (practical appropriateness of a state adjudicating this kind of
dispute)
1. Is this a convenient or efficient place to adjudicate this dispute? i.e. evidence/witnesses
2. State’s independent interest in providing a place for people in the state to vindicate their
rights?
 FSF help to either push you over the minimum contacts requirement or to bring you below the
line—if it’s a borderline case.
b. McGee v. International Life Insurance Co. (SCOTUS, 1957)
i. Specific Jurisdiction
ii. Single or isolated contact (contract) personal jurisdiction case (CA citizen has an insurance policy with a
TX corporation).
 Co. has no other contact with the statejust one contract
iii. Court holds that the continuous activity on this one policy is sufficient contact to ground personal
jurisdiction. Purposely avail itself of forum thru deliberate maintenance of contract on a regular basis.
 One contract if it is maintained systematically and continuously over time is enough to satisfy
minimum contacts i.e. regular money exchange over time
 Company reached out to the customer in CA at the start. They said they were wiling to do business and
established/maintained contract
 Volitional - Insurance company could have quit at any time.
iv. Court also weighs forum specific factors:
 CA has an interest in seeing rights of its citizens protected (CA law).
 In providing a forum for citizens who enter into contracts with out-of-state companies
 Little guy v big guy
 Witnesses most likely in CA .
 Plaintiffs at a disadvantage (hardship) if they have to go out of state to sue insurance companies.
Hard to reconcile McGee with Hanson
Hanson v. Deckla (SCOTUS, 1958)
i. Beginning of Purposeful Availment
ii. Court pulls back from laxity in treatment of contracts and what constitutes significant, deliberate, and
continuous reaching out.
iii. 2 lawsuits commenced simultaneously.
 Action in FL by the 2 daughters who sue the trustee (DE company)
 Trustee commences second action in DE to try and settle terms of the trust
 Whichever action wins  will go to the other and say “Stop RJ”
iv. Trust established by Donner. Names as beneficiaries her two grandchildren, the other two daughters get
the rest of the estate. They get mad and sue Trustee o get the full estate.
v. Similar to McGee in form - single contract case, but here the contract is not enough to establish a basis for
PJ by FL court over DE trustee.
 First, defendant did no business, advertise, offices, etc. in FL.
 Contract first established in DE
 Second, contact here is unilateral on the part of the plaintiff moving to FL - non-purposive availment
(no volition) by DE trustee.
 There was no initial solicitation/purposeful availment/reaching out in FL
 Roaming Shadow problem—wherever the beneficiary may go, you are vulnerable
 Distinction between McGee and Hanson—Hanson was more on the passive side while McGee was more
active
vi. Collateral attack case - FL judgment is rendered invalid.
vii. Hanson and McGee add more definition to volition element and substantiality of connection.
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VF – Fall 2003
Recap of Hanson and McGee Single transaction if substantial enough (if there is enough active maintenance) can
support PJ but court also wants to see some element of purposeful availment that is focused on the forum itself
d. World-Wide Volkswagen v. Woodson (SCOTUS, 1980)
i. Beginning of stream of commerce analysis in defective product litigation – landmark on definition of
where ∆ can anticipate or foresee being haled into court.
ii. Facts:

iii.
iv.
v.
vi.
Plaintiffs purchase car in NY, drive it through OK where they are in an accident and car’s fuel tank
explodes.
 File products liability suit in OK naming WWVW, the distributor and a NY corporation with no business
in OK, as a defendant.
 Defendant contested jurisdiction on the ground that it had no minimum contacts with OK and that
assertion of PJ violated their due process rights under the 14 th Amendment.
 OK Supreme Court held that OK long-arm statute did provide authority for this assertion of jurisdiction;
SCOTUS reverses-NO PJ.
Foreseeability is a key concept in this case – but mere foreseeability isn’t enough. Court also looks at
affiliating circumstances: no sales, doesn’t solicit business, doesn’t advertise, no distribution network, no
infrastructure.
 Plaintiffs argue it was foreseeable to defendants that the car, being mobile instrument, could end up in
OK.
 Like Hanson/Gray, this is a unilateral action, but it is on the part of the plaintiffs; no choice on the
part of defendants.
 “Purposeful direction” to the forum state is the standard here. Affiliating circumstances are not met
court will require them in a stream of comer case
 Was it foreseeable that a defendant could reasonably expect to be haled into court in the forum state?
(Dissent says it was foreseeable and reasonable)
Gray is distinguished as sale in NY was the last stop on the “stream of commerce train” (point of sale)
whereas in Gray final commercial act (sale to the customer) happened in IL- plaintiffs then took car to OK.
WWV also develops systemic and forum-specific factors of test.
 Defendant’s burden in defending in forum state.
 Plaintiff’s interest in convenience and efficiency.
 Interests of the forum state.
 Interest of the states together - most efficient administration of justice and furthering fundamental
social policies.
These factors above can act as:
 “Plus” factor - boost minimum contacts over fairness threshold.
 “Minus” factor - sufficient contacts, but not “fair.”
e. Keeton v. Hustler Magazine, Inc. (SCOTUS, 1984)
i. Π’s lack of contacts w/the forum state won’t defeat otherwise proper PJ.
ii. Plaintiff (NY) sues defendant (OH corporation) in NH federal court.
iii. Plaintiff chose NH because of long statute of limitations.
Π had little relation with the state—doesn’t live or work there—gets jurisdiction through an article
written for a magazine in the state
iv. SCOTUS reverses lower courts finding that personal jurisdiction did not obtain because plaintiff did not
have sufficient contacts with forum.
v. Court says no requirement that plaintiff has minimum contacts – test is volume of contact between ∆ and
forum (sold 15,000 magazines there  substantial, continuous, and systematic)
vi. SCOTUS breaks it up into two boxes: minimum contact and forum specific factors.
vii. Court also says that there is an order to the inquiry: first look at minimum contacts and then FSF
viii. Importance between Minimum contacts and FSF are not equal  FSF are add-ons (not at the heart of the
analysis). They bump the case were the minimum contacts are borderline and vice versa
ix. Question remaining after Keeton: Can just pouring of products into a forum (large substantial volume of
sales) be enough to suffice/establish minimum contacts in the absence of any other affiliating
circumstances?

Civil Procedure Outline
Prof. A. Wax
-
Page 28
Minimum Contacts
Relationship between the forum & Δ
Substantiality of the relationship
Fairness
Undue burden on the Δ (little guy v
big guy – resources)
Ways in which Δ has reached out to
the forum
VW affiliating circumstances
VF – Fall 2003
-
Forum Specific Factors
state’s interest in adjudicating the
case
Π’s interest in convenience/efficiency
f. Kulko v. Superior Court (SCOTUS, 1978)
i. SCOTUS did not allow jurisdiction over NY defendant by CA court simply because he allowed his daughter to
ii.
live in CA with her mother.
“Effects” test did not apply - merely causing an effect in the forum state does not support PJ on its own
(as opposed to causing a “wrongful activity” or “commercial activity affecting state residents”).
h. Burger King Corp. v. Rudzewicz (SCOTUS, 1985)
i. Landmark decision about PJ analysis in contract cases → decision makes forum-selection clauses relevant
ii.
iii.
iv.
v.
vi.
to personal jurisdiction analysis.
Case reaffirms McGee  single contract can suffice if it’s sustained, substantial, w/ interaction over
time.
BKC, a FL corporation, sues Michigan franchisee in federal court in FL.
Defendant objects to jurisdiction on the ground of insufficient contacts.
Court places a great deal of weight on the contract between the two parties and specifically the choice of
law clause.
 Clause specifies that Florida law will apply in all suits under the K.
 Clause indicates that defendant purposefully availed himself of FL law - satisfies the reciprocity
element of minimum contacts analysis. (taking advantage of the state law)
 Also, defendant could reasonably expect to be haled into court in FL. Choice of law clause is a sign of
consent to be subject to the laws of the state through adjudication.
 However, court holds that a contract with an out-of-state party alone cannot establish minimum
contacts - prior negotiations, contemplated future consequences, terms of contract, and parties’
course of dealing are all factors that add to this case.
Undercurrent in this case was whether franchisee defendant was a “little guy” - uneven power between P
and D (courts take this into account).
- Helped BK cause unlike McGee—Δ was a business person & this was a business transaction. View
that there is a symmetry of consent—went into the arrangement knowingly & given what was said
in the contract he should have foreseen that he might be called into FL court.
- Notion that burden on the party has to be assessed in light of the nature of the parties and the
nature of the activities (i.e. kind of entity and king of contacts)
- LL Bean Problem—ex. Sufficiently sustained relations through a contract that would result in
consumers being hauled into court by big companies. Consumer purchases products through
catalog—reaches out to the state for purchase.
o Court says constant consumption through a forum is not enough. Dealing with isolated
individual with few resources for whom going far from home to litigate creates a greater
burden
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i. Asahi Metal Industry Co. v. Superior Court (SCOTUS, 1987)
i. Similar to Gray - Stream of Commerce case with last stop sale in CA.
 Evidence of Asahi’s business activities in CA cuts both ways: activities in CA are a tiny percentage of
Asahi’s total business, but supply a large volume of parts for CA bikes (1000s).
 Asahi was manufacture of valve assembly used in tire tubes made by defendant Cheng Shin; CS filed
cross complaint against Asahi; this was the only claim left when case reached Supreme Court. Asahi
makes valve in Japan and they are sold to CS in Taiwan were they are added to the tires and then CS
sells them to different places—one of which is CA. In CA the tires get put on bikes and sold to
consumers.
 Issue—When is Gray’s stream of commerce situation enough to maintain PJ?
ii. O’Connor Plurality Opinion (which has become accepted):
 Develops “purposeful direction” test for stream of commerce cases - variation on purposeful
availment (Part II-A).
 Says that even in a Gray situation (looks back to VW), we are not going to rest jurisdiction on volume
of business—must look at other factors
 Placement of product in stream of commerce is not enough if there is nothing morei.e. offices,
advertising, distributorship, service infrastructure—a sense that company is reaching out to serve the
forum and not just indirectly injecting products through stream of commerce into the forum
 In this case, the contacts lie toward the weaker foreseeability end of the minimum contacts spectrum not enough to ground PJ without some greater connection to forum state - foreseeability not enough.
 “Flow Plus” would entail an effort to create a market through deliberate action by defendant
(advertise, developing a product specifically for the state, establish channels for regular
communication, marketing in the state through a distributor there).
 Also weigh other factors that cut against a finding of personal jurisdiction (Part II-B majority): forum
state has little interest in the dispute, as the plaintiff is not a CA resident; heavy burden on alien
defendant (foreign citizen); offense to international comity.
Opposing View: Brennan
 It’s a relevant contact if Δ put the product in the stream of commerce and could reasonably anticipate
that the product will get to C, D, E.
 Says O’Connor’s std is too high—don’t need to show the extra/additional contact
 Says that you use FSF as a tie breaker—agrees that even if there were borderline minimum contacts,
FSF point towards no PJ
iii. “Other Factors” first used as a separate test in WWV and here again.
 Assertion of PJ even in the presence of “minimum contacts” would offend “traditional notions of fair
play and substantial justice.”  too much of a burden on ∆.
SPECIFIC JURISDICTION
1. Specific jurisdiction over the defendant results when the defendant has sufficient contacts with the forum state to
warrant jurisdiction over him for matters arising from his activities within the forum, but not necessarily sufficient
to warrant general jurisdiction. It is implicated whenever the cause of action arises out of defendant’s contacts
with the forum.
2. Specific jurisdiction exists when defendant has established minimum contacts with the forum state, evaluated by
several factors:
a. “Traditional notions of fair play and substantial justice” (International Shoe).
i. Reciprocity - Defendant has availed himself of the protection of the state’s laws and should therefore be
subject to them as well.
ii. “Undue burden” on defendant.
iii. Volition - “Purposeful Availment” (Gray) or “Purposeful Direction” in stream of commerce cases (Asahi).
iv. Systemic or forum-specific factors:
 Interest of forum state in providing redress for its citizens.
 Convenience to plaintiff.
 Other states interests in effective resolution of disputes and promotion of social issues.
b. Foreseeability - Defendant must have a reasonable expectation of being haled into the forum state’s courts
(WWV - no, Burger King - yes).
c. Defendant need not enter the state to have minimum contacts (business dealings).
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d. Actions taken outside the state (tortuous act or business activity) can satisfy minimum contacts requirement
(effects test?).
GENERAL JURISDICTION
(More contacts needed than with specific jurisdiction)
1. General jurisdiction results when a defendant has such “continuous and systematic” (Perkins) and substantial
activities in the forum state that assertion of jurisdiction is warranted even if the cause of action is unrelated or
does not arise out of the defendant’s activities. General jurisdiction is appropriate whenever there are sufficient
minimum contacts between the State and the nonresident so as not to offend the traditional notions of fair play
and substantial justice.
a. The sufficiency of activities is a higher standard than specific jurisdiction.
b. The standard is vague.
2. Perkins v. Benguet Consolidating Mining Co. (SCOTUS, 1952)
a. ∆’s activity in forum state is continuous and systematic, there’s PJ even on cause of action unrelated to that
forum activity. General Jurisdiction
b. Plaintiff sues defendant Philippine corporation in an Ohio state court for claims related to her stock holdings.
c. Court holds it would not violate due process to assert jurisdiction over the defendant in this case, as his
activities in the forum state are “continuous, systematic and substantial” in running the company from Ohio
while the Philippines was occupied during WWII.
3. Helicopteros Nacionales de Colombia v. Hall (SCOTUS, 1984)
a. General Jurisdiction
b. Plaintiff --survivors of victims of a helicopter crash in Peru sue defendant Colombian corporation, owner of
helicopter, in TX state court.
c. Cause of action (crash) did not arise in/unrelated to TX.
d. Court holds that defendants contacts with the forum state are not sufficient to ground assertion of personal
d.
(general) jurisdiction.
i. Holds continuous flow of purchases is not enough. Contacts were to sporadic/not substantial.
- Helicol didn’t sell products in the state, no employees in the state, don’t have property, are not
authorized to do business.
- Helicol did purchase helicopters from TX co., bought spare parts and sent pilots for training in
Texas
ii. Court relies on decision in Rosenberg v. Curtis Brown (SCOTUS, 1923)
 Court there rules such purchases, even if occurring on a regular basis, are not sufficient to ground
jurisdiction.
 This holding is limited as this case was decided at a time when jurisdiction was based on constructive
consent.
Brennan’s dissenting opinion sees this as a possible specific jurisdiction case.
i. Admits the cause of action does not “arise from” the defendants activities in the forum state, but that
they are “related to.”
ii. Also, there is a but/for relationship. But for the relationship with the TX co. this wouldn’t have happened.
iii. Specific/general jurisdiction is more a spectrum than distinction. (line is distinct)
4. Aside: Factors to consider when choosing where to sue (what state):
a. Substantive law (i.e. statute of limitations).
b. Choice of law rules vary by state
c. Which body of law is more favorable?
d. Strength of a state’s long-arm statute (how easy will it be to assert jurisdiction over the defendant?).
e. Is the forum seen as pro-plaintiff or pro-defendant?
f. Convenience to the plaintiff (close to home?).
g. Easier to establish defendant’s minimum contacts? Substantiality of contacts.
h. Where are the witnesses and the evidence?
i. Removal concerns. Trying to prevent removal—so sue in Δ’s home state.
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5. Main question is where did the injury/COA arise?
-
In stream of commerce cases it doesn’t matter where the COA arise—its sufficient but not necessary—could
have happened somewhere else but still arise within the forum.
When looking at Specific v General Jurisdiction: need to ask where did the events happen?
6. What do the decisions look like in PJ cases?
-
-
Brennan is champion of the Pro-Π stance
o Wide open door to litigants in federal court
o Expansionist approach
o Aware of modern conditions (commerce etc)
o Vindicates Πs interest in the forum and state’s interest in protecting Πs
o Gives convenience to Π, places burden on Δ
o Looks at reasonableness of the forum from multiple pragmatic points of view—says FSF are really
important
O’Connor is Pro-Δs
o Looks backwards, more formalistic
o Cognizant of state boundaries & geography
o Old fashion respect for values of comity between states
o Protecting federalist values
o Pro-business
o Emphasizes burden on Δ
o Sovereignty and federalism concerns enter into the picture through notions of fairness and justice
OTHER BASES FOR JURISDICTION
Power over Property
a. Since Pennoyer, new forms of prop. (stocks, bank accounts, debts, copyrights) put in rem and quasi-in-rem
jurisdiction under scrutiny.
i. New forms of prop. are mobile/move around.
ii. Difficult to say “where” this prop. is.
iii. Modernization—extension of power over property to new forms of property
b. Harris v. Balk (SCOTUS, 1905) (Overruled by Shaffer)
i. Presence-of-property rule of Pennoyer applies to an intangible → the situs/location of a debt isn’t where
the creditor is located, but wherever the debtor may be.
 Debt seized wasn’t related to the π’s cause of action.
ii. Principal action: Epstein v. Balk.
 Harris owes Balk; Balk owes Epstein.
 Epstein cannot obtain PJ over Balk, so he attaches debt owed to Balk by someone else (Harris) and
posts notice of the action.
 Epstein asserts quasi in rem jurisdiction over the debt owed by Harris and wins a judgment in MD
court (case #1).
 Quasi in rem cause property seized is independent, not the property in dispute.
 Balk then sues Harris in NC court (case #2)
 Balk brought collateral attack asserting judgment not valid because of personal jurisdiction
 Question is was property attached within the geographical boundaries needed for jurisdiction.
 NC court refuses to honor the judgment of the Maryland court on the ground that MD had no
jurisdiction to attach the debt as the situs of the debt was NC.
 SCOTUS disagrees and holds that the debt travels with the debtor. So when Harris went into Maryland
he relocated debt so that it could be seized and MD could get jurisdiction as a quasi in rem action.
 Implications  when debtor travels the debt moves too so creditor can be subject to the jurisdiction
of the state where the debtor can be found.
 Doesn’t comport with International Shoe standards
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c. Shaffer v. Heitner (SCOTUS, 1977) (OVERRULES HARRIS)
i. Minimum contact analysis of PJ is now applicable to quasi in rem and in rem jurisdiction.
ii. Heitner is suing Greyhound & its directors/officers. Co. headquartered in AZ, and incorporated in DE.
iii.
iv.
v.
Dispute arose from activities in Oregon. Directors had stock in the corporation so Π sequestered the shares
of common stock (attached it).
General Jurisdiction case cause COA arises out of the state
Holding: Quasi in rem jurisdiction over defendant cannot be exercised unless the defendant had such
“minimum contacts” with the forum state that in personam jurisdiction could be exercised over him. If a
direct assertion of PJ is invalid than so is an indirect one like quasi in rem.
 Applies the International Shoe due process standard to the assertion of QIR/IR jurisdiction.
 Underlying dispute is really about right of the individual.
 Court also confirms that ownership of real property in a state will satisfy minimum contacts for
jurisdictional purposes most of the time.
In this case, a DE plaintiff filed (shareholder’s derivative) suit in DE court against defendant DE corporation
with principle place of business in AZ for a cause in OR.
 DE law provided situs of stock was DE.
 Court seized the stock to assert quasi-in-rem jurisdiction.
 Question for the court is whether defendants will have to defend this suit in DE or default up to the
value of the stock.
 Court says no: same standard for in personam jurisdiction (minimum contacts) will apply to QIR/IR
jurisdiction.
d. Court overrules Balk - Balk must have had minimum contacts with MD.
e. In the wake of Shaffer—states tried to pass laws that said that if a company was incorporated in the
state, then anybody who became a corporate officer was by virtue of being an officer deemed to have
enough minimum contacts with the state (almost like a consent statute)
f. Court also makes it clear that owning stock is not enough
2. Presence
a. Notion of “tag” jurisdiction - serve someone while they are in forum state.
b. Problem—in the state only fleetingly but still can get general jurisdiction cause you are served in the
state/present.
b. Burnham v. Superior Court (SCOTUS, 1990) – jurisdiction based on physical presence
i. Jurisdiction may be asserted over an individual by virtue of his presence in the state, even if he has no
minimum contacts with the state.
ii. Husband (NJ) goes into state for 3 days on a business trip and to visit kids and then wife slaps him with a
summons for divorce action.
iii. Δ argues that he has no minimum contacts with the state—which should apply to in personam jurisdiction
like it did in Shaffer with quasi/in rem jurisdiction
iv. Scalia’s opinion relies on the pedigree of presence to establish its validity:
 Defendant argues all PJ decisions should be governed by International Shoe test of minimum contacts.
 Presence satisfies test of “traditional notions of fair play and substantial justice” set out in Intl Shoe
because tag jurisdiction is traditional.
 Physical presence has always sufficed traditionally.
 Intl Shoe test only applies to absent defendants and defendants that were corporations. (modern form)
 This is a plurality opinion only (4 justices)
 But even if minimum contacts rule applies all the time then you’ve established them anyways cause
you were served in the state.
 Problem w/ Scalia’s argument: if presence is enough cause it’s traditional then presence of property in
the state should also be enough cause that’s also been traditionally enough.
 Makes distinction that minimum contacts applies to absent Δs but this is also problematic.
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v. Brennan’s dissent: presence is swallowed up by Shaffer, where the traditional rules for QIR jurisdiction
were changed to Intl Shoe test.
 We don’t care about historical pedigree. For all cases, we must do a minimum contacts analysis even if
Δ is served in the state.
 Argues that tag jurisdiction may not be enough all of the time
 Said that Δ satisfied minimum contacts anyway  being in CA for 3 days, enjoying the benefits of the
forum, is enough to establish minimum contacts.
 BAD OPINION. Where do we draw the line? Is 1 day enough?
 Under Brennan’s rule Δ could be served after he leaves the state because there are sufficient contacts
and court would still have PJ
 Profound split.
Presence alone continues to be a viable basis for PJ (tag jurisdiction) – personal service has always sufficed.
Personal Jurisdiction is case specific and even claim specific—function of what the claim is about and whether it
arose out of contacts with that forum
3. Consent (other ways of obtaining PJ)
a. Parties can consent to personal jurisdiction through their actions, by waiver, or by contract.
b. Consent by Law – Legal Fiat
i. Constructive consent through activities in the state- Hess case (automobile statutes).
ii. Constructive presence through an agent:





Business registration laws - to do business in the state, you must register and appoint an agent to
receive process.
Clauses operate and have force even before you start operating your business.
Problematic if you are looking at minimum contacts
Some lower courts have struck down these laws
But they are constitutional if you are actually already operating in the state.
c. Consent by Appearance and Waiver of Objection
i. Failure to file a motion under Rule 12(b) raising a defense of lack of personal jurisdiction waives this
defense.
ii. General v. Special Appearances
 Some states allow special appearances for all 3 types of jurisdiction.
 Make a general appearance and skip option of questioning jurisdiction  submit to it
 PJ is waivable—courts will allow you to submit to their jurisdiction even if there are not enough
minimum contacts
 Baldwin case (SCOTUS, 1931) - Repeats the persisting rule that a person who makes no appearance
whatsoever may challenge a default judgment for lack of personal jurisdiction.
 Company came and submitted itself for a special appearance to contest PJ, lost and then
defaulted—didn’t contest the merits. When judgment was trying to be collected company tried to
collaterally attack the judgment. Court said you couldn’t collaterally attack.
 If you contest PJ in a special appearance and loose, you cannot come back and collaterally attack
the judgment (even if you fail to appear to argue the merits).
 Only get one shot to litigate the PJ question.
 Insurance Co. of Ireland v Compagnie Des Bauxites (SCOTUS 1982) – if you make a special
appearance, then you provisionally submit yourself to the jurisdiction of the court to resolve the issue
of jurisdiction.
 You must comply with any orders of the court
 i.e. discovery orders (even if they are burdensome)
 and if you don’t comply then you are deemed to have waived your objection to PJ
 Burden of proving PJ is on the Π
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d. Consent by Agreement/Contract
i. Forum-selections clauses - set the forum for any disputes over a contract.
 Forum selection clauses waive objections to PJ and venue.
 Two factors that state’s depend on when determining whether forum selection clause is
enforceable:
 Whether the particular controversy comes within the forum selection clause (i.e. Helicol question
was whether the dispute arising from the contract as opposed to any dispute involving the parties
anywhere)
 Whether state where the action was brought honors forum selection clauses? This depends on
where Π initially chooses to bring the action.
 State court decides whether to give effect to the forum selection clause
 If Yes, they’ll dismiss the case
 If No then you look to common law (i.e. does state long arm statute apply—are there
minimum contacts.
ii. Bremen (SCOTUS, 1972) & Carnival Cruise Lines (SCOTUS, 1991)



In both cases, the Court upheld forum selection clauses and held them enforceable.
Bremen factors: forum clause should be honored unless “enforcement would be unreasonable or
unjust, or…the clause was invalid for such reasons as fraud or overreaching.
 These cases are limited in that they are admiralty (boat) cases.
 In admiralty law federal courts can fashion there own body of law  never have to borrow
from state court, which means that federal courts decide what effect they’ll give to forum
selection clauses
 Value to Carnival of the forum clause is less cause under admiralty law they’ll likely get the
forum they want anyways
 In Carnival economic argument for the forum selection clause:
 Company gets value: decrease uncertainty—lower risk
 Don’t have to waste time/resources arguing jurisdiction
 Home turf advantage—know the laws and the courts
 Less expensive to be on home turf
 Customer also gets value: co. passes on value
 Customer gets lower ticket prices
 Getting benefit of the bargain
 In Bremen  parties were co-equal commercial partners –an even stronger reason to honor the clause
 Choice of law clauses - parallel clause but not the same - states have rules governing choice of law
(Erie question).
Whenever you have contractual override of default procedural rules you have to think about the bargained for
benefits
Rules for Challenging In Personam Jurisdiction
General v Special Appearance
3 choices:
1. you can make a general appearance (waiver of your PJ objection)
2. Default (don’t show up)
- You have option to attack collaterally.
- i.e. if Π seeks to enforce judgment, you can appear and collaterally attack the judgment of the first
proceeding, or you can start a new proceeding dealing with the same controversy arguing that the prior
judgment is void.
- If in the second proceeding the court says there was PJ the first time then you are foreclosed from
attacking the merits of the first case.
- You can’t re-adjudicate the merits
- In the second collateral proceeding the only thing you can do is attack PJ
3. Special appearance
b. win on PJ objection and case is over
c. loose on PJ (court says they have PJ)
i. default—judgment will be against you. You can’t attack the judgment later on. If you show up
to attack PJ and then leave you can’t attack the judgment later on if you default Baldwin.
ii. Submit and adjudicate on the merits
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Special Appearance—not a physical appearance (you don’t actually have to be there—you can just send your lawyers)
- to force you to appear is in effect to fail to protect you from the very oppression that PJ doctrine is
supposed to protect you from—but this is solved through special appearance
- rights under PJ get a high degree of protection and deference (they are constitutionally protected
under due process)
- system favors efficiency—more import to get benefit of no interlocutory appeal then to allow case to
be kicked out at the beginning for lack of PJ  which means that if court says they have PJ, then you
have to go through with the case and you can challenge the PJ on appeal
5. Limited Appearances in Quasi & In Rem Actions
- If the state doesn’t allow a special appearance, you have the choice to default or make a general
appearance
- If it’s not a limited appearance state then you don’t have option to make a special appearance
 If you come in then action becomes in personam action (Shaffer statute)
 If you default the amount of the judgment is limited to the amount of the property
 If you come in to contest you are liable for the full amount of the dispute
- If state allows a special appearance you can default or make a special appearance to challenge
jurisdiction over the property
- If you make a special appearance then you have two options:
i. Win (no PJ—go home)
ii. Loose (court has PJ)
 stay and submit to trial
a. Limited appearance state—vulnerability at the merit stage is limited to the
value of the property
b. Non-Limited appearance state—by staying the action turns to an in personam
action
i. After Shaffer you needed property & minimum contacts, so since you
have minimum contacts, courts favored just hearing the case.
ii. Since you have contacts with the forum its fair to expose you to the full
liability of the dispute.
 default on the merits
a. can’t collaterally attack later on
- Question of whether state allows special appearances or not is not the same as whether the state is a
limited appearance state or not. Two different questions.
- Recent trend towards allowed limited appearance in quasi/in rem actions in state courts
 Political—having no limited appearance puts property owners at a disadvantage
o Must make trade-off: If you want to contest issues over your property then you have to
appear.
o Without limited appearance property owner is worse off than non-property owner who
benefits from long arm statute
 Quasi/in rem actions circumvent long arm statute
- Two circumstances in which you might elect to use in rem or quasi in rem over in personam jurisdiction
i. Where the individual you are trying to sue owns property within the state but given the suit you
can’t get him under the long arm statute (i.e. dispute not over property or business in the
state and there are no minimum contacts)
 By seizing property it doesn’t matter whether the long arm statute applies
ii. If Δ can’t be found, difficult to serve process on the Δ
 i.e. Δ lives abroad, is illusive, goes from residence to residence
Aside - “Limited Appearances” and Collateral Attack
i. Allowed in some states - In a QIR case, you may argue the merits of a case and liability will only be up to
the value of the prop.
ii. In other states, not allowed and if argument is made of the merits, you can be liable for the entire amount
of the judgment.
 In these states, you can only limit liability to the value of the prop. seized by defaulting and not
contesting.
iii. If you default (not show up for a limited or special appearance), you retain the right to collaterally attack
judgment for lack of personal jurisdiction.
iv. If you do contest and lose, cannot collaterally attack.
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JURISDICTIONAL REACH OF FEDERAL COURTS – SERVICE MECHANICS
1. Quasi In Rem Jurisdiction in Federal Courts
a. After Shaffer, QIR/IR, jurisdiction requires the same minimum contacts for in personam jurisdiction.
b. After Shaffer, QIR/IR jurisdiction still serves two purposes:
i. Service of process is easier in QIR
 Rather than chasing someone to serve them personally (expensive and you may not know where they
are) you can seize property and post notice.
ii. In states with short long-arm statutes, QIR may be only option (statute may not allow in personam
jurisdiction in a case).
 If a long-arm statute allows PJ over persons who do business in the state, but a defendant only has 5
houses in the state and no business ties, you can seize the houses to establish jurisdiction.
c. Rule 4(n) governs QIR jurisdiction in federal courts.
i. Rule 4(n)(1) - Allows QIR jurisdiction if a federal statute so provides. i.e. specific statute that governs
jurisdiction over property will give you jurisdiction—statute may also tell you how to give notice (i.e. drug
forfeiture statutes)
ii. Rule 4(n)(2) - Allows state law (where court sits) to be used to assert QIR jurisdiction in federal court.
(most states allow Π to decide to go fwd with in rem/quasi or in personam.)
 In federal court you can only proceed in rem if you cannot obtain in personam jurisdiction
 Can’t argue it’s too expensive, must be impossible/not feasible (i.e. you can’t find a defendant).
 Can’t serve them or the long arm statute doesn’t reach themso you can go fwd with in/quasi
in rem
 If you can get in personam jurisdiction, you must.
 Prop. seized must be in the judicial district where court sits.
 If state long-arm statute is short, Rule 4(n)(2) allows QIR jurisdiction to the limits of Shaffer (must
have minimum contacts).
2. Rule 4(k) – adopts state long-arm statute into law of federal court (heart and soul of Rule 4)
Rule 4(K) deals only with persons not property
Personal Jurisdictional reach of the federal courts mirrors (except in a few cases) the jurisdictional reach
of the state courts
Rule 4(k)(1)(A) - “Piggyback Provision”
i. A federal district court has power of PJ if a state court of general jurisdiction would have PJ (use state’s
long-arm statute). (Applies to all actions in federal court).
Rule 4(k)(1)(B) - “Bulge Provision”
i. Power over someone not within (A)
ii. Federal district court can go over the state border, up to 100 miles from the court, to establish PJ over
parties joined under Rules 14 or 19 - regardless of any other basis for PJ.
iii. Open question on whether minimum contacts are needed:
 Yes: Common sense  U.S. has jurisdiction over anyone within its borders as the sovereign creating
the courts, only using 100 miles of this.
 No: Restrictive  May not comport with fairness under Intl Shoe minimum contacts (Oxford case).
 When would you use this:
 CT Π travels to NJ. While in NJ Π goes to a drug store buys Tylenol, and is poisoned by it. Tylenol
was produced by co. in NY. Drug was sold to store in NJ. He decides to sue in NY. Sues co. in NY,
but the drug company wants the drug store in the lawsuit. They join the store under Rule 14. Is
there PJ over the drug store as a third party Δ. Two possibilities:
 NO
 Yes—but long arm statute of NY doesn’t reach the drug store (i.e. although they visit, the
statute only allows for people that commit tort in the state or do business in the state—which
the drug store doesn’t do).
 Bulge provision would apply because they are within 100 miles of were the suit was brought
 Geographically so close that you can’t argue its unfair to reach out and grab Δ
 Provision is rarely used


a.
b.
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c. Rule 4(k)(2) - Omni Provision
i. Enacted by Congress in reaction to the SCOTUS decision in Omni Capital International v. Rudolf Wolff &
Co. (1987).
ii. Unless ∆ is amenable to service of process there is no PJ – implies that, even if a federal statute expressly
grants service of process authority, the 5th Amendment Due Process Clause could still apply to prevent an
unreasonable excuse of PJ over nonresident ∆.
 Suit by Investors in Louisiana against a British corporation/commodities firm in LA federal court.
 LA long-arm statute did not reach British defendants.
 Court refused to create a rule authorizing service of process in this situation, leaving it for Congress.
 This meant some foreign defendants doing business in the U.S. might not be amenable to service of
process in any one state.
iii. Congress enacts Rule 4(k)(2) – Omni Provision.
 Allows a federal district court to assert PJ over a foreign defendant who has minimum contacts with
the U.S. as a whole, but not any one state.
 Provision would be used when there are not enough minimum contacts with one state or when
the long arm statute is too short
 Only applies in federal question cases.
 Only applies when PJ cannot be asserted in any other place - in no state could PJ be asserted.
 Aggregates contacts with U.S. as a whole to ground jurisdiction—satisfy due process
 Traditional view (sovereign has power to call anyone within its borders) versus the modern
minimum contacts view (add up contacts within the borders of the sovereign).
 When would you use? Foreign parties; corporations (unusual for US corp.); off-shore company; one
state does have minimum contracts, but that state has a short long-arm statute (state jurisdiction
fails).
iv. Two cases impacting this rule:
 Stafford v. Briggs (SCOTUS, 1980) - Justice Stewart’s dissent endorses the traditional view that if you
are “present” in the U.S., you can be haled into court anywhere within the borders.
 Fifth Amendment applies here, not Fourteenth (states).
 Question of whether “reasonableness side” of test applies (Justice Stewart says it does not).
 Oxford case (E.D. Pa., 1974) - Says assertion of PJ is constrained by the notions of “fairness” derived
from the Fifth Amendment.
 Fairness inquiry should be part of this analysis.
 Oxford argues no distinction between standards under 5th or 14th.
 If you satisfy the omni provision, where would you sue:
 Π has choice—no limit, don’t have to have sufficient contacts with one state just have to add up
contacts with the US as a whole
d. Other provisions of Rule 4
i. Rule 4(a) - Form of Summons
ii. Rule 4(b) - Issuance
iii. Rule 4(c) - Who can serve summons
iv.
v.
 Plaintiff must arrange for service
 Anyone over 18 years not a party to the suit.
Rule 4(d) - Waiver of Service
 Plaintiff can mail service to defendant requesting waiver.
 Reward for defendant for waiving - 60 days to file answer.
 Penalty for failing to waive - pay costs of personal service.
 Δ has obligation to waive if not they get to pay the costs of service
Rule 4(e) - Rules for Service of Process
 Piggybacks on rules of the state where the district court is located OR where the service is actually
effected.
 Can personally deliver it, leave at D’s home with someone responsible, or by delivering a copy to an
authorized agent.
 Tells you that unless otherwise provided, service may be done anywhere in the US
 Ohio will recognize service in any state but that doesn’t mean that service in any state will work
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vi. Rule 4(h) - Service on Corporations
 Serve an agent authorized to receive summons. (another piggyback provision)
 Hellenic Challenger case: Interprets Rule 4(h) as allowing service to an agent who stands in a position
to render it “fair, reasonable and just to imply the authority on his part to receive services.”
 Must reasonably expect that delivery to that person would come to the attention of individuals who
handle litigation  flexible standard.
 Question is whether it was reasonable for you to expect that the summons would go the right
person so that the company would get effective notice that they are being sued.
vi. Rule 4(m) - Time Limit - Within 120 days of filing complaint.
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NOTICE & OPPORTUNITY TO BE HEARD
NOTICE
1. Adequate notice of a lawsuit is part of due process rights.
a. Components of Due Process:
i. Power over the person (personal jurisdiction).
ii. Perfection of the power over the person through correct service of process.
iii. Adequate notice of the lawsuit.
iv. Opportunity to be heard.
b. Defects in any of these factors means due process rights of a party are violated.
c. Notice of a suit is given by service of process on a  (see Rule 4 above)
2. Adequacy of Notice
a. Standard of “Best Notice Practicable.”
b. In-person service of process is the standard against which other means of notice are measured. (in person is
c.
GOLD std)
Seizure plus posting or seizure plus publishing  geared to real property – in rem and quasi in rem.
3. Mullane v. Central Hanover Bank & Trust Co. (SCOTUS, 1950)
a. Small trusts were pooled together, and periodic accountings were made of the funds; each accounting closed
the account against future actions.
b. NY statute provided for notice by publication in the newspaper.
c.  objected that such notice to beneficiaries was inadequate to afford due process under the 14 th amendment.
d. Court says notice by publication is rarely “reasonably calculated” to provide notice when addresses of the
parties are known. This standard of notification is insufficient to meet due process requirements.
i. Parties argued whether this was an in rem or in personam action.
ii. Depending on classification, standard of acceptable notice varies.
e. Court said that’s wrong and creates a single standard of notice: “best notice practicable.”
i. Says that notice must be reasonably calculated under all circumstances to apprise interested parties of the
pendency of that action and afford them opportunity to be heard
ii. Court makes a move similar to Shaffer, applying one unitary standard.
iii. Whether this standard is satisfied depends on circumstances, analyzed on a case-by-case basis.
iv. Constitutionally adequate notice under 14th Amendment Due Process Clause is reasonably calculated to
succeed; provide notice to the most people in an efficient manner.
v. Balance interests (flexible—not an absolutist std):
 Interest of individuals to know of lawsuit and present their case.
 Interest of society to have judicial matters settled - finality.
 Flexibility and pragmatic concerns are given a lot of weight
vi. Notice need not reach all parties; just requires best efforts practicable. Actual notice is not required
vii. What would be the most effective and efficient way to inform the parties of the situation given who the
parties are and the means of service available.
viii. Assumption  some people will fall thru the cracks.
ix. For people that are known and there location is knownmost be notified by a method reasonably
calculated to get to them—mail is ok)
x. Those that are not known (speculative) and those who we don’t know there whereaboutspublication is
fine
xi. Rejects absolutist approach for notice to everyone
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4. Mennonite Board of Missions v. Adams (SCOTUS, 1983)
a. Publication and posting notice of sale of real prop. for tax nonpayment constitutionally inadequate as to
mortgagee readily identifiable.
b. Traditional (Pennoyer) method of notice used here: publication & seizure.
i. Traditionally, this was deemed effective to provide notice.
ii. People were assumed to keep tabs on their prop.; knew when seized.
b. Court holds this is not the best notice practicable:
i. More effective service is available at a reasonable cost.
ii. Name of mortgagee is available through public records: personal service or mailed notice should be
c.
d.
required.
Unless mortgagee is not reasonably identifiable, constructive notice alone (i.e. posting/publication) is not the
best notice practicable.
Best notice practicable standard undercuts traditional method of notice.
5. Greene v. Lindsey (SCOTUS, 1982)
a. Posting notice, in a condemnation proceeding against a landowner whose name was known, is constitutionally
b.
c.
d.
e.
f.
inadequate.
Eviction notice posted on tenant’s doors not sufficient notice: notice must be mailed to the tenants.
In a public housing project, risk of notice being torn down from doors is great: not a “reliable means of
acquainting interested parties of the fact that their rights are before the courts” quoting Mullane.
Court indicates that traditional hierarchy of notice (i.e. personal service, posting, mail, publication) cannot be
relied on in all cases.
Highly fact-specific analysis; must look at particular details of each case.
O’Connor (dissent) says this creates an impossible std for public entities—can’t rely on particular proceedings
as being sufficient, must always engage in a fact specific exercise
OPPORTUNITY TO BE HEARD
1. Parties must have an opportunity to be heard on their side of the case.
a. Due process requires parties have a chance to participate in the resolution of a dispute and present their side
of the issue.
b. Most accurate outcome (closest to the truth) is likely to occur if both parties are allowed to advocate for their
c.
d.
e.
side.
Law developed primarily through deprivation of property cases:
i. Private law: disputes between individuals who commandeer the state to assert power over prop.:
 Seizure to establish Jurisdiction. (overlaps with the other categories—i.e. prop. Used to secure
judgment and to get jurisdiction)
 Seizure of property to secure judgment (prop. related or unrelated to dispute) (Doehr)
 Secure partial interest in prop./party has a commercial interest in the property (Fuentes)
 Execute a judgment/seize property to satisfy judgment
ii. Public law:
 Government benefits disputes (i.e. welfare, SS benefits) (Mathews)
 Forfeiture - criminal/civil actions. (government seizes property used illegally)
Rule 64 - Seizure of Person or Property
i. “Provisional remedies” - temporary restraining orders, preliminary injunctions, pre-actions attachments or
seizures.
ii. Exceptions to the constitutionally required opportunity to be heard.
Opportunity to be heard doctrine requires some kind of hearing prior to deprivation; question of what kind of
hearing is sufficient?
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2. Evolution of the doctrine:
a. Fuentes v. Shevin (SCOTUS, 1972) 4-3 holding
i. SCOTUS says that before a provisional remedy (garnishment or attachment) is used to seize property, the
ii.
iii.
iv.
v.
14th Amendment requires notice and an opportunity to be heard “at a time when the deprivation can still
be prevented.”
 sued in federal court to challenge the constitutionality of the Florida pre-judgment replevin procedures.
Πs had a partial property interest in the goods that were being seized under the installment contract
Under FL procedures, a party seeking replevin must only post a bond and recite to the court clerk that
prop. is “wrongfully detained” – conclusory statement.
Court finds this procedure does not comport with due process:
 Due process requirements of notice and opportunity to be heard ensure that a fair decision-making
process is followed.
 Here, the pre-deprivation hearing was one-sided - ex parte; debtor was not given any opportunity to
present her case (one-sided).
 Partial deprivation or temporary deprivation are violations of due process (noting FL allows a
bilateral post-deprivation hearing).
 Doesn’t matter that its only temporary (time between seizure and full dress proceedings)
 Proceedings needed to safe guard rights must occur pre-deprivation
 Absent extraordinary circumstances the proceedings must be bilateral
 Best to hear from both sides to minimize error
 Look at adequacy of the process
Only extraordinary circumstances justify the postponement of a party’s opportunity to be heard:
 Directly necessary to secure important governmental or public interest.
 Special need for prompt action to protect prop..
 State takes action for public policy persons; person making the determination is a government official
responsible for justifying.
b. Sniadach v. Family Finance Corp. (SCOTUS, 1969)
i. Pre-judgment garnishment of wages violated due process.
ii. Absent notice and opportunity to be heard, cannot take a person’s wages, so important to sustaining life.
c. Mitchell v. W.T. Grant Co. (SCOTUS, 1974)
i. Prop. seizure, w/o notice or opportunity to be heard, upheld b/c judge (as opposed to clerk) permitted
seizure only after presented w/verified petition that person whose prop. seized could reclaim prop.
immediately.
ii. Court upholds a pre-hearing seizure of property in LA.
iii. “Resolution of the due process question must take into account not only the interests of the buyer of the
prop. but those of the seller as well.”
iv. Court distinguishes Fuentes:
 Creditor makes required showing before a judge, not a clerk.
 Documentary proof is needed to satisfy a more narrow standard.
 Creditor had a prior interest in the prop. (debtor violated installment agreement; as opposed to
Sniadach, where creditor had no prior interest in the wages that were garnished).
v. Also, facts in this case are more strict than in Fuentes, allowing the Court to let this one-sided hearing
squeak by.
vi. Court seems to draw back from the Fuentes holding and say that unilateral pre-seizure hearings in certain
situations are appropriate.
vii. This led to chaos in legal world - reconciling Fuentes with Mitchell.
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d. North Georgia Finishing, Inc. v. Di-Chem, Inc. (SCOTUS, 1975)
i. Prop. seizure, w/o notice or opportunity to be heard, constitutionally invalid b/c clerk permitted seizure
on conclusory allegations and no provision for early hearing for person whose prop. seized to reclaim prop.
ii.  attempted garnishment of ’s bank account prior to judgment.
iii. Court declares this procedure incompatible with due process requirements.
iv. GA garnishment statute has none of the saving characteristics of the LA statute in Mitchell:
v.
 Affidavit must only contain conclusory allegations.
 Writ of garnishment need only be issued by the court clerk, not judge.
Court finds this GA statute unconstitutional.
e. Mathews v. Eldridge (SCOTUS, 1976)
i.  Eldridge commenced this suit after being denied continued Social Security disability payments; argued
he was deprived of due process. Gov’t benefits are form of property.
 Different kind of case: right vs. privilege.
 Argument that the government is not required to provide these benefits, so it is entitled to withdraw
them at any time.
 Justice Holmes’ theory that the benefits were new property—government granted property/benefit—
since the government had no obligation to give it to you they could take it away for any reason
 Court in Goldberg v. Kelly said once these benefits are passed into law, they become a kind of prop.
interest entitled to protection.
ii. The proceedings in question here were bilateral, but the question was whether they provided sufficient
opportunity to be heard; were administrative proceedings enough opportunity before deprivation?
iii. Court develops a three part test to determine whether procedures for an opportunity to be heard are
constitutionally sufficient:
1. Private interest involved – is it a partial or full property interest? Is it a temporary or permanent
deprivation? Nature of the interest at stake.
2. Risk of erroneous deprivation vs. the value of more procedures and safeguards (Mullane calculus?).
How good are the procedures?
 Look at nature of what needs to be determined and how we are determining it.
3. Cost/burden on the government of the additional procedure.
iv. In this case:
1. The private interest in continuing benefits is not that great.
 Unlike welfare benefits in Goldberg, disability benefits do not go to the heart of supporting
oneself.
 This was just a temporary deprivation; post-deprivation review of the decision is available to .
2. Low risk of error in this procedure.
 Facts are easily document; channeled through the doctor—documentary evidence with expert’s
reviewing it.
 Distinguish Goldberg, in which factors to consider for welfare payments are more elusive.
 Similar distinction between Fuentes and Mitchell.
 Nature of the legal standard is considered.
 Types of facts involved in determination are considered.
3. Cost involved in additional procedures is high.
 Many more hearings at much more cost.
 If benefits don’t stop and government keeps giving you money then if you are not disabled the
government will never be able to collect
v. Court finds the procedures here are sufficient to comport with due process.
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f. Connecticut v. Doehr (SCOTUS, 1991)
i.  asserts a pre-judgment attachment against the house of  as security for a possible judgment for an
unrelated dispute for assault and battery.
ii. Connecticut statute allowed such attachment through ex parte proceeding.
iii. Court extends the Mathews Test to private law setting.
iv. Court considers statute in light of the 3 considerations of Mathews test:

v.
Private interest involved: Significant in this case.
 A person’s home is important to him.
 A lien on the house can be disruptive
 Risk of Error/Value of more procedure to reduce error: Significant.
 Procedure is ex parte (one-sided inquiries are not good).
 Does not matter that judge issues the attachment writ (a retreat from the Mitchell case?).
 Nature of the inquiry goes to the merits of the case—fact intensive and therefore there is a high
risk of error
 Compare interests of  with  (instead of government’s interest) benefit of additional proceedings v
burden of providing additional proceedings:
 Interests of the  are too minimal to justify.
 Real prop. (home) is not in danger of being moved.
 Only concerned about movable property disappearing.
 Also, in every case there will be a full post-deprivation hearing, so there is really no additional cost
to moving it to pre-deprivation.
 Where there is a potential to remove property than we have exigent circumstances (Good case)
 Still have to try the whole case—cost won’t be that great cause you are going to have to hear the
matter anyways—only a question of moving up the procedure to an earlier stage. Not like in
Mathews were you won’t always need the proceedings
Court strikes down the attachment statute, as the private interest involved is significant, and the risk of
error is to high.
g. United States v. James Daniel Good Real Prop. (SCOTUS, 1993)
i. Federal statute provides for forfeiture of prop. relating to drug crimes.
ii. Good was involved in drug crime, and the government initiated an in rem proceeding against Good’s prop. –
seizure served a dual purpose: seize tainted property, establish jurisdiction.
iii. In an ex parte proceeding, Magistrate rule for government and prop. was seized without prior notice or an
adversarial hearing.
iv. Court finds due process considerations apply to this forfeiture:
v. Applies 3 part Mathews Test to this forfeiture action:



vi.
Good’s interest in his house are significant.
Ex parte seizure creates an unacceptable risk of error.
No compelling need shown by government for prompt action.
 Distinguishes Calero-Toldeo case - prompt action was necessary to prevent owner from removing,
concealing or destroying his boat.
 This risk created an exception to the rule requiring pre-deprivation notice and opportunity to be
heard.
 In this case, “real prop. cannot abscond.”
 Government had other means, short of seizure, to protect its interests in the prop. (file a lis
pendens, etc.).
 Already provide a full post-deprivation hearing, so just move up.
 Implications—Old methods for quasi and in rem proceedings of seizure and notice are no longer
good
This seizure of prop. is not one of extraordinary circumstances to justify the postponement of notice and
hearing.
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VENUE
GENERAL PRINCIPLE AND STATUTES
1. Venue Generally—place where judicial power can be exercised
a. Final set of rules governing where a trial takes place:
i. Subject Matter Jurisdiction.
ii. Personal Jurisdiction.
iii. Venue.
b. Focus of Venue:
i. Convenience of the parties involved (particularly ’s).
ii. Relation between litigated events and place of trial. (systemic factors)
iii. Focuses on the district not the state
iv. States have their own venue policies/doctrines
c. Venue has sub-constitutional status:
i. Balancing of practicality, rather than substantive rights—seeks to balance interests within constitutionally
ii.
iii.
iv.
v.
permissible limits
 Burlington Northern RR Co. v. Ford (SCOTUS, 1992)
  RR challenged the constitutionality of the state’s venue laws.
 In unanimous opinion, Court said states have wide latitude to structure its venue laws.
 “Reflect equity or expediency in resolving disparate interests of parties to a lawsuit in the place of
trial.”
Venue can be waived if not raised—not a constitutional right to venue in a particular place
Forum-selection clauses (when they are given effect) override venue as well as PJ requirements. Waive
right to object when agreeing to the clauses
Huge amount of discretion in courts deciding where venue should be (highly discretionary)
Only have a set of a set of pragmatic concerns that you can bring to bear on the court
2. 28 USC § 1391 - Federal Venue Statute
a. § 1391(a) - Diversity Cases may be brought in:
i. (1) - Judicial district where any  resides, if all ’s reside in same state, or

“Resides” basically means “domiciled” except for corporations.
ii. (2) - Judicial district in which a substantial part of the events or omissions giving rise to the claim
iii.
occurred, or in which a substantial part of property that is the subject of the action is situated, or
(3) – If there is NO district in which the action can otherwise be brought, a judicial district in which any
defendant is subject to personal jurisdiction at the time the action is commenced (Fallback Provision).
b. § 1391(b) - Non-Diversity Cases may be brought in:
i. (1) - Judicial district where any  resides, if all ’s reside in same state, or
ii. (2) - Judicial district in which a substantial part of the events or omissions giving rise to the claim
iii.
occurred, or a substantial part of prop. that is the subject of the action is situated, or
(3) - Judicial district in which any  may be found, if there is no district in which the action may otherwise
be brought (Fallback Provision).
 Courts have interpreted “may be found” as meaning where there is PJ—have interpreted it parallel
with section (a)
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Fallback Provision—
- What does it mean no other place where Δ “shall be found”?
- two views:
i. No other place where there is venue. When would there not be a place were COA arises?
 COA arises in a foreign place
 Ambiguity about were the place might be if its an abstract event (i.e. breach of
contract)
 If there is no other place then you can invoke fallback provision
ii. There really is other place were you can bring it (might be another place that has venue) but
you can’t bring the action there
 Action arises somewhere were you can’t get PJ
- Which view to take?
i. If you can’t bring action cause you don’t have PJ and Venue, what do you do?
 Example: CA Π sues CO resident and OH resident. Suing for accident that took place in
IL
 Glannon Approach:
a. 1391(a1) doesn’t apply cause not all Δs are residences of the same state
b. 1391(a2) You can have venue in IL—under Glannon you can’t use fall back cause
you can bring it in IL. So you have to sue them individually
 Wax approach: Can we bring it in IL is the Q?
a. Yes if IL long arm statute applied to Δ. The 2 Δs had sufficient minimum
contacts with IL—not guaranteed by the venue statute.
b. COA arises in IL—check to see if you have PJ over Δs in IL. If no, then you can
use fallback provision
c. Fallback says you can sue in place where court has PJ over Δ—that might be OH
or CO—but still need to make sure there are minimum contacts
c. § 1391(c) - Corporate Defendants
i. Defines where corporations reside for purposes of § 1391(a)(1) and (b)(1).
ii. Deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the
action is commenced.
iii. In a state with more than one judicial district and in which Δ corporation is subject to PJ at the time action
is commenced, Δ shall be deemed to reside in any district in that State within which its contacts would be
sufficient to subject it to PJ if that district were a separate state.
iv. If there is no such district, corporation is deemed to reside in the district with which it has the most
significant contacts.
 What about individuals?
o Some courts say it’s the same as personal domicile (will adopt §1332’s definition of domicile)
o Other’s say its just like corporations under §1391(c)need minimum contacts
o 3rd approachlook at state law of residence
d. § 1391(d) - Aliens
i. Aliens subject to suit in any district.
ii. Law of venue is grounded in localization, where Π and Δs have ties to a particular locale (not true for an
alien)
3. 28 USC § 1404 - Change of Venue (Transfer Statute)
a. Text: (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer
any civil action to any other district or division where it might have been brought.
b. Partial codification of forum non conveniens doctrine (only allows transfer between 2 federal courts, not
federal and state court).
c. Key aspects of § 1404 Change of Venue:
i. Transfer, not dismissal.
ii. Made upon motion by  or .
iii. Alternative forum: federal.
iv. When venue and PJ is proper but one of the parties still thinks there is a better place
v. Courts will entertain motion suas sponte
vi. PJ and Venue must be present in both forums
vii. Law of transferor forum applies for diversity cases (including choice of law rules and statutes of
limitation).
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 Van Dusen Rule: B/c of Erie doctrine applicable to diversity cases, an action transferred under §
1404(a) is governed by the law of the state where the transferor ct sits.
 This prevents ’s from forum-shopping: searching for a forum with more favorable law is moot; law
follows transfer.
 However, allows ’s to forum shop: ’s can file suit in an inconvenient but favorable forum and then
seek transfer.
 Ferens v. John Deere Co. (SCOTUS, 1990)
  missed statute of limitations in PA.
 Filed suit in MS, with a longer statute of limitation, then moved for a transfer to PA court under §
1404(a).
 Court held that PA court (transferee forum) was required to apply the MS law (transferor forum)
under the Van Dusen rule.
 Said Van Dusen rule applies regardless of who asks for the transfer
 The Van Dusen rule is still good law, despite  forum-shopping.
 (Under common law FNC, law did not transfer)
 Van Dusen Rule requires that when you transfer you take the substantive law of the court
transferring you with you
viii. Transferor and transferee forums must have proper venue, PJ, and SMJ (i.e. this is a court where action
could have been brought, but there is a better place for this action):
 Hoffman v. Blaski (SCOTUS, 1960)
 A § 1404(a) transfer is permitted only if the transferee ct would have venue, PJ, and SMJ on the
date the complaint was filed in the transferor ct.
  moves to transfer case to IL under § 1404(a).
 Action could not have been brought by  in IL originally.
 Court holds that § 1404(a)’s requirement that the action could have been brought in a court
applies at time the suit was originally brought, not at the time of transfer ( would waive PJ
defense).
 To allow such transfer would undermine the principle that the  is the master of his claim, power
to chose forum.
 This would open an opportunity for  to harass and oppress , turning the shield of § 1404(a) into
a sword.
 There must be venue and PJ in court you want to transfer too—can’t consent
4. 28 UCS § 1406 - Cure or Waiver of Defects (Transfer doctrine to correct technical mistake by parties)
a. (a) The district court of a district in which case is filed laying venue in the wrong division or district shall
dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have
been brought.
i. Applies only when venue in the transferor court is improper. (defect in venue) i.e. filed in place with no
venue (i.e. statute of limitations timed out)
ii. Court has power to dismiss or transfer to court with proper venue.
iii. Either  or  may move for transfer.
b. (b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who
does not interpose timely and sufficient objection to the venue.
i. Venue can be waived.
ii. Venue is waived if not timely objected to (Rule 12(b)(3)).
iii. Van Dusen rule doesn’t apply under §1406
c. Key aspects of § 1406:
i. Transfer or dismissal.
ii.  or  may make motion
iii. Alternative forum: federal
iv. Law of transferee forum applies.
 Potential for ’s to continue to pursue the claim without risking the expiration of statute of limitations
(may run during case).
 Majority rule: statute of limitations of the transferee forum applies (prevents gaming of the system).
v. Venue must be improper in the transferor forum for § 1406 to apply.
vi. PJ can be lacking in transferor forum (as long as venue is also):
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 Goldlawr v. Heiman (SCOTUS, 1962)
 SCOTUS says that a § 1406(a) transfer is permitted even if the transferor ct doesn’t have PJ over
the ∆.
 PA court lacked both PJ and venue, but transferred case to NY federal court anyways.
 NY court then dismissed, claiming that PA could not transfer cause it lacked PJ.
 Court held that such a case is exactly what § 1406 is meant to address; even if a court lacks PJ (as
long as it also lacks venue so that § 1406 applies), it can transfer to proper court.
vii. Transferee forum must have venue, PJ (and SMJ) - Hoffman v. Blaski rule applies.
Statute of Limitation Issues w/ Transferring:
- Example: NY statute = 2 years & NJ statute = 3 years.
1) Filing out of time for the transferee forum
- File in NJ after 2 ½ years, note defect in jurisdiction, and want to transfer to NY. IF you had initially
filed in NY would you have been in time? No
- Should you be allowed to transfer?
i. Minority: Yes cause you were within time in the initial filing (court is letting you bring along the
prior forums statute of limitations—like Van Dusen rule)
ii. Majority: NO
2) Outside statute in initial filling but within statute if you transfer
- Initial filling in NY and try to transfer to NJ. File it at 2 ½ years but then you realize that you were out
of time and that there was no venue, can you ask to transfer into forum with venue and within a
statute of limitations of the transferee court. Does it matter that you were outside statute in the initial
forum/filing?
i. Most courts say Yes (double check this)
FORUM NON CONVENIENS
1. FNC Generally:
a. A court may resist imposition of its jurisdiction even when jurisdiction is authorized by the letter of a general
venue statute.
i. Too inconvenient for the  or court to litigate the case.
b. If successful, FNC leads to dismissal or stay, but not transfer.
c. Only on ’s motion (inconvenient for him).
d. Alternative forum: foreign or state court.
i. In federal system, FNC only applies where this is a more convenient non-federal court (state or foreign) - §
1404(a) covers the rest.
e. Substantive law of the alternative forum applies: (don’t take substantive law with you)
i. But statute of limitations may be waived as a defense by the  as condition of dismissal (let you move to
more convenient forum, if you allow this).
ii. Substantive law taken into account in dismissal decision (will the different law significantly impact the
outcome of the case?).
f. Dismissing forum must have venue, PJ and SMJ.
g. If waived → No venue and PJ necessary in the alternative forum.
2. Three part test for appropriateness of FNC:
a. -specific factors:
i. Connection to the forum/ties (geographic); i.e. are they from that place, or close to where they are from;
physical local based factors-weight given to ’s choice of forum
ii. Presence of evidence and witnesses for ’s case – ease with which π can build case.
iii. Substantive law concerns (choice of law). If law in alternative forum provides some relief, then it does
b.
c.
not necessarily block interest. Remedy has to be completely wiped out in the alternative forum—if there is
any remedy at all, even it’s less, the Δ’s motion must be considered—cannot be defeated automatically
-specific factors:
i. Presence of witnesses and evidence for ’s case. (can you get witnesses)
ii. Third-party practice (if  needs to implead a party).
iii. Δ’s ties to the place and the place they want to go.
Public or systematic forum-related interests:
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i. Substantive law--Burden on the jury/court (familiarity with the law to be applied) – too much confusion?
ii. Event of local concern or interest – center of gravity.
iii. Connection of events/persons to the current and alternative forum.
3. Piper Aircraft v. Reyno (SCOTUS, 1981)
a. Scottish ’s sued ’s for damages from a plane crash in Scotland.
b. After removing and transferring to PA, ’s moved for dismissal on the ground of forum non conveniens.
i.
Alternative forum is available; s agree to be sued in Scotland.
c. Supreme Court upholds dismissal, applying a three part test of considerations, and finds weight of factors
points to Scotland as the appropriate forum.
 Possibility of change in the substantive law may be given substantial weight only if the remedy in the
alternative forum is so clearly inadequate or unsatisfactory as to be no remedy at all.
 Ordinarily, strong presumption in favor of π’s choice of forum which may be overcome only when the
convenience factors clearly point to trial in the alternative forum.
 BUT, the presumption applies w/less force when the π is from a foreign country.
 Under FNC, court can’t transfer—it must dismiss so court before even considering FNC factors will
assure itself that under the law of the alternative jurisdiction the Π will be able to bring the case (i.e.
that there is PJ, venue, statute of limitations hasn’t run etc)
o If it’s not a viable law suit in the alternate forum, court will have Δ promise to waive PJ & venue
rights.
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ASCERTAINING GOVERNING LAW
THE ERIE DOCTRINE
1. Choice of Law Problems
a. Question: “Which sovereign’s law should apply to the dispute? Which sovereign has power to prescribe the law
that is applied in a case?
b. Up to now, question was which sovereign’s courts?
i. SMJ - federal or state court?
ii. PJ and Venue - geographical - where do you take the case?
c. Two Choice of Law problems:
i. Horizontal: (Diversity Cases) Which state’s law applies? (Choice of law rules for each state)
ii. Vertical: Choosing between state or federal court? And which law applies—state or federal? (Erie Problem)
2. Statutory Underpinnings
a. Rules of Decisions Act (28 UCS § 1652)
i. Laws of the several states shall be the rules of decision in civil actions in the courts of the United States, in
cases where they apply, unless the Constitution or federal law provides otherwise.
ii. Dates back from the Judiciary Act of 1789.
iii. Allows state law to fill in gaps where federal law doesn’t govern
iv. Questions:


Does this apply to statutory law or decisional law, or both?
Does this cover substantive law or procedural law, or both?
b. Rules Enabling Act (28 USC § 2072)
i. (a) Congressional grant of authority to the Supreme Court to prescribe rules of practice and procedure
for cases in federal courts.
ii. Prohibits such rules from abridging, enlarging or modifying any substantive rights.
iii. Distinction between substantive and procedural is unclear, resulting in tension between § 1652 (laws of the
several states shall apply) and §2072 (federal authority to provide for rules of procedure).
iv. In general, courts have allowed federal rules of procedure to trump state law (even when the distinction is
v.
unclear).
(b) limits that power → “such rules shall not abridge, enlarge or modify any substantive right.”
3. Swift v. Tyson (SCOTUS, 1842)
a. SCOTUS held that in a diversity case with a claim based upon state law, a federal court should apply federal
general common law to the state claim unless that claim involved state legislative law or matter of local
custom or usage.
b. Interpretation of the Rules of Decisions Act for nearly 100 years.
c. In this case, conflict between NY state law and developing federal general common law:
i. NY common law protected Tyson--  could not collect.
ii. Common law outside of NY allowed Swift to collect.
d. Interpretation of “laws of the several states” affected outcome:
i. Does RDA apply only to statutory law (federal courts only required to follow state law when it is in a
statute)? Then federal court can use federal general common law.
ii. Does RDA apply to both statutory and decisional law? Then court must use the NY courts’ common law
interpretation.
e. Justice Story, for a unanimous court, decided that the Rules of Decisions Act applies only to statutory law of
the states.
i. “Legal Idealism” Agenda:
 Saw the law as a body of knowledge out there to be discovered.
 Idea that there would be a convergence of decisions; same conclusions.
ii. Practical Agenda:
 Looking for a uniform body of law to govern the nation
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 Developing common law was more progressive and modern--state law was out of date—needed more
modern law for a commercial society
 Judicial activist—believed that federal court should have more authority—should be a model for state
courts to follow
f. Problems with Swift:
i. Practical Objects
 Created the opportunity for forum shopping (see B&W Taxicab).
 Federal court was meant as a back-up but Swift allows party to shop between federal and
state court—meant to be another place where you could take same claim w/ same rights
not meant to change law that applies to the case
 Inequitable Administration of Justice—
 i.e. out of state Π v in state Π  out of state Π could choose a more favorable body of law
to use against in state Δ (shield turned into a sword)
 turned diversity—instrument meant to equalize—into a device that favored out of state Πs
 in-state ’s bound by state’s decisional law, while out of state ’s could choose federal or
state court, whichever forum provided most favorable rule
ii. Deprived states of authority to effect policy through both statutory and common law.
iii. Separation of Powers problem: allowing federal courts to “make law” violates the Constitution’s
delegation of legislative authority to Congress.
iv. Federalism problem: allowing federal courts to “make law” in areas reserved to the states violated
federalism principle.
4. Black & White Taxicab v. Brown & Yellow (SCOTUS, 1928)
a. Illustrates problems with Swift; classic case of forum shopping.
b. KY  reincorporated in TN in order to gain diversity jurisdiction; federal court was then able to apply its “own”
c.
common law instead of KY common law to grant a favorable judgment to  in monopoly issue.
Holmes dissent:
i. “Legal Idealism” was not realistic; in the wake of Swift, there was not a convergence of opinion. Swift
doctrine is based on an illusion of the nature of the law
ii. Law is not discovered, it’s a product of the sovereign.
iii. There is no distinction between state judge-made law and state legislative law
iv. Federal common law is unconstitutional:
 Vertically: Congress has no authority to legislate in these areas, so courts, as another branch of the
federal government, should not be able to “make law” in these areas (federalism).
 Swift gets federal government involved in areas of state law
 Horizontally: Courts have no authority to legislate; this usurps power from Congress (separation of
powers).
5. Erie R. Co. v. Tompkins (SCOTUS, 1938)
a. SCOTUS held that state substantive law applies in a diversity case → substantive law of a state includes its
b.
c.
d.
e.
f.
decisional (judge-made law).
Erie doctrine → constitutional law mandate that applies to diversity cases.
 hit by  railroad; sued for injuries sustained.
PA common law would have denied  recovery as a trespasser, while federal “general common law” applied by
federal courts under Swift interpretation would have allowed  recovery, so  sued in federal court.
Court overrules Swift v. Tyson, holding the Rules of Decisions Act applies to both state statutory law and to
state decisional law for diversity cases.
Rationale: Twin aims:
i. Eliminates forum-shopping and disparity between federal and state rulings.
ii. Eliminates discrimination against in-state ’s – inequitable administration of the law.
iii. Restores balance of power between federal and state courts, recognizing and preserving their autonomy
and independence.
iv. Acknowledges no convergence of opinion after Swift.
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6. Aftermath of Erie:
a. Federal courts must apply pertinent state common law (statutes ad common law) in the absence of contrary
federal positive law (legislation, constitution)
b. Federal courts required to follow state substantive law, but follow federal procedural law, in diversity cases.
c. Underpinnings/Reasoning in Erie:

Federalism part—doesn’t currently apply
 Erie was decided when congressional power to legislate was considered very limited—this is no
longer the case
 The New Dealexplosion of legislation by Congress under the guise of federal law
 Second part—still holds true
 Courts can’t legislate in substantive areas
d. Questions in the wake of Erie:
 How much authority to legislate does Congress shave in the areas of traditional state authority? (arose
from the NEW DEAL)
 What is the status of judge-made federal procedural rules in federal court where there are state law
rules that seem to address the same issue? Did the RDA crowd out federal courts’ power?
o Courts have always had inherent power to create their own rules and provide remedies (see
Bivens).
 i.e. housekeeping rules—when to file claims, motion practice, rules for SJ etc
 inherent remedial powers that federal courts were thought to have—judges continued to
rely on it.
 Courts interpreted Congress intended to preserve the courts’ inherent (Article III) powers to
create their own procedural rules
 What is the status of the federal rules of civil procedure when there are inconsistent state rules that
address the same issues? Do the FRCP have precedent?
e. Question over what was procedural and what was substantive law?
Certification: Some states allow federal courts to certify questions of state law to the state supreme court, to
clarify state law position on an issue.
f. Unguided Erie choices: When there is no precedent from the state supreme court, federal courts can interpret
lower court rulings or just guess at what the state supreme court would have ruled.
i. May allow some forum-shopping, but this is unavoidable.
EVOLUTION OF THE ERIE DOCTRINE
1. Guaranty Trust v. York (SCOTUS, 1945) RDA case (Judge Made Rules)
a. Under Erie, a state law is one of substance if not to apply it would lead to a different outcome in federal ct
from the likely outcome in state ct.
b. York sues Guaranty trust alleging bridge of fiduciary duty—classic equity case.
c. Held: A state statute of limitations is a substantive law applicable to a state claim litigated in federal court.
d. Question of when a state rule applies or whether a judge-made statutes of limitations rule applies.
i.  argues the statute of limitations rule is procedural and thus unaffected by the Erie decision.
ii.  argues the state’s statute of limitations trumps judge-made rule.
iii. Reasoning: court has equitable power to give a fair remedy—as part of court’s remedial power in equity,
they decide to extend the statute of limitations because its not faircourt hooked itself to equitable
power.
iv. Court doesn’t address issue of substance v procedure—doesn’t even look at RDA
v. Court instead gets rid of formalism and develops a functional test (like Shoe, Mullane, Gibbs)
d. Court develops the “outcome determinative test” to decide whether a state procedural rule should be
followed under Erie:
i. If you apply the federal rule as opposed to the state rule—will this affect/change the outcome in the
caselead to a substantially different outcome than you apply the state rule.
ii. This is intended to encourage uniformity in decisions between state courts, which enforce the rule, and
federal courts which have the option.
iii. An opposite rule would lead to the forum-shopping Erie tries to prevent.
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iv. Two factors in the test:
- Will it result in forum shopping?
- Will it result in inequitable administration of justice? (different rules for parties from different states
is a problem)
vi. Question over how the test will apply:
- doesn’t line up perfectly either with substantive or procedural divide
- ex. rules that you could say are very procedural and so on a formalistic rule of whether federal courts
have power to apply rule, we would say yes. But if we applied the York outcome determinative test,
the rule would fail—couldn’t use the rule.
- If court’s power to prescribe their own rules is from article 3, then the test doesn’t coincide with the
full berth of power under the constitution. The test gives more weight to the state rule—more
conservative then what the constitution would require
vii. Temporal Vantage Problem—how do you time assessment of forum shopping effect (i.e. time it from point
when case is filed, or from when you are deciding whether to file the case etc)
viii. Generality v Specificity—do we look at these specific litigants or do we look in the aggregate—how the
rule will effect everyone
 How these two questions are answered will determine whether decision to use federal or state is
outcome determinative or not
2. Byrd v. Blue Ridge Rural Electric Cooperative (SCOTUS, 1958) RDA case (ex. Judge Made Rules)
a. Although a state law may have the potential of producing a difference in outcome, it doesn’t apply in federal
ct if there is a strong federal countervailing policy – particularly, when the state law is not “outcomedeterminative” in the ultimate sense.
b. Cases following Erie have “evinced a broader policy to the effect that the federal courts should conform as
near as may be - in the absence of other considerations - to state rules even of form and mode [procedural]
where the state rules may bear substantially on the question of whether the litigation would come out one way
in federal court and the other way in the state court if the federal court failed to apply a particular local rule
[outcome determinative test].”
c. In this case, the question is allocation of decision-making power between the judge and the jury.
i. State common law indicates judge should make the decision.
ii. Seventh Amendment preserves this role for the jury in federal courts.
d. Held: Federal judge-jury function prevails over a conflicting state law that allocates the factual determination
to a state judge → long-standing and important federal interest in jury trials (7 th Amendment).
e. Court finds this is not really an outcome determinative issue: there is still an uncertainty if the case would
come out differently if the judge or jury decides.
 Application of the rules of the RDA
f. Court applies outcome determinative test:
 Uncertain whether forum-shopping is a concern
 Outcome determinative effect being less certain makes federal rule stronger
g. Court modifies the outcome determinative test to allow for consideration of legitimate federal policy
interests.
 When there is a strong federal policy going to the way the courts conduct themselves (procedure) this will
be an added factor to the mix, giving greater favor to the federal rule
i. First question: “Is the rule’s different outcome determinative?”
 If yes, presumption in favor of state rule unless federal interest.
 If not, then apply the federal judge-made rule.
ii. Second question: “If the rule difference is outcome determinative, is there a strong federal interest in
following the federal rule?”
 If yes, then the federal rule is followed.
 If no, then follow the state rule.
h. Outcome determinative test should be applied by looking broadly at everyone who is going to be involved—
not just by looking at the particular parties
Problem after Byrd:
- how do we apply the RDA and REA to decide whether FRCP are valid?
- Seems like the RDA makes FRCP valid under all circumstances if we give the FRCP congressional
legislation status
- Courts used a similar analysis for FRCP as the analysis for judge made rules
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3. Hanna v. Plumer (SCOTUS, 1965) REA case – modified outcome-determinative test (ex. FRCP case)
a. If a FRCP is in direct conflict w/state law, the FRCP controls unless the Rule violates the REA (by abridging,
enlarging, or modifying a substantive right) or the US Constitution.
b. Case of conflict between a state rule and a Federal Rule of Civil Procedure.
i. State rule required in person service of process.
ii. FRCP 4(d)(1) allowed service by leaving copies of summons and the compliant with the wife at ’s
residence.
iii. Complying with the state rule (since it had a statute of limitations) meant that COA dies—not a problem
with FRCP
c. Held: Federal rule 4(d)(1), which permits abode service, applies despite a conflicting state service law that
requires personal service.
i. Hanna Part I: Does the rule pass the outcome determinative test?
 Refinement of the outcome determinative test.
 Must look at the totality of the rule.
 From an earlier perspective (temporal vantage of when case is filed), the difference in rules amounted
to nothing more than which type of service to use.
 This would not affect the outcome of the case for most parties (few cases were you won’t be able to
find Δ).
 From a practical perspective—its cheaper to follow the FRCP –but this won’t greatly effect choice of
forum
 Viewed from the perspective of this case, the choice of service is dispositive (but this isn’t the view
the court adopts).
 (Put yourself in the shoes of the parties making the decision of where to file)
 Courts have tried to reconcile Hanna I and II—so even if they can’t say the rule passes the outcome
determinative test—court will move to the arguably procedural test in Hanna II.
ii. Hanna Part II: (most important part)
 If a rule is “arguably procedural” - authority for it found in Article III - then it is presumptively valid.
(even if it has some substantive aspects)
 Even if use of the federal rule would affect the outcome of the case, it applies because it trumps the
state rule (Supremacy Clause).
 Rules Enabling Act - the rules are a constitutionally valid grant of Article III power to the courts to
make rules (broad reading).
d. Modified Outcome Determinative Test:
i. The outcome test cannot be applied without reference to the twin aims of the Erie decision:
 Will the choice of the federal rule encourage forum-shopping?
 Will the choice of the federal rule lead to unequal administration of the laws (different outcomes in
federal and state courts)?
ii. A federal rule is valid even if it affects the outcome of the case, as long as it does not lead to forum
shopping or unequal administration of the law.
e. Analysis of federal rules under § 2072 (Rules Enabling Act):
i. Does the rule regulate procedure (“arguably procedural”)?
ii. If it does, does the rule “abridge or modify substantive rights” provided under state law?
4. Walker v. Armco Steel Corp. (SCOTUS, 1980) RDA case w/ a statutory provision
a. Conflict between state law and FRCP Rule 3, for determining when an action begins for purpose of statute of
b.
c.
limitations.
i. State law did not deem the action commenced until service of process.
ii. Federal rule provides filing of the action commences the action.
 In general, following the federal rule, you’ll more often be in time w/ the earlier rule of
commencement for the statute of limitation
Court finds that when the Federal Rule is applicable, the test is whether the Rule was within the scope of the
Rules Enabling Act [arguably procedural], and if so, within a constitutional grant of power under the
Necessary and Proper Clause of Article I [within power of Congress] (rules never fail this).
But, application of this Hanna test is premised on a “direct collision” between the Federal Rule and the state
law.
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d. Here, there is no direct collision:
i. Federal Rule only starts the clock for various requirements of FRCP Rules (timing).
ii. Does not affect state statute of limitations—does not mention tolling the statute
e. Because no direct collision, no need for Erie analysis, and state law applies.
5. Stewart Organization, Inc. v. Ricoh Corp. (SCOTUS, 1988) REA case
a. Conflict of a state law and federal law (§ 1404 - Change of Venue).
i. AL law looks unfavorably on forum-selection clauses.
ii. Federal law would have allowed transfer specified in such clause.
b. First question: is the federal statute “sufficiently broad” to control the issue before the court (is there a
direct collision)?
i. Congress directed multiple considerations govern transfer within the federal court system under § 1404.—
Forum selection clause serves as a waiver by contract that supercedes §1404
 You add forum selection clause to the mix—consider it along with interests of the parties, justice,
convenience when deciding when to transfer
ii. State policy focuses on just one factor (disfavoring clause) would defeat this purpose of considering many
factors.
iii. Thus, federal statute is sufficiently broad to cover this issue.
c. Second question: is this a valid exercise of Congress’ power?
i. This rule is “arguably procedural.”
ii. Power of Congress to enact this procedural statute through REA is found under the Necessary and Proper
Clause.
 If it’s a statute within Congress’ power to pass then this is a supremacy clause issue and §1404 must
stand
 Similar logic used to justify FRCP—both are dealing with procedure and are all coming out of the
constitutions power given to Congress to create federal courts
d. Held: 28 USC § 1404(a) (Transfer of venue) applies despite a state law that looks unfavorably upon
contractual forum-selection clauses.
6. Klaxon Co. v. Stentor Electric (SCOTUS, 1941) RDA case
a. Choice of law question.
b. Court holds that to promote uniform application of substantive law within a state, federal courts must apply
the conflict-of-laws rules of the states in which they sit.
c. No temporal vantage problem—doesn’t matter when choice is made
d. Would having two rules create forum shopping—not necessarily, depends on what the federal choice of law rule
is cause court might apply the state choice of law rules in a majority of cases
e. This prohibits horizontal forum-shopping (as opposed to vertical).
Erie leads to horizontal disuniformity—which is the price for having vertical uniformity (i.e. between the state and
federal courts)
- in federalism, horizontal forum shopping is inevitable
Taxonomy:
On the Federal sidewhere does the rule come from?
1. judge made rules
a. apply outcome determinative test—must be sensitive to timing and generality of the cases—how will it
really affect decision making of the parties
2. Federal rules of civil procedure 
a. Apply Hanna II also note that there is Hanna I use both analysis—if the two are in conflict Hanna 2 is
controlling
3. Statutory provisions
a. RDA and REA analysis—supremacy clause
4. federal rule is embodied in the constitution
a. federal rule is always superior to the state rule
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Analyzing Erie Problems (Steps)
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a. Is this an Erie Question? Determine if there really is a conflict between federal and state law rule
i. Is one inconsistent with the other? Might turn on interpretation of the rule on both sides—(Worthington –
one interpretation of the rule leads to conflict and the other doesn’t)
ii. If yes, proceed to categorical analysis below.
iii. In no, then the state law applies.
b. Identify the federal rule and state rule that apply to the issue?
c. Determine which kind of federal rule it is (doesn’t matter what type of state rule it is)?
1. judge-made common law
2. FRCP
3. Statutory procedural rule
4. constitution rule
d. Which rule applies? Use Erie analysis:
i. Federal Constitution vs. State Rule
 Federal Constitution always trumps state rule.
 Similar to the question in Byrdpossible 7th amendment issue
ii. Federal Statute vs. State Rule
 Federal Statute trumps the state rule if (Supremacy Clause):
1. Statute covers the point in dispute, and
2. Statute is a valid exercise of Congressional authority.
 “Arguably procedural.”
 Necessary and Proper Clause.
 See Stewart v. Ricoh.
 Statutes will almost always pass this test.
iii. Federal Rule of Civil Procedure vs. State Rule
 Federal Rule trumps state rule if (Supremacy Clause):
 Rule covers the point in dispute.
 Rules are considered a valid exercise of Congressional authority through the Rules Enabling Act (broad
reading).
 See Walker v. Armco - Rule not in “direct conflict.”
iv. Federal common law rule (judge-made) vs. State Rule
 Use refined outcome determinative test in Hanna.
1. Does the use of different rules affect the outcome?
2. If it does, does this change implicate the twin aims of Erie:
 Discouraging forum-shopping.
 Providing for equal administration of the laws.
 See the judge-made rules in York and Byrd.
THE “NEW” FEDERAL COMMON LAW
1. In general, there is no federal “common law.”
a. Separation of Powers concern: power to make law lies w/ Congress.
b. Federalism concern: Areas assigned to states for regulation and legislation—Congress has
limited/enumerated power.
2. Federal courts are implicitly authorized to make some common law:
a. When Congress and the Constitution have not spoken to the substantive rights, and the states have not
addressed an issue.
b. Deals primarily with issues of federal question:
i. Necessary to preserve federal powers.
ii. Interpret/fill gaps in federal statutes (see Cort v. Ash implied remedy test).
c. Federal common law is subject to the Supremacy Clause - states must apply these doctrines.
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3. Three areas of substantive federal common law:
a. Preservative Power
i. Courts fill in gaps in rules—allows government to operate
ii. Reserved for quintessential federal powers where there are no state rules:
 Military, international relations, Presidential powers (immunity), national security, disputes
between 2 states.
 Government in its commercial capacity (Clearfield Trust).
iii. Such common law is necessary to make the government function.
b. Pre-Emptive Power
i. Rules for bodies of law already enacted to answer questions Congress did not address.
ii. State rules won’t work because they may undermine the federal law.
iii. Example: Labor-Management Relations Act - Courts created special federal contract rules to
promote uniformity under the Act.
c. Interstitial Power
i. Courts act to fill in total gaps in the law (as opposed to pre-emptive common law making, where
state rules may exist but are not appropriate).
ii. Most common in broad federal statutes (i.e. Sherman Antitrust Act).
iii. Example: Making up a statute of limitations for a unique federal cause of action. No parallel state
law so court makes up their own.
 Other area w/ a lot of common law making: laws w/ vague standards, amounts to a delegation of power to the
federal courts to make the law
 Federal common law almost always applies in federal Q not diversity (areas traditionally or already regulated by
federal law
 Unlike Swift common law, federal common law today is supreme—state law has to follow it in cases were they
apply.
4. Clearfield Trust v. United States (SCOTUS, 1943)
a. Federal government acting in a money-disbursing capacity.
b. U.S. sues  to collect money on a fraudulently endorsed federal check, which the  had guaranteed
endorsements on.
i.  raises the defense of notice delay (U.S. took too long in notifying).
ii. Delay in notification is a state law rule.
c. Court refuses to apply the state rule to the U.S. in this capacity.
i. Authority to issue check arose from Constitution.
ii. Rights, duties and obligations should also be governed by Constitution.
iii. Also, creating federal common law promotes uniformity, rather than U.S. facing 50 different rules.
iv. Rule adopted is modified delay rule—Clearfield can use the defense if he can show harm from the
delay.
d. First presumption in this case is to adopt the state law.
i. Erie seems to promote such a view: promotes as little disparity.
ii. However, federal interest in uniformity trumps Erie presumption.
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PLEADING
MODERN APPROACH TO THE COMPLAINT; DISMISSAL ON THE PLEADINGS
1. Federal Rules of Civil Procedure
a. Rule 1: Rules construed and administered to secure just, speedy and inexpensive determination of every
action.
b. Rule 3: Civil action is commenced with filing of the complaint; marks the beginning of the time requirements
under the Rules.
c. Rule 7: Pleadings Allowed; Forms of Motions
i. (a) Pleadings restricted to complaint and answer; cross-claim and answer; third-party complaint and
third-party answer; court may require a reply. (Generally every time a claim is asserted against you in an
action, you get that one chance to respond
ii. (b) Application to the court for an order shall be made in the form of a motion, in writing unless made
during a hearing or trial:
 State with particularity the grounds therefor.
 Set forth the relief or order sought.
 No other pleadings shall be allowed, except when the court orders additional pleadingsi.e. if party wants to
respond to an answer court might allow it
 If you can’t respond to a response and new facts are asserted, those facts are deemed denied –still have right
to present evidence at trial on them.
d. Rule 8: General Rules of Pleading
i. (a) Claims for Relief: Complaint shall contain:
 Short and plain statement of the grounds upon which court’s jurisdiction depends.
 Short and plain statement of the claim showing the pleader is entitled to relief (relief in the
alternative is allowed).
 Demand for judgment of the relief the pleader seeks.
ii. (e)(2) - Claims made in the alternative are allowed (can contradict).
e. Rule 9: Pleading Special Matters
f. Rule 10: Form of Pleadings
2. “Notice Pleading” Standard for Modern Pleadings
a. Rule 8 only requires “a short and plain statement of the claim showing the pleader is entitled to relief.”



Doesn’t have to ID the law w/ particularity
Can’t plead enough facts to show on basis of the complaint that you couldn’t win the case
No expressed requirement to plead any elements but must signal that you are willing/able to prove
these elements
b. Purpose of Rule 8/Pleadings is Notice:
i. Notice to the litigants - time for preparation – party-oriented.
 can Δ formulate an answer
 can you begin discovery
 anticipate legal defenses/file motions
 present evidence at trial
ii. Notice to the Court - ready to prove your case (systemic)
 Can court evaluate the merits of the claim
 Jettison irrelevant issues (court-specific function) – 12b6, 12c (judgment on the pleadings)
(winnowing function)
 Does it aid in signaling to the court that this case is worth pursuing (signaling function) can
parties prove certain elements of the case
 Limited role for judge to play (summary judgment).
c. Two ways to cure defects in the pleadings:
i. Dismissal without prejudice with leave to amend pleadings.
ii. Rule 12(e) motion for a more definite statement.
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d. Conley v. Gibson (SCOTUS, 1957)
i. “FRCP do not require a claimant to set out in detail the facts upon which he bases his claim. To the
contrary, all the Rules require is ‘a short and plain statement of the claim; that will give the defendant fair
notice of what the plaintiff’s claim is and the grounds upon which it rests.”
ii. “Such simplified ‘notice pleading’ is made possible by the liberal opportunity for discovery and the other
pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense
and to define more narrowly the dispute facts and issues.”
e. Inconsistency Rule - Pleading suffices if it’s not inconsistent with some legal theory that would entitle  to
relief.
i. Implies the hard and fast rule that is pleading says something that affirmatively says you can’t win,
complaint is dismissed.
ii. Dismissal is not only option; grant leave to amend the complaint.
3. Dioguardi v. Durning (2nd Cir., 1944) (sets liberal std for pleading requirements under Rule 8a)
a.  alien files complaint for disappearance of some bottles at customs.
b. Government files a motion to dismiss on the ground that the complaint “fails to state facts sufficient to
constitute a cause of action.” Rule 12(b)(6)
c. Court dismisses complaint with leave to amend;  tries again but the court dismisses again with prejudice equivalent to adjudication on the merits of the claim.
d. Court of Appeals finds  under Rule 8(a) is only required to include a “short and plain statement of the claim
showing [he] is entitled to relief.”
i. Under the Rule, “facts sufficient” aren’t necessary (but probably requires at least some facts to be
pleaded).
ii. Source of law/legal theory also missing from this complaint.
iii. Court says all you need is a possibility that these facts could amount to a claim for legal relief under some
legal theory.
iv. Elements pleading → systematically-oriented – notice to the ct.
e. Degree of specificity required in pleadings varies with the party (courts may require more specificity from some
’s or in certain causes of action).
4. Lodge 743 v. United Aircraft Corp. (D.Conn., 1962)
a. Interaction of Rule 8(a) and Rule 12(e).
b.  moved for Rule 12(e) motion for more definite statement, and  responded that such a more definite
c.
d.
statement would be tantamount to a dismissal.
 Information  needed for its case was in ’s possession.
 Needed case to move forward for opportunity for discovery.
Court grants motion for more definite statement, but only after ’s have the opportunity for discovery.
Rule 12(e) motions are disfavored because of liberal notice pleading standard of Rule 8(a) and because of
liberal discovery rules.
5. Dismissal on the Pleadings
a. Rule 12(b)(6) - Failure to state a claim for which relief can be granted.
i. If matters outside the pleading are presented to the court (affidavits), the motion is treated as one for
Summary Judgment under Rule 56.
ii. Dismissal on the pleadings is rare - courts will usually bend over backwards to allow complaint to move
forward (see Garcia & Dioguardi).
iii. Courts also will allow leave to amend a complaint.
iv. Most often granted for legal insufficiency, not factual insufficiency (facts can be added, but legal theory
cannot change).
b. Rule 12(c) - Judgment on the Pleadings:
i. After pleadings are closed, any party may move for judgment on pleadings.
ii. If matter outside the pleadings are considered by the court, the motion is treated as one for Summary
Judgment under Rule 56.
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c. Rule Out Rule: Unless the complaint rules out any chance of  winning, the court will usually allow a  to go
d.
forward. Π left spaces that could later be filled in w/facts – signaled to court.
i. Example: Title VII of Civil Rights Act → complaint may be dismissed if the  only employs 10 people and
the statute applies to businesses with 15 or more employees.
ii. See Inconsistency Rule above.
The Elements Rule:  must say something about each element of claim.
i. Applies particularly to highly stylized and established common law cases.
ii. Often “buzzwords” must be included in the complaint (i.e. libel cases must include a claim of publication see Garcia).
e. Garcia v. Hilton Hotels Int’l. Inc. (Puerto Rico, 1951)
i.  files a complaint for slander against the .
ii.  moves for dismissal because complaint failed to allege publication, one of the necessary elements of
such a claim.
iii. Court allows complaint to go forward, ruling publication is implied in the ’s complaint (winnowing process
is backloaded - Summary Judgment).
iv.  also moves to dismiss part of the complaint because of absolute privilege for statements made in a labor
board hearing is obvious on face of the complaint. Court allows for dismissal here cause absolute privilege
is obvious
v. Court denies motion to dismissed based on conditional privilege:
 Π leaves it open—possibility to rebut at trial
vi. Court allows this dismissal:
  did not have to plead this defense in an answer.
 Court finds that such a defense is obvious, no need to plead.
vii.  is also entitled to a Rule 12(e) motion for a more definite statement as to the words uttered and the
publication thereof.
ANSWER, REPLY, AND AMENDMENTS
1. Answer
a. Two initial options:
i. File a motion under Rule 12(b) - subject to consolidation & waiver requirement of Rules 12(g) and (h).
ii. File an answer (motions can be coupled with answer). You can omit motions once as a matter of right but
no more after that—stricter than Rule 15 motions to amend defense
b. Rule 8 - General Rules of Pleading
i. 8(b) - Defenses & Forms of Denial









Must address legal theory of the complaint:
 A party shall state all defenses to each claim asserted.
 Rule of waiver for legal theories is lenient - hard to conceive of an adverse party being surprised by
a legal theory.
Must address factual allegations of the complaint:
 A party shall also admit or deny the averments of adverse party.
 Specificity is favored in denials and stipulations.
In a party has no information to admit or deny, the party shall say so and this has the effect of a
denial.
Denials shall “fairly meet the substance of the averments denied.”
General denials of an entire complaint (i.e. everything is false) are disfavored.
Special denial—everything in a paragraph is untrue
Dumby denial—insufficient info to affirm or deny
Hedge denial—based on info & belief, I deny paragraph X
Qualified denial—insufficient info to affirm or deny
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ii. Rule 8(c) - Affirmative Defenses
 Establishes 19 affirmative defenses that must be pleaded or waived.
 Defenses are purely legal issues:  must affirmatively raise defenses that do not flow logically from
complaint or they are waived; this provides the  w/ notice of the ’s intention.
 Rules for pleading by π are fairly open-ended. But ∆ has to get very specific/explicit – if not, waives
right to use those defenses.
 “Any other matter constituting an avoidance or affirmative defense” is a catch-all phrase.
 Rule 15 allows amendments; leniency dulls sharpness of Rule 8 (courts have discretion to allowing full
airing of issues for fair and just trial). Gives you multiple chances to reintroduce these matters into the
complaint if judge thinks it serves the interest of justice & doesn’t unduly prejudice the other side.
iii. Rule 8(d) - Effect of Failure to Deny
 Averments are deemed admitted if not denied.
 Averments in a pleading to which no responsive pleading is required are deemed denied or avoided.
iv. Rule 8(e)(2) – permission to make arguments and state facts in the alternative → allowed to contradict
yourself w/in the pleadings.
c. Motions
i.  may file a motion rather than answer.
ii. Advantages of no need to admit or deny facts in the answer, save you the expense of preparing an answer,
save the court’s resources.
iii. “Speaking Motions” - motions to dismiss arising from issues outside the pleadings (pre-trial hearing to
determine factual/legal issues in dispute).
[Affirmative Defenses: Ingraham, Taylor, & Gomez]
2. Ingraham v. United States (5th Cir., 1987) Apply 4 part test for Q on whether its an affirmative defense or not
a. Medical malpractice judgment in favor of the ; the  U.S. after judgment moves for reduction in damage
award on the grounds of state law placing a cap on damages awards.
b.  contends this issue was an affirmative defense that was waived by the  when it failed to raise it in its
answer or during trial.
c.  contends this cap is part of the cause of action, not necessary to be pleaded.
d. Court develops four-part test to determine if an issue is an affirmative defense which must be pleaded or
waived:
i. Was the defense part of the COA, as defined by law?
 i.e. traditional element of the COA
 Unclear in this case.
ii. Which party has better access to information?
 Unclear in this case.
iii. Is the defense disfavored or indulged?
 Disfavored defenses has a presumption that they need to be pleaded.
iv. Unfair surprise to the ?
 Here, the ’s argue had they known the  would raise this defense, they would have changed their
strategy.
  could be prejudiced by not being aware of this defense.
e. Court finds that based on this test, the statutory cap on damage awards is an “avoidance” under Rule 8(c) and
was waived when not pleaded.
3. Taylor v. United States (9th Cir., 1987)
a. Same situation as Ingraham;  failed to plead statutory cap.
b. Court here finds this cap was part of the COA, Δ not responsible for pleading the limitation on damages.
i. Rule 8(d) excepts amount of damages averments from admitted if not denied rule;  is presumed to want
c.
d.
to contest damage claim.
ii. Under this rule, the limitation on damages is not an affirmative defense.
CA law had defined this statutory cap as an affirmative defense (see factor #1 in the four part test above), but
court finds Rule 8(d) trumps this.
Symmetrical argument:  is not required to plead the amount of damages with specificity, so  should not
have to be more specific.
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4. Gomez. v. Toledo (SCOTUS, 1980)
a. Trial court dismissed ’s claim for wrongful discharge on the ground that  was entitled to qualified immunity
for acts done in good faith within the scope of his official duties, and ’s complaint failed to allege bad faith.
b. Court notes nothing in the statutory text requires the  to plead bad faith in order to state a claim for relief.
c. Since qualified immunity is a defense, burden of pleading rests with ; he must show he acted in good faith.
 Question of access to information:  can’t know what was in ’s mind (pragmatic Ingraham factor).
  should not have to anticipate  of qualified immunity in good faith.
d. When deciding allocation of pleading responsibility for causes of action defined by statute, look to the text of
the statute first, before embarking on the four-part Ingraham test.
5. Rule 15: Amended and Supplemental Pleadings
a. Provisions of Rule 15
i. Safety valve for rigid pleading requirements of Rules 8 and 12.
ii. Rule 15(a) - Amendment as of Right – Very lenient in which in most cases Court must justify why it
iii.
does not allow amendment.
 A party may amend his pleading once any time before a responsive pleading is served or within 20 days
after served.
 Otherwise, must obtain leave of court or consent of adverse party.
 Leave is freely given when justice so requires.
 Focuses on pre-trial period but its ambiguous as to how long you have to invoke 15(a)—but Wax says it
applies all the way through
 Applies when you’ve omitted a legal matter (i.e. counterclaim, cross claim, defense, claim)
Rule 15(b) - Amendments to Conform to the Evidence – Moore case – under this rule there is even an
opening to amend after final judgment.
 Amendment of the pleadings to conform to evidence presented at trial.
 During the course of trial or after verdict.
 Comes into play when issues not raised by the pleadings are tried
 Two part structure:
1. Mutual consent to the amendment:
a. Express consent of the parties – open permission to try the matter. i.e. Both parties are
putting on evidence; arguing about it etc
b. Implied/constructive consent - party does not object to the introduction of evidence during
trial. i.e. stuff is added to the record and you’ve never objected to it, so you didn’t stand on
ceremony that the other side didn’t plead formally. Moore
2. If a party objects, court has discretion to allow amendment: Court will allow amendment in most
cases because they want best case put forward.
a. If the amendment aids in presentation on the merits.
b. If the amendment will not prejudice the objecting side.
 With prejudice problem, court could possibly extend time to answer the amendment.
 Even defenses that have not been timely pleaded can be introduced later under this
amendment
 Very forgiving standard; judge can waive the pleading waiver.
 If you appeal the decision then the std of review by the Appeals Court is “abuse of discretion.”
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iv. Rule 15(c) - Relation Back of Amendments – Worthington Case
 An amendment of the pleading relates back to the date of the original pleading when:
1. Relation back is permitted by the law that provides the statute of limitations applicable to the
action.
2. Claim or defense asserted in the amended pleading arose out of the same conduct, transaction or
occurrence set forth in original.
3. The amendment changes the name of the party against whom the claim is asserted if (2) is satisfied
and the amendment occurs within the period provided for service of summons (4(m)—120 days).
a. Party brought in by amendment must have received such notice of the institution of the action
that the party will not be prejudiced in maintaining a defense on the merits.
b. Party knew or should have known that, but for a mistake governing the identity of the proper
party, the action would have been brought against him.
 This allows for statute of limitations concerns.
 Statutory construction principle that the more specific provision crowds out the more general; real lists
in statutes as not overlapping
b. Moore v. Moore (DC, 1978)
i. Custody case where the  amended her pleadings post-trial to assert a counterclaim for custody, child
support, alimony and counsel fees.
ii.  objects to the amendment under Rule 15(b):
 He claimed he did not have notice that these issues were in dispute.
 Was not given opportunity to be heard on these issues.
iii. Court finds implied consent to these issues under Rule 15(b):
  had timely notice that these issues were being litigated.
  offered unique evidence to the counterclaim.
 No implied consent for alimony issue, however.
iv. Because  could reasonably expect to have notice these issues were in dispute and offer evidence to
contest them, he gave his implied consent.
v. Therefore, amendment of pleading to conform to evidence granted.
vi. Q: Was evidenced introduced? Did both sides have their say on issues that are being amended?
c. Beeck v. Aquaslide ‘n’ Dive Corp. (8th Cir., 1977)
i.  sued  for injuries sustained in using slide allegedly manufactured by .
ii.  first admitted in its answer that it had manufactured the slide, but then moved to amend its pleading to
deny after new evidence arose.
iii. Court granted separate trial to decide issue of manufacturer
iv. Court granted motion to amend.

v.
 Rule 15(a) provides leave to amend should be “freely given when justice so requires.”
Amendment is allowed unless:
 There is evidence of bad faith
 There’s a repeated failure to cure
 Or undue prejudice to opposing party
 Court is applying a common law doctrine arising under a rule
 Court finds no bad faith or undue delay. Upholds motion.
 Question of prejudice:
 Court holds ’s not really prejudiced.
 This amendment only puts the question of manufacture in dispute, and the parties can contest this
at trial.
 Prejudice must be an “unfair” setback to a party’s case, not just any kind of setback.
 If amendment is not allowed then you have a lawsuit against the wrong person
Statute of limitations problem:
 Statute of limitations had run, preventing ’s from suing different .
 Rule 15(c) relation back? Named wrong party? Possibility if the time for service of process had not
yet run. Any change made in pleadings that is allowed by amendment relates back to time when case
started (initial pleading/filing), which was presumably before the statute of limitations ran out.
 Even if you don’t apply 15(c) lawsuit can be brought in another state
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d. Worthington v. Wilson (C.D.IL, 1992) Illustration of Rule15(c3)
i.  sued under federal law, against three unknown police officer ’s, not named in the complaint.
ii.  later moved to amend complaint to insert names of officers.
iii. Officers object to amendment on the grounds that the statute of limitations had run; only way for this to
be avoided is relation back.
iv. Rule 15(c)(3) - amendment was filed within the 120 grace period.


v. 
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




But, ’s argue there was no “mistake” as to the identity of the ’s, but rather they were unknown
parties outside of this rule.
Court holds such an amendment is not correcting a “mistake” and denies the amendment of the
complaint.
also urges that state law statute of limitation (borrowed by the federal cause of action) should apply:
State law standard just requires due diligence.
Court argues that Federal Rule trumps the state rule (Erie).
Argument could be made that there was no direct collision of the federal rule and state rule, so state
rule should apply – could say that 15C3 is narrow and only covers real mistakes in party names not
unknown parties that now have a name
State rule actually deals with the present case.
Negative pregnant reads into silence in 15C3 about unnamed parties an exclusion15C is
comprehensive, if its not expressly covered than its not included
This interpretation invites strategic behavior—i.e. just name give the parties a wrong name instead of
not naming them.
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BURDENS OF PRODUCTION, PERSUASION, AND PLEADING
Burden of Production
a. Requirement of a party to introduce a minimum amount of evidence to warrant proceeding with that party’s
b.
c.
d.
e.
f.
case.
i. Less stringent standard than burden of persuasion.
ii. Evidence must suggest sufficiency to support a legal argument.
Responsible for “producing” a certain threshold amount of evidence to go forward on a claim; minimum
evidence to meet standard of proof.
Burden of production and burden of persuasion are usually born by the same party (most often by the ) and
can shift.
Ordinarily Π has burden of production on issues in the claim & Δ has burden on elements of any defenses to the
claim
Burden comes into the pic at SJ stage, there is no burden of production at the pleading stage—not required to
include any evidence in the pleadings
This burden comes into play at the summary judgment and directed verdict phases (assuming all evidence
produced is true (no need for persuasion), has the party introduced enough evidence for a reasonable jury to
find in their favor).
 Π files complaint. ∆ moves for summary judgment saying that π hasn’t met burden of production (on
complaint alone). In response, π has to introduce evidence and signal to the court that he can prove
complaint. ∆ reserves the right to answer the complaint.
Burden of Persuasion
a. Requirement of a party to convince the fact-finder that his evidence is to be sufficiently reliable and
credible.
b. This burden comes into play during trial to convince the fact-finder.
c. Who bears the burdens of production and persuasion are matters of state law in diversity suits.
d. Determines which party will win in the event of a tieif Π has BoP by a preponderance and trier decides both
sides are equal, then Δ wins—goes against the party that has the burden.
e. Burden of persuasion goes issue by issue but default in federal court is that the Π has burden on the elements
f.
in the COA
Three standards: preponderance of the evidence (civil suits); clear and convincing (libel, slander, child
custody); beyond a reasonable doubt (criminal cases).
Burden of Pleading
Burden of injecting an issue into the case
Certain rules require parties to plead issues in certain circumstances:
burden of pleading is usually assigned to the party that has the burden of producing evidence on that tissue
in certain cases (i.e. overdue note) Π will have the burden to plead the nonexistence of certain defenses upon
which Δ has burden of proof
i. Rule 8(a) -  must plead sufficient grounds for his claim.
ii. Rule 8(c) -  must affirmatively plead certain defenses.
c. Burden of production can sometimes be met by the pleadings.
a.
b.
c.
d.
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TESTING THE SUBSTANTIALITY OF CLAIMS
Summary Judgment, Directed Verdict, JML, JNOV
1. Summary Judgment (Rule 56)
i. “Preview” of the full trial; SJ motion is an information forcing device



b.
Efficiency measure to winnow out cases that don’t need full trial.
Never decides question of fact - look at the facts in the light most favorable to the non-moving party.
Designed to allow early resolution of cases in which Π pleads an element but can’t prove it—a 12b6
motion has limited use (offers little assistance in weeding out claims that allege a proper COA but
where Π can’t prove the claim, even if all the evidence is seen in the light most favorable to them.
ii. Two circumstances when SJ is appropriate:
 Non-moving party has failed to meet burden of production (if they have it) or
 Non-moving party cannot and does not win as a matter of law
Two ways to defeat an SJ motion:
 show there is a genuine issue of material fact
 show that you’ve met the burden of production or other side has not met theirs
iii. Rule 56
 (a)  may move for SJ 20 days after commencement.
 (b)  may move for SJ at any time prior to or after answering
 Can move with or without supporting affidavits (because  does not bear burden of production or
persuasion, he is not required to introduce any affidavits).
  must submit materials to show he was prepared to prove what he claims or dispute facts
introduced by .
 (c) Judge considers evidence and grants motion if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.
 (d) Partial SJ is possible.
 (e) Adverse party cannot rest on his pleading, but must set forth specific facts showing genuine issue
for trial. Competent evidence jury would hear at trial
 (f) Judge has a lot of discretion to postpone resolution of SJ motion → can delay ruling to allow for
discovery.
 A 12B6 motion to dismiss, if affidavits are introduced, is treated like a SJ motion (12c)
Analyzing Motions for Summary Judgment
i. First identify:
 Who is making the motion? Non-moving party (party in whose light you look at facts favorably)
 If there is an SJ motion and a countermotion—set them up separately—each deserve a separate analysis
 Who has the burden of production on each issue?
 Unless told otherwise, assume Π has burden on most elements of COA and Δ has burden on anything
denominated a defense—if no one says otherwise, then assume it’s a defense under state law for
burden of persuasion
ii. To succeed on a motion for summary judgment, court must find:
 Non-moving party has not met its burden of production on an issue (if the non-moving party has it), and
the moving party has.
 Non-moving party has not created a genuine issue of material fact.
 There is no material dispute on the facts, and the moving party is correct on the law.
iii. To defeat a summary judgment motion, court must find:
 Moving party has not met burden of production, and the non-moving party has met its burden of
production.
 Non-moving party has created a genuine issue of material fact, on the correct view of the law.
 Genuine: supported by competent evidence.
 Material: Relevant to the question of law.
 There is no material dispute on facts, but the non-moving party is correct on the law (who will usually
file a cross motion for summary judgment), and the moving party is not.
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c. Order of analysis:
i. Determine if the non-moving party has met burden of production:
 If yes, is there a genuine issue of material fact?
 If no, SJ motion is granted.
ii. Determine if there is a genuine issue of material fact:
 If yes, case proceeds to trial for fact-finder to resolve dispute.
 If no, judge decides question of law.
iii. Determine who is correct on the question of law:
 If moving party, SJ motion is granted.
 If non-moving party, SJ motioned denied (although this party is likely to have filed a cross motion for
SJ, which would be granted).
d. Alderman v. B&O Railroad (S.D.WV, 1953)
i.  rode on ’s RR on a free pass which by accepting, she waived ’s liability for injury while riding.
ii. Court puts gloss on this waiver of liability, holding that  is still responsible for injuries resulting from
willful and wanton conduct.
iii.  moves for SJ, alleging that even if the ’s facts were accepted as true, she cannot establish  acted
willfully and wantonly → no genuine issue as to any material fact.
iv. For every motion there is an opposition to that motion, so in response to Δ’s SJ motion, Π filed an
v.
opposition to the SJ motion (or she could also file a counter motion for SJ)
Court grants motion for SJjudge applied facts to the law and said that Δ’s actions were not
wilful/wanton so Δ gets judgment as a matter of law.
e. Celotex Corp. v. Catrett (SCOTUS, 1986)
i.  moves for SJ on grounds  has failed to meet burden of production—no evidence of causation that our
co.’s asbestos was what caused the problem.
ii. Δ didn’t use a 12B6 motion cause there is no defect on the fact of the complaint; trying to force info out of
the Π cause Δ is arguing that Π can’t prove her case
iii. In a 12B6 motion there is no evidentiary burden on anyone
 Just have to show that you have not contradicted yourself or stated facts that will get you kicked
out of court
iv.  submits three affidavits, but court holds they are “hearsay” not admissible at trial so Π didn’t meet
burden of production and grants ’s motion for summary judgment.
v.  appeals, claiming  is required to put in evidence (motion “made and supported”).
vi. SCOTUS says no, there is no rule that says to prevail on SJ you must put in substantive evidence.
vii. If the moving party meets his BOProduction, then the party opposing must come forward w/evidentiary
materials, beyond the mere pleadings Rule 56(e)
viii. There are times when you’ll win even w/out putting in evidence—when other party has the BoProd. & you
are pointing finger saying they haven’t met the evidence.
ix. Court finds , who does not have the burden of production, is not required to submit additional
evidence.
 Rule 56(c) - “affidavits, if any” language.
 Rule 56(a & b) - “with or without affidavits” language.
 Rule 56(e) – party opposing the emotion may not rest on mere allegations/denials, must set forth
specific evidence showing a genuine issue for trialrule when trying to defeat SJ by way of creating
material issue for trial. If strategy for moving party is to show that other party hasn’t met BoProd.
Then you don’t need to put in evidence—56(e) doesn’t apply.
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f. Anderson v. Liberty Lobby, Inc. (SCOTUS, 1986)
i. Question: How much evidence is required to meet the burden of production and survive a motion for SJ?
ii. In this case, the evidentiary standard for libel is “clear and convincing evidence” that  acted with “actual
iii.
iv.


malice.” higher std than preponderance of the evidence
Evidentiary burden at trial is the same pre-trial
Court holds that in ruling on a motion for SJ, the judge must view the evidence through the “prism of the
substantive evidentiary standard.”
 For both summary judgment and directed verdict stages.
 When considering whether there is a genuine issue of material fact, judge must bear in mind the
“actual quantum and quality of proof” necessary to prove libel.
Preponderance of the evidence std is inherently comparative—but not true for clear and convincing std.
Rule: the determination of whether a factual dispute must go to a jury should be guided in light of the
substantive evidentiary standards that apply to the claims at issue
2. Voluntary Dismissal and Default
a. Rule 41: Dismissal of Actions
i. 41(a)(1) - Voluntary Dismissal
ii.
iii.
  may voluntarily dismiss his action before adverse party files an answer or makes a motion.
  may voluntarily dismiss his action by agreement of the parties at anytime.
 Dismissal is without prejudice, except if dismissed more than once.
 If you don’t meet timing and consent requirements then you need courts permission
 RJ doesn’t apply
41(a)(2) - Voluntary Dismissal with Court’s Permission
 Dismissal by order of court at plaintiff’s request without prejudice unless court directs otherwise.
 Wide discretion given to judges.
 See McCants v. Ford Motor Co. (11th Cir., 1986), where judge granted ’s motion to dismiss to avoid
losing due to statute of limitations.
41(b) - Failure to Prosecute
 If  fails to prosecute its claim,  may move for involuntary dismissal.
 Unless court provides otherwise, dismissal is an adjudication on merits. (w/ prejudice) unless dismissal
is for:
 Lack of jurisdiction, improper venue, or failure to join party under Rule 19.
 Messenger v. United States (2nd Cir., 1956), in which court held standard for determining dismissal is
lack of due diligence on the ’s part, not a showing by Δ that it will be prejudiced by denial of its
motion.
 Link v. Wabash R. Co. (SCOTUS, 1962)
 Court dismissed case sua sponte for failure of ’s atty to appear at a pre-trial conference to
prosecute.
 Court held such a dismissal is valid without affording notice of such intention to the  or providing
an adversary hearing.
 Even if it is the ’s counsel’s fault, such dismissal is valid, because the  has a responsibility to get
the lawyer on the case.
3. Directed Verdict/JNOV/Motion for a New Trial (Judgment as a Matter of Law)
a. Control of Juries
i. Seventh Amendment provides for a jury trial in all civil actions, & their judgment can’t be reviewed except
as provided by common law.
 Applies to the judge trying the case in district court.
 Applies to appeals court reviewing a decision.
ii. Three ways for judge to take case from jury (common law basis):



Directed verdict (now JAML).
Motion for a new trial.
Judgment notwithstanding the verdict (JNOV) (now JAML).
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b. Rule 50 - Judgment as a Matter of Law
i. (a) Party may move for JAML (directed verdict) at the close of his case or at after both parties have
presented their case.
ii. Substantive standard: No legally sufficient evidentiary basis for a reasonable jury to find for that party on
that issue.
iii. Must make motion before jury deliberates to preserve JNOV option later.
iv. (b) Options for judge – can grant something short of motion – can order new trial.
v. Party may renew motion for JAML after jury returned verdict (JNOV), or may move for a new trial under
Rule 59 (both motions are usually joined).
 Courts will rarely grant a motion for JAML before jury returns verdict.
 If jury rules as judge thinks it should, no need for JAML.
 If JAML is granted after verdict, preserves jury verdict on appeal.
 Why grant JAML before jury goes out: emotional case (possibility of error is great), judge doesn’t trust
jury, if there’s no verdict that contradicts what you say then there’s less of an issue on appeal.
vi. Identical inquiry as motion for summary judgment:
 Has the non-moving party met his burden of production?
 If he has, is the moving party entitled to judgment as a matter of law?
 Rule 50 is: there is no evidence for the other party – stricter std than Rule 59 which just says there’s
some evidence for the other party, but its below the std needed to win
c. Rule 59 - New Trials
i. A party may move for a new trial on all or part of the issues for “any of the reasons for which new trials
have been granted in actions at law in the courts of the United States” (common law history incorporated
into Rule).
ii. Grounds for ordering a new trial:
 Prejudicial procedural error.
 Jury misconduct.
 Verdict against the great weight of the evidence.
 Jury’s job to weigh the evidence and discount what they want but at some point evidence is so
insubstantial. Under strict 7th amendment rule—this is ok cause you are giving case to another jury,
not re-examining it by a judge.
 Excessive verdict.
iii. Motion must be made within 10 days after entry of judgment.
iv. Court may also order a new trial on its own initiative.
v. Problem when evidence is incredibly lopsided, yet jury returns verdict for side w/ less evidence, do you
treat this under Rule 50 or Rule 59? Division in opinion over whether the case should get a new trial or
whether judge should reverse the judgment.
vi. Rule 61 - Harmless Error Rule:
 No error that is not prejudicial is grounds for a new trial.
 To be prejudicial, the error must have a possible effect on the outcome.
How much evidence is necessary to meet burden of production? Courts in different jurisdictions have different
standards for JML inquiry.
d. Lavender v. Kurn (SCOTUS, 1946) – Scintilla of evidence case
i. Sparse, evenly matched type of evidence case
ii. Switchman died in rail yard – 2 different versions of how it happened.
iii. ∆ invoked state version of Rule 50 – judgment as a matter of law – has to be before the jury goes out.
iv. Trial court found for ; the MO Supreme Court granted a JNOV motion, saying that the evidence didn’t
meet burden, sparse evidence that evenly favors both sides—jury had to engage in unreasonable
speculation and conjecture.
v. Court reverses JNOV, finding that  had introduced enough evidence that a “reasonable jury” could have
found for the .
 A measure of speculation and conjecture is part of every jury verdict – evidence at equipoise for both
stories.
 Only in the “complete absence of probative facts to support the conclusion” should JNOV be granted.
 Scintilla standard—even the tiniest bit of evidence is good enough to say that the story is more
probable
 Establishes a federal standard that is highly deferential to juries
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e. Denman v. Spain (MS, 1961) (more than a scintilla std)
i. Tort action for injuries sustained in car accident with no witnesses.
ii. Evidence on both sides is equal and equally bad. (but Πs evidence lacked on causation and moment of
iii.
iv.
v.
vi.
impact)
Court affirms a JNOV, as jury’s verdict was matter of speculation.
When evidence is evenly matched, person on whom the burden of production lies will lose.
Denman is a more exacting std of JML – less deference to the jury to find evidence sufficient and more auth
to the judge to find that evidence is insufficient
Compare with Lavender which sets a low threshold for amount of evidence that suffices to support going
to the jury
View that lately positions have shifted—federal courts aren’t adhering to Lavender’s scintilla view (not sticking to the
more vigilant, controlling view) and state courts are.
Another unanswered Q: which evidence std to apply (federal or state) when in federal court on a diversity state law
case deciding JML? Unanswered
f. Pennsylvania R.R. v. Chamberlain (SCOTUS, 1933)
i.  sues for wrongful death action against  RR, claiming the RR’s negligence led to the death.
ii. ’s only witness was not reliable, balanced by several witnesses for .
iii. Court finds no real dispute in facts: JML for  (directed verdict).
iv. Two views on weighing evidence: (judge is not supposed to weigh evidence in a JML motion)
 View non-moving side’s evidence in most favorable light by itself.
 Compare non-moving side’s evidence with that of moving side.
v. Even taking Πs evidence in the light most favorable there still isn’t enough evidence for Π to meet the
minimum threshold for burden of production.
vi. Court here views both sides, and “smuggles” in some weighing which is more appropriate for a jury to do
(discounts ’s sole witness).
vii. Under Lavender – its possible that Π met the scintilla std.
 Court’s reasoning here is more suited to a motion for a new trial, in which the standard is “against the
great weight of the evidence” as opposed to a JAML ruling, where standard is “no reasonable jury
could find” for that side.
g. Hartwig v. Kanner (7th Cir., 1990) Summary Judgment and JAML (case turns on defense has the burden)
i.  consulting firm files suit against  attorney for breach of contract in failing to pay for his services.
ii.  raises defense that contract is void because of ’s material misrepresentations (inaccurate resume and
iii.
iv.
v.
conflict of interest).
 Misrepresentation a complete defense to nonpayment.
 wins directed verdict, and  appeals arguing the jury should have had the opportunity to weigh the
credibility of witnesses (Hartwig) – argued there was a material issue of fact.
Court finds  did not carry his burden of production for his defense of voidness: failed to introduce
evidence at trial of his reliance & harm elements of defense of misrepresentations.
 Even if jury believed  made misrepresentations,  gave the jury nothing on which to base a verdict
for him.
 Too late to offer this evidence at the appellate level.
Therefore, directed verdict for  was appropriate.
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DISCOVERY AND PRE-TRIAL MANAGEMENT
DISCOVERY REFORM
1. Discovery: Method by which the parties obtain information for use in litigation.
2. Goals of Discovery:
a. Keep litigation from turning into a game won by the party with more resources or superior access to
information (leveling device).
b. Eliminate the element of surprise during the trial and lopsided access to info.
c. Facilitate a search for the truth by ensuring both sides are fully prepared to advocate for their position.
d. Dispenses with irrelevant/unimportant issues  maximize preparation for trial.
-
Discovery goals have not been met though, it’s had the opposite effect, tool of harassment & delay
Been used as an instrument of oppression where parties w/ more resources will overwhelm parties w/
less resources
3. Old vs. New Discovery Rules
a. Under old rules, parties had to request discovery for the process to begin. If parties didn’t comply they would
b.
c.
go to the court for an order of disclosure
Under new rules, the filing of a pleading triggers the duty of the opposing party to disclose matters alleged
with “particularity.” (spontaneous disclosure)
Mandatory disclosure rule under the new systemeach party decides for themselves based on the std of the
rules whether evidence needs to be disclosed
4. Debate over new discovery rules:
a. Pro (Winter):
i. Lead to less discovery overall.
ii. Lead to less litigation over discovery.
iii. Encourages more specificity in pleadings (parties will be more specific in pleadings to obtain more
mandatory disclosures from opponent).
iv. Encourages a “spirit of cooperation” - temporary suspension of the adversary system to prevent trials from
turning on strategic factors.
b. Con (Scalia):
i. Not compatible with the adversary system. (atty duty to client v duty under discovery to disclose the info)
ii. Job of attorneys is to protect the rights of their clients, but spontaneous disclosure requires attorneys to
use their judgment to determine how much to disclose, subordinating client’s rights to those of the system.
iii. Puts attorney’s in the position of undermining client’s position cause it might be in the client’s interest to
hold back  but if you are holding things back this could increase suspicion.
SCOPE OF DISCOVERY RULES
1. Extremely broad for parties involved in the lawsuit.
2. Standard for discoverable material: any matter not privileged relevant to the pending subject matter (i.e.
3.
4.
claim or defense). Rule 26(b)(1)
a. Need not be admissible evidence for trial if discovery appears reasonably calculated to lead to the discovery of
admissible evidence.
Problems with broad rules:
a. Can increase the cost of litigation.
b. Incentive for law firms to engage in extended discovery (billable hours).
c. Parties with more resources are favored.
d. Does not alleviate strategic behavior of parties.
Rules for discovering material from third parties are less liberal and less mandatory (see discussion of Rule 45).
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RULE 26 REQUIRED DISCLOSURE
Methods to Discover Additional Material
1. Mandatory spontaneous disclosure under Rule 26(a):
a. Information requiring spontaneous disclosure:
i. Identifying information for people likely to have discoverable information.
ii. Copies/descriptions of documents, data, and other tangible things.
iii. Computations of damages claims.
iv. Insurance agreements.
v. Identity, reports, opinions of experts expected to testify at trial 26(a)(2)(A).
 Very detailed rules in this section.
 Rules for non-testifying experts are less stringent.
vi. Identity of witnesses. Rule 26(a)(3)(A)
vii. Identity of evidence/exhibits to be presented at trial. Rule 26(a)(3)(C)
b. Under Rule 26(a), courts can opt out of the required spontaneous disclosure regime (about half have done so).
2. Discovery scheduling conference under Rule 26(f).
a. Parties are required to meet to discuss claims and defenses.
b. Parties also must make plans for mandatory disclosures above (these disclosures are due 14 days later).
c. Parties also must develop a proposed discovery plan.
d. Judge has tremendous discretion
3. Discovery Limits:
a. Privileged material (Rule 26(b)(5)).
b. Work product (Rule 26(b)(3) and (4)).
c. Rule 26(b)(2) - Discretionary grounds for court to limit discovery:
i. Unreasonably cumulative or duplicative, or obtainable from some other source that is more convenient,
less burdensome and expensive.
ii. Party has already had ample opportunity for discovery but has not done it.
iii. Cost of discovery outweighs its benefits, considering these factors:
 Amount in controversy;
 Relative resources of the parties;
 Importance of issues at stake.
 Importance of discovery in resolving these issues.
d. Rule 26(c) - Discretionary grounds for court to issue protective orders:
i. Very open-ended, courts have lots of tools at disposal to limit discovery
ii. Court has authority to limit discovery that would annoy, embarrass, harass, oppress, or impose and undue
burden on a party.
iii. When determining “undue burden” judge balances out tradeoff btw potential value and potential burden of
the info on the parties
iv. Court has authority to tailor protective orders under 26(c) to fit the situation; outright granting or denial
of orders is not necessary.
e. Marrese v. American Academy of Orthopaedic Surgeons (7th Cir., 1984)
Rule: A court should use its discretionary power to change the sequence of discovery in order to balance the
interest of the parties. This is 26c protective order.
i. Problem: “chill” (reluctance to candidly assess other candidates)
ii. Example of court’s authority (and responsibility) to tailor protective orders to fit the needs of both parties
 judge’s auth to take into account these sorts of interests
iii. Discovery request for information about evaluation of prospective Academy members required balancing of
’s genuine need to this information for their case and ’s interest in protecting this information.
iv. Illustrates intermediate options between granting or denying request:
 Redaction (striking out) of sensitive information.
 In camera (judge’s review in chamber), if he finds what you’re looking for then he’ll let the atty’s see
it.
 Alteration of the timing and sequence of discovery—leave the sensitive stuff until the end (rule 26D)
 Limiting review of material to ’s files only (quantitative).
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f. Seattle Times v. Rhinehart (SCOTUS, 1984)
Rule: Protective order restricting dissemination of info. obtained by discovery does not necessarily offend 1 st Amend.
i.  brought an action for defamation against  newspaper.
ii. Court issued order for ’s to produce information on donors and members of the organization, and a
protective order prohibiting ’s from publishing any information.
iii.  appealed citing a First Amendment interest in publishing.
iv. Court holds that the lower court had the authority under the doctrine of protective orders to restrict the
use of this information for litigation only.
v. Balance of 1st Amend. right w/ right of parties to litigate effectively w/out fear of release of sensitive info.
DISCOVERY MECHANISMS
1. Rule 26(d) - Timing and Sequence of Discovery
a. A party may not begin discovery process until after 26(f) conference.
b. Unless otherwise directed by court, methods may be used in any sequence.
2. Rule 26(e) - Supplementation of Disclosures and Responses
a. Parties remain under a duty to supplement or correct material.
b. Unless the change has been otherwise made known to the opponent.
3. Rule 30 - Oral Depositions
a. Any person, party or witness may be deposed.
i. Parties are under a duty to be deposed and only require notice.
ii. Non-parties must be subpoenaed under Rule 45.
iii. Subpoena duces tecum - requires a deponent to bring document or material with them to the deposition.
Rule 30B/34 (can get the subpoena without deposing the witness
b. Only 10 depositions may be taken under this Rule.
i. Parties can agree otherwise to take more.
ii. Court can order the allowance of more depositions.
c. Recording of deposition.
i. Not necessary to record every deposition.
ii. Can be recorded by audio, visual, video etc
iii. To introduce deposition testimony at trial, must be transcribed.
d. Corporations may be deposed.
i. Corporations must send someone with knowledge of the issue.
ii. No duty of investigation is required (as opposed to interrogatories).
iii. Interrogatory may be a more appropriate first step for corporations.
e. Objections during depositions:
i. Parties can reserve objections during deposition, but party must answer.
ii. Exceptions to answering:
 Deposition is oppressing or harassing the deponent.
 Privileged matters.
 (Preserve evidentiary objections for trial).
4. Rule 31 - Written Depositions
a. Similar rules to Rule 30.
b. More appropriate for long distances. (foreign or inaccessible people)
c. Answers to written questions are taken orally.
d. Rule 32 - Use of Depositions in Court Proceedings
5. Rule 33 - Interrogatories
a. Limited to 25 per side (can be varied).
b. Only directed to parties.
c. Must be answered fully, which includes a duty of reasonable investigation to answer.
6. Rule 34 - Document Production
a. Applies to anything tangible and to property
b. Need a subpoena (rule 45) for third parties, but not for parties.
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7. Rule 35 - Physical and Mental Exams
a. These discovery requests are rarely granted as they are very intrusive.
b. Requires the intervention of the court (while the rest of the discovery process is conducted between the
parties with court available if dispute arises).
c. Examination of non-parties is especially difficult to get.
d. Need a court order, even for a party, and must show good cause
8. Rule 36 - Requests for Admission
a. Not really a discovery device; helps avoid the need for discovery.
b. Admissions are only good for that litigation (no issue preclusive effect).
c. Request to concede certain issues; obviates need to prove certain matters
9. Discovery Strategy:
a. Depositions – Advantages:
i. Allows actual observance of the witness – better sense of credibility
ii. Preserves element of surprise and spontaneity. (no time to frame answer)
iii. Little opportunity to consult with consul.
iv. Allows for flexibility in line of questioning.
v. Way to get to non-parties.
b. Interrogatories – Advantages:
i. Much less expensive than depositions (don’t have to travel to the witness).
ii. Includes a duty of reasonable investigation (no affirmative obligation for depositions to prepare for it by
learning info that’s necessary).
iii. Only applies to parties.
PRIVILEGES
Privileges Generally (Rule 26(b)(5))
a.
b.
c.
d.
e.
Privilege limitation on discovery is more important than relevance standard.
Person asserting a privilege has the burden to prove why he is entitled to it.
Two types of privileges: formal under §501 and work product rule privileges
Types of Privileges (Evidence Rule 501): - Formal Privilege
“privilege of a witness shall be governed by the principles of common law as they may be interpreted by the
courts of the US in light of reason and experience”  refers you back to the common law body of
jurisprudence on privileges
i. Attorney-Client Privilege
 Matters disclosed to attys & discussions, statements by attys are protected, but must be statements in
the course of a consultation
 Must be in the role of a client seeking advice, confidential material – if disclosed to a third party its no
longer privileged
 The attorney must be acting in a legal advisor capacity.
 Client can waive the privilege by disclosing the info
ii. Spousal Privilege
 Private communications between spouses.
 Cannot force spouse to testify against one another.
 Cannot “close the mouth” of a spouse (Trammel v. Trammel)
iii. Priest-Penitent Privilege
iv. Doctor-Patient Privilege
 Recently extended to psycho-therapists
v. Fifth Amendment Privilege against self-incrimination.
vi. Mother – Child Privilege check to see if this one still exists
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d. Privileges are based on the benefit of free and open communication.
i. However, privileges are narrowly construed.
ii. They must be balanced against the principle of full disclosure.
iii. Privileges are costly to the search for truth.
e. What’s not privileged?
 Media, communication to reporters
 Diaries, business records, accountant records, private organizations including universities
Work Product Rule
a. Hickman v. Taylor (SCOTUS, 1947)
i. ’s sought through interrogatories witness statements, interview transcripts, and prepared summaries
prepared by the ’s attorney.
ii. Court:
 First, under Rule 33 interrogatories must be directed at a party, not the party’s attorney.
 Second, this material is not covered by the attorney-client privilege, cause it was a communication by
a third party to the attorney (witnesses).
iii. Larger question: Under any device can a party inquire into materials collected by an adverse party’s
counsel in the course of preparation for possible litigation?
 Court is concerned with allowing an opponent to “borrow wits” from his adversary (Justice Jackson’s
concurrence).
 Court creates a two-tiered privilege for “work product”: more of a protective order created by the
courts and codified into rule 26
1. Qualified Work Product Privilege
a. Conditional on making a showing of good cause in extraordinary circumstances if you can’t get
it any other way
b. Applies to documents, entities, animals and things prepared by and for the other party
(included made by atty but not limited to)
2. Absolute Work Product Privilege
a. To the extent a document contains mental impressions, process, thoughts or plans/strategies
of an attorney, this material is not discoverable, under any circumstances. Absolute Bar
 Protects against exploitation – taking the work of the opposing attorney and not paying for
them.
b. This material goes to the heart of trial preparation.
c. Problems that led to work product rule:
d. Access to this information could “chill” preparation efforts.
 Attorneys might stop writing things down; stop flow of candid communication between
clients.
 P’s attorney can depose witness themselves (concern over exploitation and laziness,
borrowing work through discovery – issue of fairness)
 Or P can depose the atty themselves (highly disfavored), can send interrogatories to the
atty – harder to get info this way cause you have to know what you are looking for to ask
the right Qs
 Situations were you could get the work product: pictures of the scene, tape recording.
iv. The work product rule is a common law creation in Hickman.
v. In this case, the ’s knew the identity of the witnesses and could easily have deposed them; no absolute
need to this information shown.
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b. Rules 26(a)(2), 26(b)(3), & 26(b)(4)(B)
i. Codifies the two-tier privilege created under Hickman:
ii. 26b3 & 26b4  materials prepared in anticipation/preparation of litigation

iii.
Qualified privilege: Rule 26(b)(3)
 A party may obtain discovery of documents and tangible things otherwise discoverable under
(b)(1) [scope] and prepared in anticipation of litigation or for trial by or for another party or by
or for that party’s representative (including another party’s attorney…) only upon a showing that
the party seeking discovery has substantial need of the materials and is unable without undue
hardship to obtain the substantial equivalent by other means.
 Key words:
 Documents and tangible things.
 Prepared in anticipation of litigation or for trial (see Adlman).
 Prepared by or for another party or by or for that party’s representative (need a prior
connection).
 Substantial need and undue hardship.
 Absolute Privilege: Rule 26(b)(3)
 In ordering discovery of such materials, the court shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney or other representative.
26(b)(4)(B) applies to experts (see below).
c. Upjohn v. United States (SCOTUS, 1981)
i. Addresses both attorney-client privilege and work product rule.
ii. Here the IRS sought discovery of interview conducted by corporate counsel and the counsel’s notes and
memorandum.
iii. Upjohn invoked attorney-client privilege and work product rule.
iv. Attorney-client privilege:

v.
Privilege applies beyond discussions the general counsel had with the corporation “control group” (i.e.
officers and agents) to those in mid and lower level positions.
 Privilege is meant to encourage free and open communication up and down corporate ladder, so it
must apply to all acting in a legal capacity.
 Protects exchange of info up to the atty as well as giving legal advice from atty to client
 Privilege does not block independent discovery of the information held:
 Privilege protects only the communication with an attorney.
 Does not provide blanket protection of underlying facts.
 IRS is free to interview the same employees.
Work Product Rule: Court said the rule applies
 How far does the “in anticipation of litigation” clause reach?
 Sufficiently close to possibility of litigation that the rule will apply. Co. is worried about litigation
implications and deciding what future actions should be.
d. Scope of “in anticipation of litigation” under Rule 26(b)(3): Heart and Soul of Work-Product Rule
i. Fifth Circuit interpretation:



ii.
Only material prepared exclusively or primarily for litigation. (anticipation of trial)
Strict application of this privilege.
Can’t be anything prepared to advice client about what to do, decision has to have been taken, and
what we’re doing is seeking advice about what to do in case we’re sued
Second Circuit interpretation:
 “Because of” test - If the possibility of litigation is one of the reasons for preparing a document, it is
protected by the work product rule.
 Focuses on split in the language of the Rule: “in anticipation of litigation” or “for trial.” (See United
States v. Adlman).
 However, documents prepared in the ordinary course of business are not protected (must be because
of actual or impending litigation).
 Includes advice on potential matters or courses of actions (anticipating action giving rise to litigation)
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EXPERTS
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1. Testifying Experts (Rule 26(a)(2))
a. Required under spontaneous disclosure provisions.
b. Report prepared and signed by the expert is required.
c. Lists other information that must be disclosed.
d. Rule 26(b)(4)(A) - Parties may depose testifying experts.
e. Must pay them for the time you spent deposing them
2. Non-Testifying Experts
a. Retained by opponent in anticipation of litigation:
i. Rule 26(b)(4)(B) - Facts or opinions held by a non-testifying expert retained in anticipation of litigation
may be discovered (through depositions or interrogatories) only upon showing of exceptional
circumstances or need (good cause).
 So protective because the attorney for other side is paying for them. (exploitation)
 Must divide expert’s cost w/ the party that retained them, and pay half.
ii. Question of whether a party may discover an expert’s report under this provision (courts disagree) - but
can depose him if need. To get reports  work product rule requires showing of good cause
b. Not retained by opponent in anticipation of litigation:
i. Retained (consulted in business?), but not in anticipation of litigation:
 Question is he freely discoverable as an ordinary witness? Part of unfolding of events?
 Distinction between someone who participated in events and someone retained in anticipation of
litigation
ii. Not retained or consulted:
 General expert: Treated as ordinary third party under Rule 45(c)(3)(B). If you want access must also
pay the expert.
 Expert observer: Like an ordinary third party witness (but see Perry).
 In house expert (i.e. accountants, etc): subject to the work product rule under Rule 26(b)(3).
Requirements for Experts:
1. person has to be an expert
2. retained in anticipation of or preparation for litigation
3. retained by one of the parties (i.e. doesn’t count if expert was retained by someone who is not now a party)
Perry v. W.S. Darley & Co. (E.D. WI, 1971)
a. Presents the question of whether an expert should be classified as an expert retained by the  in anticipation
of litigation or as an expert independent observer (witness).
b.  sought to discover the identity of this expert under Rule 26(b)(1).
c. Court finds this expert to be a non-testifying expert retained by the  in anticipation of litigation subject to
Rule 26(b)(4)(B).
d.  has made no showing of “exceptional circumstances” to justify discovery of this information, so discovery
request is denied.
e. Expert wasn’t working for either party at the time they conducted the investigation and the research happened
right after the accident  problem was that the guy’s report was not prepared in anticipation of litigation, but
expert was retained afterwards. Court doesn’t address this issue but Wax says that if someone was on the
scene, close enough to the event to be part of the events, we have a heightened interest in what they say –
should be discoverable. Make their information discoverable under the rules by a showing of exceptional
circumstances.
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4. Protection under Discovery Rules:
a. Outside the “relevance scope” under Rule 26(b)(1) - too broad to be useful.
b. Limits on discovery under Rule 26(b)(2):
i. Unreasonably cumulative or duplicative.
ii. Obtainable from a more convenient, less burdensome source.
iii. Party has already had ample opportunity for discovery.
iv. Cost of discovery outweighs its benefit.
c. Protective Orders under Rule 26(c):
i. Annoyance, embarrassment, oppression, undue burden or expense.
d. Privileges under Rule 26(b)(1) and (b)(5).
e. Work product privilege under Rule 26(b)(3).
f. Expert protections (see above) under Rule 26(b)(4).
g. Numerical limits on depositions and interrogatories (Rules 30 and 33).
RULE 45 – SUBPEONA
1. Special protections for third parties (no interest in the case) on where they can be called to testify and be forced
to produce documents/allow inspection.
2. Parties to the case don’t need to be subpoenaed
3. Rule 45(a) - Blanket grant of authority to subpoena third parties:
a. Rule 45(a)(2) - Subpoena for appearance at trial or deposition.
i. For trial - issued from court where trial will be held.
ii. For deposition - issued from court in district where deposition will be held.
b. Rule 45(a)(3) - Attorneys can issue subpoenas.
3. Rule 45(b) - Service Rules:
a. (1) - How served: similar to the rules for service of summons.
b. (2) - Where served:
i. Any place within the judicial district where it was issued.
ii. Outside district, but within 100 miles from place of deposition, hearing, trial etc.
iii. Piggyback provision on state law regarding service: Within state of issuing ct if a state statute allows
service state-wide
iv. As provided by federal statute.
4. Rule 45(c) - Protection of persons subpoenaed: (Limitations on where parties can be forced to go to take
deposition)
a. Three step analysis for subpoenas:
i. Was the subpoena validly issued (Rule 45(a2))?
ii. Was the subpoena validly served (Rule 45(b2))? Where it may be served?
iii. Can the subpoena be quashed or modified (Rule 45(c))?
b. Rule 45(c)(3)(A) - Quashing or Modifying Subpoenas (When a judge MUST quash)
i. Court is not limited to granting or quashing subpoena - can modify. Court must take action of some kind
ii. Reasons for quashing or modifying:
 Fails to allow a reasonable time for compliance.
 Travel more than 100 miles (from home or business place) - person can’t be required to travel
more than 100 miles to a deposition



Requires the person to travel out of state
Requires disclosure of privileged or other protected material.
 Good case for modification here: redaction, in camera review.
Subjects a person to undue burden (i.e. even less than 100 miles).
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c. Rule 45(c)(3)(B) - Quashing or Modifying Subpoenas (when a judge MAY quash)
i. Additional reasons for quashing or modifying: (court may take action but not required to)
 Requires disclosure of trade secret or other confidential material.
 Requires disclosure of unretained expert’s opinion or information not describing specific events in
dispute.
 Deals w/ info of non-specific knowledge not tied to facts of the case where party might subpoena
them to take adv of expertise
 protects the unretained experts in the ivory towers from being subpoenaed when parties are
trying to get non-specific information (i.e., general information) – it denies parties availibility
from picking the brains of experts without retaining them
 More appropriate to hire and pay experts than subpoena them.
 Get this protection if you don’t have specific knowledge to the case and you haven’t been
retained.
 Travel more than 100 miles.
ii. Under (B), if the party in whose behalf the subpoena issues shows a substantial need for this information
and assures that the person subpoenaed will be reasonably compensated, the court may order appearance
or production.
d. Document Production under Rule 45:
i. Rule 45(a)(1)(C) - Subpoena duces tecum (requires witness to bring any relevant documents under their
control).
ii. Rule 45(c)(2)(B) - mechanism for challenging subpoena for document production or to permit inspection.
iii. Rule 45(c)(2)(A) - person need not appear with documents or at place of inspection (allows more flexibility
- 100 mile travel provisions).
iv. Rule 45(d)(1) – duty not to dump chaotic and undigested material on the other side cause that’s a form of
undue burden
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PRIOR ADJUDICATION
COLLATERAL ATTACK
Direct attack  up the chain of appeal
Collateral attack  start of new case
STARE DECISIS
1. Notion that like cases should be decided alike w/in a jurisdiction.
a. Applies to issues of law, not fact. (pure principles of law)
b. General rule of practice/guideline for court’s own use and benefit.
c. Force of precedent is strong, but not binding.
2. Rules for which courts follow which precedents:
a. Courts must follow their own decisions.
b. District courts must follow their Circuit Court of Appeals decisions.
i. Across Circuits, decisions may be persuasive, but not binding.
c. Supreme Court decisions are binding on all federal courts, and decisions on federal issues are binding on all
state courts.
d. State courts are not bound by federal court state law decisions.
i. When deciding state law cases, federal courts look to state supreme courts.
ii. Federal district courts can follow state supreme courts, rather than Circuit Court of Appeals.
iii. State Supreme Courts are authority on questions of there own state law and all courts (state and federal)
3.
must follow them on issues of state law
Distinction between stare decisis and issue preclusion:
a. Rule of Thumb: the more abstract and general the rule involved (Not tied to the facts of the case, the more it
is like a stare decisis question rather than issue preclusion.)
b. Issue preclusion is more mandatory in character, while stare decisis gives courts the freedom to overrule,
distinguish, etc.
c. Issue preclusion applies to mixed questions of fact or law
- courts only overrule themselves when:
i. body of law that has built up is incoherent or unworkable or both
ii. incoherent – too many exceptions, logical contradictions
iii. doctrine doesn’t work to produce a determinative result – no one understands how to apply it
CLAIM PRECLUSION (RES JUDICATA)
1. Res Judicata (“the thing decided”) idea of repose, finality
a. Four prerequisites for Res Judicata to operate:
i. Final judgment in first action. 2 separate adjudications.
ii. First judgment must be on the merits (full and fair opportunity to litigate?). (not procedural)
iii. Same parties in first and second actions – doesn’t require that every party be the same on both sides – Des
Moines – some subset of parties has to be the same.
iv. Applies to any claim that was brought or could have been brought arising out of the same transaction
and occurrence.
b. Precludes collateral attack on prior final judgments.
i. Judgments become final when the time to appeal expires, court of appeals issues a decision, or when a
court of appeals rejects an appeal.
ii. Other dispositions rendering finality:
 Full trial.
 Summary judgment.
 Settlement Ticor Title
 Judgment as a matter of law (directed verdict or JNOV).
 Default judgment (except for lack of PJ question).
 If you default (never show up, RJ doesn’t apply)
 Rule 41 dismissals?
 Without prejudice - not final. Rule 41a
 With prejudice – final (involves misfeasance by a party) Rule 41b
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iii. Procedural dismissals under Rule 12 are not final judgments on the merits (but they are final decisions as
to the subject of the motion). (i.e. findings of PJ, venue etc are final – RJ applies)
iv. 12b6 motion to dismiss and its final (no way you can style pleadings to state a claim)
c. Justifications for Res Judicata:
i. Judicial efficiency - saves resources of courts from trying the same case repeatedly.
ii. Fairness to  (repose) - once you have dragged a party into court, all matters should be resolved for all
time (prevents harassment) – security that they’re not going to be sued over and over again on same
events.
iii. Not unfair for person suing - he has had his “day in court” and should only get “one bite at the apple.”
d. Exceptions for collateral attack on final judgments:
i. Obvious lack of subject matter jurisdiction. Court really overstepped their bounds. If not then even with an
SMJ defect – case can still have RJ effect.
e. Authority for res judicata:
i. State courts must respect the decisions of other state courts under the Full Faith and Credit Clause of
Article IV of the Constitution.
ii. State courts must respect the decisions of federal courts under the Supremacy Clause of Article VI of the
Constitution.
iii. Federal courts must respect the decisions of state courts under the full faith and credit provision of 28 USC
§ 1738.
iv. Federal courts respect the decisions of other federal courts under a true common law doctrine.
2. Fetter v. Beale (King’s Beach, 1697) Res judicata
a.  brought a battery action against the  and recovered in a judgment.
b. When  sought to bring another action for additional injuries suffered, the  successfully pleaded res judicata.
c. Court held these injuries were from the same transaction and occurrence and were issues that could have been
raised (had  not been so hasty).
d. Doctrine of merger and bar → get only one chance to sue on claims that you bring – must bundle together.
 All events that give rise to claims have to occur before claims can be merged.
3. Des Moines Navigation and R. Co. v. Iowa Homestead (SCOTUS, 1887)
a. Case #1:
i. Homestead sues Des Moines and  Des Moines wins judgment.
ii. However, there was no subject matter jurisdiction over this case (lack of diversity as both were Iowa
b.
c.
d.
corporations).
Case #2:
i. Homestead again sues Des Moines in state court, which raises res judicata as a defense.
ii. Homestead argues first judgment is null and void for lack of SMJ.
Court:
i. First judgment is not void, but voidable (must be invalidated before a final judgment).
ii. In first case, the judgment was affirmed by Supreme Court: final judgment.
iii. The lack of SMJ must have been caught before final judgment.
Value of res judicata trumps the lack of SMJ – 8c - affirmative defense
i. 2nd action is barred by final prior judgment.
ii. Compare Capron, in which lack of SMJ was raised on appeal.
iii. Distinction between direct review and collateral attack is important.
iv. Parties are only rarely allowed to collaterally attack a case for lack of SMJ (see exceptions above).
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4. Ticor Title Insurance Company v. Brown (SCOTUS, 1994)
a. Case #1
i. ’s enter into a settlement with ’s - settlement with court approval amounts to a final judgment.
ii. Class action suit by consumers and a number of states – need sufficient # of people and representatives.
b. Case #2
i. Two s sue the ∆s again (same parties - does not require all the parties to be the same) arguing due
process gives them the right to opt out of class.
ii. Collateral attack of the certification of a class under Rule 23. πs say that res judicata doesn’t apply b/c
iii.
iv.
their due process rts were violated in 1st case cause they didn’t get opportunity to opt out. (parallels Des
Moines case – battle of SMJ vs. res judicata)
 raises the defense of res judicata. Trial court grants SJ. Appeals Court argues that not having opportunity
to opt out would violate constitutional right to due process of the Πs and to accord RJ to the prior
judgment is unconstitutional. Πs never appealed the right to opt out in the first case.
Supreme Court dismisses case as certiorari improvidently granted.
v. Two situations: lower court in case 1 got it right or wrong
vi. If the court got it wrong: too late to solve now cause judgment is final and if they got it wrong then Q
of denying opt out being unconstitutional doesn’t have to be decided cause they got it wrong – won’t
apply to other litigants.
vii. O’Connor dissent: shouldn’t wait to see if issue affects other parties. Does have significance beyond
these parties.
5. Rush v. City of Maple Heights (OH, 1958)
a. Question of splitting cause of action (personal injury vs. prop. injury).
b. Court says you cannot do this:
i. Rejected minority rule: test of what evidence is required.
ii. Accepted majority rule: one transaction and occurrence.
c. This is a case of a claim that “could have been brought.”
d. This case illustrates 3 principles:
i. Res judicata rules.
ii. Issue preclusion (issue of negligence not litigated in second case, tried in the first case).
iii. Stare decisis (treatment of Vasu precedent).
e. Issue splitting is different for indemnity/subrogation (insurance companies). In these cases w/out insurers, its
one COA, can’t split or RJ applies
f. Also illustrates principle of alternative sufficient grounds:
i. Not quite a “square overruling” of Vasu.
ii. Narrower holding is considered authoritative (indemnity).
-
2 views on whether alternative holdings are dicta:
i. regard both as having lesser precedential status even to the point of being dicta
ii. both are holdings, both get stare decisis
6. Jones v. Morris Plan Bank (VA, 1937)
a. Installment payment plan for purchase of a car with an acceleration clause (if a single payment is late, the
entire balance becomes due).
b.  bank brought suit against  buyer for two late payments and wins.
c.  bank brings another suit for payment of further late payments and  raises the defense of res judicata.
d. Court: When the bank brought suit on the first late payments the entire balance under the acceleration clause
e.
f.
had come due.
i. Entire balance was a claim that could have been brought.
ii. In effect, the bank split its claim - not allowed.
After payment of first judgment, the note had been satisfied.
Aside: in contracts cases, any rights under the contract outstanding when a suit is brought on another right is
waived unless you bring it also.
 This rule is time sensitive - right at the time suit was brought.
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7. Federated Department Stores v. Moitie (SCOTUS, 1981)
a. 7 ’s sue under the Clayton Act, and complaints are dismissed for failure to state an injury under the act.
b. 5 ’s appeal, and 2 refile their cases in state court (don’t appeal case 1), to which the  raises res judicata as
c.
d.
a defense (dismissal was a final judgment).
On appeal, an intervening decision gives 5 ’s a cause of action cause the ruling in case 1 was based on an
erroneous ruling that was overturned while cases were on appeal (under Schooner Peggy doctrine, they are
allowed to proceed).
SCOTUS: RJ applies to case 2
 Fact that judgment is based on erroneous ruling or overruled precedent is irrelevant
 Doesn’t matter that some parties decided to appeal
o Strategic choice to go to state court, doesn’t warrant disturbing judgment
 RJ is not subject to case by case judge made exceptions based on notions of public policy
 RJ doctrine itself balances concerns of fairness and public policy  need for finality outweighs need
for horizontal equity
ISSUE PRECLUSION (COLLATERAL ESTOPPEL)
1. Collateral Estoppel must be pleaded as a defense – if not pleaded its waived
2. Four prerequisites for collateral estoppel:
a. Parties in 2 adjudications can be the same or partly different.
Main difference between CE and RJ:
o CE applies when 2nd litigation is not exactly the same as the first (i.e. not same T&O)
o Some new events give rise to 2nd case  then its CE not RJ
b. Same issue in both actions  either issues of law applied to facts, or facts (if its just a question of law then its
SD).
c. Issue must have been actually been litigated in first action.
i. Issue must have been in dispute.
ii. Not stipulated or conceded. (if issue not in dispute, it was probably hard to prove in the first case, basic
fairness so does not get estoppel effect.)
d. Issue must have been necessarily decided in first action – essential to judgment. (problems w/ general verdict
decision)
(Ex. tort action for negligence. Don’t know whether the jury found contributory negligence or no
negligence or both – either of the 3 findings would support verdict for Δ.) No determinate
outcome
- alternative possible grounds, each ground sufficient, none is necessary and problem of knowing which
was decided and how
i. W/ special verdicts, you know what jury decided.
e. Issue must have been necessary to the judgment in first action.
i. Problem with judicial opinions listing alternative sufficient grounds for the result. (each ground is
sufficient, neither necessary and both were asserted)
ii. Two or more alternative sufficient grounds get no preclusive effect for either ground (if one ground is
defective, it will not be appealed because the other ground is sufficient: caution about perpetuating
possibly defective and uncorrected grounds onto next case).

Mutual Collateral Estoppel:
a. Applies when parties are the same in both actions.
b. Distinguished from res judicata:
i. In res judicata, same nucleus of facts/set of events.
ii. In collateral estoppel, may have only a few facts in common, but will have a different set of facts and
possibly a new theory of law (clearest example is events separated in time).
a. Case #1:  sues  for violation of an easement in chopping down firewood and wins the case.
b. Case #2:  again chops down firewood, and the issue of the easement is not relitigated ( had his
chance to fight this determination).
iii. Collateral estoppel applies to only part of the case.
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Cromwell v. County of Sac (SCOTUS, 1876) MCE because Smith and Cromwell are in privity.
i. Case #1:
 Legal decision made concerning status of bonds:
 Court said bonds were fraudulently issued.
 Issue common to all the bonds in the series
 And fraudulent bonds must be acquired for value – bona fide purchaser (this has Stare Decisis
Effect) pure finding of law
ii. Case #2:
 Court holds only collateral estoppel effect for the status of the bonds as being fraudulent.
 Because new bonds are at issue, the question of whether the  was a bona fide purchaser (acquired for
value) is a new, unlitigated issue.
d. Russell v. Place (SCOTUS, 1876)
i. Illustrates the necessarily decided requirement.
ii. Case #1:



iii.
 wins a judgment for infringement of his patent.
General jury verdict with two patented processes at issue.
Jury had to have rejected all defenses to infringement for patent holder to win. Must have found
patent was valid
Case #2:
 No preclusive effect for judgment in case #1, as it is unknown whether the jury found an infringement
of one patent or the other, or both.
 Question is not whether patent was valid, but which one was valid?
 Can’t know whether jury found both patents valid or both infringed.
PRIVITY AND NON-MUTUAL COLLATERAL ESTOPPEL
a. Analyzing non-mutual collateral estoppel cases: 1 of the parties has to be the same as in the prior action.
i. Same requirements as above (same issue, necessarily decided, etc.)
b. Estoppel never applies to parties not bound by (not a party to) a previous judgment (must have your “day in
court”).
c. However, a party asserting preclusion need not be a party to the first action, as long as preclusion is asserted
against a party that was.
d. Bernhard v. Bank of America (CA, 1942) Traynor (acceptance of non-mutuality)
i.  asserts collateral estoppel defensively, to preclude re-litigation of who owns a bank account, even though he
ii.
iii.
was not a party to the first action, but the  was a party to that action.
Court finds no reason to keep the mutuality requirement.
 Not unfair to the party against whom the preclusion is asserted (she had her day in court to litigate this
issue and lost).
 Waste of judicial resources to re-litigate this issue.
 Unseemly to allow a  to switch adversaries to try again if she lost against one  (“gaming table”).
Court identifies three questions:
 Was the issue in the prior adjudication the same?
 Was there a final judgment on the merits?
 Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?
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e. Blonder-Tongue Laboratories v. University of IL Foundation (SCOTUS, 1971) SCOTUS eliminates privity for
defensive non-mutual estoppel
i. Case #1 -  patent holder (University) had sued a  in a patent infringement action, and the patent was held to
be invalid.
ii. Case #2 -  patent holder sues another  here, and the patent was found to be valid.
iii. Court overrules the mutuality requirement established in Triplett: (holding that a patent was invalid does not
preclude a patent holder from asserting the validity of the patent in subsequent litigation against different
defendant)
 Should a litigant (University) get more than one full and fair opportunity for resolution of the same issue?
Court says no.
 Permitting repeated litigation wastes judicial resources (follows reasoning of Bernhard).
 Unfair to let loosing party try their luck again
iv. This holding only allows defensive use of non-mutual estoppel.
f. Parklane Hosiery Co. v. Shore (SCOTUS, 1979) eliminates rule that non-mutual estoppel can only be used
defensively
i. Offensive use of non-mutual estoppel case.
ii. In a copycat case, the ’s sue the  company for an SEC violation, after government sues first and wins.
iii.  asserted the  was collaterally estopped from relitigating the fraud issue determined in the government’s
suit.
iv. Court suspends the mutuality requirement for offensive use and replaces it with a rule of discretion, giving
judges discretion to allow offensive use.
v. Why give judges discretion? The judge must decide if the  was given a full and fair chance to litigate.
 Offensive use is not so efficient: encourages a wait-and-see attitude and no incentives to consolidate
claims.
 Posture of parties is different: a  could have been at a procedural disadvantage (i.e. inconvenient forum)
and not had a “full and fair opportunity to litigate.”
  may not have anticipated the full extent of liability in a first case, so it may not have defended as
vigorously as it could have.
 Have there been prior judgments in ’s favor? Is the  “gaming”? (Δ can’t take advantage of prior
judgments in their favor against Π who wasn’t in the prior action, but Π can use unfavorable judgments
against Δ -- assymetry.)
 Offensive use creates incentive for side-line sitting
Five factor test to help determine whether judge should exercise discretion.
 Was the case fully and fairly litigated by the defendant in the first case?
 What type of procedural obstacles were present in the prior case?
 Was there a lot at stake in prior action and was Δ aware? Could Δ anticipate how much would be at stake in the
future?
 Could plaintiff have joined in the prior action and opted not to?
 Were there prior inconsistent judgments in which some court determined that the defendant had merit?
(Defensive estoppel is automatic while offensive estoppel is discretionary)
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g. Martin v. Wilks (SCOTUS, 1989)
i. Illustrates the principle that non-parties cannot be bound by a decision.
ii. In this case, the remedy affected the rights of non-parties (common in complex, institutional remedies).
iii. ’s challenge the consent decree in first case (a final judgment).
iv. ’s claim the  is estopped from collaterally attacking this judgment (arguing the white firefighters were
aware their interests were affected and should have intervened in the first case).
v. Supreme Court holds the ’s suit is not precluded:
 Not a party to the first action, so they are not bound.
 System never puts the burden on a non-party to join an action, even if their interests are involved, or
waive their rights.
 Mandatory joinder would place burden on strangers – not promoted in our system
 The burden to join parties (under limited Rule 19) is better left on parties to the action:
 Have better knowledge of the interests affected.
 People on the sidelines might not be aware of the lawsuit. (notice issue)
 If parties fail to join parties under Rule 19, they cannot complain when those parties are not bound by
the judgment.
vi. The 1991 Civil Rights Act requires that third parties with an interest in and with notice of a case like this, who
do not intervene or join, are precluded from challenging the judgment. (not passed)
h. Antrim Mining v. Davis (M.D. PA, 1991)
i.
Illustrates the principle that you cannot bind others to a judgment just by saying so (including a provision).
Included something known as zipper clause  this settlement binds all parties or potential parties who had
notice of the instant claims and this Consent Decree.
ii. Can’t contract around the rules regime.
Offensive and Defensive Use of Non-Mutual Collateral Estoppel
a. Offensive: (sword) “Offensive use of collateral estoppel occurs when the  seeks to foreclose the  from litigating
an issue the  has previously litigated unsuccessfully in an action with another party.” (quoting from Parklane).
Used as a sword to push claim through.
b. Π is new and the Δ was in the prior action
c. For offensive use of non-mutual collateral estoppel, the four prerequisites for collateral estoppel must be met, and
the court must consider other factors including:
 Does this encourage a “wait and see” approach? Sideline sitting..
 Did the  litigate the first case aggressively enough?
 Was the  at a procedural disadvantage (he did not chose forum)?
 One or more prior inconsistent judgments may make giving preclusive effect to one unfair.
c. Defensive: (shield) “Defensive use occurs when  seeks to prevent a  from asserting a claim the  has previously
litigated and lost against another ” (quoting from Parklane, example is Blonder-Tongue.) Δ is new and the Π was
in prior adjudication
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VF – Fall 2003
JURY
INSTRUCTIONS AND VERDICT
1. Seventh Amendment
a. Constitutional element to the allocation of decision making authority between the judge and jury.
b. Jury is given the role of fact-finder, weighing of the evidence.
c. Judge cannot change or redo the finding of facts, except as provided by the rules at common law.
2. Instructions to the Jury (Rule 51)
a. Parties may submit proposed jury instructions.
b. A party must object to the jury instructions “before the jury retires” to preserve the issue for appeal.
3. Alexander v. Kramer Bros. Freight Lines (2nd Cir., 1959)
a. In this tort case,  raises the issue of erroneous jury instructions (concerning the burden of persuasion for
contributory negligence) as grounds for the granting of its motion for a new trial under Rule 59.
b. Not harmless → who has burden of persuasion is pivotal b/c equipoise of evidence – equally convincing
c.
d.
e.
f.
arguments. Party w/burden will lose.
Court denies this motion, holding the  failed to raise this objection before the jury retired, as required by
Rule 51.
 argues he raised the objection several days before the instructions given.
Court finds two problems:
 Defect in content of objection – never gave grounds for the objection
 Timing of the objection – objected too early
Court holds this was too soon.
i. Purpose of the objection is to alert the judge of possible error and give him the opportunity to correct
the error.
ii. In this case, the objection was too early to serve this purpose of Rule 51.
iii. Ct puts gloss on the word “before” → objection to jury instruction must be before the jury retires – really
means right before.
Grounds for granting a new trial under Rule 59 based on procedural error:
a. Jury Misconduct
b. Error must not be harmless (Rule 61).
c. Must preserve the issue by making objection (part of the adversary process) at the appropriate time (to give
judge a chance to fix it).
d. Decision is excessive – remitter – lowering of amount or new trial.
e. Verdict against the great weight of the evidence → grants new trial.
f. Plain Error Doctrine:
i. Common law gloss on Rule 51 - United States v. Atkinson (SCOTUS).
ii. If it’s a plain error than there is no waiver – party would be relieved of having to raise the objection
iii. If the error is so obvious that the judge should have known about it and corrected it, or if the error
iv.
seriously affects the fairness, integrity or public reputation of the judicial system, then the error may be
corrected without an objection having been taken – suspends ordinary rule that parties drive litigation –
judge ought to have known about it.
Overt bias and prejudice.
Civil Procedure Outline
Prof. A. Wax
Page 87
VF – Fall 2003
JURY DELIBERATIONS
1. Jury misconduct is a possible ground for a new trial under Rule 59.
a. Dealt with under the Federal Rules of Evidence (Rule 606) – impeachment of verdict forbidden based on
anything in jurors’ minds and emotions.
b. Originally a strict rule (Lord Mansfield’s Rule) that jurors were not allowed to testify at all as to what happens
c.
d.
e.
in the jury room – don’t want to undermine respect for jury – don’t want to exert a chilling effect on jury by
reducing their desire to express themselves freely.
Iowa Rule - Jurors testify on outside influences, not process of deliberation (i.e. intrinsic influences like
newspaper stories)
Texas Rule – Liberal rule of inquiring into events in jury room. Allows jurors to testify on any matter (influence
& deliberation). You can impeach as to anything
Modern federal rule is closer to the Iowa Rule.
 Influence must bear on mind and emotion affecting competency
2. Texas Employers Ins. Ass’n v. Price (TX, 1960) Interplay of Rule 50 and 59
a. Workman’s comp. case – in front of administrative tribunal, then π appealed tribunal’s findings (de novo) in
b.
b.
c.
d.
trial ct. ∆ appealed.
 moved for a new trial under Rule 59 on two grounds:
i. Verdict was against the great weight of the evidence.
So little evidence for outcome (finding of total disability) that no reasonable jury could find for π and
judgment should be reversed – Rule 50.
ii. Jury misconduct.
Court finds there was sufficient evidence to support the jury’s verdict.
 Jury is allowed to reconcile inconsistencies; role is to discount facts
On the second ground, court finds reversible error:
i. One juror used his personal experience to persuade the jury that the ’s incapacitation was total and
permanent.
ii. This juror in effect “re-instructed” the others on the law.
Court notes that the finding of facts by the trial judge as to the evidence of jury misconduct is binding on it,
but the determination of the legal significance of this misconduct is not (no deference to findings of law).
JUDICIAL CONTROL OVER JURY (see above)
1. Judgment as a Matter of Law (Rule 50)
a. Directed Verdict – before the jury went out – after π has put case on.
b. Judgment notwithstanding the verdict – after verdict comes back
2. Rule 59 Motion for a New Trial (less onerous than JMAL).
3. Why allow for judicial control over juries? Jurors, as ordinary people, may be guided by motives that are not
allowed.
Civil Procedure Outline
Prof. A. Wax
Page 88
VF – Fall 2003
APPEALS
SEVENTH AMENDMENT:
1. Reserves fact-finding responsibility to juries.
2. Application to trial court: judge cannot change or re-do juries findings.
a. Exception in Rule 59 (not really review, however, but chance for a new jury).
b. Exception in Rule 50 (but not really weighing, look at in most favorable light).
3. Application to appeals: appeals court cannot disturb juries findings of fact.
a. Rule 52 - Appeals courts cannot second-guess a fact finding by a judge sitting without a jury unless the finding
is “clearly erroneous.”
b. (Rule 60 - Relief from Judgment or Order.)
STANDARDS OF REVIEW
1. For findings of fact and application of law to the facts:
a. de novo Review - Fresh look at facts and law.
b. Various degrees of deference to trial court’s finding:
i. Clearly erroneous standard.
ii. Error.
iii. “Against the great weight of the evidence” (Rule 59).
iv. “No reasonable jury” (Rule 50).
2. For matters of law: no deference to the trial court (“accumulation of wisdom”).
INTERLOCUTORY APPEALS
1. In federal courts, interlocutory appeals (an appeal before a final judgment is rendered) are disfavored:
a. Pros:
i. Party might win in the end and no need to appeal (efficiency).
ii. More efficient for all questions of error to be heard at once.
iii. Discourages strategic behavior (delay and harassment).
b. Cons:
i. Could be inefficient; an entire case could be tried and thrown out for a mistake at the beginning of a case.
2. 28 USC § 1291 - Final decisions of district courts may be appealed.
3. 28 USC § 1292 - Exceptions for interlocutory appeals from district courts.
SUPREME COURT PRACTICE
1. Rule 10 of the Supreme Court:
a. Kinds of cases Court is likely to hear:
i. Conflict among the Courts of Appeals;
ii. Conflict between Court of Appeals and a state supreme court;
iii. When a Court has departed from the usual practice.
iv. State supreme court deciding a federal question that conflicts;
v. Important question of federal law that should be settled.
b. Writs of certiorari are a matter of judicial discretion.
2. 28 USC § 1254 - Supreme Court review of Courts of Appeals.
3. 28 USC § 1257 - Supreme Court review of State Supreme Courts.
Civil Procedure Outline
Prof. A. Wax
Page 89
VF – Fall 2003
Hicks v. United States (4th Cir., 1966)
1. π claimed malpractice against ∆ Navy physician. Standard of negligence determined by state law.
2. District court decision for  in Federal Tort Claims Act (sends cases to federal court) tried before a judge (no
jury).
3. Appeals court reverses decision:
a. Court concludes doc was negligent (question of fact) overrules trial court decision
b. Does not question the factual findings of judge as “clearly erroneous” under Rule 52. Must be clearly erroneous
to be overturned.
c. Instead it says it questions the application of law to the facts:
 Given the facts were in dispute, and that the ’s expert witness said contradictory things, judgment is for
the .
3. Errors in law stand on firmer footing than challenging factual findings.
4. Amendment 7 – complete deference – don’t touch it unless extremely unreasonable (Rule 50)
COURT SYSTEM
Federal courts of appeals do not have authority over state supreme courts on questions of federal law – parallel
authority to make decision.
Federal courts have to listen to state on state law (Precedential authority), but state court doesn’t have to listen to
federal court on federal law  (exception – SCOTUS).