Civ Pro
Outline
Matthew Cushing
Table of Contents
1.
List of Federal Rules of Civil Procedure………………………………….…………………….................... 3
2.
Cases and Topics Covered………………………………………………..…………………………………. 5
3.
Subject Matter Jurisdiction……………………………………………….……………………………....... 10
a. Diversity Jurisdiction (§1332)…………………………………………………………………… 10
b. Arising Under Jurisdiction (§1331)…………………………….………………………………… 11
c. Supplemental Jurisdiction and §1367……………………………………………………………. 14
d. Removal Jurisdiction (§1441)…………………………………………………………………..... 18
4.
Personal Jurisdiction…………………………………………………….…………………………………. 21
a. Specific Jurisdiction……………………………………………………………………………… 24
b. General Jurisdiction…………………………………………….………………………………… 25
c. Service and Rule 4……………………………………………….……………………………….. 28
5.
Venue……………………………………………………………………….……………………………… 31
a. Forum Non-Conveniens………………………………………………………………………….. 33
6.
Ascertaining the Governing Law (Erie Problem)…………………………….……………………………. 34
7.
Pleading……………………………………………………………………….…………………………… 38
8.
Summary Judgment…………………………………………………………….………………………….. 44
9.
JAML, Jury Instructions and Appeals………………………………………….………………………….. 47
10. Former Adjudication……………………………………………………………..………………………… 53
a. Res Judicata…………………………………………………………….………………………… 53
b. Collateral Estoppel…………………………………………………….…………………………. 54
c. Collateral Attack……………………………………………………….………………………… 55
11. Joinder……………………………………………………………………………..……………………….. 56
12. Discovery………………………………………………………………………….……………………….. 59
a. Privileges………………………………………………………………….……………………… 62
b. Experts…………………………………………………………………….……………………… 64
2
Federal Rules of Civil Procedure
I. Scope of Rules – One Form of Action
Rule 1: Scope of Rules
Rule 2: One Form of Action
II. Commencement of Action
Rule 3: Commencement of Action
Rule 4: Summons
4a: Form
4b. Issuance
4c. Service With Complaint; by Whom Made
4d: Waiver of Service; Duty to Save Costs of
Service; Requests
4e: Service Upon Individuals W/in a Judicial
District of the U.S.
4h: Service Upon Corporations and Associations
4k: Territorial Limits of Effective Service
4m: Time Limit for Service
4n. Seizure of Property; Service of Summons
Not Feasible
III. Pleadings and Motions
Rule 7: Pleadings Allowed; Form of Motions
7a: Pleadings
7b: Motions and Other Papers
7c: Demurrers, Pleas, etc., Abolished.
Rule 8: General Rules of Pleading
8a: Claims for Relief
8b: Defenses; Form of Denials
8c: Affirmative Defenses (19 listed)
8d: Effect of Failure to Deny
8e: Pleading to Be Concise and Direct;
Consistency
8f: Construction of Pleadings
Rule 9: Pleading Special Matters
9a: Capacity
9b: Fraud, Mistake, Condition of the Mind
9c: Conditions Precedent
9d: Official Document or Act
9e: Judgment
9f: Time and Place
9g: Special Damage
9h: Admiralty and Maritime Claims
Rule 10: Form of Pleadings
10a: Caption; Names of Parties
10b: Paragraphs; Separate Statements
10c: Adoption by Reference; Exhibits
Rule 11: Signing of Pleadings, Motions and Other
Papers; Representations to Court;
Sanctions
11a: Signature
11b: Representations to Court
11c. Sanctions
11d.
Inapplicability to Discovery
Rule 12: Defenses and Objections—When and
How Presented—By Pleadings or
Motion—Motion for Judgment on the
Pleadings
12a: When Presented
12b: How Presented
12c: Motion for Judgment on the Pleadings
12d: Preliminary Hearings
12e: Motion for More Definite Statement
12f: Motion to Strike
12g: Consolidation of Defenses in Motion
12h: Waiver or Preservation of Certain Defenses
Rule 13: Counterclaim or Crossclaim
13a: Compulsory Counterclaims
13b: Permissive Counterclaims
13c: Counterclaim Exceeding Opposing Claim
13d: Counterclaim against U.S.
13e: Counterclaim Maturing/Acquired after
Pleading
13f: Omitted Counterclaims
13g: Counterclaim against Co-Party
13h: Joinder of Additional Parties
Rule 14: Third Party Practice
14a: When D May Bring in 3rd Party
14b: When P May Bring in 3rd Party
14c: Admiralty and Maritime Claims
Rule 15: Amended and Supplemental Pleadings
15a: Amendments
15b: Amendments to Conform to the Evidence
15c: Relation Back of Amendments
15d: Supplemental Pleadings
IV: Parties
Rule 18: Joinder of Claims and Remedies
18a: Joinder of Claims
18b: Joinder of Remedies; Fraudulent
Conveyances
Rule 19: Joinder of Persons Needed for Just
Adjudication
Rule 20: Permissive Joinder of Parties
Rule 21: Misjoinder and Non-joinder of Parties
Rule 23: Class Actions
Rule 24: Intervention
V: Depositions and Discovery
Rule 26: General Provisions Governing Discovery;
Duty of Disclosure
26a: Required Disclosures; Methods to Discover
Additional Matter
26b: Discovery Scope and Limits
26c: Protective Orders
3
26d: Timing/Sequence
26f: Conference Required
Rule 30: Depositions Upon Oral Examination
Rule 31: Depositions Upon Written Questions
Rule 32: Use of Depositions
Rule 33: Interrogatories to Parties
Rule 34: Production of Documents and things;
Entry Upon Land
Rule 35: Physical and Mental Examinations of
Persons
Rule 36: Requests for Admission
VI: Trials
Rule 41: Dismissals of Actions
41a: Voluntary Dismissals
41b: Involuntary Dismissal
Rule 45: Subpoena
45a: Form
45b: Service
45c: Protection of Persons Subject to Subpoena
45d: Duties in Responding
Rule 47: Jurors
47a: Examination of Jurors
47b: Peremptory Challenges
47c: Excuse
Rule 48: Number of Jurors – Participation in
Verdict
Rule 49: Special Verdicts and Interrogatories
49a: Special Verdicts:
49b: General Verdict Accompanied by Answer
to Interrogatories
Rule 50: JAML in Jury Trials; Alternative Motion
for New Trial; Conditional Rulings
50a: Judgment as a Matter of Law
50b: Renewing Motion for Judgment After
Trial; Alternative Motion for New Trial
50c: Granting Renewed Motion for Judgment as
a Matter of Law; Conditional Rulings; New
Trial Motion
50d: Same: Denial of Motion for Judgment as a
Matter of Law
Rule 51: Instructions to Jury: Objection
Rule 52: Findings by the Court; Judgment on
Partial Findings
52a: Effect
52b: Amendment
52c: Judgment on Partial Findings
VII. Judgment
Rule 56: Summary Judgment
56a: For Claimant
56b: For Defending Party
56c: Motion and Proceedings Thereon
56d: Case Not Fully Adjudicated on Motion
56e: Form of Affidavits; Further Testimony;
Defense Required
56f: When Affidavits Are Unavailable
56g: Affidavits Made in Bad Faith
Rule 59: New Trials; Amendment of Judgments
59a: Grounds
59b: Time for Motion
59c: Time for Serving Affidavits
59d: On Initiative of Court
59e: Motion to Alter or Amend a Judgment
Rule 60: Relief from Judgment or Order
60a: Clerical Mistakes
60b: Mistakes; Inadvertence; Excusable
Neglect; Newly Discovered
Rule 61: Harmless Error
VIII. Provisional and Final Remedies
Rule 64: Seizure of Person or Property
28 United States Code
§ 1251: Original Jurisdiction
§ 1253: Direct Appeals from decisions of three
judge courts
§ 1254: Courts of appeals; certiorari; appeal;
certified questions
§ 1257: State courts; appeal; certiorari
§ 1291: Final decisions of state courts
§ 1292: Interlocutory decisions
§ 1331: Federal Question
§ 1332: Diversity of citizenship; amount in
controversy; costs
§ 1337: Commerce and antitrust regulations
§ 1345: United States as plaintiff
§ 1361: Action to compel an officer of the U.S. to
perform his duty
§ 1653: Amendment of pleadings to show
jurisdiction
4
Cases and Topics
Subject-Matter Jurisdiction
Generally
 Capron v. Van Noorden — centrality of SMJ
 Marbury v. Madison — centrality of SMJ
Diversity Jurisdiction
 Mas v. Perry — complete diversity rule, federal domicile rules
Federal Question Jurisdiction
 Osborn v. Bank of the United States — but-for ingredient test (no longer valid under §1331)
 Louisville & Nashville R. Co. v. Mottley — well-pleaded complaint rule, Holmes’ cause-of-action test
 T.B. Harms v. Eliscu — rejection of Osborn/ingredient test
 Smith v. Kansas City Title — jurisdiction based on need to interpret meaning/application of federal law
 Moore v. Chesapeake & Ohio Ry. Co. — no jurisdiction, despite meaning/application
 Merrell Dow Pharmaceuticals, Inc. v. Thompson — current meaning/application test valid if fed. law
would allow an independent lawsuit (either expressly or implied, with Cort v. Ash test)
 Cort v. Ash — 4-part test for whether the right to sue is implied in a federal law
 Bivens v. Six Unknown Agents of the FBI — implied right to sue with regard to violation of rights
Supplemental Jurisdiction
 UMW v. Gibbs — common nucleus of operative fact for pendant claims
 Aldinger v. Howard — presumption in favor of pendent party jurisdiction unless expressly excluded
 Owen Equipment v. Kroger — centrality of complete diversity requirement
 Finley v. United States — flips Aldinger presumption, need express grant of jurisdiction
§1367 overriding Finley, preserving Gibbs, Aldinger, Kroger line
 In Re Abbott Laboratories — supp. jurisdiction over unnamed class members because Rule 23 is not
covered by 1367(b)
 Patterson v. Bridgestone — 1367(b) exceptions specify joinder of Ds, not Ps
 Exxon Mobile/Allapattah/Ortega – one claim must satisfy both requirements of §1332, and all the other
claims must be diverse in citizenship but all do not have to meet amount in controversy
Removal Jurisdiction
 Shamrock Oil & Gas Corp. v. Sheets — removal only by Ds
 Thermtron v. Hermansdorfer — review of remand allowed when review is not for grounds specified in
statute
 Carnegie Mellon v. Cohill — remand of state claims allowed after federal claims drop out
Personal Jurisdiction
Generally
 Tickle v. Barton — importance of proper service, PJ is nullified by fraud
 Pennoyer v. Neff — proper PJ is a matter of due process (territorial, or proper q-i-r)
Modern PJ and Long-Arm Statutes
 Int’l Shoe v. Washington — minimum contacts test
 Hess v. Pawloski — constructive consent for service statutes (cars driving through the state territory) valid
under 14th Amendment
 Gray v. American Radiator — “stream of commerce,” direction into the state, purposeful availment, forumspecific factors
 McGee v. Int’l Life Insurance Co. — single contact sufficient; systematic/continuous contacts; forum
interest
5
 Hanson v. Denckla — passivity, no purposeful availment not enough for PJ
Specific Jurisdiction
 World-wide Volkswagen Corp. v. Woodson — mere appearance of product in forum not sufficient for PJ
 Keeton v. Hustler — P’s contacts do not matter in establishing PJ
 Burger King v. Rudzewicz — single contract with substantial course of dealings may support PJ
 Asahi v. Superior Court — no purposeful availment; injection into stream of commerce not sufficient;
traditional notions of fair play and substantial justice
General Jurisdiction
 Perkins v. Benguet Mining — acts of corp. were continuous, pervasive, and systematic; jurisdiction ok even
though cause of action didn’t arise in state
 Helicopteros v. Hall — contacts too sporadic/occasional to establish general jurisdiction
Power Over Property
 Harris v. Balk — territorial notion of power over property — effectively overruled by Shaffer
 Shaffer v. Heitner — extends “minimum contacts” test to in rem and quasi in rem actions
Presence
 Burnham v. Superior Court — acceptance of “tag” jurisdiction (although no real majority)
Consent
 Insurance Corp. of Ireland v. Compagnie — once a party challenges jurisdiction, consents to the court’s
power to determine the question of jurisdiction
 M/S Bremen v. Zapata Off-Shore Co. — deference to forum-selection clauses (esp. in int’l context)
 Carnival Cruise Lines, Inc. v. Shute — extends deference to domestic, citing economic benefits
Service and Reach of the Federal Courts
 Omni Capital Int’l v. Rudolf Wolff & Co. — state’s long arm statute didn’t extent PJ to British corp., led to
“Omni provision” to ensure foreign Ds don’t completely escape
 Insurance Co. of North America v. Hellenic Challenger — service on corp. appropriate to anyone
reasonably certain to give responsible party notice
Notice
 Mullane v. Central Hanover Bank & Trust Co. — notice must be reasonably certain to inform; establishes
test of the most efficient/effective way to inform
 Mennonite Board of Missions v. Adams — traditional methods acceptable, but must be best notice available
 Greene v. Lindsey — emphasis on presence of other, better means of service
Venue
Generally
 Burlington Northern R.R. Co. v. Ford — broad due-process leeway for states to develop own venue rules
Federal Venue Rules
 Hoffman v. Blaski — transferee court must be a court where case originally could have been brought
 Ferens v. John Deere Co. — transferee district must apply law of transferor, even when P transfers
(extension of Van Dusen rule)
 Goldlawr, Inc. v. Heiman — transfer of venue may be appropriate even if original court lacks PJ
Forum Non Conveniens
 Piper Aircraft v. Reyno — forum non conveniens applied to foreign Ds, interests of convenience, judicial
administration, etc.
6
Ascertaining the Governing Law
The Erie Doctrine
 Black & White Taxicab v. Brown & Yellow — application of “federal common law” over state common law
 Erie R. Co. v. Tompkins — §1652 (Rules of Decision Act) applies to state common law as well as state
statutory law; federal courts must apply all state substantive law
Evolution of Erie
 Guaranty Trust Co. v. York — established outcome-determinative test in deciding when a state law is
substantive (here finding that statutes of limitation are substantive state law)
 Byrd v. Blue Ridge Rural Electric — modification of York test to allow for legitimate federal policy
interests (here the interest in jury trials) to override outcome-determinative rules
 Hanna v. Plumer (I) — refines York test, must look at totality of the rule and its forum-shopping nature
o (II) — when a state rule conflicts with FRCP, federal rule is presumptively valid
 Walker v. Armco Steel Corp. — for FRCP to apply, must be a direct collision with state law
 Gasperini v. Center for Humanities — finds JNOV to be judge-made rule that would cause forumshopping, thus state rules control (but this is contested, as Rule 59 seems on-point)
 Stewart Organization, Inc. v. Ricoh — collision with arguably procedural federal statute statute controls
 Klaxon Co. v. Stentor Elec. Mfg. Co — federal courts must apply choice-of-law rules of forum state (as
federal rules would be judge-made and would promote forum-shopping)
Joinder and Pleading
Joinder Generally/Federal Rules
 Temple v. Synthes — any joinder permitted under Rule 14 does not fall under Rule 19
Pleading Generally
 Dioguardi v. Durning — pleading only must state the possibility that facts could amount to legal claim for
relief (more functional standard, especially with pro se defendants)
 Lodge v. United Aircraft Corp. — general disfavor for 12(e) motions, but balancing need/request for more
definite statement with realities of discovery
Complaint and Dismissal on the Pleadings
 Garcia v. Hilton Hotels Int’l, Inc. — answer notice: complaint needn’t be more than necessary for ? to
formulate an answer
Answer/Reply
 Ingraham v. United States — 4-part test for whether something is a defense that must be pleaded
 Taylor v. United States — conflict with Ingraham (but courts typically follow Ingraham)
 Gomez v. Toledo — p must only plead statutory elements of a claim in the complaint; matters of avoidance
must be pleaded by D
Amendments
 Moore v. Moore — amendment to conform to the pleadings, evidence already present
 Beeck v. Aquaslide — good-faith amendment to contest previously admitted fact, judicial discretion
 Worthington v. Wilson — unknown identity is not mistaken identity under Rule 15
Judgment as a Matter of Law, Jury Instructions, and Appeal
Summary Judgment
 Alderman v. Baltimore & Ohio R. Co. — no reasonable jury could conclude …
 Celotex Corp. v. Catrett — additional evidence not required for the party without the burden of production
 Anderson v. Liberty Lobby, Inc. — judges should use evidentiary standard for specific case
7
Voluntary and Court-Ordered Dismissal
 McCants v. Ford Motor Co. — voluntary dismissal allowed if in good faith (to take advantage of better
statute of limitations)
 Messenger v. United States — prejudice to D not necessary in dismissing for failure to prosecute, but it
may be considered
 Link v. Wabash R. Co. — dismissal appropriate for failure of attorney to attend pre-trial conference(s)
JNOV, Directed Verdict
 Lavender v. Kurn — scintilla standard for JNOV/DV
 Denman v. Spain — state finding when jury verdict cannot be grounded upon conjecture and possibility, a
more liberal/permissive standard
 Daniel J. Hartwig Associates, Inc. v. Kramer — denial of p’s statements not enough to meet burden of
production for affirmative defense
 Pennsylvania R. Co. v. Chamberlain — reasonable jury standard, no conjecture/possibility; seems to
conflict with scintilla standard, but not overturned (came before Lavender)
New Trial Motions
 Texas Employers’ Insurance Assn. v. Price — despite evidence to support verdict, juror misconduct
required nullifying the verdict
Jury Instructions
 Alexander v. Kramer Bros. Freight Lines — despite error in judge’s instructions, objections waived if not
preserved at trial, given directly in response to instructions/denials
Review of Bench Trials
 Hick v. United States — error due to misapplication of law to facts, but deference to judge’s findings of fact
Discovery
Scope of Discovery
 Marrese v. American Academy of Orthopaedic Surgeons — protective orders must take into account all
interests, least “offensive” means of discovery
 Seattle Times Co. v. Rhinehart — limiting use/publication of discovered evidence does not violate First
Amendment interests
Work Product Rule and Privilege
 Hickman v. Taylor — work product rule protects thoughts, opinions, etc., of attorneys, but actual substance
is still discoverable
 Upjohn Co. v. United States — attorney-client privilege in corporate environment not limited to “control
group”; work product rule (Hickman) applies to administrative summonses
Treatment of Experts
 Perry v. W.S. Darley & Co. — protection of consultative (non-testifying) experts in the absence of
exceptional circumstances
Former Adjudication
Res Judicata
 Fetter v. Beale — all claims based on same transaction/occurrence must be brought together
 Des Moines Navigation & R. Co. v. Iowa Homestead — final judgment of prior case should get RJ effect,
despite SMJ defect
 Ticor Title Ins. Co. v. Brown — RJ effect proper despite class action certification defect
 Rush v. City of Maple Heights — cannot split property and personal injury claims for same act/t/o
 Jones v. Morris Plan Bank of Portsmouth — RJ doctrine can also be determined by the scope of a contract,
in addition to the scope of the t/o
8
 Federated Dept. Stores v. Moitie — RJ appropriate despite later reversal of grounds for original
(unappealed) dismissal; RJ is not a doctrine subject to judge-made equity
Collateral Estoppel
 Cromwell v. County of Sac — specific issues must have been actually litigated to get CE effect
 Russell v. Place — specific issues must have been necessarily decided (trouble with general jury verdicts)
 Bernhard v. Bank of America — mutuality not required for CE (state)
 Blonder-Tongue v. Univ. of Illinois — mutuality not required for defensive CE (specifically patent)
 Parklane Hosiery Co. v. Shore —mutuality not required for offensive CE, but use is discretionary
 Martin v. Wilks — no CE against parties not present in prior action; no rule for mandatory intervention
 Antrim Mining, Inc. v. Davis — can’t bind non-party to consent decree in prior action
9
Subject Matter Jurisdiction
Subject Matter Jurisdiction (SMJ) - the extent to which a court can rule over the nature of the case and the type
of relief sought; over the conduct of persons or the status of things
o Cannot be waived by parties (Capron v. Van Noorden)
o Objection to lack of SMJ can be raised by a party at any time
o Amendments to jurisdiction may be made in the trial or appellate court (§1653)
o Without SMJ, court must dismiss case (Rule 12 (h)(3))
o 2 main types
 Arising-under Jurisdiction
 Diversity Jurisdiction
 Created by Congress in the Judiciary Act of 1789
Capron v. Van Noorden
Facts: P brought suit against D for trespass on the case, realized he was not going to win
and brought up the issue of SMJ on appeal to get another shot at his case in a state
court
Issue: Can question of SMJ be brought on appeal?
Holding: SMJ can never be waived
 Codified in FRCP 12(h)(3)
 Court did not want to rule based on FRCP 15a as Capron had requested because they
did not want to promote "strategic behavior" (later fixed by §1653)
Marbury v. Madison
Facts: P was appointed justice of the peace but was denied his position by D. P brought
suit seeking a mandamus forcing performance of his position commissioning.
Issue: Does the Supreme Court have the authority to issue a writ of mandamus?
Holding:
o Congress not authorized to give Supreme Court original jurisdiction in the matter of this
mandamus in the Judiciary Act of 1789; Court reads negative pregnant into Article III powers
o (§1361 now gives District courts power over mandamus actions)
o Created concept of Judicial Review
Supreme court in a state is the ultimate decider of law for that particular state
o If no question of law has been decided in the highest court, lower court rulings can be used as
persuasive, NOT binding; federal court rulings can be used as well, but also not binding
o Federal courts have no power over state court rulings
o State and federal courts above district courts in direct line of authority in the jurisdiction have
precedential authority (appeals over district, supreme over appeals, etc)
§1257 allows for judgments by state supreme courts to go to SCOTUS on writ of certiorari if the decision of the
state court calls into question federal law
Diversity Jurisdiction (§1332)
2 requirements:
o Diversity of citizenship
o Complete diversity of citizenship (both sides of the v.) is required as defined by federal law
 Statutory grant in §1332 does not extend to full extent of powers given in the Constitution
 Individuals – where domiciled (matter of federal law)
 Where you are found
10
o
 Where you intend to remain indefinitely
 Cannot release old domicile before finding new one
 Corporations – any state of incorporation and the state of principal place of business
 Nerve center – where decisions are made
 Muscle test – where most of its productive capacity is, where its labor force is
concentrated, where its main revenue is created, etc.
 Total Activity test – factors in everything
Amount in controversy requirement – greater than $75,000 (found in §1332, but not Art. III)
o Pre-1991 rules
o Parties allowed to aggregate their claims against one party together to reach amount in
controversy requirement
o Non-aggregation regime for different parties: each and every party has to satisfy the
amount in controversy requirement (rule 20 joinder and rule 23)
o 1991 Judicial Improvements Act §1367
o Supplemental jurisdiction rules
Mas v. Perry
Facts – P’s are married graduate students living in Louisiana. The husband is an alien citizen of
France, and the wife is originally from Mississippi. P was their landlord who had installed
two-way mirrors in their bedroom and bathroom and was watching them. D argues that there
is not complete diversity of citizenship b/c the couple is domiciled in Louisiana.
Holding -- There is complete diversity as neither Mr. nor Mrs. Mas is a citizen of the State of
Louisiana (husband – alien; wife – citizen of Miss b/c can’t be citizen of husband’s state)
Arising-under jurisdiction (§1331)
o
3 theories of how we determine if a case arises under federal law:
 If US law provides the cause of action (COA)
 Meaning and Application situation
 State law question brings a federal law issue into the picture
 State laws sometime piggyback onto federal law, drawing federal law into question
 Federal jurisdiction only applicable sometimes
 Marshall’s Ingredient/"but for" test (Osborn v. Bank of the United States)
o
§1331 and its siblings do not go to the full extent of the power granted to Congress by Article III
Well-Pleaded Complaint Rule (Mottley) – a complaint must contain a question “arising under” the Constitution or
laws of the United States
- whether P would have to raise the federal issue in a complaint which includes the elements needed
to prove to establish the claim and only those elements
What is the basis of federal question assuming you have a well-pleaded complaint?
 lots of theories of what sort of cases "arise under"
 "arising under" appears all over the place -- Article III, 1331 and the related statutes
(1338, etc)
 does not mean the same thing in every place (like "diversity" -- grant in Article
III is more permissive than 1331 makes it)
 what is the interplay between the constitution and the statutes' use of "arising under"?
 Ingredient test ("but for...") -- there are cases where the cause of action doesn't arise
under, but federal law comes into play (for example, Osborn - federal law created the
bank, so but for federal law there would be no cause of action)
 constitution -- yes
 1331 -- no
11
Meaning & Application -- situation that arises in cases where the cause of
action does not arise under federal law (state law case), but federal law is called into
question in the deciding of the case.
 You can't resolve the case without determining what federal law is.
 On the way to decision, you must pass through federal law.
 constitution -- yes; Article III is broad enough to encompass cases like this.
 1331 -- sometimes; Harms case
Cause of Action (Holmes)
 constitution -- yes
 1331 -- yes
The Ingredient Test:
Osborn v Bank of the US (SCOTUS, 1824) – establishes ingredient test -- a case can go to federal case if
an indispensable ingredient in the claim.
Facts-- Bank of America brought suit in federal court to enjoin the state auditor of Ohio from collecting a
tax it alleged to be unconstitutional. Congressional act allowed Bank to sue and be sued in any Circuit
Court of the US. Marshall concludes that bank had power to sue in federal court, both under the power
given to it by Congress and by the fact that it is a legal entity.
Holding – bank had power to sue in federal court, both under the power given to it by Congress and by the
fact that it is a legal entity.
 stands for the proposition that under Art III there is at least the opportunity for federal courts to
take on a case where federal law is an ingredient of the case. In order to take up that power and use
it, the terms are very restrictive.
 Ingredient test -- a case can go to federal case if an indispensable ingredient in the claim (is here
because bank is a federal creation with an explicit grant by congress to “sue or be sued”)
Louisville & Nashville R. Co. v. Mottley (SCOTUS, 1908) – demonstrates well-pleaded complaint rule
– P’s complaint must assert a question arising under Constitution or US law
Facts -- Husband and wife P’s brought a suit against D railroad company (all are Kentucky citizens). P
argues they were injured on D's train and that they released their claims of damages in consideration of
having free tickets for life. They further argue the contract was performed by D until D declined to renew
the passes, based upon an act of Congress forbade giving free passes. P argues 1) the act of Congress does
not prohibit giving free passes and 2) if the law is to be construed as prohibiting the passes, it is in conflict
with the 5th Amendment b/c it deprives P of due process.
Holding -- The federal court does not have subject matter jurisdiction because the plaintiffs' cause of
action does not contain a question arising under the Constitution or laws of the United States and is
thus not well-pleaded.
 anticipated defenses cannot create SMJ
The Meaning and Application Doctrine -- Statutory Interpretation:
Key to Meaning and Application – use this test only in cases where the State provides the cause of action
T.B. Harms Co. v. Eliscu – an action must arise under a federal statute/act – must be a complaint for a
remedy expressly granted by the act
Facts -- There is dispute over copyright owner ship for music dating back to the 30's. Plaintiff company
alleges that defendant, a lyric writer, entered into an agreement with him in 1933, which assigned his rights
to the existing and renewal copyrights to P in exchange for certain royalties. D contests this existence of the
agreement, and argues that he took his 1/3 of the copyright out of P's control in 1962.
Holding -- This action does not "arise under" the Copyright Act because it is not a complaint for a remedy
expressly granted by the act (not a case of copyright infringement – a normal contract case).
12
Smith v Kansas Title and Trust Co. - an example of a claim that, although created by state law, "arises
under" a law of the US by virtue of determination of the meaning or application of the law.
Facts -- a shareholder sued to enjoin the Trust Co., a Missouri corp., from investing in certain federal
bonds on the ground that the Act of Congress authorizing their issuance was unconstitutional. P claims that
under Missouri Law, investment in securities with questionable legal issuance was enjoinable.
Holding -- Sup. Ct. says it "arose under federal law b/c "depends on the construction or application of the
Constitution or US laws, and that such federal claim is not merely colorable, and rests upon a reasonable
foundation, the District Court has jurisdiction."
 in order to determine whether Missouri law was violated, you first have to go through federal law
(whether this bond issuance was unconstitutional)
Moore v. Chesapeake & Ohio RY Co. - appears to contradict the decision of Smith.
Facts -- Kentucky Employer Liability Act provides that P cannot be held responsible for contributory
negligence if his injury resulted from D's violation of any state or federal statute enacted for the safety of
employees. P alleged that his injury was due to D's failure to comply with Federal Safety Appliance Act.
Holding -- Although this, like Smith, is a state claim involving a federal statute, the court found that federal
jurisdiction did not exist without diversity.
Implied Remedy Doctrine -- state case arises under federal law when it requires you to interpret a federal law that
could itself create an independent federal cause of action
 Only get federal jurisdiction in cases where you could have chosen to sue on federal statute itself
 3 rationales of a grant of jurisdiction
i.
Uniformity – not met by IR doctrine because it leaves some federal law cases out
ii.
Expertise of federal courts – if you want to take advantage of federal expertise, why would you
leave a chunk of the federal law questions to the state courts?
iii.
Protection of federal rights – well vindicated by the implied remedy doctrine; even if you don’t
sue on the federal law, the court still interprets it which may affect future actions
Merrell Dow Pharmaceuticals, Inc. v. Thompson – Meaning and Application + Implied Remedy test
Facts – P’s, the Thompsons (Canadian) and MacTavishes (Scotland), sue Merrell Dow (Ohio) alleging the
their children were born deformed due to the mothers' ingestion of Bendictin. One of their many claims
argues that Bendictin was misbranded under the FDCA b/c its labeling did not provide adequate warning of
the dangers of the drug and that, thus, a violation of federal statutes directly and proximately caused the
injuries to the infants.
Holding -- A complaint alleging a violation of a federal statute as an element of a state cause of action,
when Congress has determined there should be no private, federal cause of action for the violation, does
not state a valid claim under 1331.
Four factor test for Implied Remedy Doctrine (from Court v Ash):
1. Is plaintiff one of a class for whose especial benefit the statute was enacted?
2. Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or
deny one?
 come to be construed as a suggestion to look at the overall goal of the statute
 would a remedy advance the goal?
3. Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for
the plaintiff?
 not to be confused with 2 -- is there anything else in the legislative scheme that covers
this?
 is there an alternative enforcement scheme
4. 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?
Cort v Ash – creates the Four Part Test used for Implied Remedy Doctrine
Facts -- Stockholder and the corporation (Bethlehem Steel Corp.) (P) sue the corporate directors for
violation of statute which prohibits presidential campaign contributions by corporations. P sues for
13
injunctive relief and damages. P alleged jurisdiction under 1331 claiming a private cause of action under
610..
Holding -- A federal cause of action is not suggested by the legislative context of 610 or required to
accomplish Congress' purposes in enacting the statute.
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics – example of implied right of
action doctrine in constitutional context
Facts -- P alleges that the defendants violated his Fourth Amendment rights by performing search and
seizure without a warrant. D’s argue that this is a matter of state rather than federal law.
Holding -- P's complaint states a federal cause of action under the Fourth Amendment for which
damages are recoverable upon proof of injuries resulting from the federal agents' violation of that
Amendment.
An Alternative To Merrell Dow – The Grable Test
 Exception – can have arising under jurisdiction without express or implied remedy if
1. It involves a substantial unsettled question of federal law
2. It will not serve to open the floodgates to federal court
Grable v Darue (SCOTUS, 2005) – sets a new criteria for SMJ aside from Merrell Dow – if federal
question involves a “substantial question” vital to fed gov’t and will not “open the floodgates”
Facts -- In 1994, the IRS seized Grable (P)'s property and subsequently resold it to Darue (D). Five years
later, P brought a quiet title action in state court arguing that D's title was invalid b/c the IRS had failed to
notify P of seizure in the exact manner required by 6335(a) (P said the statute required personal service,
and he was notified by mail).
Holding -- Given the absence of threatening structural consequences and the clear interest of the
government, its buyers, and its delinquents have in the availability of a federal forum, there is no good
reason to shirk from federal jurisdiction over the dispositive and contested federal issue at the heart of this
state law claim.
Supplemental Jurisdiction and §1367
Supplemental Jurisdiction -- claims brought over either existing or new parties which have no independent federal
jurisdiction when looked at separately, but supplement claims where there is
 prior to 1367, different terminology
 pendent claims -- claims between the same parties
 ancillary claim -- claims added that brought in new parties in some way
Pre-§1367
1. Pendent Claim Jurisdiction
United Mine Workers of America v Gibbs– develops common nucleus of operative fact test
Facts
A labor strike and dispute between unions kept worker from getting contracts. Two claims, one federal
(Labor Management Relations Act) and one state (Tennessee laws of strikes). District Court exercised
jurisdiction over both claims
Reasoning
Previous Test (Hurn) -- state law claims are permissible if there are two claims with a single cause of action
alleged, only one of which presents a federal question
 difficult question for courts: what does Hurn mean by "cause of action"?
Holding
SMJ granted in cases where federal and state cause of action have common nucleus of operative fact.
Gibbs discretionary factors:
 Predominance of State claim
 Judicial Economy
 Fairness to litigants
14
2. Pendent Party Jurisdiction
Aldinger v Howard – no pendent jurisdiction over an additional party when no independent basis of
federal jurisdiction exists
Facts
P brought suit against several officers of Spokane County Washington and alleged violation of Civil Rights
Act (1983). P sought to join the county itself, but under construction of the federal statute at the time,
counties were not considered subject to it. Therefore, P had to sue county in state law, but argued that
pendent jurisdiction should apply, as the two claims met Gibbs' "common nucleus of operative fact".
Holding
Because Congressional statute precludes federal jurisdiction over the county in this claim, cannot include
county in the federal claim using pendent jurisdiction.
Owen Equipment and Erection Co v. Kroger – no pendent jurisdiction if inclusion would destroy
complete diversity required by 1332.
Facts
P, citizen of Iowa, sued Omaha Public Power District (OPPD), a Nebraska Corporation, for the
electrocution of her husband. OPPD brought in D. P amended her complaint to name Owen as a D, who she
alleged was also a Nebraska corporation. OPPD requested and was granted summary judgment, leaving just
Owen. During the trial, the court learned that Owen's principal place of business was in Iowa. As a result,
Owen moved to dismiss the case based on lack of SMJ.
Holding
No jurisdiction – no complete diversity for 1332(a)(1).
Finley v United States (US Supreme Court, 1989) -- the court reads Aldinger VERY narrowly, saying if
statute does not expressly state you can add pendent jurisdiction, then you can't.
Facts
P's husband and children were killed when their plane struck power lines on its approach to city-run
airfield. Suit was filed in federal court against US under Federal Tort Claims Act, 1346(b), alleging
negligence. P was later allowed to amend her complaint to add city of San Diego and the utility company.
Reasoning
FTCA 1346(b) confers jurisdiction over "civil actions on claims against the US"
 will read as against the US and no one else
 will read Congressional statutes literally to avoid confusion
Constitutional
Statutory
Gibbs
Yes (T&O/same case or controversy)
Yes - 1331
"aggregate"
yes
Yes - 1332
Aldinger
Yes (T&O)
No - 1343 (presumption yes under 1331)
Kroger
Yes (don't care about amount, citizenship)
No - 1332 (complete diversity)
Finley
Yes (T&O)
No - FTCA (presumption no - Scalia)
Multiple Claims
Multiple Parties
Supplemental Jurisdiction After §1367
1. §1367 Overview
 Intended to preserve Kroger and Zahn and overturn Finley
 1367(a) -- what gets in the front door?
15




any civil action in which the district courts have original jurisdiction, there will be
supplemental jurisdiction over all claims that are so-related that they constitute the same
case and controversy
 no distinction between pendent claim and party
1367(b) -- what gets kicked out the back door? – only applies to §1332 cases
 Once a claim goes across the v. 1367 comes into play
 No supplemental jurisdiction over (if they don’t meet the requirements of §1332):
 Claims by plaintiff against persons made parties under Rule 14, 19, 20, or 24
 Claims over persons proposed to be joined as plaintiffs under rule 19
 Claims over persons seeking to intervene as plaintiffs under rule 24
 What is not excluded?
 Rule 23 - class action claims
 Implies that requirements for diversity for Rule 23 for supplemental
claims are suspended
Claims
by
plaintiffs made parties under rule 20 (Patterson)

 Claims by defendants
 Third party plaintiff is a defendant for purposes of 1367(b) (kroger)
 Cross-claims
 Cross-claims do not violate 1332, thus they do not fall under 1367(b)
1367(c) -- discretion of court
 attempt to codify the Gibbs factors where, in spite of supplemental jurisdiction, court
may split off state claims
1367(d) -- tolling provision; stops the clock on statute of limitations
2. Aggregation Under §1367
4 possible scenarios
i. primary claim satisfies amount, pendent claim does not, same T&O
ii. primary claim satisfies amount, pendent claim does not, NOT same T&O
iii. neither claim satisfies amount (aggregate does), same T&O
iv. neither claim satisfies amount (aggregate does), NOT same T&O
• pre-1367
◦ all of these would have been allowed (Gibbs, constitutional scope, etc.)
• post-1367
◦ “i” is the only scenario that satisfies 1367(a) and does not fall within 1367(b)’s exceptions
((b) doesn’t apply, because there is no joinder of parties)
◦ “ii” doesn’t apply because the claims are not from the same transaction/occurrence
◦ “iii” and “iv” both lack a valid primary claim
3. Scope of §1367
In re Abbott Laboratories - In a diversity class action, the unnamed class members need not meet the
amount-in-controversy requirement provided the named class members do.
Facts
A large anti-trust action involving the fixing of infant formula prices. Some parties met the amount-incontroversy requirement, some didn’t.
Holding
Supplemental jurisdiction is allowed despite lack of amount-in-controversy requirement on unnamed
claimants b/c 1367(b) does not mention Rule 23. Zahn is overruled.
Patterson Enterprises, Inc. v Bridgestone/Firestone, Inc. – Court gets the right answer for the wrong
reasons. Judge misinterprets Rule 20 to say that jurisdiction is allowed. Real answer is that §1367(b) is
silent as to P – just deals with D.
Facts and Procedural History
Three P’s, Patterson Enterprises, Patterson Farms Trucking, and Jere J. Patterson, sue defendant tire
16
company for negligence, strict liability and breach of warranty, as a Firestone tire allegedly failed on one of
the tractor trailers causing a single vehicle accident. Enterprises and Trucking each seek less than the
$50,000 amount in controversy requirement. Mr. Patterson meets this and other diversity requirements.
Reasoning
Since 1367(b) only applies to Rules 14, 19, 20 and 24.
 since Trucking and Enterprises claims were in original complaint, none of these rules
apply (but, of course, Rule 20 DOES apply here)
Holding
As all the claims arise from the same incident and are controlled by the same legal issues and thus meet the
common nucleus of operative fact test, and rule 1367(b) does not exclude this type of case, these claims
satisfy Rule 1367 and are properly within supplemental jurisdiction of the court.
4. §1367 – The Current State of Affairs
Three Theories For §1367 and Rule 20:
 Claim by Claim Theory -- Abbott Labs/SG
 pick out one claim that meets diversity and amount-in-controversy requirement
 if you can find that, any connected claim can come along under (a)
 then, when we get to (b), we will kick out anything but claims by multi-plaintiffs
 unambiguous and clear
 weakness:
 it overrules Clark and Kroger
 given that Congress said we want to preserve Kroger and Zahn, that is problematic
 preserves asymmetry between multi-party plaintiffs and multi-defendant actions
 treats Rule 20 more leniently than Rule 19
 Contamination Theory -- Kennedy/Allapattah and Ortega
 in regards to multiple parties, one claim must satisfy both requirements, and all the other claims must
be diverse in citizenship but all do not have to meet amount in controversy
 Theory: two conditions read into §1332 have divergent purposes. Complete diversity is intimately tied
to the original purpose of 1332 as protection for the D, whereas the amount in controversy requirement
is merely imposed to lessen the federal docket by eliminating small claims, but since the case is
already in, we don’t worry about the amount in controversy requirement as much.
 weakness:
 same weaknesses as claim by claim
 arguably creates a redundancy in 1367(b) -- why kick out diversity citizens in b if you've already
kicked them out in (a)?
 (biggest) seems to assume what the statute should tell you (snapshot theory)
 decision requires you to decide ahead of time which claims get lumped together
 front-loads the decision of what comes in and what doesn't (what comes in under (a)), and
seems to go contrary to whole purpose of the statute
 Indivisibility Theory -- Ginsburg dissent
 if any party lacks the amount-in-controversy or is not diverse in citizenship, not a civil action that has
original jurisdiction -- stopped at the door of (a)
 weakness:
 share defects of contamination theory
 why exclude cases in (b) if (a) doesn't even let them it? what work does (b) do at all?
 Ginsburg's answer -- what (b) does is tell us that claims by defendants do not contaminate the
case and stay in
 but (a) does this
Exxon Mobil Corp v Allapattah Services, Inc (and Ortega v Star-Kist Foods, Inc.) – in regards to
multiple party actions, one claim must satisfy both requirements of §1332, and all the other claims must be
diverse in citizenship but all do not have to meet amount in controversy
Facts and Procedural History
Allapattah --10,000 Exxon dealers are filing suit against Exxon Corp for an intentional and systematic
17
scheme of overcharging for fuel. Some of the claims do not meet the amount-in-controversy requirement of
§1332 and others do. A Rule 23 case just like Abbott Labs.
Ortega - a girl and her family sue for damages for her injury from a tuna can. Girl's claim meets amount-incontroversy requirement. Her family's claim does not. A Rule 20 case just like Patterson.
Holding
Where the other elements of jurisdiction are present and at least one named plaintiff in the action satisfies
the amount-in-controversy requirement, 1367 does authorize supplemental jurisdiction over the claims of
other plaintiffs in the same case or controversy even if those claims do not meet the amount-in-controversy
amount.
What is strange about the decision?
 Overrules Clark partly (requirement that each party must meet the amt requirement) for multiple plaintiffs
joined together, but not for multiple D's together
o Doesn't seem to be any good rationale for this
 Leaves unclear what the rule 23 application is
 Anomaly between rule 19 and rule 20 application
o For rule 19 joinder, there is a stricter rule (under b)
 If either there is a failure of amt or citizenship, it goes out under b
o For rule 20 joinder (multi P actions), there is a relaxed rule
 If there is a failure of amt, it does NOT go out under b because it is an exception
o If a party cannot come in under rule 19, the case gets thrown out; if a party cannot come in under
rule 20, the case can be split up and you don't get thrown out
 Violates the Kroger principle - snapshot of the action at the end of the day is all that should count
o End up with different results based on the order of joinder
 What happens to the old aggregation rules?
 Court’s decision leaves ambiguous the very questions it was meant to clarify
 Related problem: takes a holistic approach to determining a "civil action" but then splits that up in order to
determine supplemental jurisdiction
o How can something be taken as a whole for the purpose of the civil action but then be
supplemental for the purposes of 1367?
 1367 is either superfluous or redundant
o Stops rule 20 at the door where no complete diversity of citizenship, (b) then proceeds to throw
them out again
Removal (§1441)

allows D to second guess P's choice of forum
 an exception to the P is matter of complaint rule
 provides a balance to protect D's interests
 can't base removal on a federal defense -- federal question has to be in the complaint itself or there
must be diversity in the case
 removal is designed that if P chooses to make this a state case, D can remove it
 what happens in complex multi-party actions?
 you look at the claim, you consider it as a package, you apply §1367 if appropriate, you
come out with an answer of whether it can get OJ, if the answer is “yes” you can remove
it
 subject to one exception: if D is removing from the court of their state of citizenship
 1441(b) -- if the engine of the case is a federal question, you don't have to worry about
D's citizenship -- just if this is a diversity case
 in diversity cases, which defendants do we worry about?
 courts take the position that one defendant defeats removal
 third party defendants only defeat removal if one or more of the plaintiffs have a
claim against them (so they basically become a defendant)
 suppose there are multiple defendants, who gets to choose removal?
18



there are some circuits where one defendant can remove
other circuits which insist on unanimous consent
 seems to be the majority rule, but that is a rough cut
real party in interest doctrine (Rose v Giamatti) -- courts will feel free to inquire if
D is there just as a scarecrow or if D is really germane to the case
 In general, artful pleading will not serve to defeat removal -> either real
party in interest or artificially lowering/claiming amount in controversy to
defeat jurisdiction will not work
Shamrock Oil & Gas Corp. v Sheets – P cannot remove a state action to federal court simply because D
filed a federal counterclaim
Reasoning -- statute only mentions defendants
 the Act of 1789 only mentioned defendants
 have to assume that Congress did this knowingly
Rose v Giamatti – Develops the concept of “nominal” and “formal” parties.
Facts -- filed suit in Ohio state court on the grounds he was being denied his right to a fair trial b/c D
(Giamatti, Major League Baseball, and the Reds) was biased. Giamatti removed to federal court, and Rose
argued that MLB and the Reds destroyed complete diversity.
Reasoning – nominal vs. formal parties; citizenship diversity should only be considered for "real"
defendants. This is a dispute between Giamatti and Rose, and MLB and the Reds are nominal at best.
Holding -- Since diversity of citizenship exists between Rose and Giamatti, and MLB and the Reds are
nominal at best, removal is allowed.
Removal Procedure (§1446 and §1447)
 procedural issues (§1446)
 the parties have 30 days after service of process or receipt of complaint to file for
removal in federal court (implies waiver)
 and then, you have to promptly notify all the other parties and the state court
 as soon as you do this, the case is deemed removed and fed court has authority
unless they remand it
 remand (1447(c))
 you have 30 days to move to remand or otherwise you waive it (unless there the motion
to remand is b/c court has no SMJ -- not waivable)
 reviewability (1447(d))
 no reviewability of orders to remand, but says nothing about reviewability of denial of
remand -- an asymmetry
 a decision by the drafters to not have things get bogged down
Thermtron v. Hermansdorfer
Facts
District court judge remanded a properly removed case simply because his docket was full
Holding
Court allowed review of remand, hold that §1446 (c) and (d) must be read together
 thus, review may be appropriate when remand is not for a ground specified in the statute (nonreviewability only applies for presumptively lawful/authorized reasons) – this gets the court in
trouble in Carnagie Mellon
 but, such decisions are not reviewable because of error, only because the decision is clearly
beyond judge’s authority
19
Carnegie-Mellon Univ. v Cohill– For reasons of efficiency and fairness, court reserves right to remand
removed cases back to state courts if all federal claims are removed and only state claims remain
Facts
P brought claims against D for wrongful termination. Included in the claims was a violation of federal age
discrimination laws. Later, P moved to amend complaint to take out federal claim and filed a motion to
remand b/c the amendment would eliminate their sole federal-law claim.
Reasoning
A remand is preferable -- promotes values of economy, convenience, fairness and comity -- less costly;
more efficient
Holding
District court has discretion to remand to state court a removed case involving pendent claims upon a
proper determination that retaining jurisdiction would be inappropriate.
Implication of Cohill
o Removed complex multiclaim cases should be treated the same way as cases brought originally in the federal
court
o 1367 kicks in, and it applies the same rules to both removed cases and cases brought originally, so the rules of
remand should apply in the same manner as well
20
Personal Jurisdiction
2 elements to the assertion of personal jurisdiction:
 Perfection of the power – proper service
 Power over the person
Constitutional guarantee (due process clause) focused on the rights of the D
Tickle v. Barton
Facts: P’s lawyer calls D and invites him to a banquet for D’s son’s football team. P does not identify
himself and gets D to come into the county for the banquet. When D arrives, P serves D with
process.
Holding: Fraud, trickery, artifice and deceit nullify service of process and thus PJ
Modern law:
 Long-arm statutes
 International Shoe v. Washington broke with the traditional law
 Minimum contacts test
 New law not formal, but functional
 Looked to relationships and contacts
 Concerned with fairness and rights of defendant
 Burden on D
 Notice and understanding of vulnerability to summons
 Control
 Constitutionalization of personal jurisdiction
 Pennoyer v. Neff established the right of D not to be called into court in a burdensome way as a
Constitutional right (due process)
2 elements to the assertion of personal jurisdiction – PJ is claim-dependant
o Proper service
 Needed to perfect the power over the person
o Power over the person
 Must come in the terms of a valid long-arm statute
 Long-arm statute must be constitutional as applied to the party
Three categories of Personal Jurisdiction
i.
in personam - jurisdiction that establishes full power over the person, relating to any dispute in
which the person might be involved that is cognizable by the court
ii.
in rem - jurisdiction in a particular case that is based on the sovereign court's power not on the
person by on the person's property
dispute must be about the property, and the amount of recovery in the action must be

equal to the value of the property, but person does not have to be present in the
jurisdiction
some sort of notice or posting is required

seizure and notice (posting, which was relaxed to publication - in newspaper or

something similar)
iii.
quasi in rem - property has to be present w/n the jurisdiction; jurisdiction attaches when the
property is seized; but the case does not have to be related to the property
traditionally, the amount of recovery is limited to the value of the property, but this has

eroded
21
Pennoyer v Neff – Begins the move from rigid formalism of the old rules to the more functional modern view.
Brings in the big questions: Due Process, rights of D, balance of power and mechanics
Facts
1. Mitchell v Neff -- Neff (D) owns property in Oregon. Mitchell (P) sued him for owed legal fees. Because
D was in a different state and could not be located, P sought, quasi in rem, seizure and auction of D's
property. The court granted the seizure.
2. Neff v Pennoyer -- Mitchell subsequently won the property at auction and sold it to Pennoyer. Neff seeks
title back, originally arguing that the property was illegally seized by the court
Holding
In order to seize property of an out-of-state defendant who is not present in court, there has to be seizure
before the commencement of the action, thus serving proper notice to the out-of-state defendant (otherwise,
you are violating the rights of the owner of the property).
Hess v Pawloski – State creates a long-arm statute which stipulates that automobile drivers who use the state’s
road imply consent to the state’s jurisdiction on any incident arising while driving in the state.
Facts
Nonresident driver (P in error) negligently operated an automobile in Massachusetts and injured defendant in
error. A statute is on the books in Mass which states that any nonresident driver on Mass highways implicitly
consents to be served for any proceeding against him growing out of any automobile accident or collision
Holding
The Massachusetts enactment is valid because it is in the public interest to allow service of process against
nonresidents who have accidents on Mass roads and the statutes does not compromise the reasoning for
limiting the service of process on nonresidents.
Minimum Contacts Test
Minimum Contacts Test -- To have PJ, party must have minimum contacts with forum state such that calling
them to trial there comports with traditional notions of fair play and substantial justice
 Corporations and Presence:
 operations in a state must be continuous and systematic
 if a corporation enjoys the benefits and protection of the laws of the state, then it has obligations to
the state
International Shoe Co. v Washington – Develops the minimum contacts test, which states that party must
have minimum contacts with forum state such that calling them to trial there comports with traditional notions
of fair play and substantial justice
Facts
State of Washington wanted to tax corporation P, but P argued that since it only had salesmen in the state and
conducted no business there, the state had no jurisdiction.
Holding
If a corporation has continuous and systematic business in a state and enjoys the benefits and protection of
the laws of the state, and thus has sufficient contact or ties with the state of the forum to make it reasonable
and just according to traditional conceptions of fair play and substantial justice to permit the state to enforce
the obligations which have been incurred. It is so obliged to pay the taxes therein and thus suit may be
brought it in that state
Stream of Commerce/Purposeful Availment Test
Stream of commerce -- if a corporation elects to sell its products for ultimate use in another State, it is not
unjust to hold it answerable there for any damage caused by defects in those products
Purposeful availment -- that D's conduct and connection with the state of forum are such that he should
reasonably anticipate being haled into court there
Gray v American Radiator & Standard Sanitary Corp – sets out concepts of stream of commerce
(corporation puts its goods into the stream of commerce in a state) and purposeful availment (the
22
corporation enjoys the benefits and protection of state laws, and thus should be obligated to be sued under
those laws)
Facts
P was injured by a radiator manufactured by D, specifically by the safety-valve, which was manufactured
by a third party, Titan Valve Manufacturing Co. (a foreign corporation registered in Ohio). P brought suit
against both based on state long-arm statute allowing claims to be made against nonresidents who commit a
tortious act in the state. D filed a cross-claim against Titan.
Holding
Titan is subject to the jurisdiction of Illinois in that the tortious act was committed in Illinois, because that
is where the last event took place, and because it places its products into the “stream of commerce” in the
State and is thus protected by and benefits from the laws of the state.
o
o
In addition to analyzing the minimum contacts standard, the court goes on to analyze the forum related
factors:
 Appropriateness of the forum
 State has an interest in providing a forum for this sort of occurrence
 Efficiency of the forum
In a stream of commerce type case, it can be enough that a particular defendant inject material into the
stream of commerce in a way that they at least have a knowledge of (its foreseeable) that the product
will end up in another place and will be sold in another place. Into the equation, the court will inject
the forum related factors for analytic purposes.
Single Contact Cases
Affiliating circumstances – must show a “reaching-out” to forum state in a variety of ways
McGee v International Life Insurance – One contract is sufficient for minimum contact, as long as there
are affiliating circumstances that show a “reaching out” of out-of-state party to the forum state
Facts -- P, Calif. resident, seeks to receive insurance money from D, her deceased husband's Texas-based
Insurance Co. D did no business in California, and P's decedent was their only customer in California, but P
seeks recovery based on a California statute protecting in-state customers of out-of-state insurers.
Holding - Exercise of jurisdiction by California court was proper.
Reasoning -- The suit was based on a contract which had a substantial connection with California -- that is
enough.
o
On the contract side, it is possible for a single contract to satisfy the International Shoe standard if that
contract is substantial enough in some sense (involves enough of a course of dealing over a long
enough period of time to satisfy the court's view that it is reasonable and fair to bring that party into
account)
Passivity – if D has only passive connections with forum state (no reaching out or purposeful availment), no PJ
Hanson v Denckla – One contract, though, may be enough but not always enough need purposeful
availment on the part of D (not passivity) rather than unilateral action on the part of P.
Facts -- Dora Donner, resident of PA, established a trust in Delaware, naming a Delaware bank as trustee.
Later, she moved to Florida, executed her will which left her estate to two of her daughters. She then
changed the appointed beneficiaries of a significant portion of the trust to be two of her grandchildren (the
children of her third daughter), with the remnant going to the estate. After her death, the two daughters
named in the will brought suit in Florida claiming that the appointment of the grandchildren as
beneficiaries was ineffective. D argued suit could not go forward b/c Florida court had no jurisdiction over
the Delaware trustee.
Holding -- because the trustee's contacts with Florida was less than minimal, Florida cannot exert
jurisdiction; D’s contact with forum state must be purposeful, not passive
Reasoning -- Internat'l Shoe is limited to cases where the out-of-state party has SOME contact with State,
invoking the benefits and protection of its laws
23
Specific and General Jurisdiction
Specific jurisdiction -- a defendant may have sufficient contact with the forum to warrant asserting jurisdiction over
it for matters relating to its activity with the forum w/o having sufficient contact with the forum to warrant general
jurisdiction
 cause of action arises out of contacts with the forum
General jurisdiction -- a defendant may have sufficient contact with the forum to warrant asserting jurisdiction
over it for all matters
 cause of action that does not arise out of contact with the forum
Reasons you might want general jurisdiction over specific jurisdiction
o Statute of limitations
o Choice of law rules in different forums - each state has its own rules about how to decide choice of law
o Substantiality of contacts
o Short long-arm statute
o Jury/court related factors
o P's location
o Defeating removal - place where D is a citizen so removal cannot occur
o Evidence/witnesses
Specific Jurisdiction
World-Wide Volkswagen Corp. v Woodson– If the corporation does not “reach out” to the forum state
and purposely avail itself to its laws (was passive), then there is no PJ. Mere appearance of product is not
enough.
Facts
A couple bought an Audi from a NY-based car dealer. While driving through Oklahoma en route to their
new home in Arizona, they were rear-ended which caused a fire which severely burned the wife and two
children.
Reasoning
Must be minimum contacts:
 reasonableness -- must make sense to bring the corporation to the state
 foreseeability -- D's conduct and connection with the forum state must be such that he should
reasonably anticipate being brought into court there -- nothing of the sort here
Holding
Because D has no "contacts, ties, or relations" with the State of Oklahoma, Due Process Clause prevents
them from being sued in Oklahoma state court



Distinguishes away from degree of foreseeability that Gray accepts
Roving chattel does not give PJ
Court is asking for more than something entering the stream of commerce- must be some direction or
volition
o Asking for more than just sending of products into the stream of commerce- but doesn't exclude the
possibility that simply sending in large amounts of product could meet the PJ test
Keeton v Hustler Magazine, Inc. – P’s contacts with forum state do not matter. All that matters is that D
has sufficient minimum contacts.
Facts
P, a resident of NY, sued D, an Ohio Corporation, in federal court in New Hampshire because that was the
only state where the action was not barred by statute of limitations. She argued jurisdiction based on the
fact that D sold thousands of magazines in the state
Holding
D's contact with state was sufficient, and that minimum contacts is not determined by P's contact, but D's.
o
Lack of relationship of the P to the forum doesn't matter at all to the minimum contacts question
24
o
If you have substantial enough minimum contacts, the lack of a particular forum related element in
favor of PJ isn't going to be able to defeat jurisdiction
Burger King Corp v Rudzewicz– Because D purposefully availed himself to an out-of-state corporation
through a contract, that state’s forum has jurisdiction
Facts
D Michigan-based franchisees of P Florida-based corporation defaulted on payments and thus D sued in
Florida federal District Court for breach of obligations. D argues that, because the action did not arise
within Florida and they are not Florida residents, they did not have minimum contacts with the forum.
Holding
Because D established a substantial and continuous relationship with P's Miami headquarters, received fair
notice from both the contract documents and the course of dealing that he might be subject to suit in
Florida, and has failed to demonstrate how jurisdiction in that forum would otherwise be fundamentally
unfair, the District Court's exercise of jurisdiction did not offend due process
Affiliating Circumstances -- Due Process Clause requires the action of D to be more purposefully directed at
the forum than the mere act of placing the product in the stream; a kind of infrastructure built up around this
stream
 must try to sell, advertise, have offices or agents, distribution network, something to establish
connection with state
Forum-Specific Factors – must be reasonable exercise of jurisdiction – ease of gathering witnesses, etc.;
interest of forum state in the outcome; applicable law; etc.
Asahi Metal Industry Co. v Superior Court – Court will not adopt Gray’s stream of commerce test.
Volume of contacts is not enough without affiliating circumstances.
Facts
The original P was in a motorcycle accident that resulted from a defective tire manufactured by Cheng Shin
Rubber Industrial Co., the Taiwanese manufacturer of the inner tube. He filed suit against Cheng using
Calfiornia's long-arm statute. Cheng cross-claimed seeking indemnification from its codefendants, Asahi
Metal Industry Co, a Japanese manufacturer of tire tube valve assemblies. The original plaintiff's claims
against Cheng and other defendants were settled, and all that remained was Cheng's indemnification action
against Asahi.
Holding
Because there are neither sufficient minimum contacts nor is it reasonable for California to exercise PJ over
the remaining parties, the case should not remain in California courts
General Jurisdiction


means that D may be sued in state for any claim, even one completely unrelated to its in-state activities
appropriate when D’s activities in the state are so substantial and continuous that he would expect to be
subject to suit there on any claim and would suffer no inconvenience from defending there
Perkins v Benguet Consolidated Mining Co. – if D’s business in the state is continuous, pervasive and
systematic, then it would not violate the Due Process clause for the state to assert personal jurisdiction,
even if the case/cause of action did not arise in the state.
Facts
P, a non-resident of Ohio, brought suit against D, a Philippine corp, in Ohio state court on two causes of
action arising from activities conducted by D outside of Ohio. During WWII and after, b/c mines in
Philippines were occupied by the Japanese, D president came home to Ohio and conducted company
business there.
Holding
D's president carried on in Ohio continuous and systematic supervision of the activities of the company,
and thus it would not violate Due Process for Ohio to either take or decline jurisdiction
25
Heliocopteros Nacionales De Colombia, SA v Hall – general jurisdiction requires substantial contacts
Facts
P were killed in a helicopter crash in Peru while working on a pipeline project for Consorcio/WSH, a jointventure with headquarters in Houston, Texas. They sue Heliocopteros, a Colombian corp., (D) for wrongful
death, in the State of Texas. D has had limited contact with the state of Texas, consisting of one visit by its
CEO, the purchase of helicopters, supplies and spare parts from another Texas corporation and sending its
pilots for training
Holding
D's contacts with Texas were insufficient to satisfy Due Process clause because they were mere purchases
and related trips and not continuous or systematic contract
Dissent (Brennan)
I.
Purposeful availment -- D actively and purposefully engaged in numerous and frequent transaction
is Texas, it is reasonable and fair to subject them to suit in the forum
II.
Related to/ Gives Rise to COA distinction
while the interactions did not "give rise" to the CoA, CoA is related to forum -- contracts were

made in Texas; pilots were trained (if pilot-training negligence were part of pleading, the
court would have no problem here)
Other Basis for Personal Jurisdiction
Property


Since Pennoyer, in rem and quasi in rem jurisdiction has made a similar move from formal to functional
test
Property has extended past real property – stocks, securities, IP, even debt
Harris v Balk –Court had broad jurisdiction over “wandering property” which created a danger
Facts
P owed D $180, and both were citizens of North Carolina. D owed Epstein, a citizen of Maryland, $344.
When P was visiting Baltimore, Epstein instituted a garnishee proceeding in Maryland court, attaching the
debt owed to D by P. P consented to entry of judgment against him and paid the $180. A few days later, D
commenced an action against P in North Carolina. P said he already paid in Maryland.
Holding
Supreme Court reversed arguing that debt does not leave the debtor when s/he leaves the state where the
debt occurred and obligation to pay can be enforced by any court. NO LONGER GOOD LAW
Shaffer v Heitner – adopts the Int’l Shoe minimum contacts standard to in rem and quasi in rem cases
cases, overruling Harris
Facts
Original P and appellee here (P), a non-resident of Delaware is the owner of one share of stock in
Greyhound Corp, a business incorporated under the laws of Delaware and headquartered in Arizona. P filed
a shareholder's derivative suit in Chancery Court in Delaware in which he named Greyhound, its wholly
owned subsidiary Greyhound Lines, Inc and 28 present or former officers or directors of one or both of the
corporations. The activities that led to the suit occurred in Oregon.
Holding
The court will now adopt the Int'l Shoe minimum contacts standard to all state-court jurisdiction cases, in
personum and in rem, and, because there is no minimum contact between D and the forum and there is no
significant interest for Delaware to try the case, Delaware does not have jurisdiction
Presence

Tag Jurisdiction -- if you are physically present in a jurisdiction, you can be served in the jurisdiction;
survives Int’l Shoe
26
Burnham v Superior Court
Facts
New Jersey resident P and his wife split and, before she moved with the children to California. Later that
year, P was visiting San Francisco on business, and visited his children and was served with a California
court summons.
Holding
Because the Due Process clause does not prohibit courts from exercising jurisdiction over nonresidents
based on the fact of in-state service of process, P can be haled into California court
Concurrence (Brennan and 3 others)
By visiting the state, P avails himself to the benefits and protections of the laws of the state; that is why instate service is valid, not tradition
Consent
Personal Jurisdiction may always be asserted over parties who consent – it is a right that may be waived
i. consent by “fiat”/constructive consent
 auto statutes, etc., implying consent
ii. consent by appearance
 waiver of challenge to PJ if not expressed (12(g)) at appearance
 if default, can later collaterally attack the judgment on PJ grounds
o (i.e. by not coming and adjudicating, do not waive the right to attack PJ)
 Special Appearance
o many states allow D’s to come in to specifically contest PJ; but if contest and lose, cannot later
collaterally attack
iii. consent by conduct
 forum-selection clauses
 not automatically enforced — depends on what state’s law applies to cause of action
Insurance Corp. of Ireland v Compagnie Des Bauxites
Facts and Procedure
In an insurance collection action, foreign insurance companies first contested PJ in District Court and failed
to comply with district court's order for production of evidence in order to determine whether PJ was
warranted. Court imposed a sanction consisting of a presumptive finding that the insurers were subject to
the jurisdiction of the court.
Holding
By submitting to jurisdiction of the court for a limited time, D agrees to abide by court's determination on
the issue of jurisdiction and will comply with court's requests to aid in such determination -- PJ is a
personal right -- may be waived
M/S Bremen v Zapata Off-Shore Co. -- Parties can contract to submit their disputes to the jurisdiction of
a court (even a foreign court) and, if valid, that contract will be honored
Facts and Procedure
P, a German towing company, contracted with D American corporation to tow a drilling rig from Louisiana
to Italy. The contract contained a provision that all disputes were to be litigate before "The London Court
of Justice".
Holding
Because American courts cannot have trade and commerce in world markets and int'l waters exclusively on
our terms, governed by our laws, and resolved in our courts, the case should be allowed to be tried in
London.
Carnival Cruise Lines, Inc v Shutte -- Zapata is not limited to contracts between two business operations
Facts and Procedure
D went on one of P's cruises, the ticket of which contained a provision requiring all disputes to be held in
Flordia Courts. D slipped and fell on deck, and brought suit in Washington.
Holding
27
Because a cruise-line has a special interest in limiting the for a in which it could be subject to suit due to
the nature of its business, because such a clause creates efficiency for the courts, and because consumers
benefit from the savings that arise as a result of a forum-selection clause, the clause is enforceable
FRCP Rule 4:
Waiver of service (Rule 4(d)):
o If defendant consents to be served by mail (implicitly or explicitly), he gets a reward (more time to
answer)
o If you don't consent to a more relaxed service, you have to pay the expenses of summons
Service can be made in any judicial district of the US (Rule 4(e))
o Unless there is no power over the person
o Can always serve pursuant to state law
Service on Corporations (Rule 4(h)):
o Serve on an agent of the corporation, either designated by state law or someone who functions as an
agent
 Federal law of agency - highly pragmatic and functional one (not formal)
 As long as it is reasonable to believe that person will bring it to the attention of the people
who will answer, that person can be an authority/agent and thus validates the service
Insurance Co. of North America v. S/S “Hellenic Challenger” – 4(h) allows summons to be made upon a
representative so integrated with the organization that he will know what to do with the papers
Facts: Summons was accepted by an unauthorized employee of D and subsequently lost. Authorized employee
was sick at the time of summons, so the unauthorized insurance adjuster accepted it
Holding: 4(h) is to be interpreted liberally. Service of process is not limited to officially designated officers; as
long as service is made upon an individual who “stands in such a position as to render it fair, reasonable and just
to imply the authority on his part to receive services” then service is sufficient
Quasi-in-rem actions (Rule 4(n))
 allowed/controlled by Rule 4(n) -- permitted when PJ (in personam) cannot be obtained in the
district where the action is brought
 Allows for a special enactment by Congress to assert power over property
 Piggybacks on to state law in limited ways (4(n)(2)) unless the federal statute at issue provides
otherwise
 Restricted: may be available in a narrower set of circumstances because the circumstances are
dictated by this rule
o If you cannot obtain PJ in the district where the court is located (arguably includes
venue), then you can use in rem (last resort principal)
 Happens in 3 events:
 Short long arm statute
 Cannot find the person
 If it violates due process to find PJ
 Must include minimum contacts standard as of Shaffer
 Can only get in rem jurisdiction by seizing property in the district of the court (federal rule
controls)
Rule 4(m): 120 day statute of limitations
Service provisions (Rule 4(k))
Rule 4(k)(1)(A): Piggyback Provision
 federal court has PJ if a state court of general jurisdiction in that state would have PJ
 federal courts piggyback on states’ long-arm statutes
Rule 4(k)(1)(B): Bulge Provision
28
“extension” of long arm, allowing courts to reach 100 miles from the court (perhaps over state
borders), to establish PJ over parties joined under Rules 14 and 19
 2 interpretations:
 Bulge provision can be used to bring you into court if you couldn't be brought in under
the state's long arm statute but only if you have minimum contacts with the forum that
would constitutionally support under Shoe bringing you in (kind of like the Omni
provision)
 Limits the use of the bulge provision to cases with a short long arm statute, and
that is basically it
 Wax's favored interpretation: bulge provision does not require that you have minimum
contacts with the state
 All you really need to get into federal court is that you need minimum contacts
with the US (Stafford v. Briggs)
 Court's decision to adopt long arm statute of the state is discretionary
Rule 4(k)(1)(c) - interpleader is a form of action under this statute that allows nationwide service of
process and nationwide assertion of jurisdiction
Rule 4(k)(1)(d) - when authorized by a statute of the US
 Securities and Exchange have nationwide service of process
Rule 4(k)(2): Omni Provision
 allows for PJ over D’s not subject to PJ in any state, provided minimum contacts
 must be:
 no state where suit can be brought
 federal question cause of action
 in effect, authorizes nationwide service of process for foreign entities

Omni Capital International v Rudolf Wolff & Co. -- Rule 4 (k) (2) was promulgated in response to this - gives the US federal courts jurisdiction over foreign defendants doing business in the US who cannot be
reached through state long-arm statutes.
Facts and Procedure
Investor brought action against Omni, a NY corporation, in Louisiana federal court under the Commodity
Exchange Act. Omni impleaded Wolff, a British corp., who were not present in Louisiana and could not be
reached by state's long-arm statute. Wolff moved to dismiss for lack of PJ. District, Appellate, and Supreme
Courts found jurisdiction was unattainable.
Holding
Without legislation, the federal courts cannot exert jurisdiction not provided by state long-arm statutes.
Stafford v Briggs -- Dissent expresses approval of a theory of "national contacts" under the Due Process
clause of 5th Amendment.
Reasoning -- in cases that involve residents of the US in the courts of the US, no due process problem can
exist.
Oxford First Corp v PNC Liquidating Corp -- Federal courts should still be limited by "fairness"
derived from due process clause of the 5th Amendment. Develops a five part test:
1. The extent of D's contacts with the place where the action is brought
2. The inconvenience of defending in the distant forum
3. Judicial Economy
4. Probable locus of discovery
5. The interstate character and impact of D's activities
Courts have generally declined to adopt the Oxford factors test because PJ questions are really about state
sovereignty and national sovereignty is far less complicated.
Adequacy of Notice


Notice must be reasonably calculated in the circumstances to apprise all interested parties of the action
standard is best notice practicable
29

in-person service of process (notice) is the standard against which all other means/manners of notice are
measured
Mullane v Central Hanover Bank & Trust Co. – establishes a case-by-case functional test for notice
Facts
A common trust (made up of small pooled trusts and allowed by NY statute) hired D bank to conduct a
binding audit, which would have the effect of settling all questions respecting the management of the
common fund and take away all rights of the beneficiaries against the trust company. Notice was posted in
a local newspaper. P and other beneficiaries argued that this notice was inadequate to afford due process.
Holding
The statutory notice is inadequate under due process clause because under the circumstances it is not
reasonably calculated to reach those who could have been easily informed by other means at hand
Mennonite Board of Missions v Adams -- Publication and posting must be supplemented by notice
mailed to party's last known available address or by personal service.
Reasoning -- notice by publication and posting did not provide mortgagee with adequate notice of a
proceeding to sell the mortgaged property for nonpayment of taxes
 required even though mortgagee was likely to know sale was likely
 casts doubt on the adequacy of seizure for notification
Greene v Lindsey -- Notice of eviction posted on door was not sufficient, as notice rarely reached the
tenant in question. Mail was decreed the mandatory method of notice (Brennan)
Reasoning -- if the method of notice is ineffective, then there is something wrong with it
 should look into all other feasible methods to ensure delivery
30
Venue



Meant to further restrict the places where P may choose to bring suit, after the personal and subject matter
jurisdiction questions have been answered
Often a question of convenience, practicality, desire of parties and appropriateness of the forum
o A sub-constitutional doctrine – broad deference to state venue rules in federal courts
Venue can be waived if not challenged by D and is often “contracted around” through “forum selection
clauses” – though, courts vary on whether those will be respected
1391 - Venue generally – limited by the backstop of PJ
a. A civil action wherein jurisdiction is founded only on diversity may be brought (except otherwise provided by
law) ONLY in:
 a judicial district where any D resides, if all D's reside in the same state
 a judicial district in which a substantial part of the events giving rise to the claim occurred or where a
substantial part of property that is the subject of the action is situated. or
 a judicial district in which any defendant is subject to PJ at the time action is commenced, if there is no
district in which the action may otherwise be brought
 a “fall-back” provision ONLY; applied only in cases where (1) and (2) are not possible
b. A civil action wherein jurisdiction is NOT founded on diversity may be brought (except otherwise provided by
law) ONLY in
 a judicial district where any D resides, if all D's reside in the same state
 a judicial district in which a substantial part of the events giving rise to the claim occurred or where a
substantial part of property that is the subject of the action is situated. or
 a judicial district in which any defendant may be found, if there is no district in which the action may
otherwise be brought
 may be found -- some courts have thrown up their hands in frustration as to the meaning of this and
just applied (a)(3)
 in some cases, though, it is literal -- where the person can be found and tagged
c. Corporation shall be deemed to reside in any judicial district in which it is subject to PJ at the time the action is
commenced. In a State with more than 1 judicial district, the corporation shall be deemed to reside in any
district in that State w/n which its contacts would be sufficient to subject it to PJ if that district were a separate
State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has
most significant contacts.
d. An alien may be sued in any district
Problems?
What about residence for persons?

o Courts have been all over the place
 Wax favors following state law: if you are domiciled there, have your primary residence
there, then you are a resident
 Where does the action arise?
 What about the fall back provision?
o What is the meaning of the phrase that there is no other district in which the action can be
brought?
 2 interpretations
 Must be no other district in which venue would be appropriate (very restrictive
reading)
 Wax's interpretation: Even though there is venue under one of the other
conditions, if you can't also get PJ there, then by definition its not a place where
an action can be brought and you can go to the third condition for venue
1404 and 1406 are about the transfer between federal courts
o Fed court cannot tell a state court to take a case
o Fed courts do not have the power to transfer cases to foreign courts
31
1404 -- Change of Venue
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
 can only be transferred to another court where case might have been brought
o both transferor and transferee courts must satisfy venue, SMJ, and PJ
o applies when venue in transferor district is proper, but convenience and/or justice call for a
transfer
1406 -- Cure or waiver of defects
a. District court will dismiss or transfer any wrongly brought case
b. Parties waive if they don't make timely and sufficient objection to venue
o How are 1404 and 1406 different?
 1404 -- when venue in the transferor district is proper -- D can't move to dismiss for lack of venue -- but
there still may be a better place to go
 1406 -- when venue in the transferor is improper -- a mechanism for fixing a mistake
 work-around for statute of limitations problems
Hoffman v Blaski – venue must be proper in transferor and transferee courts; and the venue rules
apply at the time the case was brought. To find otherwise would turn a shield for D into a sword.
Facts
Blaski (P), resident of Illinois, brought this patent infringement action in the Northern District of Texas
against Howell and the corporation controlled by him (D), alleging that D are residents of (and maintain
their only place of business in) Dallas.
Holding
Because this is not an action that could have been properly brought to Illinois by P, D cannot move for
transfer
1404
Van Dusen v Barrack -- in diversity cases, the law applicable in the transferor forum follows the transfer
Reasoning -- Because a move to transfer should just be a change of court rooms and not a change of law
 limited to state law claims—not to federal law case—(i.e. don’t take precedence of 5th
circuit to the 7th circuit)
Ferens v John Deere Co. – Court confuses ruling in Van Dusen; applies rule to P rather than D – rule that
was supposed to prevent forum-shopping now allows it
Facts -- P, a PA resident, was injured by one of Delaware corp. D's harvesters. P missed Pennsylvania's
two-year statute of limitations for bringing tort actions. P brought an action in PA over non-time barred
contract and warranty claims, and a tort claim in Mississippi.
Procedure -- The federal court in Miss. granted P's motion for transfer under 1404(a). The PA court
refused to apply Miss. tort law and dismissed the tort claims. The Court of Appeals affirmed.
Holding -- Supreme Court reversed, holding that, in a diversity suit, the transferee forum is required
to apply the law of the transferor court, regardless of who initiates the transfer
1406
Goldlawr, Inc. v Heiman -- 1406 authorizes transfer even if transferor court lacks both venue and PJ
Reasoning -- in making 1406, Congress recognized that the interest of justice may require that the
complaint not be dismissed but transferred in order that P not be penalized
Dissent -- decision makes no sense -- why should case w/ no venue and no PJ be transferred while cases
with venue and no PJ are dismissed?
no venue
no PJ
no venue
PJ
venue
no PJ
transfer or dismiss
(1406)
transfer or dismiss
(1406)
dismiss
32
Statute of limitations with transfers
o Majority rule allows transfer when transferor court does not have venue and is filed "out of time" but
transferee court is "in time" based on the statute of limitations
o Courts are split in the opposite case, when transferor state is in time (has longer statute of limitations
than the filing) as opposed to the transferee court being out of time (shorter statute of limitations than
filing) -> some courts allow (partial Van Dusen rule), some do not
Forum Non Conveniens
Definition and Key Provisions
 a court may decline to exercise valid/authorized jurisdiction if it is too inconvenient for the Δ or the court to
litigate the case in the forum
o analysis is similar to decision to transfer under §1404
1. only exercised on D’s motion
2. alternative forum is nearly always a foreign country
3. only allows for dismissal, not transfer
4. venue and personal jurisdiction are not necessary in the transferee forum
(although they are necessary in the dismissing forum)
Forum Non Conveniens Balancing (Piper)
1. P relevant factors
i.
law (in 1404, this drops out, b/c you take the law with you)
ii.
connection with forum
iii.
convenience (litigation-related)
2. D relevant factors
i.
third parties
ii.
connection with forum
iii.
convenience (litigation-related)
3. System-relevant factors
i.
law
ii.
local ties
iii.
ties with alternative forum
* This test has become the test for 1404 transfers too
Piper Aircraft Co. v Reyno – FNC is proper, even if law in alternative forum is less favorable, when
issues of complexity of choice-of-law analysis, potential trouble with regard to application of foreign law,
location of witnesses and evidence, danger of influx of foreign litigation, etc. point towards the foreign
forum
Facts
A small aircraft manufactured by Piper and the propeller-manufacturer Hartzell (D) was involved in a crash
over Scotland. All passengers were Scottish or British, and it is unclear whether the crash was due to
mechanical failure or pilot error.
Holding
Because an alternative forum exists in Scotland, the case involves foreign plaintiffs, there are strong
connections to Scotland and Scotland has an interest in trying the case, the outcome will be more efficient
if both cases are tired together, and the public interest is best served by trying the case in Scotland, the case
should be dismissed based on the doctrine of forum non conveniens.
33
Ascertaining the Governing Law
The Erie Doctrine
Statutory Underpinnings of Erie
Does federal or state law apply in diversity actions?
1. Rules of Decision Act (§1652) -- "The laws of the several states, except where the Constitution or treaties of
the US or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions
in the courts of the US, in cases where they apply"
 holds that state law should apply unless there is a specific constitutional or statutory provision otherwise
 but, in general, this has not been strictly followed
2. Rules Enabling Act (§2072)
a. The Supreme Court has power to prescribe general rules of practice and procedure and rules of evidence for
cases in US District courts and courts of appeal
b. Rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of
no further force or effect after such rules have taken effect
 distinction between substantive and procedural, but this distinction is often unclear/fuzzy
Historical Development
Swift v Tyson – RDA (§1652) is limited to state statutes; if no statute, fed common law applies
Facts
Some Maine land speculators sold land that they did not own to New Yorkers. The speculators planned to
use the New Yorker's money to buy the land. Some of the New Yorkers (D included) gave negtioable
instruments to the speculators. One of the speculators gave Tyson's note to Swift (P), a banker, in
satisfaction of a preexisting debt. When P sought payment from D, D refused to pay on the ground that his
obligation is unenforceable b/c it was based on fraud.
Holding
The Rules of Decision Act is strictly limited to statutes or long-established local customs having the force
of laws and does not extend to common law state rules of contracts and other instruments of a commercial
nature.
Aftermath of Swift
 led to great inconsistencies in application and predictability of the law
 led to forum-shopping -- different results possible in state vs. federal court
 deprived states of authority to effect policy through statutory and common law
Black & White Taxi v Brown & Yellow Taxi – Holmes’s dissent is what is important here
Facts
B&Y, a Tennessee corporation that used to be a Kentucky corporation, had an exclusive contract with the
Louisville and Nashville RR Co., a Kentucky corporation, to be the sole taxi company to pick up
passengers at its stations. B&W, with the tacit approval of the RR, solicited business and parked in B&Y
spaces. In order to sue in federal court and avoid a restrictive Kentucky statute, B&Y reincorporated in
Tennessee, signed a new contract with RR, and then sued diversity grounds.
Holding
Under Swift, general law of majority states applies, and thus B&W violated B&Y's rights under its contract
with RR and thus should be enjoined
Dissent (Holmes)
Swift is built on a fallacy -- there is no such thing as a body of federal common law; only law is state law
and federal statutory law; Supreme Court of any state's decisions are valid as law
Objections:
 federalism -- violates federal principles
 separation of powers -- legislature in the branch of gov't that makes law; court has no such power
34
Erie R. Co. v Tomkins – there is no federal common law, a la Swift, and Swift represents an
unconstitutional invasion of federal courts into the power of the state courts. Federal courts MUST apply
the substantive state law in diversity cases
Facts
Walking along a footpath parallel to the train tracks, P was struck by something protruding from a passing
train. Under PA common law, P would be considered a "trespasser" to whom D owes only a duty to avoid
wanton negligence. The majority rule in most states the railroad would owe a duty of ordinary care.
Holding
Because there is no such thing as federal general law and because the assumption of such by the federal
courts is an unconstitutional invasion of power by the federal courts over the state courts, the Swift doctrine
misreads the Rules of Decisions Act and should be overturned.
Evolution of Erie

So, now there are three possible sources of procedural rules:
 judge-made rules (Article III)
 Federal Rules of Civil Procedure (Rules Enabling Act)
 congressional statute
* what happens when federal procedural rules and statutes conflict with similar state rules?
Outcome Determinative Test (from York) -- will the application of federal law lead to a substantially different
result from State law?
Two parts:
1. will existence of different state and federal rule lead to forum-shopping?
2. will ignoring state law lead to inequitable distribution of justice?
a
move
from formal to functional

Guaranty Trust Co. v York – introduces outcome determinative test
Facts
York (P) brought at a diversity suit against a financially failing Trust Co. (D) alleging it had breached its
fiduciary duties. Because the complaint involved allegations of fraud and misrepresentation, it was
governed by equitable principles.
Holding
Because, when it comes to pure diversity of citizenship case, federal court adopts the law of the States
totally and completely, if the State statute of limitations bars hearing in State court, it is so barred in federal
court too.
Byrd v Blue Ridge Rural Electric Cooperative, Inc. – York’s outcome determinative test may be
overruled if the court feels there is an important federal issue at stake; but presumption remains in favor of
state rule
Facts
P, a resident of North Carolina was injured doing contracted power line work for D, a South Carolina
corporation. P brings negligence suit in federal court basing jurisdiction on diversity of citizenship. D
argues that because South Carolina's labor laws P is a statutory employee of D and is obliged to accept
statutory compensation benefits as the remedy.
Holding
Where state law would alter the essential character or function of the federal court, the federal court will
follow its own law
35
Conflicts between state law and FRCP under Erie:
Hanna v Plumer – if a state procedural rule and FRCP come into direct conflict, federal rule wins; federal
courts have the right to enforce their own “housekeeping” rules
Facts
P, an Ohio citizen, sues D's executor, Massachusetts citizen, for damages for personal injuries suffered in a
car accident in South Carolina. Federal jurisdiction is founded upon diversity of citizenship. Process was
served according the Rule 4 (now 4(e)(2)) by leaving the summons with D's wife at his residence. But,
Massachusetts state law requires in hand service, and D moves for summary judgment based on failure to
comply with service laws.
Holding
The adoption of Rule 4(d)(1) neither exceeded the congressional mandate embodied in the Rules Enabling
Act nor transgressed the rules as set out by Erie and its progeny, and thus service was properly served
Notes:
2 part decision:
i.
Hanna 1 -- outcome-determination -- would having two rules lead to forum-shopping?
no, because, if you know there are two different rules, you can prepare yourself to comply

with one of them
as long as you've got notice of the rule, you go ahead and comply with it

ii.
Hanna 2 -- b/c this is FRCP, it doesn't matter
this is governed by Rules Enabling Act with authority of Congress behind it -- different

standard
"any rules that are arguably procedural and rationally capable of classification as either

procedural or substantive"
Walker v. Armco Steel Corp. – question must be asked when applying Hanna – is federal rule so broad
that it comes into conflict with state law? If not, state rule is applied.
Facts
P, Oklahoma resident was hammering a nail into concrete when it shattered and damaged his eye. He sues
D manufacturer, a foreign corporation with a principal place of business outside of Oklahoma, in federal
court based on diversity of citizenship. D argues that P's action is be barred by a tolling provision in
Oklahoma state procedure. P argues that based on Hanna, Rule 3 applies for statute of limitations purposes
Holding
Because Rule 3 is not so broad that it comes into conflict with the state tolling provisions in this case and
Ragan, the cases are distinguishable from Hanna and thus Ragan still applies and the action is barred based
on Oklahoma's statute of limitations
Conflicts between state rule and federal statute
Stewart Organization, Inc. v Ricoh Corp. – if statute is sufficiently broad, it is arguably procedural and
thus should be applied instead of state rule
Facts
P company, an Alabama corporation, had a dealership agreement to sell copier materials made by D, a
nationwide manufacturer, with principal place of business in New Jersey. The contract contained a forum
selection clause requiring actions to be brought any court in Manhattan. Business went sour, and P sued for
breach of dealership agreement in District Court in Alabama. D moved for the district court to transfer to
SDNY under 1404(a) or dismiss under 1406. Alabama rules disfavor forum-selection clauses
Holding
Because 1404(a) is sufficiently broad to cover the Alabama state policy and is Constitutional under Article
III's necessary and proper clause, it's application will determine whether the case will be removed to
Manhattan court
Klaxon Co. v. Stentor Electric MFG Co. -- in order to promote the desired uniform application of
substantive law within a state, federal courts must apply conflicts-of-law rules of the state in which they sit.
36
Erie Breakdown:
Type of fed rule in conflict
Judge-made
Examples from Cases
York
Byrd
F.R.C.P.
Hanna
Statute
Walker
Stewart
Constitution
Approach
Outcome-determinative/forum shopping
Outcome-determinative w/deference if important
federal issue is raised
1. Outcome-determinative, clarified
2. “Arguably procedural” (power granted by the
Rules Enabling Act)
Is there a direct collision?
“Arguably procedural” (power granted by the
Constitution)
Supremacy clause and the Rules of Decision Act
Is the federal provision valid and applicable? 4 basic types of federal provisions that may conflict with state law:
1) A federally constitutional provision- whenever the conflict is between a federal constitutional provision and state
law the constitution is the supreme law of the land. Its provisions apply even if they conflict with state law,
substantive or procedural. The constitutional requirement always prevails.
2) a federal statute- when the conflict is between a federal statute and state law federal statutes the federal statutes
are always the supreme law of the land, if they are valid. The issue is whether Congress had the authority to enact
the federal statute. If the Hannah II test is met, the statute must be applied if it conflicts with state practice because
Congress has the authority to enact the statute.
3) Formal Federal Rule of Civil Procedure and state law- The federal rule applies if valid. This is true if the rule is
rationally capable of classification as a procedural regulation. The rules are valid unless they abridge, enlarge or
modify, a substantive right under REA (Hanna 2)
4) Federal Judicial Practice and State Law- Where the practice relates to the conduct of litigation so that there is
federal authority to make a separate rule Hanna indicates that a diversity court should still choose the state rule if the
difference between it and the federal practice could prove outcome determinative. Following a separate fed. practice
could lead to forum shopping or inequitable administration of the laws.
How do we analyze an Erie question?
1. Is it an Erie question?
a. Is it in federal court?
b. State and federal procedural rules in conflict?
2. What is the state rule? What is the federal rule?
3. What kind of federal rule?
a. Constitution
b. Statute
i.
If Statute, does it cover the question?
c. Judge-made/Common law
d. FRCP
i.
If FRCP, does it cover the question?
1. Example: Rule 50, JAML.
a. If the state and federal courts have different standards for JAML, which standard
wins? Is that an Erie common law rivalry question or a Federal rules question?
4. Do rules conflict?
a. Stewart (conflicting when they didn't necessarily have to) or Walker (don't conflict)
5. Which rule prevails?
a. Constitution -> always prevails under RDA and supremacy clause
b. Statute -> always prevails, Hanna 2
c. Judge Made/Common Law -> outcome determinative/forum shopping analysis under Hanna I
d. FRCP -> Hanna 2, is it arguably procedural?
37
Pleading
Basics of pleading and motions practice:
o
Rule 3, 7, 8, 12, 15 and 56
 Rule 3
 Civil action is commenced by filing a complaint with a court
 Rule 8
 Short and plain statement of the grounds of jurisdiction, statement of entitlement to relief, and
demand for judgment for the relief sought
 (a)(1) - simple, concise, direct
 (b) - answer (mandatory pleading)
 Shall meet the factual and legal allegations of the complaint
 Obligation on the part of the D to address each of the allegations in the complaint
 If you want to reserve the right to deny/contest facts at a later point, you MUST
deny them in the answer
 Pleading is a preview
 Types of denials
 Can deny generally (disfavored in federal pleading)
 Special denial - everything in paragraph ___ is denied
 Qualified denial - everything in paragraph ___ is denied except for _____
 Dummy denial - I have insufficient information to say whether it is true or false
 Hedge denial - based on what I know (information and belief, subject to later
update), I deny
 (b)(6) - failure to deny
 If you do not deny it in the answer, the court assumes it is uncontested and will not allow it
to be challenged at a later point - failure to deny IS TO ADMIT
 If a fact is asserted in a pleading for which there is no answer on the other side (facts in an
opposition to a motion, facts in an answer, etc) - that new fact is deemed denied
 The fact that you don't have the opportunity to deny in a fact does not result in that
fact being admitted
 8(c) - affirmative defenses
 Must be pleaded if its an issue in the case
 In federal court, it is up to the defendant to inject defenses into the case by pleading them in
their answer (list of such defenses is defined by federal procedure)
 Burden of pleading in a federal court is a matter of federal law, even if it is a case
addressing state law
 (d)(2) - plead in the alternative
 (f)? - implication to the courts to give people the benefit of the doubt
 Rule 12
 Defendant has 2 choices
 Can make motion to dismiss on preliminary procedural grounds under 12
 Can load all of preliminary objects into the answer (8)
 (g) - consolidation requirement
 If a party makes a motion for dismissal on one ground, the party may not make another
motion on other grounds (must load in to motion all objections that you have at one
time)
 Court does not want to be continually bombarded with separate motions
 (h) - waiver or preservation of defenses
 SMJ motion may be made at any time
 (2) - it may take time to find that there are no grounds for a claim, so you are given a long
time for an objection of failure to state a legal defense to a claim
38

Rule 15
o (a) - governs early stage pleadings (before case goes to trial)
 Amendments to plead rule 12 objections, plead for jurisdiction, plead defenses, counterclaims,
cross-claims, amend to bring in another party, amend to deny facts etc.
 Divided into Amendment as of right and Amendment with consent of other party and/or court (or
may take leave of court when justice so requires - court is interested in a full, fair and complete
adjudication of the real issues in a case)
o (b) - governs trial/summary judgment phase
 Express consent
 Other party allows it, signals willingness to talk about issue
 Implied consent
 Other party says nothing or puts out evidence against the issue, thus implying that they
are ok with it
 Non-consent
 Up to the judge whether to allow the issue to come in/waive the waiver
 Standard - when the presentation of the merits of the action will be subserved thereby and
the objecting party fails to satisfy the court that the admission of such evidence would
prejudice the party in maintaining the party's action or defense upon the merits
Dioguardi v. Durning
Facts: P submitted a very crude complaint against D. D made a 12(b)(6) MTD
Holding:
 pleading was sufficient under Rule 8(a): all you need is the possibility that these facts could
amount to a claim for legal relief
 allowed for courts to exercise some discretion in “searching” for legal violations, etc., in
the case
 shift from formal to functional approach
Current system of pleading:
Notice pleading
o 2 major approaches
 Party notice (discovery pleading/answer notice) – dominant standard, lenient
 Purpose of pleading is to allow the other side to take the next step in the process
 Gives other side the info they need to answer the allegation, sort through the facts
 System notice (elements pleading standard)
 Signal to the court that party can prove elements of a cause of action
3 burdens:
o
Burden of pleading
 Default rule: assume plaintiff has burden of pleading all elements of the cause of action,
defendant has burden of pleading defenses
 Many exceptions - rules for pleading in state court are different from rules for pleading in federal
court
 In federal court, pleading requirements on the plaintiff are radically different from the
requirements on the defendant
 Defendant is expected to plead with specificity if they want to inject (put it in
issue) an issue into the case - governed by Rule 8c, explicit pleading
39

Plaintiff is not required to plead expressly each element of the complaint mostly implicit pleading
o
Burden of persuasion
 Several levels: criminal cases (beyond a reasonable doubt), 2 for civil cases ( 1: preponderance of
the evidence - more likely than not, acts as a tiebreaker; 2: clear and convincing evidence libel and slander cases, does not have a clear operational purpose)
 Default rule: party that has burden of pleading has burden of persuasion
 On federal court on a state law claim (where the state law governs), federal law
determines the federal burden of pleading, state law determines the burden of persuasion
o
Burden of production
 Comes into play at the summary judgment phase and at trial
 Amount of competent, admissible evidence, if any, that a party must put into the case which would
allow a reasonable jury, if they believed it, to find in their favor
 Only tells us who COULD win, not who WILL win
 Party that has a burden of persuasion on a particular element also bears the burden of
production on that element
 Default rule: plaintiff has burden of persuasion and production on all elements of cause of action;
defendant has burden of persuasion and production on all the asserted defenses
In state law, if something is called a defense, assume that the D has the burden of persuasion and pleading
o Taylor court says this doesn't matter- for federal court, Erie question is going to be resolved differently
for federal court
Who bears the burdens on federal procedural matters?
o Come into play when D makes motion to dismiss for any of the 12b reasons; these sometimes involve
fact finding- who bears the burden on these facts? The Plaintiff.
o P usually carries the burden of proving SMJ, PJ, proper service, etc. - shows difference between
burden of pleading (D) and burden of persuasion (P) in rule 12
Complaint and Dismissal on the Pleadings

under Rule 8(a), you do not need anything specific in the pleadings
o simply state a claim upon which relief may be granted and leave room for what you are going to
prove
Garcia v Hilton Hotels International, Inc– all that is necessary for a valid claim under 8(a) is a statement
of a claim upon which relief may be granted and pleading does not need to include all elements of a
claim (P’s pleading rules are lenient).
Facts
P, a resident of Puerto Rico, brought suit for defamation against D, a Delaware corporation, in District
Court of PR. Paragraph 4 of the complaint asserts that P was violently discharged by D being falsely and
slanderously accused of pimping the hotel, though does not state where or when these slanderous
comments were published. Paragraphs 5-8 assert that the same slander occurred during a hearing in Puerto
Rico's Labor Department.
Holding
D's motion to dismiss on 12(b)(6) is denied because P states a clear claim for slander and an affirmative
defense of conditional privilege does not counter that claim. D's motion to strike paragraphs 5-8 of the
complaint is granted because the slanderous comments were made in absolute privilege. D's motion for a
more definite statement, under Rule 12(e), is granted
 A defense can move for a more definite statement if more details are needed to mount a realistic
defense.
 Demonstrates the winnowing process of pleading system – parts of a claim may be struck down
while others are upheld
40
Answer, Reply, and Amendments
Asymmetry bet. P and D
P’s pleading:
 a fair amount of focus in Rule 8 on the allocation of pleading responsibility from P and D
 if a matter is deemed part of COA, P is deemed to have pleaded it, whether or not they said it in so many
words -- liberal pleading requirements for P
 Garcia -- P saying "defamation" includes pleading of all of the elements thereof
D’s defense:
 D has an obligation to be responsive to the complaint's assertions
 extends both to law and fact
 rules are more restrictive on response to fact (a little more relaxed on assertions of law)
 need to answer each assertion of fact -- if not contested, it is deemed admitted
 if facts are asserted in the final pleading where no response is allowed, though, they are
assumed denied
Affirmative Defenses
 defenses with a heightened specificity requirement for pleading, as opposed to simply denying or affirming
or denying averments in the complaint
 partly easy -- there's a list in Rule 8(c)
 partly hard -- the residual clause in 8(c) (Ingraham and Taylor explore this)
 4-part test (from Ingraham) to determine affirmative defense
1. Can the matter at issue fairly be said to a necessary or traditional element of the cause of action?
2. Which party has better access to the relevant evidence?
3. From a policy perspective, it the matter one that is typically indulged or disfavored?
4. What is the interest in preventing unfair surprise?
Ingraham v United States – demonstrates the 4-part test above, especially the element of unfair surprise
Facts
P sued Gov't physicians (D) in consolidated medical malpractice cases. In both case, after judgment was
received, D moved for relief from damages based on a Texas statute that places caps on certain medical
malpractice awards (Medical Liability and Insurance Improvement Act of Texas).
Holding
The Texas statutory limit on medical malpractice damages is an affirmative defense under Rule 8(c),
because it is likely to take P by surprise and is an avoidance stating a new matter changing the ordinary
effect of P's pleading
Taylor v United States – seems to run contrary to Ingraham, stating that caps on liability for damages are
not affirmative defenses under 8(c)
Facts and Procedure
Another medical malpractice military case. US District Court awarded damages of $500,000 to P for
emotional distress and loss of consortium. D moved for a reduction based on Calif. Civil Code limiting
recovery for non-economic injuries to $250,000
Reasoning
Affirmative defenses bar recovery, limits it. If FRCP don't require P to plead amount of damages sought, D
should not have to plead limitation of damages
 under 8(c), P is not required to argue specific amount of damages
 so D is not required to deny or defend them
 under 8(d), whatever amount of damages P asserts, D is assumed to deny them
 assumed in that denial is the cap
 this means that pleading requirement are going to be different under state court and federal court
 Rule 8 says this is going to happen, so no surprise
Amendments
41
Rule 15 -- Amendments and Supplemental Pleadings
 about amendments in preliminary pleadings
15(a) -- applies to amendments before trial gets underway
o amendments as a matter of course; very narrow time frame
o then, at discretion of court
15(b) -- applies to amendments during fact-finding stage and trial
 amendments that conform to evidence
 express or implied consent -- what does this mean?
 express is easy
 implied -- one party puts evidence on the table that's not in pleadings; other party
counters it; and this continues; then, the other party objects to the initial introduction of
the evidence (probably b/c not going his way)
 judge will say, "Why didn't object back when it was introduced?"
 but has an interesting structure: express, implied AND even if there is an objection, court can
amend the pleading
 when the presentation of the merits of the action will be subserved thereby
 and the objecting party fails to satisfy the court that the admission of such evidence
would prejudice the party in maintaining the party's action or defense upon the merits
 what's this mean? if it looks like it is going to greatly affect the outcome of the case,
judge will allow it
 prejudice -- affects your ability to put on your case; changes the rules well into the game
 burden is on the party trying to show the prejudice -- we want a full and fair
exploration of the case to get to the correct answer
 even affirmative claims, new counterclaims, factual matters conceded may be reopened
and retested, and legal theories that aren't in the pleading may be amended
 what is the standard of review?
 basically, within the sound discretion of the trial court -- courts of appeals are
reluctant to overturn grant or denial of leave to amend
15(c) -- specialized provision concerning fatal errors and waivers and statute or limitations; a way to preserve the
date of starting
 when permitted by law that provides statute of limitations
 when claim/defense in amended pleading arises out of the conduct, transaction, occurrence set
forth in original pleading
 when amendment seeks to correct mistaken identity of a party
Beeck v Aquaslide 'N' Drive Corp. – amendments under 15(a) are freely granted unless there is a
showing of bad faith or great prejudice on the non-moving party
Facts
P was injured at a pool party on what may have been one of D's pool slides. D initially admitted the
manufacture of the slide, based on the conclusions of three different insurance companies. Later, when D's
president inspected the slide himself (six and a half months after the statute of limitations had run out on P's
claim against other manufacturers) and determined that it was not manufactured by D.
Reasoning
Rule 15(a) (from Foman v Davis)
 leave to amend "shall be freely given when justice so requires"
 only denied when there is reason (three elements)
1. bad faith or dilatory motive;
2. repeated failure to amend earlier; or
3. undue prejudice
 what Foman v Davis does is import undue prejudice from 15(b) into 15(a)
 prejudice must be shown -- the burden is on the party opposing the amendment to
show such prejudice
 a trial court's decision to allow or deny is in their discretion -- reviewable only for an
abuse of discretion
 appellate court must view in the posture in which the trial court acted
Holding
42
Movements to amend shall be freely given when justice requires, and denied only in cases of bad faith or
delay on the part of the amending party or when great prejudice will be caused to the other party.
Worthington v Wilson – for a change of name to relate back under 15(c), original name must be a mistake
Facts
P was arrested by two police officers, who deliberately grabbed him by his injured hand, causing further
injury. In his original complaint, he claimed “three unknown named police officers" violated his
Constitutional rights under § 1983. P amended the complaint and named D (the two officers, by name) and
D moved to dismiss on the grounds that the statute of limitations had run
Reasoning
Rule 15(c)
Illustrates application of Rule 15(c) (specifically 15(c)(3))
 (c)(3) narrows the provisions of (c)(2)
 (c)(3) covers mistakes only -- P cannot named unknown parties to be filled in later
Erie question
 P says state law applies -- there is an Illinois law allowing for putting down unknown
parties
 this is at odds with 7th Circuit -- "federal courts absorb state law only when federal law
neglects the topic"
Holding
Though this amended complaint would relate back just according to the timing procedures under new
15(c), it does not relate back because it is an amended complaint which replaces fictitious names with
actual names due to an initial lack of knowledge concerning the proper D and does not involve a mistake.
Federal law controls, despite the fact that there is an Illinois statute directly related to this issue.
43
Summary Judgment
Summary Judgment is really used for determining if there is any point in going forward with the case.
o Forces the parties to put their cards on the table and demonstrate to the court that they can win the case
should the jury believe them.
Relationship between Rule 12c and 56 - if any matter outside the pleading, including the affidavits and supporting
documents, is attached to the pleadings on a motion to dismiss (12c), it becomes a summary judgment motion (12b)
o Difference between 12(b)(6) and 12c - motion is made after the answer in 12c and before the answer in
12(b)(6)
o Function of a motion to dismiss on the pleadings is to dismiss fact pattern for being outside the law (on
the surface)
o Summary judgment tests the sufficiency of the evidence brought forth by the party for possibly
winning the case
Affidavit - any piece of paper evidence which would be competent in itself to be put before a jury to prove a fact
o Under rule 56, to succeed or defeat a summary judgment motion, a party does not have to put in
evidence
o Affidavits necessary when:
 The movant have the burden on elements
 The D has the burden of elements in opposing
 Your strategy in opposing is to create a material issue of fact - cannot create a material issue of
fact without putting in your own affidavits/competent evidence (Rule 56(e))
o Not necessary when:
 Cases where the other side has the burden and all you are doing is using the "finger pointing"
strategy, ie you are saying that the movant has not met their burden
 Don't have to put anything in when notifying the court that the other side has not put in
enough to meet their burden
Summary judgment questions
o Is there an issue of material fact?
 Would the case come out differently if D was allowed to refute P's claims?
 Material fact - fact is inseparable from rule of law
o If, even if the P can prove all the facts, the case would still come out the same way, the
facts are not material
o Is the moving party entitled to judgment as a matter of law?
 Taking all the facts alleged in the light most favorable to the non-moving party, can she win?
(same test as issue of material fact question)
Alderman v. Baltimore and Ohio R. Co.
Facts: P injured upon train derail while traveling with a free pass on D’s train; pass provided
limitation on liability, except in case of willful/wanton conduct
Holding: SJ granted, as complaint states no facts upon which a jury could find willful/wanton conduct
When is Summary Judgment Appropriate?
 To succeed on an SJ motion, court must find:
1. Non-moving party has not met its burden of production
2. Non-moving party has not created a genuine issue of material fact
3. Moving party is correct on the law
44
Rule 56:
 56(a): timing requirement for P
o must wait 20 days from commencement of action or motion for SJ by opposing party
 56(b): timing for D
o D can move for SJ at any time
 56(c): substance of proceedings
o SJ shall be granted if all evidence, etc., shows that there is no genuine issue as to any material
fact and moving party is entitled to judgment as a matter of law
 56(d): partial summary judgment
o SJ may be rendered on specific issues, while leaving the remaining issues open for adjudication
 56(e): affidavits, further testimony, etc.
o parties may introduce supporting and opposing affidavits stating such facts as would be
admissible and about which affiant would testify
o non-moving party must present evidence to demonstrate genuine issue of material fact
 56(f): when affidavits are unavailable
o discretion of judge to refuse motion or to order further discovery
 all facts must be taken in the light most favorable to the non-moving party
Burdens provide many options for strategies in SJ:
Support SJ
o Opponent wrong on law (dispute law)
o Opponent fails to carry burden
 Only can make argument if opponent has to carry the burden on that element
o No material issue of fact - even on opponents' facts, I win
 The facts that the opponent thinks are relevant are not, in fact, relevant to the law and thus I win
Oppose SJ
o
o
o
Dispute facts -> if material, you can defeat a MSJ
Dispute law
Insufficient facts to satisfy law
 Failure to meet burden (if movant has the burden on that element)
 Not credible
 Not admissible
 Missing element
 Not right facts (law makes facts irrelevant)
Celotex Corp. v Catrett – b/c P has the burden of production, D can “point at the evidence” and say
“that isn’t enough” without presenting evidence to support this claim
Facts
P sued 15 named corporations for negligence, breach of warranty and strict liability for the death of her
husband due to asbestos exposure.
Reasoning
56(c) v 56(e)
 56(c) requires only that moving party indicate where the deficiency is in the other party's
"pleadings, depositions, etc"
 no requirement that moving party have materials negating the opponent's claim
 rule says "affidavits, if any"
 and 56(a) and (b) both say with or w/o supporting affidavits
was amended to disapprove a line of cases allowing a party opposing SJ to resist a
56(e)

properly made motion by reference only to its pleadings
 meant to facilitate the granting of summary judgment, not hinder it
Holding
Rule 56(c) requires that the moving party indicate where the deficiency is in the other party's argument and
does not require any materials negating the opponent's claim. Amendments to 56(e) do not affect this
45
functioning of 56(c).
Dissent (Brennan)
Moving party, when the burden of persuasion is on the non-moving party, must show some sort of
affirmative demonstration that non-moving party's evidence is not sufficient
 otherwise, summary judgment would become a tool of harassment
Anderson v Liberty Lobby, Inc. (SCOTUS, 1986) -- Fix clearly in your mind the difference between
burden of production and burden of persuasion
 burden of persuasion is a comparative exercise: weighing and evaluation of the
evidence
 burden of production is a legal conceit that we are going to "believe it all" and see if it
is enough for you to say, if you believe it, you can hold it to be correct
Facts
P right-wing publisher sued Investigator magazine and its president and publisher, D, for libel. D moved for
summary judgment on the ground that P could not prove by clear and convincing evidence that D acted
with actual malice.
Reasoning
Judge must view evidence through prism of the substantive evidentiary burden
 jury determines credibility, weight of evidence, and inference of fact
 judge, on SJ motion, determines whether, if jury came out on the side of P on all those
issues, P could win -- would s/he still meet the substantive evidentiary standards
Holding
Because summary judgment allows the judge to determine whether the evidence, viewed in the light most
favorable to P, could meet the applicable evidentiary standards and because the P has not met these
standards with evidence showing malice, D's motion should be granted
SJ MONKEY
1. Get straight who is the moving party and who is the non-moving party
2. What are the pleadings on the table at the time SJ motion is made?
3. Is there a dispute of material fact?
 look at the law, make a choice what law applies
 is there competent evidence on the table -- use common sense on this
 if it's something that the party/individual could get up and testify about, then its
competent evidence
 if not, then there's got to be an affidavit (documentary evidence)
 56(e) -- both sides have to put in competent evidence regardless of whether they have the
burden
4. Who has the burden of production? Have they met it?
 burden of prod. is on P for COA
 burden of prod. for defenses is on D -- D has to put in evidence
46
JAML, Jury Instructions and Appeals
Rules of Judge and Jury in FRCP:
o Directed to police the boundary between judge and jury
 Article VII of Constitution
 Jury finds facts, judge finds law in federal court
o How do we police the boundary?
 Process of voir dire
 Vetting the jury
 Questioning of biases in jury
 Checks on jury misconduct or error
 FRCP 50, 59, 60
 Courts can second guess the jury under limited circumstances
 Rule 59 - grant new trial
 Can be granted for any reason for which new trials have heretofore been
granted
 Possible situations in which a new trial would be warranted is very
complex and various, so it cannot be codified
 4 general situations in which new trials will likely be granted
 Significant procedural error - limited by FRCP 61
 Jury misconduct
 Verdict is against the great weight of the evidence
 Less exacting than the summary judgment standard
 Excessive verdict
 Rule 50 - verdict can be reversed by judge
 Rule 60(a) - clerical error
 Rule 61 - sets limits on correcting of errors
 No harmless error shall be allowed to disrupt the result of the case
Instructions to Jury






Interrogatories (Rule 49(b))
Special verdicts - disfavored because they cause more problems than they solve
Goal of rule 51 - get the instructions right
o Immediacy interpretation gets at the most effective way of maximizing the chances of getting the
instructions right because it is closest to the actual instruction
o 2 timeliness qualifications
 If a party has been informed of an instruction, objection has to come under 51(b)(2)
 If a party has not been informed of an instruction, objection has to come promptly after learning
that the instruction will be/has been given
Rule 51(a): requests
 parties may provide written requests for instructions at the close of evidence
Rule 51(b): instructions
 court must inform parties of instructions before instructing the jury and before final jury arguments
 parties must be given an opportunity to object to instructions on the record and out of jury’s hearing
 judge may instruct the jury at any time after trial begins
Rule 51(c): objections to instructions
 objections to instructions must be made on the record, distinctly stating objection and grounds
 objection is timely if:
o (2)(A): an informed party objects before instructions and final arguments are delivered
o (2)(B): party uninformed until after time allowed for objections objects promptly after
learning that the instruction or request will be, or has been, given/refused
47

Rule 51(d): assigning error and plain error
 An objection must be made to an actual instruction in order to assign it as error
 a proper request must be made for a party to assign as error a failure to give an instruction (along
with an objection to the denial of the request for the instruction, if a definitive ruling was made)
 otherwise, without such objections, appellate court may only consider plain error
o Plain error:
o Error is obvious
or
o Seriously affects the fairness, integrity, or public reputation of judicial proceedings
o This criterion is much narrower than the actual language- relates to a deeper
injustice in the judicial proceedings, such as a bribe, a severe jury bias, etc.
* objections to instructions are waived if not made at trial
Alexander v. Kramer Bros. Freight Lines, Inc.
Facts: Two tractor trailers collided, equally believable stories so it came down to who had the burden
of production. Judge gave wrong instructions about the burden of production to the jury, but
Alexander did not object in the proper manner.
Holding: Cannot bring objection on appeal, must have addressed it in the trial according to FRCP 51
Jury misconduct:
o
o
o
o
Iowa rule
 Jury impeachment is limited to evidence of extrinsic misconduct (bribery, outside influence)
 No testimony taken as to the internal process of deliberation itself
Texas rule
 Any influence can act as grounds for jury impeachment
Federal rule is closer to the Iowa rule
 Governed by rule of evidence, rule 606(b)
 Impeachment of a verdict is forbidden if based upon anything relating to the juror's mind or
emotion, but is allowed when there is outside influence on the jury
Tanner v. United States - was it jury misconduct for the jury to have a few drinks during a lunch
break? Is this extrinsic or intrinsic?
 Not impeachable - alcohol and drugs are intrinsic and thus beyond impeachment
Texas Employers’ Insurance Association v. Price
Facts: Price was involved in a serious accident and brought a claim that he was totally or
permanently incapacitated and thus qualified for that benefit under the insurance plan . A
jury member related his personal experiences to persuade the jury that appellee (Price) was
totally and permanently incapacitated.
o Stated that he knew from experience that appellee could not get a job with any
other company that has a union contract or employee benefits
Holding: It was misconduct for the juror to relate to the other jurors his own person experience as
original evidence of material facts to be considered in their deliberation. Juror changed
the legal definition of disability for the jury by introducing his own experience into the
jury deliberations. Juror lead jury away from legal definition of disability to his own
definition of disability.
Wax on the narrow standard this created: If a juror says something that has a high probability of
undermining the jury's understanding of the proper legal standard, and in effect reinstructs the jury, then that
is jury misconduct
48
Judgment As a Matter of Law (JAML/JNOV and Directed Verdict)





Allowed any time prior to submission to jury and can be renewed after jury verdict (JAML/JNOV)
o Cannot be brought up for the first time after the verdict
Basically same analysis and concept as MSJ but at a later stage in the case
o If the fact-finder were to take the evidence in the light most favorable to the non-moving
party, is it reasonable that that side could possibly prevail?
o Scintilla standard for JAML
 Deeply jury deferential standard - very reluctant to change jury verdicts
 Even a tiny bit (a scintilla) of evidence to support the case of the winning party is
enough to give the jury the benefit of the doubt
 Taking the evidence in the light most favorable to the non-moving party
Federal and state courts have to deal with JAML
o Federal standard more jury-friendly than state standards
Can be thought of as either a procedural or a substantive issue
o Procedural? Federal courts apply federal standard, don't care what the state courts say
 Rule 50
 Procedural requirements
o Motion can be made any time before the case is submitted to the
jury, but it must be made at some point before the jury goes out
o D can make a motion after the P's case (assuming P has the
burden)
 Taking the evidence in the light most favorable to the P,
have they met the minimum burden which if believed
could get them a finding in their favor
o Motion can be renewed after the jury comes back - JAML cannot
be brought up for the first time when the jury comes back
 If a case goes to appeal, if the trial court had allowed the
jury to give a decision and then reverses by a renewed
JAML, the appellate court can simply reverse to the jury's
decision. If a case goes to appeal and the trial court had
made a JAML before the case had gone to the jury, any
reversal by the appellate court would require a new trial
o Substantive? Lavender v. Kurn - federal case brought in state court, thus should have used
Missouri standard…yet SCOTUS used federal standard (will come back to this under Erie)
Is there a constitutional limit to JAML? Amendment VII - pertains to the limit of the relationship
between the judge and jury
o Whatever standard you adopt, you must stay away from allowing the judge to re-weigh or refind facts once those facts have been found at common law (rule 52) by the jury
 Not applicable to cases where positive (statutory) law is at issue, where judge is fact
finder
o Only applies in federal court
o States have much more fluidity and space to define the relationship between the judge and
jury, jury and appellate court, etc.
Lavender v. Kurn
Facts: Haney killed by mailhook hanging from train. Question as to whether he was murdered or
hit in the head with the train when it was backing up. Appeals court reversed, granting a
JNOV taking the case from the jury.
Holding: Scintilla standard for JAML- if there was even a tiny bit of evidence that would allow the
jury to come to the decision that it came to, the decision must stand
49
Sufficiency and the Scintilla Rule



is the evidence enough?
at some point, the evidence is going to fail in sufficiency
scintilla rule -- it does not take much evidence to be sufficient
 it is not at all clear that this is the dominant standard in federal courts today
 the trend has been to give the judge more power to decide JAML and take power away from the
jury
 lots of jurisdictions don't follow Lavender
 a dynamic situation -- federal courts are getting stricter, state courts were always strict
Denman v Spain – illustrates the stricter, more common state standard of sufficiency
Facts
P and D (deceased) were in a horrible car accident with no record as to who caused it or the circumstances
that led to it other than her father's testimony from his impressions after the fact and 11 inconclusive
photos.
Reasoning
P has burden to prove beyond a preponderance of the evidence that D proximately caused or contributed to
the accident
 no one saw the accident
 none of the evidence leads to a certain conclusion
 verdicts cannot be based on possibilities
Holding
Because P cannot show beyond a preponderance of the evidence that D proximately caused or contributed
to the accident, D should be granted judgment NOV.
Daniel J Hartwig Assoc. Inc. v. Kanner – directed verdict is appropriate when one side fails to meet
burden of production or burden of persuasion
 bare denial of claims is not enough
Facts
P environmental consulting firm for breach of contract for failure to pay for expert witness services
rendered to D lawyer. D argues that P misrepresented his credentials and failed to mention a possible
conflict of interest in a trial. D did not appear in court during the trial and submitted no evidence or
testimony to prove misrepresentation.
Reasoning
Directed Verdict (Wisconsin)
 evidence viewed in the light most favorable to party against whom the motion is made
 court should direct verdict only if there is no credible evidence to sustain a verdict in
favor of the party against who the motion was made
Requirement for Contracts Voidable by Misrepresentation (Wisconsin)
1. Must be a material misrepresentation
2. Must be reliance on the misrepresentation
3. Must be injury or damage due to reliance on misrepresentation
Holding
Because D failed to produce any evidence that there was misrepresentation, that he relied on that
misrepresentation, and that he was materially harmed by that misrepresentation, a directed verdict is
appropriate, as P has proven breach of payment
Pennsylvania RR v Chamberlain – if evidence of one side is mere conjecture, while the evidence of the
other purports to be eye-witness empirical observation, directed verdict is appropriate.
Facts
P was killed at work as a brakeman for D railroad company. Something caused P to be thrown from the
back of a string of cars and overrun by another string. P sues arguing there was a negligent collision
between two strings, but all witnesses but one say there was no such collision.
Reasoning
Direct conflict in testimony
50


normally would go to a jury
but does not if they present two equally plausible inferences, rather than direct evidence
 an inference by one side that is conflicted by another cannot establish necessary
burden of proof
 jury could not find for P
Holding
Because P's witness provides mere inference and conjecture against the positive testimony of other credible
witnesses who were able to observe the incident in a way that P's witness was not, that witness's testimony
alone is not sufficient for a jury to credibly find for D
Questions Raised by Chamberlain:
 when you are assessing evidence, do you only look at the evidence put on by non-moving
party or do you balance the evidence of both sides?
 most courts look at all the un-contradicted evidence
 a Rashomon-type element here
 one fly in the ointment -- element of credibility
 a reasonable jury could have decided that D's witnesses were not credible
 railroadmen could have been put up by the railroad, etc.
 this is an issue for the jury
Erie problem
o Is it procedural or is it substantive?
 Lavender seems to imply that where you have a federal question case, the standard for a JAML is
federal (rides with the cause of action -> substantive)
 In diversity cases in federal court, serious question as to whether state standard
 However, rule 50 prescribes JAML and thus is arguably procedural
 Under Hanna 2, federal court makes its own standard and that overrides the state standard
for Erie questions if the rule is arguably procedural
o Federal standard and state standards have diverged and thus come in conflict for the purposes of Erie -> fed
rule is more jury deferential than state rules
JAML - is it procedural or substantive?
o In federal court, Erie issue arises under both 1331 and 1332 cases
 Rule 50 addresses JAML, so it strongly suggests that the pertinent analysis is Hanna 2 (FRCP) ->
supreme court hasn't decided this
 JAML is arguably procedural, it has some sort of procedural aspect to it, thus we use the
federal law instead of the state law
o In state court, you can have a federal question/cause of action, etc or be using the law of another state
 Reverse Erie problem - what law do you use?
 Ex: State court, federal question (ie: Lavender v. Kurn)
 In State court, the state courts have their own procedural rules. They will tell you,
regardless of what the cause of action is, that just like the federal courts they have
the power to make their own procedural housekeeping rules
 Thus, if JAML is regarded as procedural, you follow the state procedural law
 If you look at Lavender v. Kurn though, the standard for JAML is determined by federal
law -> fed question carries with it the standard for JAML
 Is this right? Supreme court has never squarely grappled with what the court did
in Lavender v. Kurn was right. Gray area.
 Inconsistency here -> if it is procedural in federal court, it can't be substantive in
state court
What we need to realize for the exam:
a. Erie problem in federal court is something we're expected to know
b. Recognize that there exists this problem in state court
c. State courts have their own rules of procedure and ordinarily they get to follow them
51
d.
e.
f.
Recognize that Lavender v. Kurn seems to see JAML as a substantive part of a federal question -> in
state court, federal law seems to control this
Status of JAML (procedural v. substantive) is not entirely resolved
Suppose you have a case in state court and under Missouri's choice of law rules, Kansas law applies.
Kansas has their own standard for JAML. Perhaps Missouri has a different standard, a more relaxed
standard (like the federal scintilla standard). The parallel issue arises when you have a state court
bringing in another state's laws. Do you bring in the JAML aspects for the state law question?
Rule 59 - New Trials; Amendments of Judgments
Rule 59 provides a safety valve allowing for a new trial. It is deliberately vague so as not to limit the types of
situations that could lead to new trial, as this issue is often complex and nuanced.
a. Grounds -- a new trial
What is the difference between Rules 50 and 59?
 the drafters thought that the warrants for a new trial were complex and nuanced
 laundry list of what sort of things will give you a new trial
i.
procedural error
 no new trial for "harmless error" (Rule 61)
ii.
jury misconduct
iii.
verdict against the great weight of the evidence
 this is dangerous -- gets the judge into the jury's role
 valid b/c in the end, a different jury will find the fact
iv.
excessive
Appellate Review
Rule 52:
o
o
o
o
o
Party who wants appellate review of a judicial decision need not present to the judge in the first
instance objections to the decision
To obtain reversal on appeal, the error to which you are objecting must ordinarily appear in the record,
as should your objection to the error
Party must argue error on appeal. Very often the party will hold an error until the very end of a case
on appeal
Error must be prejudicial, but cannot be harmless (Rule 61)
Fact finder’s findings shall not be set aside unless clearly erroneous
Hicks v. United States
Facts: P sued under FTCA for malpractice; judge dismissed P’s claim, said evidence could not establish
a claim of negligence
Holding: judge erred in dismissing p’s claim, as the court misapplied the legal standard of care.
Appellate court at pains not to question judge’s findings of fact — found facts to be undisputed,
the problem instead lying in the judge’s application of the law to those facts
52
Former Adjudication
Res Judicata
Res Judicata – you only get “one bite of the apple”; a court’s decision cannot be retried
Four prerequisites for Res Judicata (“the thing decided”):
1. Parties in the two actions must be the same
2. Final judgment must have been rendered
 summary judgment
 direct verdicts
 12(b)(6) dismissals
 settlements
 voluntary dismissals given RJ effect after the first time
 default will often be given RJ effect, provided there was
 (with the exception of if there is a PJ challenge)
3. Claims must arise out of the same instance -- has to be the same "transaction and occurrence"
("T" & "O")
4. Covers any claim that was raised or could have been raised but wasn't
 Waivable (Rule 8(c) defenses)
Policy behind res judicata
1. Judicial efficiency -- the benefits of consolidation and resolving it all at once are huge
2. Value of repose -- gives parties security in a judgment w/o fear of endless series of attacks
3. Fairness -- one shot, you got your chance - it's not necessary to give you more
Fetter v Beale (King’s Bench 1697)
Facts – P brought the first action (battery) and won, and then brought a second suit for further injury
resulting for the same battery
Holding -- The second action is barred because, in the court's eyes, he has already brought this suit.
These (rule of merger and rule of bar) are consolidated into modern doctrine of res judicata.
 supported by 8(c) -- it is a defense
Ticor Title Ins. Co. v Brown – class actions certified under Rule(b)(3) permit opt outs, while actions
certified under Rule 23(b)(1) and (2) do not; also demonstrate finality of RJ
Facts – a complicated federal class action suit is being brought for a second time by members of the class
who wanted to opt out of the first action but were prevented, based on the court’s reading of rule 23, and
the distinction between Rule 23 (b)(1) and (b)(3)
Reasoning –
 right would exist if action was certified only under Rule 23(b)(3), which permits opt out
 this was certified under Rule 23(b)(1) and (b)(2), which does not allow opt out
 two options for the Court
i.
lack of opt out was decreed by the Rules
 would then approve, in mistaken deference to prior Supreme Court
action and congressional acquiescence, action that neither Court nor
Congress would independently think constitutional
ii.
or it was not, though parties are bound by an erroneous holding that it was
 may announce a constitutional rule that is good for no other federal
class action, thus hypothetical
Holding -- Question would require court to resolve constitutional question that might be entirely
hypothetical; even if the was wrongly determined in the previous case which class of Rule 23(b) this action
fell into, the court's determination was conclusive upon parties and alternative of using FRCP instead of
Constitution as a means of imposing opt-out requirement for settlement was no longer available.
 Writ improperly granted, thrown out for RJ
53
Collateral Estoppel
o
o
o
o
o
Same or different parties (one)
 Only one party can change, not both
 New party is the only one who can use Collateral estoppel; CE can only be used against a party that was
present at the prior action (due process)
Actually litigated - focuses on concrete determinations, fact cannot be conceded
 Doesn't apply to abstract legal doctrines/principles (that is the role of stare decisis)
Fact or application of fact-to-law
 Collateral estoppel only applies when the 2nd case involves new facts/a new transaction or occurance
Necessarily decided
 Arises when jury is the fact finder
 Depends on verdict of the first case (ie: negligence/contributory negligence issue)
Necessary to the judgment
 Arises when judge is the fact finder
 Judge gives alternative sufficient grounds for the result
 "D is not guilty of trespass because you have an easement and anyway, the P does not own the
land"
 Brings up more things to address on appeal, thus reducing the incentive to appeal
 Reduces possibility of correcting errors
Collateral estoppel can be used either offensively or defensively.
IE:
Defensive use of mutual collateral estoppel (same parties)
P sues D for the value of firewood on P's land which D took off of P's land on Jan 1, 2005. D files an
answer, arguing that he has an easement on P's land. Court decides for D that he has an easement.
Jan 2, 2005: D goes on P's land again and cuts down 5 other trees and hauls them off for firewood. P
sues D for Jan 2, 2005. D argues that he has an easement and P is estopped from denying the easement
because of collateral estoppel.
Offensive use of mutual collateral estoppel
P sues D for the value of firewood. D argues easement, court denies that D has an easement. D goes
back on the land, cuts down more land and when P brings suit he argues that he has an easement. P
argues that D is estopped from raising the issue of easement because the prior court decided that he
does not have an easement - collateral estoppel
Nonmutual defensive collateral estoppel (one different party)
B trespasses on A's land. B defends by denying that A owns the land. Court agrees that A does not
own the land. C wanders on to A's land. A sues C for trespass, C argues collateral estoppel - court
already decided that A does not own the land.
Nonmutual offensive collateral estoppel - court does not usually allow nonmutual offensive collateral
estoppel. Concerns that defendant did not choose where the case was being litigated (passive posture) in the
first instance, worried about defendant not having infinite resources or perfect foresight - D might not use all
his resources to litigate the first case and then be opened to large liability through nonmutual offensive use of
collateral estoppel. Real problem: one way ratchet problem. If an action is brought and it comes out against
the defendant, subsequent plaintiffs can come in and take advantage of that. However, if the first action
comes out in favor of the defendant, other plaintiffs are not barred from bringing it again. Also creates
incentives for plaintiffs not to join (sideline sitting).
Shareholder X sues company D for securities fraud. Court agrees that there was fraud. Other parties
sue company D for securities fraud. D denies fraud, other parties argue that D is estopped from
denying fraud by collateral estoppel.
54
Collateral Attack
RJ cannot be challenged collaterally – a higher court’s decision cannot be challenged by a lower court or in another
venue.
§1738 - federal courts must respect state court rulings
Article VI: Supremacy clause - state court must respect decisions of federal court
Article IV: Full faith and credit - state court must respect decisions of other state courts
When is a judgment final?
i.
The highest court in the jurisdiction comes to a decision
ii.
You don't take the case all the way, but you run out of time to appeal
Des Moines Navigation & R. Co. v Iowa Homestead Co. – collateral attack not allowed on final
decisions, even if they were incorrectly decided
Facts -- There are two cases, both involving a tax dispute and land dispute. Plaintiff and defendant are both
Iowa corporations, but there were NY defendants in the first case who moved for the removal to federal
courts. The plaintiff is arguing that the decision in the first case, Homestead Co. v. Valley Railroad, in their
favor bars the present action. The defendant argues that the original judgment is null and void b/c the
federal courts had no subject matter jurisdiction over that suit.
Holding -- The Supreme Court's decision is binding until the actual decision is annulled, vacated or set
aside. Collateral attack is not allowed on decisions, even if they were incorrectly decided
55
Joinder
Joinder of Claims
Rule 18
 All claims against same party may be joined into one case in federal court
 Provisional - if there are no other obstacle to joinder (SMJ), the joinder process alone shall not be an
obstacle to joining claims
 When combining rule 18 with common law, we find that res judicata forms the core of rule 18
Rule 13 - Counterclaim/cross-claims
 Counterclaim is a sword, not a shield, for the D
 Compulsory counterclaim
 Relates to the same transaction and occurrence (T and O)
 Same scope as rule 18 combined with res judicata
 If you do not bring it, its waived (opposite of res judicata)
 Permissive counterclaim
 May assert any claim against an opposing party not arising out of the T and O
 Parrots rule 18, but does not rely on res judicata, relies on the rule
 Cross-claims
 Any claim by one party against a co-party arising out of the same T and O that is the subject of
either the original action or the subject of a counterclaim
 Limited by SMJ -> partly solved by supplemental jurisdiction
 Supp. Jurisdiction is a set of rules that allows claims that would not normally come in
federal courts to ride the coattails of claims that do have jurisdiction into federal court
(claims under 18 and 13 can come into federal court under §1367)
13(g) controls the extent of cross-claims in any case because it is the more specific rule
Joinder of Parties
Rule 14: Impleader/Third-Party Practice (permissive)
14(a): when a D may bring in a third party
 There can be no rule 14 joinder if court does not jurisdiction over those parties
 D may implead any party who may be liable to him for some or all of P’s claims
 impleaded party (third-party D) may assert counterclaims/cross-claims, join all claims arising out of same
transaction/occurrence, and join/implead new D’s
 pay attention to the “may’s” and “shall’s”
o when B wants to bring in C, that is permissive
 but once C comes in, there is mandatory stuff
 C must assert defenses, and counter-claims and cross-claims against B
 C may assert defenses, counter-claims and cross-claims against A
 original P may assert claims directly against impleaded D’s
o res judicata does not apply if P doesn’t assert an unrelated claim against a third party
o 14(b): when a P may bring in a third party
 P may implead a third party only if D asserts a counterclaim (thus giving rise to a 14(a)-type scenario)
o impleading parties is always permissive
 All requirements of other rules (13, 12, 8) are superimposed on rule 14 - lots of waivers
 Operates with the SMJ and exceptions under the supplemental jurisdiction to the SMJ rules
Rule 19: Compulsory Joinder of Parties (mandatory)
19(a): joinder of parties if feasible
 requires “necessary” parties to be joined if it will not deprive the court of SMJ.
 Parties are necessary when, in their absence:
 Complete relief not possible (think present insolvent D)
56
 Protection of party’s interest would be impaired
 Inconsistent outcomes
19(b): determination when joinder not feasible
 if joinder of a “necessary” party is not possible, court must determine whether party is “indispensable”
based on a variety of factors; if so, provides for dismissal
Temple v Synthes Corp. – joinder permitted under Rule 14 does not fall under Rule 19
Facts -- P underwent surgery in which a "plate and screw device" was implanted in his lower spine.
Following surgery, the screws broke off. Filed suit against manufacturer in District Court and against
doctor and hospital in state court. D filed motion to dismiss P's federal suit for failure to join necessary
parties pursuant to Rule 19.
Holding -- The lower courts misinterpreted 19 and 14 – joinder was not compulsory Rule 19 joinder, it was
a voluntary Rule 14 (D should have brought them in)
Rule 20: Permissive Joinder of Parties
 Multiple plaintiffs may join on the plaintiffs side for claims arising out of the same T and O that have a
question of law or fact in common to all the parties
 Each and every one of the parties could file their own suits - no waiver of joinder; PERMISSIVE
 Authorizes A suing B and C at the same time, but also authorizes A suing B and then at some point later
filing for C to be joined
Rule 23 - Class Action
Generally
 Relatedness -- Permit large numbers of people to join together and sue together if their legal/factual issues
are significantly related
 Numerosity -- efficient and would seem inefficient to adjudicate separately
 Representation – no real diversity within the members
 Opt-outs:
o give relief to one – then would give relief to all (easiest situation) (structural injunction) (usually
no opt out – don’t want free riders)
o fully divisible – money – court in these situations more likely to allow opt-out
Ticor Title Ins. Co. v Brown – class actions certified under Rule23(b)(3) permit opt outs, while actions
certified under Rule 23(b)(1) and (2) do not; also demonstrate finality of RJ
Facts – a complicated federal class action suit is being brought for a second time by members of the class who
wanted to opt out of the first action but were prevented, based on the court’s reading of rule 23, and the
distinction between Rule 23 (b)(1) and (b)(3)
Reasoning –
Question does not matter if, whether or not there is a constitutional right, class members have a right to opt out
under the FRCP.
 right would exist if action was certified only under Rule 23(b)(3), which permits opt out
 this was certified under Rule 23(b)(1) and (b)(2), which does not allow opt out
 two options for the Court
i.
lack of opt out was decreed by the Rules
 would then approve, in mistaken deference to prior Supreme Court action
and congressional acquiescence, action that neither Court nor Congress
would independently think constitutional
ii.
or it was not, though parties are bound by an erroneous holding that it was
 may announce a constitutional rule that is good for no other federal class
action, thus hypothetical
Holding -- Question would require court to resolve constitutional question that might be entirely hypothetical;
even if the was wrongly determined in the previous case which class of Rule 23(b) this action fell into, the
court's determination was conclusive upon parties and alternative of using FRCP instead of Constitution as a
means of imposing opt-out requirement for settlement was no longer available.
57
Rule 24: Intervention
 Person who seeks to intervene has the choice whether to come in or not
 Intervention as of right
 When a statute of the US confers an unconditional right to intervene
 When the applicant claims an interest in the subject matter of the property, and your interest
might be impaired if you are not allowed in
 Permissive intervention
 If intervening party has a claim or defense with law or fact in common
 If there is a statute stating a conditional right to intervene
Rule 41: voluntary and involuntary dismissal
o (a) – voluntary - sought by the party initiating the lawsuit
 Depends on the stage of the litigation at which the party is seeking voluntary dismissal
 (1) - P may abandon the lawsuit any time before the other party has filed an answer or a motion, or
by permission of the parties at any time
 Without prejudice for first time, otherwise with prejudice
 Wanting to file in another place because the statute of limitations has run is a perfectly good
reason for using voluntary dismissal
o (b) - involuntary
 2 categories:
 Failure to prosecute (sin of omission, not comission) - not taking the natural, normal steps
to move the case forward
 Failure to comply with an order or ruling of the court
 Sometimes, mere delay is sufficient
 Neglect/delay on the part of your lawyer is sufficient
 Operates as an adjudication on the merits (with prejudice) except:
 Lack of jurisdiction
 Lack of venue
 Failure to join a necessary party under 19
58
Discovery
Rule 26(a)
 what can be discovered
 if someone is going to be at trial, the other side can get everything about them
 don't want any surprises at trial
 standard of relevance is extremely capacious
o very unusual for court to limit discovery based on lack of relevance
Rule 26(a)(1): Mandatory Disclosure
response to problem of having to anticipate needs, cumbersome practice of requesting must disclose, e.g.,
 all IDs of witness to be used at trial
 all documents to be used at trial
 computation of damages
 ID, qualifications of planned experts and written reports of such experts
Rule 26(b)(1)
 discovery allowed for any non-privileged matter relevant to a claim or defense
 very liberal
 discovery is as discovery between the parties
o versus obtaining information from third parties
o a lot harder to get information from innocent by-standers
 state is entitled to every man's evidence
Grounds for limiting discovery
 Privileges
o maintained but must be expressly invoked
o nature of privileged info must be described
 old grounds -- 26(c); new grounds -- 26(b)(2)
 general grounds -- embarrassment, expense, annoyance, harassment, etc. -- very vague, gives judge great
leeway
o though party has a great burden to convince judge
 new grounds -- duplicative, can be obtained from a difference source, cost outweighs the benefit
 judge has tremendous discretion to tailor, order, and structure discovery
Rule 26(c)
 allows judge to compare hardship to the party against whom discovery is sought with the hardship to the
party seeking discovery if discovery is denied
 considers nature of hardship and magnitude, giving more weight to interests that have a social value than
purely private interests
Rule 26(d)
 controls sequence and timing of discovery
 if there is other discovery that P must complete in order to withstand an order of SJ, then that should be
done first
 that way, sensitive materials can be held until disclosure is absolutely necessary
26(f)
 scheduling conference for discovery
Marrese v American Academy of Orthopedic Surgeons – discovery must balance the interests of P and
D
Facts
Two orthopedic surgeons, P, sued D Academy for refusing membership.
Reasoning
Judge had options under 26(c):
1. could have examined the files himself, in camera, starting with P's files, to determine whether info
is necessary
2. D could have redacted the names and any identifiable information and judge could have reviewed
those
59
Coercive/Predatory Discovery -- when discovery is sought not to help party prevail on the merits but to
coerce the opponent to settle regardless of the merits rather than produce the documents
Holding
Because the district judge had better options under both 26(c) and (d) to balance P and D's interests in
discovery and because there are signs of predatory discovery in this case, the district judge's order was
erroneous
Dissent
In camera --was done at the state level and determined the contents were relevant and disclosure was
appropriate; Redacted files -- D had this option and refused it, on multiple occasions; Rule 26(d) bifurcated
discovery -- doesn't make sense here -- this is not a delicate case, such as confidential sources for a
reporter; Predatory Discovery -- use of files is legitimate
Seattle Times Co. v Rhinehart
Facts
Rhinehart and the Aquarian Foundation, P religious group and leader, sued D for defamation and invasion
of privacy. Pursuant to state discovery rules modeled on FRCP, the trial court ordered P to identify donors
and amounts contributed and to produce a list of its members. But, the court also issued a protective order
(under 26(c)) prohibiting D from using the information for anything but the case. Both parties appealed.
Reasoning
Discovery is liberal, and thus, there need to be protective measures in place
 26(c) does this by allowing protective orders
 the trial court has tremendous latitude in the granting of such orders, and that is a good
thing
Holding
Where a protective order is entered in the showing of good cause as required by Rule 26(c), is limited to
the context of pretrial discovery, and does not restrict the dissemination of the information if gained from
other sources, it does not offend the First Amendment
Discovery Mechanics
Oral depositions -- Rules 30, 31
 a party may question any person, whether a party or not, under oath
 30(d)(2) -- a deposition is limited to one day of seven hours
 but additional time may be granted
 30(a)(2)(A) -- ten depositions are allowed per party
 unless the court agrees to do otherwise or a local rule changes that number
 use of subpoenas
 parties need not be subpoenaed
 notice is not enough to compel a nonparty's appearance
 thus, parties can compel with subpoenas
 if a party fails to appear under subpoena, they will be subject to contempt
 see Rule 45
 if you want the deponent to bring docs (or inspection of things) you must obtain a
subpoena duces tecum (Rule 30B)
 terms for subpoena governed by rule 34
 used to be that to get this subpoena you also had to depose the witness – no
longer the case – you can get subpoena w/out deposition
 certain restriction (Rule 45) on how much you can request from non-parties
 deposition can be recorded by audio visual, transcribe, by video, audio etc
 if you want to use it at trial it has to be transcribed
 deposition in lieu of a witness – only when witness is unavailable (sick, dead etc)
 special circumstances
 30(b)(6) -- an attorney may depose a corporation
60




the latter must produce the person or persons having knowledge of the subject matter
upon which the deposition is to be taken
 sets up all sort of gamesmanship -- sending someone who knows as little as possible
30(d)(1) -- a deponent may be instructed not to answer only when necessary to preserve a
privilege, to enforce a limitation directed by the court, or to present a motion under (30)(d)(4) to
terminate or limit an examination that is oppressive or conducted in bad faith
 answer would actually have to be harmful
30(d)(3) -- authorizes the imposition of costs and fees to sanction any culpable individual if the
court finds that "any impediment, delay, or other conduct has frustrated the fair examination of the
deponent"
Deposition upon written questions (Rule 31)
 31 -- authorizes the taking of depositions upon written questions from parties and
nonparties
 these are rarely used -- usually for foreign deponents (Rule 45 -- you go to the
witness, they don't go to you)
Advantages to depositions as opposed to interrogatories
o element of surprise and spontaneity
 no time to phrase answer
 very little opportunity to consult with consul
o allows interviewer to follow up on answers, go off on unexpected directions
o depositions allows observation of witnesses (demeanor)
 better sense of credibility
o it can be directed at both non-parties and parties
Rule 33 -- Interrogatories to Parties
 only directed at parties
 though, can be a way to get at knowledge contained by agent of the party
 duty to answer questions fully -- duty of reasonable investigation
 If you choose to depose a party (i.e. a corporation) you will notify the co. that you want
to depose someone (don’t have to actually name the person you can say you want to
depose party with knowledge of X and co. will send someone) but once person gets there
if they don’t know anything its your tough luck, they don’t have to investigate
 written interrogatories allow one party to send to another a series of questions to be answered
under oath within a specified time
 sent through mail
 cited as the most abused of the discovery devices
 33(d) (then (c)) -- requires a party producing business records to specify the records from which
the answer can be found
 33(a) -- imposes a presumptive limit of 25 interrogatories
Benefits to Interrogatories
a. obligation/duty to investigate
 cause even with deposition person has obligation to answer fully (to their best
knowledge)
 no affirmative obligation for depositions to prepare for it by learning info that is
necessary
b. interrogatories are a lot cheaper
 depositions are expensive
 party because structure of rule 45 is such that you need to travel to the witness – they
don’t come to you cause of limitations of where deposition can take place compared to
where the witness is
61
Rule 34, 45 -- Discovery and Production of Property
 34 -- party has the right to compel an opponent to produce documents and other tangible things for
inspection and copying, and to allow the party entry to land or property in order to inspect,
measure, survey, photograph, test or sample the property
 must first confer in accordance with 26(d)
 many attorneys combine 33 interrogatories with a 34 request to produce documents
 34(b) -- prevents litigant from producing a large number of unsorted or unrelated documents
 must not making relevant documents hard to find
 45 -- same thing as 34, only for non-parties
Rule 35 -- Physical and Mental Examinations
 medical professionals may be allowed to examine an adverse party whose condition is in
controversy
 35 -- requires a court order for medical examinations and imposes strict standards
 but can force a party to be examined if there is "good cause"
Rule 36 --Requests to Admit
 36 -- authorizes a party to serve on another party written requests to admit the truth of certain
matters of fact or of the application of law to fact, or the genuineness of document or other
evidence that may be used at trial
 36 requests constitute conclusive evidence and cannot be contradicted at trial
 parties must respond under oath in a timely manner
 admit or deny each matter for which admission is requested
 or provide a detailed explanation for why it can't admit or deny
 if s/he does nothing, matter is deemed admitted
 36 is self-executing
Rule 26(e) -- The Duty to Supplement Responses
 26(e) -- disclosures and responses to interrogatories, requests for production, and requests for
admissions must be supplemented "if the party learns that in some material respect the information
disclosed is incomplete or incorrect" and if that updated information has not otherwise been made
known to the parties
 court has wide discretion
Privileges
1.
2.
Work product rule -- Hickman v Taylor and 26(b)(3) and (4) (includes experts)
 applies to materials prepared by/for a party in preparation/anticipation of trial/litigation
 a privilege with two parts
i.
qualified -- you may sometimes obtain documents, things by or for a party or his attorney in
preperation for trial if you really need them and can't get the info elsewhere
 rule of necessity
 refers to a product -- memo, a tape, etc.
 circumstances where you meet this requirement are few
 will be a unique or time-sensitive situation
ii.
absolute -- you can't obtain that thing if it discloses certain types of mental processes
 nothing stopping you for interviewing/deposing the person who prepared the information and ask what is
on the document you can't see
o
though, you would need to know what to ask
o
not as convenient as seeing the product itself
Attorney-Client Privilege
 covers matters disclosed to attorneys (including any interactions and conversations) that are
confidential and undisclosed to 3rd parties
 no privilege if 3d party is present or later disclosed to a 3d party
 must be exchanged when attorney is acting in role as attorney
62
 not in passing to a neighbor attorney, etc.
can be waived in discovery
what is not protected are the underlying facts known to the client that happen to be part of what
you disclose
 a way to shield attorneys
 the system really resists the deposing of/getting information from attorneys
Other privileges
 Spousal Privilege
o spouse can't be forced to testify against the other
 Doctor/Patient
 Priest/Penitent
 Self-Incrimination
 Supreme Court has resisted expanding this
o no privilege for journalists, accountants, etc.


3.
Rule 26(b)(3)
What is protected?
 not just documents -- anything that is prepared by or for the other party in preparation in anticipation of
litigation
 qualified -- you get it if you make the showing of necessity
What is meant by "anticipation of litigation"?
1. Kearses Dissent Rule (5th Circuit)
 don't get protection unless the actual event that could cause a lawsuit has occurred
 cannot be anything prepared to advice client about what to do, decision has to have been taken, and
then what we are doing is preparing docs or seeking advice about what to do in case we are sued,
mitigate or soften consequences of being sued
 important distinction between giving fwd looking advice in addition to worrying about litigation as
opposed to limiting it cause bad thing has already been done
 pressure point: how far back can we extend the privilege
 dual element to the language : in anticipation or in preparation for trial
 implies that there doesn’t have to be an actual court case pending (courts have said that if there actually
had to be a court case pending then that would be covered by preparation of trial so that renders
superfluous language of anticipation which implies that litigation hasn’t arised yet)
2. Addleman Rule (2nd Circuit Rule)
 that it doesn’t have to be primarily for litigation, might have a dual purpose
o might be to advice the co. on potential matters/courses of actions
o might be anticipatory to the action giving rise to litigation
 can be advice/consent as well as thinking about possibility of being sued in the future
3. 5th Circuit Rule
 don't have to commit the act, but it has to be mainly geared towards planning to avoid illegality or
litigation
 this line is very hard to draw
Hickman v Taylor – work product rule protects attorney’s thoughts, opinions and strategies; written
statements protected unless clear necessity can be shown
Facts
Tug boat sank while towing a car float of the B&O Railroad, killing five of the nine crew members on
board. D tug boat and railroad owners, in anticipation of a suit, hired a law firm. Their lawyer took
depositions of the surviving crew members and other witnesses. When one survivor of the dead crew
members brought suit, his lawyers (P) filed interrogatories requesting all of the written and oral statements
acquired by D’s lawyer.
Holding
An attorney is protected by the "work product rule" and is thus not required under Rule 26 to produce all
written statements and mental impressions concerning the case, unless some necessity can be shown.
Two concerns:
63
Chill– chill open, frank, candid discourse – people will hide the ball, ultimately undermining the
proper functioning of the system
Exploitation -- One side can wait around and just interview the other side’s lawyer
 Unfair exploitation of the other side’s atty who is paying for them
UpJohn Co. v United States – all corp employees protected by attorney-client prvilege
Facts
A matter of "questionable payments" to foreign government officials came to the attention to P
pharmaceutical corporation's executives. They contacted counsel who interviewed various employees using
a questionnaire. P informed the SEC and IRS, and IRS issued a summons requesting production of
counsel's questionnaire with P's officers and employees. P declined saying the documents were protected
by attorney-client privilege and constituted the work product of attorneys protected under Rule 26(b)(3).
Reasoning
Corporations and the Attorney-Client Privilege
 corporations are an artificial creation of the law
 privilege exists for to protect the giving of professional advice AND the giving of the
information to the attorney to enable him to give sound and informed advice
 this information can come from all areas of the corporation, and often comes
from the middle-level and lower-level employees
 the control group test frustrates this purpose by discouraging communication
Holding
All employees are protected by the attorney-client privilege because the privilege exists in part to protect
the giving of information to the client's attorney and that information often can only be supplied by lowerlevel employees. Additionally, D cannot claim necessity to overcome the privilege because the documents
requested, oral statements made by witnesses, are further protected under the "mental impressions"
clause of 26(b)(3).
Experts
Categories of experts (Rule 26(b)(4))
1. experts who will testify at trial
o full discovery allowed
2. non-testifying/consultative experts
 deposition, etc., allowed only if facts/opinions cannot be obtained in any other way
o must be an expert
o must be retained or specially employed by the other party
o retained in preparation or anticipation for litigation or trial
3. others
 Participating experts -- problem drawing line between experts who are part of the set of events that is
subject of litigation and experts retained after the fact to help party understand what happened
o these are probably not experts under 26(b)(4)(B) -- he was a witness; he is not specially retained
for litigation -- not paid for it so overcomes money problem
 Employed experts -- employed by party or agent of party, but an on-going relationship
 are they specially retained?
general experts - the “knowledgeable expert”
o not initially retained, but technical knowledge of a general matter
 someone who does not have specific info about the particular events of the lawsuit, but
has applicable knowledge
o Not really an issue of privilege – its an issue of access to their testimony through subpoena tool of
rule 45
Perry v WS Darley & Co. – names and reports of non-witness experts protected by Rule 26(b)(4)(B)
64
Facts
P seeks damages for injuries sustained when he was struck by a fire truck as he attempted to activate a
pump manufactured and installed on the truck by D. D moved for an order compelling disclosure of the
names of experts who examined the truck and pump shortly after the accident. P refuses to disclose the
names, arguing that the information constitutes both privileged communication and work product. D argues
that experts are potential witnesses who have knowledge of relevant facts and that he is entitled, pursuant to
Rule 26(b)(1) to the identity and location of them as such.
Reasoning
Rule 26(b)(4)(A) and (B)
 parties are required to produce names and testimony of experts who WILL be called as
witnesses in trial under 26(b)(4)(A)
 BUT, are not required to do the same for experts who will NOT be called as witnesses in
trial under 26(b)(4)(B), UNLESS it falls under 35(b) or some special showing of
necessity is made by adverse party
Holding
Because the experts will not be witnesses at trial, no showing of exceptional circumstances was made by D,
and there is no evidence to indicate that experts were actors or viewers of the t and o of the lawsuit, P is not
required to provide their names or reports under rule 26(b)(4)(B).
Rule 45 -- Subpoenas
What is the spirit of Rule 45?
 protect non-parties from undue inconvenience
45(a) -- what's in the subpoena
(a)(2) -- where does subpoena issue from
(A) -- for attendance at a trial or hearing from the court for the district where the trial or hearing is going to
be held
(B) -- for attendance at a deposition, from the court for the district where the deposition is to be taken
(C) -- for production and inspection, if separate from a subpoena commanding a person's attendance, from
the court for the district where the production or inspection is to be made
45(b) -- service
(1) -- service must be personal
(2) -- must be served within 100 miles from where subpoena is issued
o some states have statutes that made service state-wide
Place of production -- what is this?
o where you are going to use it or where it is right now?
o most courts have gone with the latter AND the former, b/c it is so easy to send something in the
mail
45(c) -- Protection of Persons Subject to Subpoenas
(1) -- there has to be reasonable steps to avoid imposing undue burden or expense on person subject to subpoena
(2) -- production -- if you want tons of stuff, it can start to get expensive
o complicated scheme to regulate the amount of time and money spent by non-parties on production
(3) -- divided into two sections:
(A) mandatory section -- "shall" be quashed if
(i) fails to allow reasonable time to comply
(ii) how far you can make a non-witness travel
 you can not make a non-party to travel more than 100 miles from the place
where they reside, is employed,
 or if they are going to trial, they go anywhere within the state
(iii) incorporated the whole panoply of privilege (requires disclosure of privileged or other
protected matter and no exception or waiver appliers)
(iv) undue burden
(B) discretionary section -- "may" protect a person if
(i) requires disclosure of trade secret or confidential matters
(ii) requires disclosure of an unretained expert's opinion or information
 a general expert gets protection if they have not created a report at a party's
request,
65

OR the study that they made does not pertain to the specific events at issue
 this is the ambiguous bit
 how could you get info -- PAY THEM -- this section forces parties to pay
experts for their information
(iii) if you are requiring a person who is not a party to incur expense to travel more than 100 miles,
you are going to have to accommodate their requests
Experts Monkey – 26(b)(4)
Are they an expert?
1. If YES, are they testifying?
a. If YES, no protection – 26(b)(4)(A)
b. If NO, are they retained or specially employed by the party in anticipation of litigation?
i. If YES, can the opposing party make a showing of exceptional circumstances/necessity
(Rule 26(b)(4)(B))?
1. If YES, no protection
2. If NO, then protection
ii. If NO, then no protection unless they are a general expert under 45(c)(3)(B)(ii)
2. If NO, then no protection
66