CIVIL PROCEDURE OUTLINE

I. Phases of a Lawsuit
A. Disclosing Matters in Dispute
1. STATING THE CLAIM
a) Rule 3 An action is commenced by filing a complaint with the court
B)

Complaint- the initial pleading that starts a civil action and states the basis for the courts jurisdiction, the basis for the plaintiffs
claim, and the demand for relief. Also called a petition.

c) Dividing Burden of Allegation

(1)

(2)

(3)

Form 9 Complaint for Negligence example

(a)

Plaintiff required to assert matters in if clause

(b)

Defendant required to assert matters in unless clause

(c)

If defendant fails to assert matters in unless clause contributory negligence will not be an issue in case

Disclosing the facts? ? ?

(a)

Party whose case the fact is essential

(b)

Party with burden of proving that fact

(c)

Party who has special way of knowing that fact

Rule 8(c) Affirmative Defenses

(a)

A catalogue of certain matters that the defendant must assert in his answer, if he chooses to put them in issue, and
that the plaintiff need not assert in the complaint.

(b)

If a party doesnt assert a defense then they waive it

d) Particularity of Allegations
(1)

Rule 8(a) Claims for Relief . . . shall contain:

(a)

A short and plain statement of the claim showing that the pleader is entitled to relief (as well as a statement of
the grounds on which the courts jurisdiction depends, and demand for judgment for relief sought).

(2)

Rule 8(d)(1) each averment to a pleading must be simple, concise, and direct.

(3)

Exception- Rule 9 (b)- allegations of fraud or mistake must state with particularity the circumstancing fraud of mistake.
But P may allege generally malice, intent, knowledge and other conditions of the mind.
(A)

(4)

Fraud assumes a flaw in character so more is at stake in alleging it- nation values reputation

Sierocinski v. E.I. Du Pont de Nemours & Co. 1939

(a)

Dynamite crimping statement of claim

(b)

Plaintiff alleges he was injured by the premature explosion of a dynamite cap

(c)

Complaint dismissed failing to set forth any specific act of negligence

(d)

Defendant argues not put on notice by complaint as to whether it must meet:

(i)

A claim of warranty

(ii)

of misrepresentation

(iii)

of the use of improper ingredients

(iv)

of faulty inspection

Judge found:
(v)

Plaintiff need not plead evidence

(vi)

Short and plain statement of relief Rule 8(a)

(vii)

Simple, concise, and direct Rule 8(d)(1)

(viii) Form 11 model of negligence pleading quotes Rule 84 selectively

(5)

(6)

( E)

Rule Beginning of notice pleading in Federal Courts pleading with simplicity and brevity

(f)

There isnt enough evidence in this case to show that it wasnt true- no rule 11 claim can be upheld. It also wasnt
an option at the time of this trial.

(g)

Note- res judicata (a matter already judged) claim preclusion applies in this case- when a plaintiff brings a
lawsuit they have to bring all claims that arise out of the same transaction. Cant be re-tried on same
transactionissue after final judgment announced. Not in federal rules.

Notice Pleading v. Code Pleadingmust assert more factual information in Code Pleading
(a)

Notice pleading now used with reliance on discovery to flesh out claims Current theory in federal court.

(b)

Code pleading requires putting out more specific facts.

Conley v. Gibson 1957 US Supreme Court

(a)

Black members sue union alleging discrimination statement of claim

(b)

Black members want union to represent them without discrimination

(c)

Complaint alleged the union had not done so

(d)

Defendant contention plaintiffs failure to set forth specific facts to support the general allegations of
discrimination (failure to state a claim upon which relief should be granted)

(e)

Court found:

(F)
(7)

(8)

(i)

A claim should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts
which would entitle him to relief

(ii)

Rules do not require a claimant to set out in detail the facts upon which the basis his claim- only notice
pleading in federal system

(iii)

Rules require short and plain statement of the claim

(iv)

The Court used test of legal sufficiency the court used was to- check if any legal claim exists that is
consistent with the words of the complaint.

Rule plaintiff can put forth facts in claim that would entitle him to relief without evidence arrival of notice
pleading.

Kirksey v. R.J. Reynolds Tobacco Co.- 7th Cir. 1999 Chicago

(a)

Plaintiff supposed that a complaint that adhered to Rule 8(a)(2) is immune from a motion to dismiss.

(b)

Rule 8(a)(2) deals with formal adequacy of a complaint, not its substantive adequacyquality (legal merit).

(c)

An unresponsive response is no response, Plaintiff was wrong in refusing to respond to the motion to dismiss

(d)

Judges are busy people- if they see reason to dismiss a complaint, they arent going to do plaintiffs research to see
if theres something there

The court is not going to spend time fleshing out the facts in the complaint.

e) Statements of Claim in the Alternative

(1)

(2)

Rule 8(d)(2) plaintiff can submit all the claims he has

(a)

Whatever pleaded version of the claim he may eventually establish to the satisfaction of the adjudicator

(b)

Function of provision is to assist P who is genuinely uncertain as to the facts he will be able to prove or the
substantive law he will apply.

(c)

May state as many separate claims against an opponent as they have, but they are subject to Rule 11

(d)

The pleader can take any version of the claim

Res judicata prevents plaintiff from asserting multiple claims that arise out of the same transaction (e.g., dynamite
crimping)

f) What is a Claim?

(1)

Definition of a claim- analogous to a cause of action but not necessarily the same. Its difficult to distinguish bcbw
alternative statements of a single claim and multiple claims.

(2)

Can be a single legal theory or a single natural grouping of events.

(3)

Rule 18(a)- minimizes the distinction by permitting P to join all his claims either independently or in the alternative.

g) Frivolous Lawsuits [Rule 11]

(1)

Filings and allegations must have evidentiary support or are likely to have evidentiary support

(2)

After Conley v. Gibson problem of frivolous claims blossomed

(3)

Prior to 1983 attorney must affirm that he had done preliminary work to avoid frivolous suit good faith clause
subjective standard

(4)

1983 Amendment
(a)

Made determination objective

(b)

Attorney must seek reasonable inquiry before pleading

(c)

Attorney must investigate facts readily available

(d)

In Sierocinski case, if the attorney could have determined that negligence couldnt be proved then he would be
inviolate of Rule 11

1993 Amendment
Safe harbor provision must give offending party 21 day notice to withdraw or amend to avoid sanctions
Continuing duty to withdraw frivolous claims throughout pleading process
(5)
Murphy v. Cuomo- 1996

(6)

( A)

Murphy sprayed with Cap-Stun. No sufficient claim- legal grounds brought against plaintiffs attorney for signing
complaint. Even after discovery, had no factual grounds for claim.

(B)

P was alleging that police were in secret test with Cap-Stun

Heimbaugh v. City & County of San Francisco 1984

(a)

Softball player protests a hardball only rule, alleging his right to democracy to play where he wants
frivolous suit

(b)

Plaintiff alleges he has been deprived of his rights under the 1st, 4th, and 14th Amendments also, alleges numerous
torts

(c)

rules for summary judgment and sanctions under Rule 11.

(d)

Judge found:

( E)
(7)

Plaintiff unable to demonstrate an intent to convey a message, or

(ii)

Evidence that if he were conveying message others wouldnt understand it (people must recognize the
message that playing softball was an message about democracy), therefore

(iii)

Claim was entirely unwarranted by existing law or a good faith argument for modification or extension of
existing law

Rule Claim must be grounded in existing law or present good faith argument for modification or extension of
existing law

Sanctions more likely to be imposed for Rule 11 in Civil Rights cases.

(a)

(8)

(i)

Judges are suspicious of those cases and believe they misuse federal courts

If other attorneys have decided to turn it down it should make an attorney hesitant.

Pleading of Special Matters

(1)

Rule 9(g) Special damages must be specifically stated in claim

(a)

(2)

Purpose protect defendant from surprise at trial

Burlington Transp. Co. v. Josephson 1946

(a)

Doctor sues city for false arrest special damages

(3)

(b)

In complaint plaintiff alleges false arrest necessarily compelled him to be away from his business and suffered a
large consequential loss

(c)

Plaintiff testified he sustained large losses due to being away from remodeling his rental properties.

(d)

Judge found:
(i)

Define special damages those which are the natural but not the necessary consequence of the act
complained of

(ii)

He was thereby necessarily compelled to be away from his business specifies only loss of time in the
practice of his profession

(iii)

General damages might be loss of revenue, patients, etc.

(e)

Rule special damages are those which are the natural but not the necessary consequence of the act complained of

(f)

Special damages must be pleaded specifically to put on notice of the nature of the claim

Niedland v. United States 1964

(a)

Dancer hires substitute after car accident special damages

(b)

Dancer alleges personal injuries after collision with Post Office vehicle

(c)

Testified it was necessary to hire substitute.

(d)

Court found:
(i)

(4)

(5)

Even under more generalized notice pleading, special damages must be specifically pleaded. Hiring sub
was a special damage.

(e)

Rule special damages must be specifically pleaded

(f)

Rule 15 (b)(2)

Swierkiewicz v. Sorema N.A.- 2002

(a)

P, 53 y.o. native of Hungary, filed sued against , former employer, for employment discrimination

(b)

District court dismissed complaint stating his allegations were insufficient as a matter of law to raise an inference
of discrimination.

(c)

Issue: Does an employment discrimination complaint need to contact specific facts to establish a prima facie case?

(d)

Holding: No. It need only contain a short and plain statement of the claim showing that the pleader is entitled to
relief as required by Rule 8(a)(2). Requirements for a pleading are far less than those necessary for a prima facie
case.

(e)

This case supports notice pleading of Rule 8(a)(2) and makes it clear that fact pleading is no longer required. Only
needs to give fair notice.

Rule 9(b) Pleading Fraud or Mistake

(a)

Requires heightened pleading (particularly securities fraud cases) when referring to fraud.

(b)

Possible justifications for Rule 9(b)

(i)

More particularity to provide with notice of the claim?

(ii)

Imposed because fraud is especially threatening about fraud?

(iii)

Force lawyers to look into facts and law? (Rule 11 takes care of this)

(iv)

Limit what we can call the in terrorem value of a suit (every case has settlement value)
(a)

Settlement value that is in proportion

(b)

is afraid of a lot of discovery

(c)

doesnt want to hassle

(v)

Cases hurt shareholders by shifting money to plaintiffs lawyers. Lawyers take money from company and
shift it to lawyers not the shareholders.

(vi)

More detail in complaints could cause problems for substantive law because
(a)

P wont have chance to discover

(b)

If complaint is sufficient then the facts that can be used in court are narrowed.

2. DEFENSES AND OBJECTIONS

a) Types of Defenses and Objections
(1)

Defendant who has been served a summons and complaint must make his defenses known within a certain time limitusually 20 days. Rule 12(a)(1).
(a)

(b)

Reasons having no bearing on the intrinsic merits of plaintiffs claim:

(i)

Rule 12(b)(1) lack of subject matter jurisdiction case cannot be maintained in any federal district court;
10th Am; some issues you cannot bring in fed because they belong to state

(ii)

Rule 12(b)(3) improper venue the particular district court selected by plaintiff as place of trial is wrong

(iii)

Rule 12(b)(7) failure to join a party under Rule 19 there is another party who ought to be joined before
the action goes forward

Assuming truth of allegations plaintiff has no cause of action:

(i)

Rule 12(b)(6) failure to state a claim upon which relief can be granted grounds for demurrer

(c)

Rule 8(b) Plaintiff does state a claim upon which relief can be granted defendant denies the truth of one or
more of the allegations:

(d)

Rule 8(c) Plaintiff does state a claim upon which relief can be granted defendant asserts affirmative defenses,
for example:

(e)

(i)

Statute of Limitations

(ii)

Contributory Negligence

Rule 12 (e) Plaintiffs claim is too vague Motion for a more definite statement
(i)

(f)

Sierocinski Case

Rule 12(f) Pleading is objectionable Motion to strike for example:

(i)

Insufficient defense

(ii)

Redundant, immaterial, impertinent or scandalous matters defendant wants removed

b) Manner of Presenting Defenses and Objections

(1)

Rule 12(b)
(a)

All defenses to a claim may be raised in the defendants answer

(b)

Seven enumerated defenses may at the option of the pleader be made by motion before answer

(c)

Defenses, like claims, are to be state in short and plain terms- Rule 8(b).
(i)

Form 20 is an example of an answer denying allegations and raising defenses.

(2)

Rule 7(b)(1) suggests that motion is an application to the court for an order

(3)

Rule 12(e) & (f) may be made by motion before answer

(4)

A motion must be in writing, must state with particularity its grounds, and must set forth all the relief sought.
(a)

(5)

Form 19 is a form of motion.

A moving party may use affidavits when they wish to bring up matters of fact to support their motion, upon which the
opposing party can serve counter-affidavits. Courts will sometimes entertain oral argument.

c) Consolidation and Waiver of Defenses and Objections

(1)

Consolidation of Defenses and Objections [Rule 12(g)]

(a)

Must consolidate all 12(b) defenses in one pre-answer motion only one pre-answer motion claiming 12(b)
defenses is allowed
(i)

One exception may be raised in a second pre-answer motion 12(b)(1) lack of subject-matter jurisdiction
may be raised at any time [Rule 12(h)(3)]

(b)

Waiver of Defenses and Objections [Rule 12(h)]

(i)

Rule 12(b)(2) lack of jurisdiction over the person

( B)

Rule 12(b)(3) improper venue

(C)

Rule 12(b)(4) insufficiency of process

( D)

Rule 12(b)(5) insufficiency of service of process

They are also waived if not put in the answer or an amendment to the answer

(iii)

Rule 12(h)(2) Rules 12(b)(1), (6), & (7) may be made in answer or in post-answer motion:
( A)

Rule 12(b)(1) lack of jurisdiction over the subject matter it reflects the fact that federal courts are
courts of limited J. Protecting the division of power between the state government and the federal
government

( B)

Rule 12(b)(6) failure to state a claim upon which relief can be granted plaintiff shouldnt be
allowed to recover if they dont have a legitimate claim

(C)

Rule 12(b)(7) failure to join a party under Rule 19 may not know until during case who needs to
be included.

Rule 12(h)(3) Rule 12(b)(1) lack of subject-matter jurisdiction may be raised at any time

Defenses properly raised by answer

(a)

(3)

( A)

(ii)

(iv)
(2)

Rule 12(h)(1) Rules 12(b)(2-5) are waived altogether if omitted from original pre-answer motion: nothing
to do with the merits of the case. Promotes judicial economy

Rule 8(d) must deny all averments if no denial denial is seen as an admission of guilt and allegations stand
for purposes of litigation
(i)

Rule 8(b) Typical answer has at end of every paragraph and the defendant denies the remaining
allegations of paragraph . . .

(ii)

Rule 8(b) An answer that you lack knowledge has the effect of a denial

(b)

Rules 12(b) & 8(c) any affirmative defenses omitted from the answer are waived (may find relief if allowed to
amend under Rule 15(a))

(c)

Rule 15(a)
(i)

Amendments of course allowed on pleadings and answer before any responsive pleading is filed or
before action has been placed upon trial calendar

(ii)

Waivers may be alleviated by amendments of the answer by leave of court

Objections under 12(e) & (f) must be raised in initial pre-answer motion
(a)

12(e) and 12(f) deal with vagueness and redundancy. cant interpose one of these objections if he omitted it
from motion or after has answered already. Court may strike on own initiative though.

(4)

Policy- the point of these Rules is to ensure a case is decided on its merits, and not on procedural points. Another reason
is to eliminate traps and protect clients from their lawyers mistakes.

(5)

HYPOTHETICAL Mental Anguish Case page 49 question 16

(a)

Plaintiff claims damages for mental anguish suffered by him by reason of defendants negligence

(b)

Defense counsel knows:

(c)

(i)

According to the law of some states there exists a right of action for mental anguish inflicted in the alleged
circumstances

(ii)

Other states no such right is recognized

(iii)

Courts of the state in which the event occurred have not yet spoken on the question

Defense investigation of the facts indicate:

(i)

Likelihood that the plaintiff cannot prove negligence

(ii)

Wish to challenge the venue

(iii)

Plaintiff was contributorly negligent

(d)

(e)

Raise defenses by way of answer instead of pre-answer motion

(i)

If case is likely to continue anyway motions cost time and money

(ii)

Defenses to include:
( A)

Rule 12(b)(3) challenge venue

( B)

Deny the allegations

(C)

Rule 12(b)(6) failed to state a claim upon which relief could be granted point out jurisdictions
where right to mental anguish claim is not recognized assert defenses belief why court ought to
recognize other states policy

( D)

Rule 8(b) general denial of allegations of negligence plaintiff probably cannot prove negligence

( E)

Rule 8(c) assert affirmative defense contributory negligence

Raise defenses first by pre-answer motion then with answer

(i)

(ii)

(iii)

Some defendants prefer pre-answer motions

( A)

Extend time before they need to answer the claim

( B)

Makes the pre-trial phase of the case longer and more expensive for plaintiff

(C)

Have case eliminated on procedural matter and not get to the facts. Or at least return to trial.

Defenses to assert in pre-answertrial motion:

( A)

Rule 12(b)(3) challenge venue

( B)

Rule 12(b)(6) failed to state a claim upon which relief could be granted

If Rule 12 motion is not successful then file an answer:

( A)

(f)

(6)

Must confirm or deny each charge

(I)

Rule 8(b) general denial of allegations of negligence plaintiff probably cannot prove
negligence

(II)

Rule 8(c) assert affirmative defense contributory negligence

What if plaintiff has failed to put critical element of their case in claim?
(i)

Pre-trial motion may give plaintiff unnecessary advantage if they have missed a point

(ii)

You dont want to educate plaintiffs attorney on the aspects of the law he may have missed in his research
or on the critical facts of his case

Coleman v. Frierson 1985- District Court

(a)

Investigator finds fraud and fired failure to state a claim after judgment
(i)

(b)

answered in timely manner, but were dilatory in the discovery process so trial court granted P default
judgment.

Can defense raise the failure to state a claim defense after the issuing of a default judgment? Is a default
judgment a trial on the merits? No. Yes.
(i)

Rule 12(h)(2) a defense of failure to state a claim upon which relief can be granted . . . may be made in
any pleading . . . or by motion for judgment on the pleadings, or at trial on the merits

(ii)

Court could not accept 12(b)(6) motion because doing so would:

( A)

Create an intolerable delay

( B)

Create uncertainty as to final judgment on the merits

(C)

Defendant should have raised argument earlier in trial

( D)

Show disrespect for the procedural rules upon which justice is hinged

(C)

Rule Parties can raise a Rule 12 motion before but not after entry of default judgment time when federal rules
were interpreted strictly other courts dont need to follow Coleman, District Court opinion

(d)

Not a Sup.Ct. decision; we can attest its interpretation. This was an example of a case not tried on the merits, but
on procedure.

(7)

HYPOTHETICAL Client has similar situation to Coleman case what do you do?
(a)

Read decisions critically why would another judge find in your favor?

(b)

Arguments for lenient interpretation of 12(h)(2)

(i)

A default judgment is not a trial on the merits

(ii)

Parties should not win if they dont have a claim we want people to win on the merits of the case

(iii)

When does trial end read rule to mean that the trial includes 10-day grace period before judgment is
entered.

(iv)

Rules should be interpreted broadly intent is to preserve this kind of defense

3. REPLYING TO DEFENSES
a) Rule 7(a) If defendants answer is confined to denials plaintiff may not respond
b) If defendants answer contains affirmative defenses plaintiff may not respond barring court order
(1)

Rule 8(d) Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or
avoided

(2)

Plaintiffs position regarding affirmative defenses is not fully disclosed by the pleadings

(3)

At trial plaintiff may:

(4)

(5)

(a)

Assert the negative (denial)

(b)

Assert further matters invalidate claim (avoidance)

(c)

Take both positions

Rule 12(f) Plaintiff can motion that defenses answer is insufficient

(a)

Rule 12(h)(2) gives plaintiff power to do this throughout the trial

(b)

Analogous to defendants ability to do 12(b)(6) motion

Some states force a reply to an affirmative defense

4. COUNTERCLAIM
a) Compulsory Counterclaims- may want to assert claims against P
(1)

Rule 13(a) Defendant must assert claims that arise out of the same transaction or occurrence that is the subject matter
of the plaintiffs.
(a)

(2)

Judicial efficiency is rational behind rule:

(i)

Avoids simultaneous litigation

(ii)

Reduces risk of inconsistent judgments

(iii)

Avoids wasting time and money

If defendant does not assert a compulsory counterclaim he is thereafter precluded from asserting it against plaintiff either:
(a)

In the plaintiffs pending action

(b)

In an independent action

(3)

Rule 13(f) permits defendants to set up counterclaim by amendment . . . if through oversight, inadvertence, or
excusable neglect (only chance for relief if fails to set up a counterclaim)

(4)

If a defendant has failed to assert a compulsory counterclaim and later sues on that claim res judicata or the like can
then be pleaded as a defense

(5)

Test of compulsoriness should be whether there is a logical relationship between the claim and counterclaim. This is
broadly interpreted to promote judicial economy and avoid having many trials on same transaction.
(a)

(6)

Compare logical relationship test with Williams same evidence test below.

When separate trials would involve substantial delays and expenses, the counter claim is considered logical and therefore
compulsory.

b) Permissive Counterclaims
(1)

Rule 13(b) bring as a counterclaim any claim against the opposing party that by definition doesnt arise out of the same
transaction as opponents claim

(2)

Rule 42(b) the court is authorized to order separate trials

(a)

In furtherance of convenience, or

(b)

To avoid prejudice

c) Transaction or Occurrence
(1)

Rules 13(a) & (b) use words transaction and occurrence legal chameleon relatively few opinions clarifying
definitions

(2)

Williams v. Robinson 1940

(a)

Woman sues for maintenance man sues for divorce, adultery transaction

(b)

In Robinsons counterclaim accuses wife of adultery and joins Williams as plaintiff.

(c)

Williams answers counterclaim with denial of act of adultery

(d)

Williams sues Robinson in separate action libel and slander

(e)

Robinson moves to dismiss libel and slander should be compulsory same transaction

(f)

Court found:

( G)
(3)

(i)

Acts of adultery are happening at set of time and places

(ii)

Statement charging adultery happened at another time and place

(iii)

Different transactions because they were at different times.

Rule Court defined transaction refers to the affair as a whole. It isnt very well defined.

Common transaction tests to see if counterclaim is compulsory:

(a)

(b)

Same Evidence Test Judicial Efficiency

(i)

Same transaction if same evidence will support or refute the opposing claim

(ii)

The greater the evidence deviates there is less of an opportunity to try two cases at once- different
transactions no saving of time or money

(III)

Williams case could have been tried with same evidence truth is defense for libel, so if adultery
committed, there is not libel.
( A)

Maybe court didnt want to bring a third party in, just wanted to deal with divorce. A debatable
opinion.

( B)

Claim should have been a compulsory counterclaim, since part of the case is the truth of adultery
claim.

Logical relationship test

(i)

If separate trials require substantial duplication of effort and time, then both claims are logically related and
the counterclaim should be considered compulsory

(ii)

Broad interpretation of what a compulsory counterclaim is

(iii)

Efficiency or economy of trying the counterclaim

d) Responding to Counterclaim
(1)

Counterclaims (compulsory & permissive) treated like a complaint for pleading purposes
(a)

Plaintiff assumes role of defendant in pleading counterclaim. They must reply in the same way a defendant replies
to a counter claim.

(b)

Default judgment occurs if plaintiff fails to respond to counterclaim.

e) Recoveries on Claim and Counterclaim

(1)

Rule 13(c) Plaintiff will receive or pay the difference in relief given him and the defendant

5. AMENDING THE PLEADINGS

a) Amendments Before Trial
(1)

(2)

Rule 15(a) permits party to amend pleading once as a matter of course at any time before a responsive pleading is
served
(a)

An answer is a responsive pleading

(b)

A motion is not a responsive pleading

(c)

Only other way to amend is by leave of court

Why should party be required to ask permission to amend pleadings?

(a)

Parties base case on pleadings

(b)

May be allowed to amend pleading if justice is better served- if case will be on merits and wont prejudice other
party

(c)

Witnesses may be gone, evidence gone, etc.

(d)

May prejudice the case for these reasons

(i)

Prejudice is when a party relied on a complaint and would not have enough time/resources to investigate if
amendment is allowed

(ii)

Rule 15(b)-continuance- usually removes most prejudice.

( A)

(3)

Continuance delay or postponement

Why should pleading amendments be allowed?

(a)

We want decisions to be based on the merits not on skill in pleading.

b) Amendments At or After Trial

C)

(1)

Rule 15(a) imposes no absolute time limit on seeking amendment

(2)

Rule 15(b) shows that a motion to amend during the trial may not be too late there may be circumstances where it may
be allowed even after trial is concluded and judgment entered

(3)

Rule 15(b)
(a)

Treat pleadings as amended when opposite side failed to object fully to trial evidence unambiguously going
beyond the pleadings and thus tried those new issues by consent

(b)

Make provision when a party seeks to amend after his opponent has successfully objected to trial evidence as
going beyond the pleadings

(c)

Many times courts will grant continuances to allow other party to retrieve witnesses and evidence delays the trial
to give more time to gather evidence, etc. Helps remove prejudice because it gives both parties time.

(d)

Motion to amend requested during trial isnt necessarily too late.

Beecks v. Aquaslide N Dive Corp.- 8th Cir. 1977

(1)

P filed suit against for injuries sustained on their slide.

(2)

relied on its insurers and admitted in answer that it was in fact the manufacturer- later found it was actually a
counterfeit

(3)

moved to amend answer and deny manufacture.

(4)

Motion granted- P appealed from an adverse suit.

(5)

Rule- a motion to amend an answer should be granted unless the opposing party can show prejudice (Ps claim would run
statute of limitations). Prejudice can be showing in various ways: delay, bad faith by moving party, or dilatory motive by
the moving party.

(6)

Holding: Motion to amend was in good faith and manufacture was a legitimate issue that could be raised

(7)

Court may deny permission to amend if the party proposing the amendment is guilty of undue delay.

D)

Blair v. Durham 1943

(1)

Woman sues for negligence timber amended claim

(2)

Plaintiffs original claim alleging negligent handling of timbers by employees

(3)

Files an amended claim alleging negligence in constructing scaffolding

(a)

E)

Evidence at trial was probably not showing negligence of handling of timbers

(4)

Defendant moves to dismiss complaint because it states new cause of action and is barred by one-year statute of
limitations rejected

(5)

Blair is an example of pleading too specifically

(6)

Held she could amend the claim and was not barred by SoL because they went back to the date of the start of the trial to
establish SoL.

(7)

Rule claims arise out of the same transaction when both claims allege breaches of the same legal duty and same injury

(8)

Some courts hold that the different claims only have to arise out of the same core of operable facts.

(9)

Issue: Does an amendment relate back to the date of the original pleading?

Blair Transaction Test Used to See if Plaintiff Can Amend Pleadings

(1)

Blair court
(a)

Accepted amendment if the claims both allege breaches of the same legal duty and come from the same injury
same transaction as the original pleading
(i)

How do we know it is the same transaction?

( A)

Not the same evidence

( B)

Same matter, differently laid. Breach of the same legal duty. Same Injury.

(b)

Purposeallow the plaintiff to get around statute of limitations

(c)

Amendments date back to the date of the original complaint- Rule 15(c)
(i)

(d)

Blair court would have allowed a change in Sierocinski from negligence in mixing powder to in
constructing container.

Purposeallow the plaintiff to get around statute of limitations

(i)

Intending to allow the furtherance of justice as long as the SoL isnt totally undermined.

(ii)

Didnt intend to completely undermine the policy of SoL

(iii)

Allegations are sufficiently similar to ensure that the had notice of the complaint.
( A)

(2)

Injury and breach of duty are shown. The suit involves all aspects of that injury, and should do
complete investigation to find all actions of self or employees.

Some courts read more loosely than Blair:

(a)

Allowed if claims arise from common core of operative facts. A mere switch in legal theory from breach of
warranty to negligence is not enough to stop the amendment from relating back

(b)

Permission to amend is rarely withheld.

(3)

If the amendment changes the ability of to argue case (SoL violation leading to loss of evidence) it will likely be
dismissed.

(4)

What if the seeks to add a new defendant? Rule 15(c)(3)- if previous Rule 15 provisions satisfied and should have
known hed be added or P wouldve wanted him anyway allowed. Read rule.

6. DISCOVERY
a) History- introduced in 1938
(1)

Old way to find our information

(a)

No discovery process

(b)

Private investigator was hired to find bulk of evidence

(c)
(2)

Costly process usually rich won in litigation

Modern way
(a)

Bulk of lawyers efforts are in discovery

(b)

Purpose of discovery eliminate surprise and evens the playing field

b) Purposes of Modern Discovery Rules

(1)

Preservation of evidence witnesses may not be available:

(a)

Elderly or ill witness may die

(b)

Witness may be out of jurisdiction at time of trial

(2)

Ascertain and isolate issues that are in controversy between parties

(3)

Eliminate surprise at trial for both parties

(4)

Find out what testimony and other evidence is available

c) General Provisions Governing Discovery

(1)

Scope of discovery is wide

(a)

Rule 26(b)(1) parties may obtain discovery regarding any matter, not privileged

(b)

Includes the existence and location of documents or other things and the identity and whereabouts of persons
having knowledge of any discoverable matter. Court may order discovery of any matter that is relevant to the
slightly broader subject matter involved in the action (and thus perhaps relevant only to unasserted but possible
claims or defenses)

(c)

Evidence not admissible may be discoverable if it could lead to discovery of admissible evidence. Evidence may
not be admissible but it can be discovery.
(i)

Is it relevant? (See question 44 & 45)

( A)

Look to pleadings to see what is at issue. Would such facts make things more or less likely.

( B)

What if there was inquiry into s net worth?

(I)

(2)

Not relevant except in calculation of Punitive damages

(d)

Rule 26(b)(2)- specific provisions authorizing case-by-case judicial supervision of duplicative or disproportionate
discovery and also regarding discovery of certain materials prepared by or for a party or his representative in
anticipation of litigation or for trial- rule 26(b)(3)

(e)

Rule 26(b)(4)- discovery of expert information

(f)

Rule 26(A)(1)(A)(iv) insurance regarding damages

Expected to work by action of the parties, without intervention of the court

(a)

Rule 35- Physical or mental examination is only discovery devise that must be initiated by motion addressed to the
court

(b)

All else is by action of the parties:

(i)

Depositions upon oral examination

(ii)

Depositions upon written questions

(iii)

Interrogatories to parties

(iv)

Production of documents and things

(v)

Requests for admissions

d) 1993 Amendment
(1)

Rule 26(a) New Disclosure System

(a)

Rule 26(a)(1)
(i)

Must disclose certain information without request from opposing party at or within 10 days of the Rule
26(f) meeting

(b)

(c)

(2)

(ii)

Rule 26(a)(1)(A)(i) Must disclose identity of anyone who is likely to have information concerning the
disputed facts (the greater the specificity of the pleadings the more complete the listing of witnesses should
be)

(iii)

Rule 26(a)(1)(A)(iiB) Must disclose copy or description of documents and things in partys possession

(iv)

Rule 26(a)(1)(A)(iiiC) Must disclose a computation of any category of damages claimed

(v)

Rule 26(a)(1)(A)(ivD) Must disclose insurance agreements

Rule 26(a)(2)
(i)

Must disclose the identity of any person who may offer testimony at trial

(ii)

Must also deliver a detailed report including opinions and reasoning as well as qualifications,
compensation, and previous experience as a witness.

Rule 26(a)(3)
(i)

Must disclose information regarding evidence that may be used at trial other than solely for impeachment
purposes

(ii)

Two separate lists must be disclosed list of witnesses who will be called and those that may be called

(iii)

Must disclose documents intended for use in trial separated in lists to be used and may be used

(iv)

Must be filed with the court- unlike other disclosures that neednt be filed until proceedings.

What good did these changes do?

(a)

Save time and money by making suit go more quickly judicial efficiency

(b)

Moderates the adversarial system causes opposing sides to cooperate

(3)

Many courts opted out of several of the new discovery provisions

(4)

Justice Scalias Dissenting Statement 1993, p. 12 (Supplement)

(a)

(b)

(5)

New discovery rules are not more efficient but less efficient
(i)

Not going to replace discovery

(ii)

It will add a layer of discovery

(iii)

It will increase the burden on judges trying to determine what is relevant

New discovery rules dont fit within our adversarial system of justice
(i)

Intolerable strain on the lawyers ethical duty to represent his client

(ii)

Requiring lawyer to make a judgment on relevant facts causes him to use his professional skills in the
service of his adversary

New rules encourage (but dont require) plaintiff to plead with particularity so defendant must turn over all documents
within scope in Rule 26(f) meeting

e) Depositions Upon Oral Examination [Rule 30]

(1)

(2)

General:
(a)

This method of discovery comprises oral examination of anyone thought to have information within the scope of
discovery

(b)

Rule 30(a) May depose party or nonparty, attendance can be compelled by subpoena [Rule 45]

(c)

Rule 30(a)(2)(a) may take no more than 10 depositions without leave of court

Possible reasons to use oral deposition: The discovering party might . . .

(a)

Know or suspect deponent has information that would aid him in his own investigation and preparation for trial

(b)

Be left in the dark by his adversarys pleadings, may want to take adversarys deposition to uncover the nature of
the claim or defense

(c)

Be fully familiar with witnesss testimony but witness may be old or about to die

(d)

Want a deposition to tie witness down to one story

(e)
(3)

Want to expose a fatal weakness in adversarys claim or defense thereby strengthening his position in settlement
negotiations and open up chance for summary judgment

Process of oral deposition:

(a)

Notice
(i)

(b)

Rule 30(b)(1):
( A)

Must give reasonable notice to parties

( B)

Specifies time and place of deposition

(C)

States the name and address of each person being deposed

(ii)

May subpoena a deponent

(iii)

Notice is sufficient to make a party appear at deposition

Place of deposition
(i)

Party where the suit is filed

(ii)

Non-party Rule 45
( A)

A subpoena may be served at any place within the district of the court by which it is issued, or at
any place without the district that is within 100 miles of the place of the deposition

( B)

A person who is not a party or an officer of a party to travel to a place more than 100 miles from
where that person resides, is employed, or regularly does business transactions in person

(iii)

Deposition is taken in the presence of a court reporter in the attorneys office

(iv)

Deponent is sworn, examined, cross-examined, and its recorded via stenography

( A)

(4)

Objections
(a)

Two situations:
(i)

(ii)

(iii)
(5)

(6)

(7)

No judge is present to objections become questionable

A question put at the deposition is within scope but would be objectionable at trial
( A)

Deponent should answer the question and objection will be recorded on books

( B)

If deposition is ever offered as evidence at trial the objection will be in effect and the judge will rule
on it at that time

(C)

Usually when deposition is offered as evidence the opposing party can still object even though there
was no mention in the deposition

A question may be objectionable for not falling within scope of discovery

( A)

If the question would not prove damaging or offensive answer it

( B)

If the question is damaging or offensive then object court will rule

Rule 37(a)(4) objecting party may be held liable for expenses for proceedings if they are found to have
unreasonable failure to answer a proper question

Determining what to ask in a deposition:

(a)

Research the law and determine what facts are necessary to establish winning case

(b)

Create line of questioning that will get witness to offer facts that are relevant

(c)

Ask things that relate to your parties claim

Preventative Measures in Deposition Attorney will usually:

(a)

State who they are and who they represent

(b)

Ask deponent if they are sick or on any medications

(c)

Ask the deponent to inform the attorney if they dont understand a question

(d)

Explain to deponent that it can be brought up in trial if they change deposition before signing it

Advise from Deponents Attorney Prepare them for the deposition:

(a)

Formulates hypothetical questions

(b)

Answer only question that is asked

(c)

Make sure to understand the question

(d)

Give the shortest, truthful answer

(e)

Do not volunteer information

(8)

Limits on questions asked (9 & 10)

(9)

Umphres v. Shell Oil Co. 1971

(a)

In deposition, defendant questioned plaintiff as to what made up the details of his conspiracy claim

(b)

Counsel for was asking P about alleged conspiracy with other oil companies to fix prices in violation of antitrust laws

(c)

Court held:

( D)
(10)

(i)

Defendant cannot ask the plaintiff such questions this would be tantamount to asking a party for a legal
definition

(ii)

Cannot ask plaintiff to support claim when question is couched in legal terms

(iii)

This is especially true when defendant had other ways to obtain information

(iv)

Court orders plaintiff counsel and defendant counsel to have face to face meeting to discuss defendants
questions- Rules 26(f) and 37(a)

(v)

Plaintiff can answer questions regarding facts of case after attorneys have worked out legal issues

Rule cannot ask purely legal questions in depositions or facts about the claim in legal terms

Brandenberg v. El Al Israel Airlines 1978

(a)

72-year-old plaintiff claims negligent and reckless treatment by defendant caused her stress and mental injuries

(b)

Defense counsel ask plaintiff:

(i)

Do you have a factual basis to support the allegations against

(ii)

Do you know of anything the defendant did that was not proper treatment . . .

(c)

Plaintiff counsel directs client not to answer on the basis that the questions called for legal conclusions of a lay
witness

(d)

Court found:
(i)

Questions were permissible could ask plaintiff about factual nature of claim

(ii)

Defendant has right to know the factual basis upon which the plaintiffs claim rests

(iii)

Directs plaintiff to respond

( E)

Rule party can ask factual questions of an opponent assuming the questions are not couched in legal terms (there
was no use of negligence)

(f)

Rule 37(a)- forced to compel answers

(11)

Discovery and Pleadings with potential ambiguity stemming from notice pleadings, discovery is helpful to flush out
facts that support claim

(12)

Deponent can amend answers prior to filing- but opponent is allowed to comment at trial about changes made to a
deposition
(a)

Makes deponent think twice because of fear of perjury at trial

f) Depositions Upon Written Questions [Rule 31]- follows Rule 30

(1)

Deponent may be party or nonparty

(2)

Attorney formulates questions court representative reads questions and records answers

(3)

Written depositions are cheaper but are more difficult to get relevant information difficult to ask follow up questions
and it forces counsel to be predictive.

Interrogatories to Parties [Rule 33]

(4)

Served upon parties only not to exceed 25 interrogatories in number

(a)

(5)

Unlike written questions and oral testimony that can be for nonparty witnesses

Party and their counsel prepare responses while under oath

(a)

Unlike written questions where party is on his own

(6)

Rule 33(a) each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in
which event the reasons for objection shall be stated in lieu of answer- counsel must sign objections

(7)

Sometimes more preferable to deposition:

(8)

(9)

(10)

(a)

Thoroughness of deposition is not required

(b)

Information is sought which is available to party but not necessarily known to the party off hand like required at
deposition

(c)

Information may be more available to other sides attorney rather than the party

(d)

When trying to get specific contentions of party

(e)

When requesting things like names of witnesses and addresses

Interrogatories have their downsides:

(a)

Usually sanitized by opposing counsels lawyer not going to get much out of it will try to keep from exposing
harmful information.

(b)

No flexibility no follow-up questions

(c)

May only be asked of parties not nonparties

(d)

Easy to abuse discoverer creates big burden on answerer- create more disputes than any other discovery device

Objections to Interrogatories
(a)

Outside the scope of the claim- irrelevant information.

(b)

Seeking privileged information

(c)

Unduly burdensome or vague and ambiguous

OBrien v. International Brotherhood of Electrical Workers 1977

(a)

Plaintiff alleges constitutional rights were violated when he was suspended and fined by defendant (union)

(b)

Local union chapter suspends and fines plaintiff then international union rescinds decision and retries plaintiff
thereafter fining him

(c)

Plaintiff sends list of interrogatories to local chapter

(d)

Court finds:
(i)

Questions within distinct knowledge of international union are not admissible

(ii)

Questions relating facts to law are acceptable

(iii)

Questions of pure law (legal issues unrelated to the facts of the case) are not permissible

( E)

Rule interrogatories are admissible as long as they extend to more than pure law, i.e., legal issues unrelated to
the facts of the case Rule 33 application of law to the facts.

(f)

Lesson from case- follow Sierocinski lesson of avoid specifics.

(i)

How would respond to complaint? Probably not through a motion to dismiss because of the liberal
pleading standard.

(ii)

You could request admission under Rule 36- a party may serve upon any other party a written request to
admit the truth of matters separately set forth in the request or to admit genuineness of described
documents.

(iii)

Responding party is deemed to having admitted these claims unless specifically answered. Useful in
establishing genuineness of documents and verification of facts.

g) Requests for Admission [Rule 36]

(1)

(2)

Basic Provisions
(a)

A party may serve upon any other party a written request for the admission of the truth of any matters within the
scope of Rule 26(b)(1)

(b)

Includes requests to verify statements or opinions of fact or of the application of law to fact, including the
genuineness of documents

Sanctions under Rule 37(c) discourage capricious denials

h) Production of Documents and Things [Rule 34]

(1)

(2)

(3)

Party may request any document or tangible thing that are:

(a)

Within the scope of Rule 26(b), and

(b)

In control of the party when the request was made

Party must request with reasonable particularity

(a)

Can give general categorical description

(b)

E.g., please submit all documents relating to, referring to car accident Good for when you cant identify the
exact document.

How to produce documents

(a)

Client produces documents

(b)

Before submitting them to adversary must review to see:

(c)

(i)

If document is called for in the request

(ii)

Doesnt violate a privilege (e.g., attorney/client or work/product)

(iii)

Can be laborious

Two ways to produce to client: (Rule 34(b)(2)(E)(i))

(i)

As they are kept in the usual course of business (preferable, more difficult for opponent to decide which
documents are responsive), or

(ii)

Organized by request

i) Physical and Mental Examination [Rule 35]

(1)

Only discovery tool requiring a leave of court to require an exam- discovery is usually meant to curtail the job of the court

(2)

Rule 35(a)
(a)

Court requires motioning party to demonstrate the condition is in controversy and good cause is shown.

(b)

Rule applies only to a party or someone under legal control of a party

(c)

Each condition (exam) has to be separately proved needed

(i)

(3)

(4)

Sometimes the pleadings alone are sufficient

( A)

Physical or mental condition as defense

( B)

Put their own condition at issue

(d)

Can the answer be found by many methods

(e)

Being related to the case is not sufficient. There must be reasonable cause.

Condition of a nonparty is very hard to obtain

(a)

Make party

(b)

Nonparty is in custody or in legal control

(c)

Deposition (but hard to overcome privilege) Rule 45d2

Schlagenhauf v. Holder 1964, p. 87

(a)

Bus and tractor-trailer rear-end collision Medical examination for bus-driver

(b)

Plaintiff wants court to order sweeping medical exams

(c)

Supreme Court rules:

( D)
(5)

(i)

Nothing in the pleadings or affidavits warrant internal, psychiatric, or neurological examinations, but if
only the eye exam had been ordered, it might have won

(ii)

District courts are to use discretion in ordering examinations sweeping examinations are not acceptable if
the party has not put the issues into question

Rule Party must show good cause and condition must be in controversy

Exchange of Reports
(a)

(b)

(c)

Rule 35(b)(1)
(i)

Examinee can request detailed written report of Rule 35 exam

(ii)

Discovery party who delivers report is entitled to request from examinee a like report of any exam
previously or thereafter made of same condition

Rule 35(b)(2)
(i)

By requesting and obtaining a report of the exam, the examinee waives privilege it may have in the action

(ii)

Waives any doctor-patient privilege

Rule 35(b)(3)
(i)

Voluntary submission to exam has same application under Rule 35(b)(1)

(ii)

Does not exclude discovery of examiners report by any other discovery rule

Sanctions for Failure to Make Discovery [Rule 37]

(6)

Rule 37(a)
(a)

(7)

(8)

(9)

Possible Sanctions Rule 37(b)

(a)

Can prohibit the party from entering the non-disclosed information into evidence

(b)

Can render judgment in default of discovering party

(c)

Can hold refusing party in contempt

(d)

Old case states that due process is violated by deciding case (default judgment) for disobedience. SC overruled
and stated that due process is not violated if there is time between the compelling order and the refusal.

When party is faced with lack of cooperation:

(a)

Must file a directive order, and

(b)

Have to meet first to try to find a compromise

(c)

May go to court to obtain a sanction if directive order didnt work

Exceptions
(a)

(b)
(10)

A party can get an order compelling disclosure or discovery

Gross Failures Rule 37(d) may immediately obtain sanctions without directive order
(i)

Failure to appear at a deposition

(ii)

Failure to serve answers or objections on interrogatories

(iii)

Failure to serve any written response to a request for inspection

Party cannot be excused because discovery was objectionable unless the party sought and obtained a protective
order

Coca-Cola Bottling Co. v. Coca-Cola Co. 1986

(a)

Facts:
(i)

Plaintiff sought to compel defendant to release formula for Coke

(ii)

Only two people at Coca-Cola Co. knew formula formula was kept in a vault and would only be released
upon the consent of the board

(iii)

Defendant alleged that the contract gave them right to purchase Diet Coke under contracted rate for Coke

(iv)

Coca-Cola Co. argued that Coke and Diet Coke were different products

(v)

Court compels discovery of formula and issues protective order evidence necessary to determine product
differences

(vi)

Coca-Cola Co. refuses to turn over formula for commercial interests

(b)

Plaintiff requests Rule 37(b) sanction strike and rule in favor of plaintiff

(c)

Court uses six factor test for a default judgment sanction

(d)

(i)

Extent of partys personal responsibility

(ii)

The prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery

(iii)

A history of dilatoriness

(iv)

Whether the conduct of the party or the attorney was willful or in bad faith

(v)

The effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions

(vi)

The meritoriousness of the claim or defense

Court did not enter judgment

(i)

Coca-Cola Co. was willful and responsible

(ii)

Coca-Cola Co.s action was not prejudicial beyond what could be remedied.

(iii)

Coca-Cola Co. had no history of dilatoriness

(iv)

The court had other effective sanctions available

(v)

And the refusal of production had a meritorious explanation

( E)

Rule Six element test for considering default judgment sanction, use default judgment as sparingly as possible
look for other effective sanctions to ensure case on the merits

(f)

Coca-Colas failure to comply was willful, but there was no history of dilatoriness, there were effective sanctions
available, and there were meritorious claims.

(g)

Didnt disclose the ultimate issue- it established that 99% of the ingredients in Diet Coke and Coke were the same.

(h)

Should the court have ordered the disclosure of the formula in the first place? Isnt that what they were trying to
protect?

(i)

Contrast this with default judgment.

(i)

(j)

Court said that Coca Cola formula was necessary bc they couldnt tell if the products were different unless they
looked at the formula.
(i)

(11)

In discovery context- default judgment is the ultimate sanction, but there are other sanctions present. Why
do we protect it more?

Except for a few privileged matters, nothing is sacred in civil litigation.

Rubenstein v. Kleven 1957

(a)

Unmarried woman alleges breach of contract for companionship and other services to a married man (the
defendant)

(b)

Defendant uses illegality as affirmative defense

(c)

Defendant would not answer questions in deposition that might indicate whether defendant had committed
adultery

(d)

Plaintiff moved to compel answer

(e)

Plaintiffs counsel thought that the answer would be that no adulterous activity took place but only create an
impression that something illegal was done

(f)

Plaintiffs theory was that defendant was trying to leave impression that there was adultery by not answering the
question and claiming the 5th Amendment

(g)

Court gave defendant 20 days to respond to the plaintiffs question or waive the illegality defense

(h)

Cant assert illegality as a defense and claim privilege of no self incrimination.

(i)

Must prove it was prostitution to use it as an affirmative defense.

(j)

There is a constitutional right not to be a witness against yourself- Rule 26 says discovery can only be of
information not privileged and cant get info that would cause self-incrimination, but if he isnt willing to establish
that evidence in discovery, he cant support his own claim of illegality and the suit would be dismissed if he didnt
answer.

( K)

Rule Effective solutions come in all shapes and sizes

j) Supplementation of Responses
(1)

(2)

(3)

When to supplement Rule 26(e)

(a)

When responding party has new information about the identity or location of persons with knowledge of
discoverable matters

(b)

When the responding party obtains information from which he actually knows that his response was incorrect
when made, and

(c)

When the responding party obtains information from which he actually knows that his response is no longer true
and the circumstances are such that failure to amend it would be in substance knowing concealment

Calling a non-disclosed witness

(a)

Judge might exclude the evidence

(b)

Judge might grant a continuance to deal with the new evidence

Surprise witness comes forward with unfavorable testimony must disclose

k) Use of Products of Discovery in Court Proceedings [Rule 32]

(1)

Generally, courts will not allow depositions into evidence considered as hearsay (rules of evidence)

(2)

If admissible, may be applied as though witness were present and testifying

(3)

Depositions are admissible if:

(4)

(5)

(a)

Rule 32(a)(1) Used for purpose of contradicting or impeaching the testimony of others

(b)

Rule 32(a)(3)(A-E)
(i)

The witness is dead

(ii)

Witness is greater than 100 miles away

(iii)

The witness is unable to attend because of age, illness, infirmity, or imprisonment

(iv)

Unable to procure attendance of witness via subpoena

(v)

Rare circumstances where it is in the interest of justice

(c)

Rule 32(a)(4) The other party has used the deposition

(d)

Why the preference for live testimony?

(i)

Cant cross-examine a depositions

(ii)

More accurate assessment of witness when theyre in person

Other products of discovery

(a)

May be used so far as permissible under rules of evidence

(b)

Rule 36 requests for admission are binding

Freed v. Erie Lackawanna Railway 1972, p. 86

(a)

Head brakeman is injured when train is backed into him

(b)

Defendant responds to interrogatory question stating that the location of the switch train at the time of the accident
was not within the yard limits

(c)

Road rules for trains state that trains outside of yard must have lookout posted

(d)

At trial, defendant stated that the train was within yard limits

(e)

Plaintiff argued that interrogatory was introduced into evidence therefore answer in interrogatory should be
binding

(f)

Trial court rules:

(i)

Answers to interrogatories must often be supplied before investigation is completed and can rest only
upon knowledge which is available at the time

(ii)

The finder of fact must weigh all of the answers and resolve the conflict

(iii)

Answers are of value for impeachment purposes. Under Rule 26 interrogatory could be excluded because it
was untrue.

(g)

Appeals Court affirms

( H)

Rule Answers to interrogatories are not automatically binding finder of fact has to weigh the answers and
resolve the conflict

l) Work Product
(1)

(2)

Must ask some questions about the information

(a)

Is it relevant?

(b)

Subject to the attorney client privilege?

Hickman v. Taylor 1947, p. 549

(a)

Tugboat accident attorney work product

(b)

Facts:
(i)

Tugboat sinks while helping carboat across Delaware River five of the nine crew drown

(ii)

Tugboat owners immediately hire law firm Fortenbaugh assigned to case

(iii)

In anticipation of litigation Fortenbaugh interviews survivors and eyewitnesses gets signed statements
from each survivor and made memoranda on eyewitnesses

(iv)

All but one of crew settle lawsuit follows

(v)

Filed 39 interrogatories -- #38 was only one defendant objected to claiming it was privileged

(vi)

District court said #38 was not privileged and demand an answer

(vii)

Defendant refuses Fortenbaugh imprisoned until they are produced

(viii) Appeals court reverses calling files work product of the lawyer and hence privileged from discovery
(c)

Supreme Court ruled:

(i)

Not attorney-client privilege bc Fortenbaugh wasnt interviewing his own clients, but surviving crew
members.

(ii)

Danger exists, if defendants request were granted, that attorney would become embroiled in giving
testimony

(iii)

Would demoralize attorneys would force them not to prepare for trial

(iv)

Not a high cost of protecting work product.

( A)

( D)
(3)

Could use the information compiled by attorney to answer interrogatories. Question would have to
be framed correctly. Can't talk about all efforts of attorney. Would need to stick to asking about the
facts

Rule Work product is a privilege that can only be obtained by the showing of substantial need and undue
hardship getting the information in another fashion

Rule 26(b)(3)
(a)

Includes more than Hickman agents

(b)

What applies under Rule 26(b)(3) (settling of controversies)

(i)

Must show substantial need and that the party is unable to obtain substantial equivalent of documents
without undue hardship

(ii)

Attorneys and other representatives (consultant, surety, indemnitor, insurer, or agent) are included

(iii)
(4)

Rackers v. Siegfried 1971, p. 562

(a)

Ordinary Work product request in trial over auto accident (insurance adjuster)

(b)

Plaintiff wants to secure documents which show the length of the skid marks left by the defendants automobile at
the scene of the accident

(c)

Plaintiff argues that defendant had the figures but the plaintiff did not, the defendant would have a distinct
advantage claims substantial need

(d)

Defendant suggests two alternative sources for the information:

(e)

(F)

(i)

The personal observation of plaintiff after the accident

(ii)

The accident report by the highway patrol

Court ruled:
(i)

Plaintiffs measurements gathered after injury of their infant child could not compare with the precision of
the insurance adjusters figures

(ii)

The parties agree that the highway patrols figures are incorrect

Rule Ordinary work product can be discoverable if the party would be under undue hardship to get the
substantial equivalent elsewhere
(I)

(5)

Materials (documents and tangible things only) must have been generated in anticipation of litigation have
to return to policies in Hickman if the material is not tangible

If one party knew and the other didnt one side would have a large advantage at trial.

Duplan Corp. v. Moulinage et Retorderie de Chavanoz 1975, p. 563

(a)

Throwsters attempt to discover Chavanoz attorneys opinion work product from previous litigation

(b)

Court ruled:

(C)

(i)

Language in Rule 26(b)(3) clearly states that the court shall protect against disclosure of the mental
impressions . . .

(ii)

Court found this to mean that no showing of relevance, substantial need, or undue hardship should justify
compelled disclosure of an attorneys mental impressions, . . .

(iii)

Also, after termination of the lawsuit, the rule stands. Hickman was concerned with protecting the thought
process of the lawyer if this were allowable then the adversary system would clearly suffer

(iv)

Mixed document (work product and non work product) court or disclosing party can redact documents

Rule No showing of relevance, substantial need, or undue hardship should justify compelled disclosure of
opinion work product at all times.
(I)

Rule 26(b)(3) opinion work product is immune from discovery even when that litigation has been
terminated
(a)

(6)

Peterson v. United States 1971, p. 566

(a)

Plaintiff sued for alleged overpayments to the IRS

(b)

Plaintiff requests discovery of audit reports by IRS agents

(c)

Government responds saying request is for opinion work product

(d)

Court ruled:

( E)
(7)

Exception legal malpractice?

(i)

The only thing protected by Rule 26(b)(3) are documents and things but since the discovery sought is
equivalent to the documents themselves, the request is covered by Rule 26(b)(3) Martinez says this is
questionable argument should have relied upon Hickman? ? ?

(ii)

The audit records were not prepared in anticipation of litigation, therefore, fall outside of the scope of Rule
26(b)(3)

Rule Documents not prepared in anticipation of litigation are outside of the scope of Rule 26(b)(3)

Ford v. Philips Electronics Instruments, Co. 1979, p. 567

(a)

Defendants counsel questioned plaintiff concerning discussion between plaintiff and his counsel

(b)

Plaintiff objects claiming Rule 26(b)(3) opinion work product

(c)

Court rules:

( D)
(8)

(9)

(i)

Verbal conversation is not within the scope of Rule 26(b)(3) only applies to documents and tangible
things

(ii)

Simply because it is out of scope doesnt mean its discoverable making it discoverable would fly in the
face of Hickman Hickman governs if request is not for documents

(iii)

Questioning was unacceptable if it infringed upon plaintiffs counsels evaluation of the case

(iv)

Questioning was acceptable if it was directed to the substance of the witnesss knowledge of the facts

Rule Discovery of intangible work product is not acceptable

United States v. Nobles 1975, p. 568

(a)

Work product in criminal trial is even more important

(b)

Defendant calls defense investigator as a witness

(c)

Prosecutor wants to use material from witnesss testimony

( D)

Rule Work product privilege is not absolute . . . it may be waived in instances where party elects to put person
with privilege on the stand material covered on the stand is no longer privileged

Ordinary v. Opinion Work Product

(a)

Ordinary Work Product

(i)

Records of written statements

(ii)

Under Hickman:
( A)

Must show that plaintiff has substantial need for information

(I)

( B)
(iii)

Defendant would have undue hardship getting the materials substantial equivalent

Under Rule 26(b)(3):

( A)

(b)

Witnesses are no longer available.

Must show substantial need and that the party is unable to obtain substantial equivalent of the
materials without undue hardship

Opinion Work Product

(i)

Records of oral statements, personal memos, unrecorded statements, conclusions, and mental impressions
of an attorney

(ii)

Under Hickman:

(iii)

( A)

Court left open the possibility that opinion work product can be discoverable, but only in rare
circumstances

( B)

Requires stronger showing than ordinary work product

Under Rule 26(b)(3):

( A)

(iv)

The court shall protect against disclosure, so more than likely not.

Is opinion work product ever discoverable?

( A)

P. 1211- only in rare situations and then theres a stronger showing necessary than that of ordinary
work product.

m) Persons Own Statements

(1)

Party can discover their own previously made statement without special showing

(2)

Nonparties may also obtain their own previously made statement without the required showing:
(a)

(3)

This is one way around 26(b)(3) nonparties can request their statement then give it to opposing party

Why allow this?

(a)

The statement from a party differs from statement of an ordinary witness. Its not hearsay, like witnesses always
are.

(b)

Statement should be obtainable bc discovery should be able to show everything that will be evidence in the case.

n) Expert Witnesses [Rule 26(b)(4)]

(1)

(2)

Why involve experts in litigation?

(a)

Assist the fact finder in interpreting the evidence from someone with special training

(b)

Substance of law may require it

Special rules for discovery of experts

(a)

Until 1993 only discovery by right was by interrogatories, only done by court order

(b)

Limited discovery because of the idea that experts dont have unique knowledge and dont want other side to shirk
on its duty to prepare for trial (should get their own expert)

(3)

Discovery of experts is allowed to assist opposing party to prepare for cross-examination at trial

(4)

1993 Amendments
(a)

Rule 26(a)(2)
(i)

Imposes extensive disclosure obligation without waiting for discovery demand

(ii)

Identity of any person who may offer expert testimony at trial

(iii)

Include detailed report by an expert witness detained or specially employed to give testimony, give
opinions, give basis and data, and qualifications of expert

(b)

Rule 26(b)(4)(A) routine deposition of expert to testify at trial

(c)

Rule 26(b)(4)(B) experts not to testify at trial

(i)

Have them to help lawyer prepare law suit in unfamiliar areas

(ii)

How to discover the information (by interrogatories or depositions)

(iii)

(iv)

(v)

( A)

Rule 35(b) medical report, or

( B)

Upon a showing of exceptional circumstances under which it is impractical for party to obtain facts
or opinions on the same subject by any other means

Why treat them differently

( A)

Dont need to prepare for testimony if expert isnt going to testify

( B)

Should pay for their own expert if they want the information

(C)

Hired expert may give damaging testimony that you dont want to use

Can get ordinary discovery of expert information not obtained in anticipation of litigation
( A)

Expert who witnessed an event

( B)

Identity of expert under Rule 26(b)(4)(B) identity is not a fact known or opinion held

Expert who is a regular employee of the party, or if specifically employed to apply expertise to particular
matter in anticipation of litigation, falls under Rule 26(b)(4)(B)

(5)

Preclude discovery of experts who are informally consulted and are not retained or specially employed, it is sufficient to
tell the expert that their information will not help the party

(6)

Only pertains to non-privileged reports only way to get privileged reports is through Rule 35

(7)

Rule 35 does not require an exchange of reports.

(8)

Delivery of work product to an expert may waive the right of work product protection

o) Protective Orders [Rule 26(c)]

(1)

Purpose to make parties less reluctant to turn over sensitive material to litigators and to other businesses

(2)

Showing necessary to get protection:

(a)

Information must be confidential:

(b)
(3)

(i)

Some need showing of substantial effort to keep it secret

(ii)

Information cannot be generally available outside of the organization

Must be good cause disclosure would cause harm to the party

Public Citizen v. Liggett Group 1989, p. 1235 Publicity of pretrial discovery580

(a)

Original plaintiff sued cigarette company for not warning customers of the dangers of smoking

(b)

Two years later a summary judgment is awarded to the defendant

(c)

Public Citizen steps in and requests the lifting of a protective order

(d)

Court reasoned:
(i)

Must have substantial showing that:

( A)

Substantial efforts are made to keep information secret and not generally available

( B)

Must have good cause to protect the material disclosure must do harm of some sort

(ii)

Protective orders purpose was to guarantee fair trial not perpetual secrecy

(iii)

Public interest considerations favored allowing documents to be disseminated to the public

(e)

Court lifted the protective order

(F)

Rule Must have substantial showing of confidentiality or good cause in order to receive and maintain protective
order

(g)

Information must be confidential, a showing of substantial efforts are made to keep it secret, must not generally be
available outside the organization

(h)

There must be good cause to protect the material and disclosure would cause a cognizable harm to the producing
party

(i)

How should courts react to the confidentiality claims for the makers of allegedly dangerous products? Should they
be held to a higher standard of care to preserve the public health?

7. DEVICES FOR TERMINATING LITIGATION WITHOUT TRIAL

a) Motion to dismiss for failure to state a claim Rule 12(b)(6)
b) Motion for Judgment on the Pleadings [Rule 12(c)]
(1)

Available where a pleading is legally insufficient

(2)

Rule 12(c):
(a)

Made after the pleadings are closed but before such a time that would delay the trial

(b)

All parties shall be given reasonable opportunity to present material made pertinent to such a motion by Rule 56

(c)

Contends that upon the pleadings, the moving party is entitled to judgment on their behavior.

(3)

Used only to resolve questions of law not disputes of fact

(4)

For purposes of the motion:

(5)

(a)

Moving party admits his adversarys allegations

(b)

Moving parties own allegations are taken as true only if they have been admitted by his opponents pleading

Legal sufficiency of plaintiffs complaint is always questioned

(a)

Demurrer searches the record for the first fault in the pleading and condemns the first complaint that is defective
(i)

Demurrer- a written response to a complaint filed in a lawsuit, which, in effect, pleads for dismissal on the
point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit.

(b)

Defendants answer asserts that a 12(b)(6) defense that plaintiffs complaint does not have legal sufficiency

(c)

Court will not allow someone to recover without stating a sufficient claim

(6)

If one, but not both, of the defenses is present then a timely motion by the plaintiff to file under Rule 12(f) (motion to
strike bc of vagueness, etc.) can strike that defense and hold trial on the other. If both are insufficient, then plaintiff may
move for judgment on the pleadings.

c) Motion for Summary Judgment [Rule 56]

(1)

Purpose: Judicial economy (better to end a case that would not survive at trial

(2)

In general:
(a)

Summary Judgment provides first time where court can go behind the pleadings to see whether there really is any
genuine issue as to any material fact

(b)

Movant maintains that there is no genuine issue of fact and that, upon resolution of any disputed questions of law,
he is entitled to judgment as a matter of law

(c)

Ordinarily motion for summary judgment is accompanied by affidavits (of moving party or of others) in support of
the contention of the moving party that there is no genuine issue of fact- also depositions, interrogatories, etc.
(i)

(d)

Rule 56(e) The opposing party may file like affidavits

(e)

Affidavits must set forth such facts as would be admissible in evidence

(f)

On the motion, and as long as they would represent admissible evidence, the court will consider:

(g)

(h)

(i)

Pleadings

(ii)

Depositions

(iii)

Answers to interrogatories

(iv)

Admissions

(v)

And any other similar material which would represent admissible evidence

Burden of proof:
(i)

Movant seeks to establish that the party against whom the motion is made lacks sufficient evidence to meet
the burden of production in order to send the case to the jury

(ii)

Movant seeks to shift the burden by showing a reasonable fact finder must find for the party

(iii)

Burden of production shifts to the opponent who must respond with evidence of their own sufficient for a
reasonable jury to find for them

(iv)

Meeting the burden but not shifting it means that a reasonable party could find for either party must go to
trial

The judges function:

(i)

Determine whether there is a genuine matter of factual dispute, not resolve a genuine factual dispute found
to exist

(ii)

May only find that no genuine matter of factual dispute exists if a reasonable trier of fact could not find for
the opponent on the matter

(iii)

Summary judgment must be denied if a genuine factual dispute is found to exist

(i)

A summary judgment may be granted on the entire case or only part of it

(j)

Constitutional right to a jury trial anyone with sufficient evidence to reach a jury cannot be depraved of a jury
trial
(i)

(3)

Rule 12(c)- motion on the pleadings- only on pleadings, not affidavits, etc. like summ. judgmt.

Note- there must be a sufficient claim though.

American Airlines v. Ulen 1949

(a)

(b)

Facts:
(i)

Plaintiff sues defendant for negligence for damages in plane crash in the mountains

(ii)

Plaintiff alleges defendant was negligent in planning and approving the flight and operation of the plane

(iii)

Defendant answers, admits facts, denies negligence

Usually plaintiffs are not the movant in summary judgment

(c)

(i)

Usually like to keep case alive to look for smoking gun

(ii)

Lessens potential settlement value

(iii)

Jury can see plaintiffs story and give big damages

(iv)

Burden of production is steep for plaintiff to prevail on this motion

Usually you dont see a motion for summary judgment granted in a negligence case this is negligence per se
(negligence as a matter of law) conduct violates a statute while being negligent
(i)

(d)

Issue #1: Was plaintiff entitled to summary judgment?

(i)

(ii)

(iii)
(e)

(4)

A jury usually decides if it was a reasonable action.

Defendant was clearly guilty of negligence per se their flight plan violated Civil Air Regulation (federal
law)
( A)

Commercial airlines are required to fly at least 1,000 feet above the highest obstacle within a
distance of 5 miles

( B)

Flight plan called for plane to fly at 4,000 feet mountain plane crashed into was 3,910 feet

Defendant asserted defense that they had implemented a zigzagging plan:

( A)

No evidence to support the zig-zag theorythis poor advocacy on AAs part

( B)

Should have retrieved existing evidence by getting affidavits from pilots saying it was the standard
practice to zigzag

According to information from interrogatories defendant was clearly negligent

Issue #2 Did the Warsaw Convention put limits on liability for international commercial transportation?
(i)

Disagreement on meaning of French word for willful misconduct criminal misconduct or negligence?

(ii)

Appellate court agreed with trial court that found word to mean with reckless and wanton disregard of its
probable consequences . . .

(iii)

No summary judgment on the liability because the jury would have to decide if the conduct was willful
because determination of state of mind must be made this involves factual determinations upon which
reasonable people would disagree

(iv)

Trial court rightly left this decision to the jury affirmed

(F)

Rule -- Summary judgment should be granted whenever nonot triable issue of material fact exists.

(g)

American Airlines shouldve introduced evidence that the flight plan complied with the Statute. Their evidence
was insufficient and thus warrants summary judgment.

(h)

Standard for summary judgment is the same as directed verdict and judgment as a matter of law

Celotex Corp. v. Catrett 1986

(a)

Facts:
(i)

Plaintiff sues manufacturer whose products contain asbestos

(ii)

Plaintiff alleges her husband died from being exposed to asbestos products

(iii)

A number of defendants move for summary judgment Celotex being one of those
( A)

Claim that plaintiff has failed to produce any evidence that links Celotex as one of the products
involved

( B)

District Court granted summary judgment

(C)

Divided panel on appeals court reversed because moving party did not support their motion.

( D)

Goes to United States Supreme Court

(b)

Supreme Court reverses nothing in rules saying that defendant must negate matters in claim SC granted
summary judgment bc Celotex didnt have to provide affidavits.

(c)

Non-movant would have burden of proof at trial

(d)

Two Options on how the defendant is supposed to demonstrate the absence of an issue of fact

(i)

(II)

Traditional approach The defendant must offer evidence so compelling that no reasonable jury could find
for the plaintiff on the issue involved (Celotex rejects this approach)
( A)

This approach appears to be the opposite what system does at trial defendant is not supposed to
have the burden of proof

( B)

This approach makes it extremely difficult for movant to compel the opponent to preview their
proof even if the opponent has the burden of proof opponent can win just by withholding his proof

(C)

Inconsistent with relaxed pleading requirements of the rules if movant has rigorous requirement
they cannot eliminate factually deficient claims

Celotex approach The defendant do nothing more than move for summary judgment thereby compelling
the plaintiff to come forward with sufficient evidence to convince a reasonable jury. Silence on the issue
shifts BOP back to P.
( A)

. . . The burden on the moving party may be discharged by showingthat is, pointing out to the
district courtthat there is an absence of evidence to support the nonmoving partys [affirmative]
case.Page 1292623

( B)

Can criticize this approach makes summary judgment a tool for harassment
(I)

Could force opponent to make a substantial showing

(II)

There is a strong incentive to do the motion and raise the costs of litigation

(C)

Is it troublesome to enter a judgment for the defendant if there is no evidence which exonerates the
defendant? Not really, def. is innocent until proven guiltyright?

( D)

One response to this is that the plaintiff must arrange evidence in admissible form for trial anyway
not too much of an inconvenience to show some of it before trial
(I)

(iii)

(e)

(f)

Middle ground view moving party without the burden of proof must put on enough evidence to support a
verdict in his favor. Dont have to negate, just show you have case.
( A)

Rejected the traditional approach

( B)

Made it clear that summary judgment is an important part of the Federal System

(C)

Notice pleadings are rarely dismissed, summary judgment motions must police the pleadings for
frivolous claims

( D)

To get summary judgment, defendant must show the basis of its motion by identifying materials in
the record that supposedly supports a summary judgment

Brennan (dissent, Celotex)- motion was premature- need Rule 56(f) allowing continuance for discovery
(i)

Need for moving party to search record and identify anything that bears on the issue then explain to the
court how in the light of the material summary judgment is appropriate

(ii)

Assumes there is a record with the material in it

(iii)

Expects defendant to assert affirmative evidence

(iv)

What is defendant expected to do? -- Provide proof they tracked plaintiff around for his whole life in order
to negate possibility of liability?

How do courts read Celotex?

(i)

Some read it saying the movant has no burden of production of evidence and can discharge that burden by
pointing out non-evidence in the others case

(ii)

Other courts say it does not impose significant triggering burden on the movant who lacks the burden at
trial,
( A)

(5)

Or just show that there will be admissible evidence at trial. That will create a trial issue
(evidence upon which reasonable jury can find for plaintiff) In admissible evidence can be
used to oppose summary judgment if it can be produced in an admissible form.

, either reduced burden dramatically or ignored it completely; not requiring much of defendant in
way of burden on the motion for summary judgment because Celotex is ambiguous

Frito-Lay v. Willougby 1988

(6)

(a)

Affirming grant of summary judgment because nonmovant failed to state material facts in dispute "with the
requisite specificity and [to] support them with appropriate references to the record before the District Court")

(b)

Facts:
(i)

Plaintiff had initial burden of proof

(ii)

Defendant had ultimate burden of proof

(iii)

Defendant files for summary judgment

(iv)

Plaintiff remains silent

(v)

District court grants SJ motion

(c)

Appeals court affirms

( D)

Rule Celotex rule applies even where a silent, nonmoving party is to bear an initial burden of proof at trial

Summary judgment before discovery

(a)

Summary judgment assumes some discovery as a prerequisite

(b)

Rule 56(f) premature motion for summary judgment

(i)

If party cannot present facts essential to justify partys opposition must be apparent from reasons stated in
the affidavits

(ii)

Court can allow a continuance for discovery

(c)

All willful refusals to comply are going to happen because obedience would hurt ones case

(d)

Fault must be found before extreme violations for lack of discovery will be used.
(i)

Hard to get SJ when burden is on you.

B. Trial- a method of adjudication

1. THE JURY
a) General
(1)

7th Amendment guarantees a right to a jury trial

(a)

(2)

In suits at common law where value in controversy is over $20 the right of trial by jury shall be preserved and no
fact tried by a jury shall be otherwise examined by any other court

Determining whether or not a case will reach a jury:

(a)

Judge may not let the case go to the jury if there is not enough evidence

(b)

Jury right may be waived if not claimed

(i)

Rule 38(b) A jury trial can be demanded any time:

( A)

After initial action but

( B)

Not later than 10 days after the service of the last pleading directed to such issue

(ii)

Rule 38(c) Jury will hear all issues unless otherwise specified

(iii)

Rule 38(d) Failure to demand a jury trial constitutes a waiver of the right

b) Jury Characteristics
(1)

(2)

Is the number of jurors right? (Williams v. Florida)

(a)

A six-person jury, acting unanimously in a criminal trial is Constitutional (State court). 6th amendment is relative
to criminal cases.

(b)

Most district courts changed to six-person juries in civil trials

Rule 48
(a)

Federal courts seat not fewer than 6, not more than 12 jurors

(b)

Unless parties stipulate otherwise:

(i)

The verdict shall be unanimous

(ii)
(3)

(4)

(5)

Constitutionality of six-person juries (Colgrove v. Battin)

(a)

Montana district court had six-person juries in civil cases

(B)

7th Amendment doesnt say anything about jury characteristics like number of jurorsno evidence that they
wanted to preserve the substance of the common law not the details of trial 12 was just assumed

(c)

Court ruled:

(7)

(i)

Number of jurors is not part of substantive aspect of the right to a jury trial

(ii)

Found that there was no difference between a jury of 12 and a jury of 6

Practical considerations with 6-person juries Source? ? ?

(a)

Decrease representative qualities

(b)

Potential for domination

(c)

May yield to fewer hung juries

(d)

Inability to rise above biases

(e)

Fewer minorities on juries

(f)

If there is a dissenter there will most likely be only onethis person will more likely be overcome by the majority

(g)

More likely to find a dominant juror when there are 12, but its harder to persuade eleven others than 5 others.
Smaller jury might be more persuadable.

Unanimous five-person juries violate the Constitution (Ballew v. Georgia) pg 147

(a)

(6)

No verdict shall be taken from a jury reduced in size to fewer than six members

Groups below 6 would:

(i)

Adversely affect group deliberation

(ii)

Adversely affect cross-sectional representation

(iii)

As a group, less likely to remember facts accurately

(iv)

Less likely to overcome biases

(v)

Small juries erect barriers to the representation of minority groups in the community

Constitutional right to a unanimous verdict of 12-person jury

(a)

Old decisions Verdict must be unanimous (Springville v. Thomas, 1897 and American Publishing Co. v. Fisher,
1897) pg 147

(b)

Rule 48 says parties can stipulate to verdict by a stated majority

(c)

Recent decisions Verdict can be non-unanimous (Apodaca v. Oregon, 1972 and Johnson v. Louisiana, 1972) pg
147
(i)

Sharply divided United States Supreme Court

(ii)

Must be 12-person jury

(iii)

State criminal trial

(iv)

9-3 verdict is at or very near the constitutional floor for 12-person state criminal juries

Non-unanimous verdict by a 6-person jury is unconstitutional (Burch v. Louisiana, 1979) pg 148

c) Jury Selection
(1)

General
(a)

Largely a matter of local rule and practice

(b)

Litigants are entitled to fair and impartial jurors of a cross-section of the community.

(c)

Ordinarily voter registration lists were used:

(i)

Not a fair cross-section of the community- not everyone is registered

(ii)

Lower socioeconomic groups, minority groups, and younger people were under-represented

(2)

Voir Dire
(a)

(b)

Rule 47(a) Examination of jurors

(i)

Purpose: to see if there is good reason why any of them should not serve in the case

(ii)

Primarily done by the judge in Federal courts and attorneys in State courts.

Challenges for Cause

(i)

(c)

(d)

(e)

Request that a prospective juror be dismissed because there is a specific and forceful reason to believe the
person cannot be fair, unbiased or capable of serving as a juror.

Peremptory Challenges
(i)

Three allowed in Federal courts

(ii)

Allow litigants to dismiss a juror on a gut feel

Why peremptory challenges

(i)

Litigants can eliminate people they dont like or fear

(ii)

Sometimes the questioning may alienate a juror but the litigant may have no reason to dismiss with cause

(iii)

Allows the litigant to eliminate people for reasons that you just cant say in publicperemptory challenges
allow litigants to dismiss jurors without having to embarrass jurors or say unseemly things

Race or gender may not be reason for peremptory challenges (Supreme Court decision) Batson v. Kentucky (sp?)
race; JDB (?) v. Alabama gender
(i)

Recent court Supreme Court decisions that are limiting the availability of peremptory challenges
( A)

Note- if you dont have to defend your peremptory challenges, whos to say they arent racially
biased? No one- its built into the system.

ORDER AND METHOD OF PROOF

d) Burden of Proof
(1)

The party who suffers the consequences of nonpersuasion is said to have the burden of proof

(2)

Burden of persuasion and production may start with plaintiff and then switch to defendant.
Wigmore Diagram
Judge

Jury

Judge

W----------X-------------------Y-----------------Z
Plaintiff starts at W and must get beyond X to make a jury question of A (the issue fact in question). If he gets beyond Y he is entitled to
judgment as a matter of law, unless defendant counters with enough evidence to take the case back beyond Y into X-Y area. Then its back
to a case for the jury. Defense may even push evidence to W-X area and be entitled to judgment as a matter of law. Either way, at end if the
case is between x and Y, its a question for the jury
(3)

Burden of Production- a matter for the judge to decide

(a)

Test whether the party has sufficient evidence to go to the jury

(b)

Generally, burden of production follows pleadings

(c)

(d)

(i)

If jury is not persuaded on plaintiffs evidence supporting his allegations then plaintiff will lose

(ii)

If jury is not persuaded on affirmative defenses then defendant will lose those defenses

Allocation of burden of production

(i)

The party having the affirmative of the issue

(ii)

The party whose case the fact in question is essential

(iii)

The party having peculiar means of knowing the fact

(iv)

The party who has the burden of pleading it

Court doesnt leave burden wholly on jury:

(e)

(i)

Must be preponderance of evidence in favor of the party who bears burden

(ii)

Existence of the fact must be more likely than not

(iii)

Jury must be able to be persuaded that what the party is presenting is more likely than the alternative

(iv)

Sometimes higher standards are imposed on a partyclear and convincing evidence

Evidence not constituting affirmative evidence:

(i)

(ii)

(iii)

(iv)

Failure of defendant to testify alone is not enough to get the plaintiff to the jury (Stimpson v. Hunter)
( A)

Dentist sues patients father for services rendered

( B)

Father and son did not offer any evidence or testify

(C)

Court held evidence was not sufficient to go to the jury. Failure of def. to testify was not equivalent
to affirmative proof of fact necessary to maintain the action.

( D)

Unless the plaintiff offered evidence warranting submission to the jury, the def. didnt need to refute
anything.

( E)

Failure of def. to testify was not sufficient to go the jury

Mere disbelief of denials of fact is not equivalent to affirmative evidence (Cruzan v. New York Central &
Hudson River Railroad)
( A)

Fireman and engineer say they did not see brakeman therefore they could not warn him

( B)

Evidence showed that decedent was descending a ladder on the side of a train car when he was hit
by a train going in the opposite direction.

(C)

Issue: Without evidence of a violation of duty of care, can negligence be established?

( D)

No. Negligence liability cannot be established absent affirmative proof of the violation of some
duty of care by defendant.

( E)

Only duties owed by RR were to look out for safety of own train- not for other persons or trains. No
evidence that either fireman or engineer saw decedent in time to save him, even if they had a duty
to.

( F)

Analysis: Mere disbelief of denials of fact (that fireman and engineer didnt see decedent) are not
enough- plaintiff must provide affirmative evidence of that disbelief. When none is presented, a
directed verdict is appropriate.

Guinan v. Famous Players-Lasky Corp. 1929

( A)

Plaintiff was injured by igniting a scrap film given to P by s agent. P carried film in burlap bag,
which caught fire when set against a heater in a subway car.

( B)

Can a jury find for based on belief in his testimony as against alleged accusation? Was s agent
acting under scope of employment?

(C)

Agent testified he was only allowed to dispose of scrap film by giving it to Film Transfer Co., and
he forgot that when he gave it to P.

( D)

Holding: Testimony created issue of fact for jury

( E)

Courts Reasoning: Although mere disbelief of testimony is not proof of facts of an opposite
nature or tendency, the jury mightve believe that part of s testimony that related to his authority
to dispose of scrap film, and disbelieved that alleged limitation of his authority to only dispose of it
to Film Transfer Co..

Failure to testify and demeanor of witnesses are not sufficient (in and of themselves) to go to jury (Dyer v.
MacDougall-1952 questionable witnesses?)
( A)

Plaintiffs allege slander relying upon testimony of witnesses

( B)

Defendant produces affidavit from witnesses stating that the slander never happened

(C)

Trial court granted P opportunity to depose witnesses (Rule 5(f)), but P did not wish to and there
was no evidence in support of slander except for the testimony- in which all denied it.

( D)

Summary judgment granted to s.

( E)

Issue on appeal: Was there any genuine issue under Rule 56(c) as to the utterance of the slanders?

( F)

(f)

(g)

(4)

(5)

Appellate court rejects: Learned Hand opines

(I)

There would be no way for appeals courts to review a trial courts judgments if based solely
upon demeanor of witnesses

(II)

If demeanor is enough to get to the jury, all plaintiff would have to do is call defendant to the
stand and argue the demeanor of defendant

(III)

There would be no burden of proof obstacle for plaintiff

(IV)

If the had taken the depositions they could have claimed that the witnesses were
recalcitrant or evasive. Might have gone to jury.

( G)

Once plaintiff meets the burden of production via other evidence this evidence can be used to
supplement the case

( H)

Other issue: By examination in open court, might the plaintiff extract information, which he
wouldnt have gotten in depositions?
(I)

Tenuous situation. One can argue that a witness in a deposition might be more crafty or
defiant and that their presence in a courtroom might make them more likely to tell more.

(II)

This was not an issue though since P didnt even depose witness so as to decide whether they
were crafty or not.

When plaintiff has trouble meeting burden of proof it can be shifted to the defendant when substantive policies
dictate (Summers v. Tice)
(i)

Plaintiff and defendants were quail hunting

(ii)

Defendants shoot in direction of plaintiff and hit him in the eye

(iii)

Plaintiff cannot prove which one did it

(iv)

Court doesnt want to leave the plaintiff without remedy

(v)

Court says that each defendant was culpablethe burden must shift to the defendants to prove it wasnt
their shot that hit plaintiff

Sindell Approach
(i)

s were better able to bear costs of injury

(ii)

E.g. will be held proportionally liable based on their share of the market unless they could show that they
couldnt have made the product.

(iii)

For societal reasons it is important to allow this

Take-home- Certain types of evidence arent sufficient to go to jury

(a)

Stimpson- failure of opposing party to testify

(b)

Cruzan- disbelief of opposing partys denial

(c)

Dyer- demeanor of party in denying claim

( D)

All require further, affirmative proof by the opponent

Burden of Persuasion- matter for jury to decide with judge giving guidance
(a)

Burden of persuasion is on the party who must persuade the trier of fact of the accuracy of the factual assertions

(b)

Judge formulates guidelines for the jury for the standard of persuasion
(i)

(ii)

Degree of certainty required to find that a contested fact exists

( A)

Preponderance of the evidence (civil trials)

( B)

Beyond a reasonable doubt (criminal trials)

(C)

Clear and convincing evidence (fraud claims)

Usually preponderance of the evidenceexistence of the fact is more likely than not
( A)

Low standard because error in favor of the plaintiff is neither more undesirable or less undesirable
than error in favor of defendant, or that a dollar mistakenly paid by the defendant (false positive) is
just as costly to society as a dollar mistakenly uncompensated to the plaintiff (false negative).

(iii)

Some civil cases use higher standards (Fraudclear and convincing)- greater social costs of false
positive, etc.

(iv)

There have been holdings where whenever a civil case involves a criminal act, proof must be proved
beyond a reasonable doubt, as is the standard in criminal trials.
( A)

(c)

(d)

Not widely adopted.

When evidence points to two equally strong inferences, plaintiff loses (Reid v. San Pedro, Los Angeles & Salt Lake
Railroad)
(i)

Plaintiffs cow was killed by defendants train

(ii)

Cow could have accessed the tracks via an open gate (plaintiff would be liable) or a hole in the fence which
was under defendants responsibility to repair ( would be liable)

(iii)

Was it more likely or not that the cow went through the open fence?

(iv)

Plaintiff couldnt show by the preponderance of the evidence that the cow exited via the hole in the fence
(50% / 50%)

Sargent v. Massachusetts Accident Co. 1940

(i)

Action to recover on accident insurance policy

(ii)

21 y.o. kayaked down river, never heard from again and body unrecovered

(iii)

May have died by accidental drowning (covered by ins.), he may not have died at all (uncovered, duh), or
through starvation or disease (uncovered).

(iv)

Issue: Was there evidence on which the jury might find death by accident within the terms of the policy or
whether the court should say it was a case where plaintiff must fail because the evidence tends equally to
support two inconsistent propositions as to what happened and consequently neither could be found true?

(v)

Holding: Plaintiff didnt have to prove beyond a reasonable doubt that the insurer died, just by
preponderance of the evidence.

e) Order of proof
(1)

Ordinarily plaintiff has initial obligation to bring forward evidence in support of the disputed elements of the claim
(a)

(2)

Why is this? He is launching a claim that we have no reason to suppose is meritorious.

Process:
(a)

(b)

Opening Statements
(i)

Usually plaintiff then defendant before evidence is presented

(ii)

What the issues are and what is going to be presented- the road map for the jury

(iii)

Not evidence but they are a preview of the evidence

(iv)

Typically defense does opening statement immediately following the plaintiffs, but they can postpone it till
the beginning of their case.

Presentation of case in chief

(i)

Party with the burden of proof goes first with its case in chief

(ii)

Direct examination/cross-examination and redirect/recross-examination process with each witness

(iii)

Why is questioning process used?

(iv)
(3)

( A)

Some information is not admissible

( B)

Jury must hear all relevant evidence unless the probative value is out-weighed by other
considerations

(C)

Objectionable material may be withheld before the answer is given

In theory only supposed to put on case in chiefjudges allow some leeway and allow the plaintiff attorney
to anticipate defenses and rebut them

Defendants Case (or side without the burden of proof)

(a)

Defendant may cut short and rest without offering proof

(b)

(i)

Defendant is confident the plaintiff has not sustained the burden of proof

(ii)

Defendant has little evidence or may risk backfiring

Ordinarily, proceeds to offer his own evidence

2. MOTIONS AT THE CLOSE OF ALL THE EVIDENCE [Rules 50(a) & (b)]
a) General
(1)

Same standard as summary judgment

(2)

Judge is held to a reasonable jury standard

b) Motion for Judgment as a Matter of Law [Rule 50(a) & (b)]

C)

(1)

Either side can make motion

(2)

Test if a jury could reasonably find a verdict for the opponent

(3)

Party doesnt lose anything by requesting motion. If granted, they win. If not, they proceed with their case/rebuttal
evidence.

(4)

Rule 41(b) motion for an involuntary dismissal, used by defendant when there is no jury

Rebuttal and Rejoinder

(1)

After defenses case, plaintiff can introduce rebuttal evidence, which is limited to evidence that meets new facts presented
by the defense.

(2)

Cant repeat evidence plaintiff had in case in chief and cant introduce evidence that shouldve been in chase in chief.

(3)

Why? This is unfair to the defense who prepared for the case based on the evidence in the case in chief.

(4)

Exception- Trial judge can exercise wide discretion over what is permissible.

d) Evidence Tests(1)

(2)

(3)

Favorable Evidence Only Test

(a)

Court only looks at evidence favorable to the opponent of a motion

(b)

Completely ignores all other evidence

Set Aside Test (All the Evidence Test)

(a)

Court looks at all the evidence in the record

(b)

Judge should direct a verdict if looking at all the evidence, he is bound to set aside a verdict for the opponent to the
motion

Qualified Favorable Evidence Test

(a)

Look to all the evidence favorable to the opponent to the motion, and then look at all the uncontradicted and
unimpeached evidence favorable to the movant.

(b)

Origination (Pennsylvania Railroad v. Chamberlain)

(i)

Chamberlain sued Penn. RR to recover for the death of a brakeman who was killed while routing train
carscares in a RR yard.

(ii)

Complaint alleged certain RR cars were negligently brought into collision with the cars that decedent was
riding on, causing him to fall and be run over.

(iii)

Three eyewitnesses testified there was no evidence of such collision.

(iv)

One testified for Chamberlain that he heard a loud crash before the accident, but he was 900ft. away, wasnt
paying close attention, and loud crashes were usual.

(v)

Issue: Where there is a conflict of testimony, can a directed verdict be sustained?

(vi)

Holding: No. Where there is true conflict of testimony, evidence must be left to the jury. Here, there was
no such conflict. When there are 2 equally supported inferences judgment of law against the party that has
the burden of proof. (If Bainbridge had SEEN the collision, the court could not have sustained the directed
verdict.)

(vii)

( A)

There was an inference that there had been a collision, but testimony gave equal support to an
inference that there wasnt one.

( B)

Testimony for Chamberlain was too insubstantial to go to a jury, as there was no evidence that jury
couldve properly proceeded to a verdict for the party offering it as proof.

This court followed minority rule for determining a motion for directed verdict. Most jurisdictions, trial
court may look only to evidence presented by the party against whom a directed verdict is sought to
determine whether as a matter of law the evidence is insufficient to support such a partys case.

(VIII) This court looked to both sides to determine whether reasonable minds could differ as to the ultimate
disposition of the case.
(ix)

Note- this minority view is the majority view for determining the right to a new trial- a fact which gives
rise to substantial criticism of the rule as too liberal (since the effect of a new trial is somewhat less drastic
than that of a directed verdict).
( A)

(C)

( D)

Scintilla rule case could go to the jury under any evidence. Directed verdict when only there is no
evidence. Later overruled.

Lavender v Kurn- 1946- differs from Chamberlain Scintilla rule case could go to jury under any evidence.
Directed verdict on when there in no evidence.
(i)

Decedent was found unconscious on the ground near the railroad track with a skull fracture from which he
died. No eyewitnesses.

(ii)

Plaintiff says decedent was killed by hook on railroad care

(iii)

says a hobo probably murdered decedent.

(iv)

Death by hook or crook?

(v)

Holding: Whenever facts are in dispute or the evidence is such that fair-minded men may draw different
inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle
the dispute by choosing what seems to them to be the most reasonable inference. Only when there is
absence of probative facts to support the conclusion reached does a reversible error appear

(vi)

This opposes Chamberlain holding.

Wilkerson v McCarthy- 1949

(i)

FELA case- Plaintiff was injured when he fell from narrow board stretching across a deep work pit.

(ii)

Central issue- whether employees habitually use plank as walkway.

(iii)

Conflicting evidence

(iv)

(v)

( A)

P and other employee say practice was established

( B)

Strong testimony contrariwise

Two Methods of Ruling for directed verdict Qualified evidence test

( A)

Look initially at the evidence favorable to the opponent, but then look to the rest of the evidence to
determine which inferences were reasonable Justice Black

( B)

Look initially at all the evidence, but then take a view of that evidence that is most favorable to the
nonmovant in deciding if a jury could rationally support a verdict for the plaintiff Justice
Frankfurter

The Supreme Court, therefore, does not follow only the favorable evidence test. They do allow courts to
look at some of the evidence favorable to the movant.

(e)

Some argue that test laid out in FELA cases is the standard that should be applied to states

(f)

Simblest v. Maynard- 1970

(i)

Plaintiff sued for injuries sustained when his car was struck by a fire engine driven by .

(ii)

P testified he heard no warning siren and observed no warning lights

(iii)

P also testified a blackout that night caused the traffic signal to go dark as he passed through the
intersection

(iv)

Numerous witnesses testified contrariwise asserting the blackout happened minutes before and that the fire
engine had flashed lights and sounded its siren.

(v)

Jury awarded verdict for P, but got j.n.o.v. P appeals.

(vi)

Issue: In considering j.n.o.v., may court consider evidence unfavorable to nonmoving party if such
evidence is uncontradicted and unimpeached?

(vii)

Holding: Yes. Court may consider not only the evidence favorable to the nonmoving party, but also such
unfavorable evidence as is uncontradicted and unimpeached. Under state (Vermont) law, all evidence,
favorable or not, may be considered. Under federal law, only evidence favorable to plaintiff and
uncontradicted evidence unfavorable to him may be considered. Same result would arise no matter what
standard court would apply in this case bc even facts favorable to plaintiff indicate he was contributorily
negligent as a matter of law. He failed to yield to an emergency vehicle as required by statute. Everyone
saw it but him. He only saw the truck a split second before it hit him so he couldnt testify as to its
appearance. Judgment affirmed -- The plaintiffs claim that he did not see the lights does not contradict that
the witnesses that the lights were flashing, Since the lights were flashing he was contributorily negligent.

(viii) P didnt have opportunity to see the lights so that the testimony that he didnt see them is tantamount to
having no evidence at all. Therefore, the movants evidence that the plaintiff did not see the lights, is
uncontradicted and can be considered.

(4)

Notes - motion for j.n.o.v. are traditionally evaluated according to the same standard as is applied to
motions for summary judgment. All evidence is construed in the light most favorable to the nonmovant.

(x)

This strong standard indicates a strong bias for trial by jury.

(xi)

Look at all the evidence that supports the movee that is not incredible and then all the evidence for the
movant that is uncontradicted. If a jury can find only 1 way then there is a directed verdict.

Federal Standard
(a)

(5)

(ix)

Scintilla rule- case can go to jury if theres any evidence that could support a verdict

Substantial Evidence Test

(a)

Some evidence is not enough, there must be sufficiently persuasive evidence

(b)

General trend of courts is to use the substantial evidence test

3. SUBMISSION TO JURY AND RETURN OF VERDICT PG 179

a) Types of Verdicts
(1)

(2)

Different Forms of a Jury Verdict

(a)

Special Verdict [Rule 49(a)] jury makes specific findings of fact and judge applies the law to the facts

(b)

General Verdict [Rule 49(b)] judge instructs the jury on the law and the jury applies the law to the factsmany
times interrogatories accompany jury charge Only says who wins.

(c)

Judge determines the type of verdict to use

Advantages of Special Verdict

(a)

Gives the court more power

(b)

The jury doesnt have to apply the lawjudge can more aptly apply the law
(i)

(c)
(3)

Dont know whose argument they will be assisting since they are only finding facts. Eliminates bias.

Some argue it improves the efficiency and reliability of the judicial process

Disadvantages to Special Verdict

(a)

Weakens juries

(b)

Indicates a mistrust in juries

(c)

One of the purposes of the jury system is to temper strict rules of law sot he jury can do justice in the particular
case

(d)

If only finding factsthe jurys power is severely weakened

(4)

Closing Statements
(a)

No right to give closing statement to judge but it is a common practice

b) Jury Instructions (Rule 51)

(1)

Jury instructions come from counsel on both sides

(2)

Jury instructions are generated from:

(3)

(a)

Pattern jury instructions

(b)

Counsels own legal research

Rule 51
(a)

Allows parties to make written requests for specific jury instructions

(b)

Court must advise counsel of the jury instructions before closing statements

(c)

Objection to instructions:
(i)

Must object before the jury retires to consider verdict

(ii)

Must state distinctly the matter objected to and the grounds of the objection

(4)

Must object to the instruction under Rule 51 before jury deliberates or the right to appeal on the instruction is lost

(5)

Rule 52(a) Non-jury trial

(a)

When there is no jury and judge must try facts and law

(b)

Judge must find facts specially and state separately his conclusions of the law thereon

(c)

Purpose:
(i)

Aids the appellate court on appeal

(ii)

Makes judge more careful in finding facts

4. MOTIONS AFTER VERDICT

a) Renewed Motion for Judgment as a Matter of Law [Rule 50(b)]
(1)

(2)

General
(a)

Renewed motion for judgment as a matter of law replaced Judgment notwithstanding the verdict (JNOV)

(b)

Motion must be made within 10 days after entry of judgment

(c)

Sets aside the verdict and judgment is entered for the movant

(d)

Standard is the same as for judgment as a matter of law (directed verdict)only difference is timing

(e)

Must have made motion for judgment as a matter of law (directed verdict) in order to motion for a renewed
judgment as a matter of law

Judges tend to like this approach better:

(a)

If judgment as a matter of law (directed verdict) is reversed then the case will be retried

(b)

If renewed judgment as a matter of law is reversed then the jurys verdict is used

(c)

Judicial efficiency supports renewed judgment as a matter of law

b) Motion for a New Trial [Rule 59]

(1)

Rule 59(a) not more than 10 days after the entry of the judgment

(2)

Standards:
(a)

(b)

Extremes:
(i)

Directed verdict standard

(ii)

Judge asking if jurys verdict was right

(iii)

Standard must be between those twomiscarriage of justice standard

Miscarriage of Justice Standard:

(i)

May be granted because the verdict is so far against the weight of the evidence that it would do injustice

(ii)

If jury could have reasonably reached the result then judgment must stand

(iii)

Judge cannot grant motion just because he feels verdict is wrongthis would subvert the jury system

(3)

Second trial is only awarded in exceptional circumstances

(4)

Grounds for new trial:

(a)

Verdict is against the weight of the evidence

(b)

Judge committed error (ex: mistake of admissible evidence or on what instructions were given)

(c)

Jury didnt follow judges instructions

(d)

Newly discovered evidence

C. Selecting A Proper Court: General Division of Business Between State and Federal Court Systems
1. GENERAL
a) Federal Courts
(1)

Power of federal government is limited

(2)

Only those powers which are enumerated in Article III of the United States Constitution are what Federal Courts may
hear (10th amendment)

(3)

Federal cases are only a fraction of the casesthe rest of the cases the states must pick up

b) State Courts
(1)

Even Article III cases can be heard by state as long as Congress has not prohibited it
(a)

Unless theres an affirmative reason they cant hear it, a state can hear a case.

2. THE JUDICIAL POWER OF THE STATES

A)

Much of the jurisdiction of federal and state courts is concurrent so a party most often has a choice in which court to choose.

B)

10th Amendment The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people

c) Types of jurisdiction:
(1)

Mostly assume Concurrent state and federal court has ability to hear the case, much of federal jurisdiction is concurrent

(2)

Exclusive only a state or federal court may hear a case (ex. Federal antitrust)

(3)

Limited --- court can only hear cases allocated to it by law (all Federal courts, those in Art. III)

(4)

General court can hear any case unless denied to it by law

(a)

State courts are courts of general J

(b)

Federal courts are courts of Limited J

(i)

Can only try Art III cases

(ii)

Statutorily authorized as well

(5)

Original court is the first one to hear the matter

(6)

Appellate

(7)

Diversity citizens of different states

3. THE JUDICIAL POWER OF THE UNTIED STATES

a) General
(1)

What must occur for a federal court to hear a case?

(a)

Jurisdiction must be granted in Article III Constitutional basis

(b)

Congress must have provided by statute the jurisdiction to hear that type of case Statutory basis

b) Article III
(1)

Outer bound of judicial power of the United States is fixed by Article III

(2)

Article III makes Federal Courts courts of limited jurisdiction rather than general jurisdiction

(3)

Jurisdiction dependent upon the content or nature of the claim:

(4)

(5)

(6)

(a)

Federal question cases arising under the Constitution, laws of the United States, and treaties

(b)

Cases of admiralty and maritime jurisdiction

Jurisdiction dependent upon the types of parties

(a)

Cases involving ambassadors, public ministers, and consuls

(b)

Cases between two or more states

(c)

Cases with the United States as a party

(d)

Cases with citizens of different statesdiversity jurisdiction

Amendment to Article III

(a)

Article III included cases between a state and a citizen of another state or between a state and its own citizen

(b)

11th Amendment removed this jurisdiction from the federal government

Justiciable Issues:
(a)

Dispute must not be hypothetical- fed. Cts. Cannot give advisory opinions states can

(b)

Dispute must be live and must not already be resolved by events

(c)

Must be tied to real parties with actual interest at stake in the litigation

(d)

Must have a type of issue which can be resolved by the court

(7)

Article III mandates the existence of the United States Supreme Court congress has the power to create inferior courts
below the Supreme Court but its not required. Creation of inferior courts is left tot the discretion of Congress- Art. III
Sec. 1.

(8)

Congress can change the Supreme Courts appellate jurisdiction

(a)

Article III 2 Supreme Court has appellate jurisdiction on issues set out in Article III unless Congress makes
exception

(b)

Could be unconstitutional because the Supreme Courts essential constitutional function is to maintain uniformity
and supremacy of federal law

(c)

There have been such attempts (e.g., school prayer, abortion)

c) Why Would a Plaintiff Want Federal Jurisdiction?

(1)

Federal courts are there to uphold the supremacy and uniformity of federal law

(2)

State judges are elected often go with popular state law

(3)

Article III federal judges are appointed for life salary cannot be affected

(4)

Federal judges are more competent and want to preserve federal rights

4. HOW CONGRESS HAS VESTED ORIGINAL JURISDICTION IN THE DISTRICT COURTS

a) Congressional Provisions to Classes of Cases or Controversies
(1)

Controversies
(a)

(2)

1332 Diversity of Citizenship controversies of citizen of one state and a citizen of another state

Cases cases arising under the Constitution and the laws of the United States
(a)

1331 Federal Question

(b)

1337 Commerce

(c)

1338 Patents and the like

(d)

1343 Civil Rights

b) Statutes can give federal courts jurisdiction an entire class of cases others just partial
(1)

1337, 1338, 1343 only part of the class (cases)

(2)

1331 entire class (cases)- Federal question

(3)

1332 only portion of class (controversies)

c) Exclusive or Concurrent Jurisdiction

(1)

1331, 1332, 1343, 1337 no expressed statement of exclusive jurisdiction (meaning only fed. ct.), presume
concurrent jurisdiction (state and fed.) unless Congress intends otherwise

(2)

1338 exclusive according to statute

(3)

In Federal anti-trust cases it can be found that theres exclusive jurisdiction despite not expressly saying so.

d) Sometimes jurisdiction is dependent upon amount of money

(1)

1337 -- $10,000

(2)

1343, 1338 no indication of amount of money required

(3)

1332 must exceed $75,000 (exclusive of interest and costs)

5. THE FEDERAL QUESTION PROVISION [ 1331]

a) 28 U.S.C. 1331
(1)

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of
the United States

(2)

Not exclusive jurisdiction

(3)

Construed more narrowly than identical language in Art.Sec. III.

b) Why Have Federal Question Jurisdiction?

(1)

Federal Courts are thought to be more competent in federal law

(2)

Thought to be more sympathetic to federal interests typically helping the plaintiff

(3)

Federal judges are thought to be more sensitive to federal law as the primary protectors of federal rights

(4)

Federal Courts will try to maintain uniformity in federal law

c) Supreme Court Review of Federal Question Cases

(1)

Supreme Court has power to review all federal question cases

(2)

All state issues, which turn on federal issues, are subject to review by the United States Supreme Court- Osborne v.
Bank??

d) Cannot Claim Federal Issue When Anticipating Affirmative Defense (Louisville & Nashville Railroad v. Mottley)
(1)

Plaintiff sued railroad to enforce contract, claims railroad cannot breach contract on the basis that congress had legislated
against free passes

(2)

United States Supreme Court says federal courts dont have jurisdiction:
(a)

Did not arise under the federal law under the meaning of 1331. It would have under Art. III

(b)

Only disputed issues were federal issues

(c)

Not a federal question under 1331 (Well Pleaded Complaint Rule)

(i)

Not enough that plaintiff alleges an anticipated defense to his cause of action

(ii)

Issue of federal law must appear on the face of a well pleaded complaint Could have pleaded.

(iii)

( A)

Did congress intend to invalidate the contract.

( B)

Was it a violation of due process.

Court should pay attention to the well pleaded allegations those necessary to state a claim- not those
anticipated in defense

(iv)

(3)

Justification of the test

( A)

Federal issue may never be raised by defendant as a defense

( B)

Limits number of cases before the federal courts

(C)

Avoids expenditure of federal judiciary.

Supreme Court raised this issue of jurisdiction on their ownwithout either of the parties
(a)

Objection to subject matter jurisdiction can never be waived

(i)

Fed. Courts are limited J and should be in state court.

(b)

Cannot force jurisdiction on a court that does not have it

(c)

Try to preserve federalism federal courts have limited jurisdiction

e) Modification to the Well Pleaded Complaint Test in Declaratory Judmgent Procedure (Skelly Oil v. Phillips)
(1)

Test federal jurisdiction by applying the well pleaded complaint rule to the coercive action that would have otherwise
resulted

(2)

You must look back at the original complaint to see if the declaratory judgment would fall within a federal question in the
case (Ex: if RR is seeking declaration of its rights in light of the federal statute concerning the free railroad passes, would
federal jurisdiction exist? No. The original complaint does not fall under federal question)

(3)

Would flood the courts otherwise

(4)

Wouldve applied to Mottley case.

6. THE DIVERSITY OF CITIZENSHIP PROVISION

A)

Only kind of jurisdiction that the federal courts had for the first 85 years of existence

b) 28 U.S.C. 1332
(1)

(2)

(3)

1332(a) matter in controversy must be over $75,000 exclusive of interests and costs
(a)

Citizens of different states

(b)

Citizens of a State and citizens or subjects of a foreign state

(c)

Citizens of different states and in which citizens or subjects of a foreign state are additional parties

(d)

A foreign state as plaintiff and citizens of a state or of different states

1332(b) if case is finally adjudged at less than $75,000 (not counting setoff or counterclaim to defendant) then the
plaintiff is subject to:
(a)

Denial of costs

(b)

Imposition of costs

1332(c)(1) a corporation is deemed to be a citizen of any state by which it has been incorporated and of the state
where it has its principle place of business

c) Determining Citizenship
(1)

Citizenship at the time the action commenced is controlling

(2)

Citizenship must be completely diverseno defendant can be citizen of same state as any plaintiff

(3)

Domicile Test (Baker v. Keck)

(a)

Plaintiff alleges conspiracy from transaction in Illinois after moving to Oklahoma

(i)

Plaintiff had rented acreage and a house in Oklahoma

(ii)

He had registered to vote and done community work

(iii)

Plaintiff said his intention was to stay in Oklahoma

(iv)

Plaintiff had livestock in Illinois but chickens in Oklahoma

(v)

House in Illinois had burned down

(vi)
(b)

Defendant moves to dismiss saying plaintiff was not a citizen of Oklahoma but was an Illinois resident

(c)

Court decides key to diversity determination is domicile

(i)

(ii)
(4)

(5)

(6)

(8)

Standard:
( A)

Physical presence of residence

( B)

Intent to remain in state indefinitely

(C)

Must look at partys acts as more important than their words

Plaintiff in this case was found to be domiciled in Oklahomamet diversity/domicile standards

Domicile of United States citizen domiciled in England

(a)

No jurisdiction because federal jurisdiction when the party is a United States citizen but domiciled out of the states

(b)

Domicile is essential for state citizenshipno domicile in any state

Domicile of stateless and undocumented aliens

(a)

United States citizenship or status as permanent resident is vital to citizenship

(b)

1332(a)(2) doesnt give jurisdiction to stateless persons

Foreign citizens who are undocumented aliens

(a)

(7)

Plaintiff allegedly told some people he intended to leave Oklahoma for Illinois after the trial was over

1332(a)(2) gives jurisdiction over foreign citizensdoesnt matter if they are domiciled in the states

Domicile of students
(a)

Unemancipated normally same domicile as parent he is dependent upon

(b)

Emancipated may acquire domicile of choice

(c)

Every person has exactly and only one domicile

Domicile of Corporations
(a)

(b)

1332(c)(1)
(i)

Citizen of the state it was incorporated incan be multiple states

(ii)

Citizen of the state where it has its principal place of businessonly one state

Determining principle place of business (Kelly v. United States Steel Corp.)

(i)

(ii)

(iii)

(c)

Nerve Center Test

( A)

Court would have found that New York was the state of citizenship Desired by plaintiffs

( B)

Courts would have used this test only when the activities were evenly divided among a number of
states

Total Activities Test

( A)

Site of principle corporate activities and production (in Kelly was the site of the mills in Penn.)

( B)

Most courts use this test (as did the Kelly court)

Makes sense to use Total Activities Test:

( A)

Purpose of diversity jurisdiction is to shield outsiders from local prejudice

( B)

Total Activities Test picks the state where the corporation is least likely to be an outsider

Unincorporated associations
(i)

Associations, unions, partnerships

(ii)

Citizen of each and every state and country of which one of its members is a citizen

d) Desirability of diversity jurisdiction

(1)

Purpose is to shield outsiders from a local prejudice

(a)

Judges are for life

(b)

Their pay cannot be reduced

(2)

Changes over time

(3)

Federal judges are more insulated against local prejudice

(4)

Many criticize diversity jurisdiction

(a)

more burden on federal courts

(b)

, makes federal courts deal with state law

7. REMOVAL OF JURISDICTION OF THE DISTRICT COURTS

a) General
(1)

Sometimes Congress allows the defendant the power to select the federal forum

(2)

Federal court must have original jurisdiction over the case for the defendant to remove case to federal court

(3)

If the defendant selects the federal forum and the subject matter jurisdiction is met then the plaintiff cannot remove to the
state court

b) 28 U.S.C. 1441
(1)

(2)

(3)

1441(a)
(a)

Diversity of citizenship makes case removable

(b)

Actions under FELA may not be removed

(i)

Railroad employees

(ii)

Seamen

1441(b)
(a)

All federal issues are removableregardless of citizenship

(b)

If not federal issue and defendant is being sued in his own state courtnot removable

Removal must be made within 30 days

8. POSSIBLE REVIEW BY THE SUPREME COURT OF STATE COURT ACTIONS

a) General
(1)

United States Supreme Court can review any case from the state courts where the issue turned upon an issue concerning
federal law

(2)

United States Supreme Court cannot review state law cases

b) Supreme Court Review of State Court Decisions [28 U.S.C. 1257]

(1)

(2)

Desirability
(a)

Want to make sure that federal law is being applied uniformly by the states

(b)

Want to supervise the state courts to ensure they are interpreting federal law correctly

Procedure
(a)

(3)

Confined to the state court decisions of final judgments or decrees rendered by the highest court of the state in
which the decision could be made
(i)

Problem may resolve itself in the state courts if it can run its course

(ii)

Reduces possibility of friction between federal and state courts not to interfere with the state processes

Re-Consider Louisville & Nashville Railroad v. Mottley

(a)

Action was commenced in federal district court

(b)

United States Supreme Court said district court did not have jurisdiction since the jurisdiction was not founded on
the well-pleaded complaint

(c)

Action goes to state court

(d)

State Supreme Court affirms verdict for plaintiff

(e)

Defendant appeals to the United States Supreme Court on the same federal issue the plaintiff tried to get the action
in federal court on the first time

(f)

United States Supreme Court reverses saying the federal statute was applicable and constitutional

9. WHAT LAW GOVERNS A PARTICULAR ACTION

A. State Law
Issue: What law should be applied in the cases of diversity of citizenship.
- The federal court has judicial power to hear this case, even though there is no federal legislative power to create the governing law.
1.

Introduction- Swift v. Tyson (Where do they look at)

-

State court judges- Reduce the general principles from commercial law.

Judges are suppose to ascertain the true exposition of legal principle by using their legal reasoning.

Laws of several states refers to State statutes.

Rules:
(1)Swift court found that the Rules of Decision Act (28 U.S.C. 1652) meant that it only referred to the State statutes. This act
stated that the law of the several states shall be regarded as rules of decision in trials at common law in the courts of the U.S.
federal courts.
(2) The judge can still decide whether the prior judges in federal law had made the right decision or not, so he can change the law
if he believes that it is right in his case.

Divided legal authority into two categories. Between Statutory and Common law.

2.

The Positive Law- Statutes and constitution provisions.

Any basis for thinking that Federal Judges were better?

Judges Developed something called General Common Law.

Produced by legal reasoning not mere choice

Assume that legal reasoning would only lead to 1 answer

ERIE RAILROAD V. TOMPKINS (U.S., 1938)

Issue: Whether there was a duty to the plaintiff as a trespasser? And if not then was their negligence? Should Swift v. Tyson be
overruled? (last issue raised by court)
Facts: T was injured by a passing freight train of the Erie Railroad Co. while walking along its right of way. He was walking along a
footpath. He claimed that the accident occurred through negligence in the operation, or maintenance, of the train. He takes it to
federal case in N.Y.
Rule: In diversity cases, federal courts must apply the law that would be applied by the courts of the state in which they sit.
Notes:
- If it was a trespasser case then they will have to establish willful or wanton.
- If the got the general common law to apply, he would have to establish just negligence not wanton or willful.
- they probably thought that it would be better to get general common law with a lower standard of proof so thats why they went to
N.Y.
- Analysis: It held instead that liability was a question of general law about which federal courts were free to render independent
decisions. On appeal, the court reversed and remanded, holding that there was no federal general common law, and that except in
matters governed by the U.S. Constitution or by acts of Congress, the law to be applied by federal courts in any diversity case was the
law of the state. In so holding, the court overruled the contrary doctrine of Swift v. Tyson, 16 Pet. 1 (1842), finding it an
unconstitutional assumption of powers by federal courts that invaded state autonomy and prevented uniformity in administering state
law.
- There was failure to unify the law
Clash of the problem of predictability v. personal justice. Mechanical
- Problems with the Swift v. Tyson case
Brandeis

1. Tyson was wrong and that federal courts were required to follow the state common law.
2. Earlier version of Rule of Decision act incorporated the common law along with the statues from states.
Arguments with this
1. Earlier statute had common law more recent one did not could have been intentional
1. It was hard to tell the difference between general law and common law
2. Equal protection: fairness to litigants- some litigants had the choice whether they want federal law or state law. Others did not
have this choice because they could not get into federal courts.
3. Its unconstitutional because the federal courts cannot create a general common law
- Arguments that asserts it is Constitution
- Article III gives the power to develop common law in certain cases.
- Authorizes the creation of federal courts and defines their jurisdiction.
- Authorized the federal courts to hear claims that arise under federal law.
- Federal courts have jurisdiction for congress made law.
- Article I empowers them to make all laws which are proper in any department of government of the U.S.
Notes from Glannon
- Three reasons why the Court overruled the Swift v. Tyson Case
1. Swift had failed to achieve the goal of trying to make their federal decisions be the broad uniformity in the common law.
They thought that the state court judges would follow their rulings, but that did not happen.
2. Swift had introduced discrimination in favor of the out of state parties because they would have the ability to file in federal
court where the law might assert the opposite of what it did in State law. The people in the State would be upheld by their
own State law, which would discriminate against them.
3. Swift was unconstitutional because it authorized federal judges to make law in areas in which the federal government
has no delegated powers. It was unconstitutional because the Swift case determined the RDA to be applied only to the statutes
and not the common law.
Class Notes: 11/10
Material Rules For Federal Courts Early
Erie Test (Old Test)
1. Substance- State law applies
2. Procedure- Federal law applies Burden of Proof In Diversity Actions
a.

Cities Service Oil Co. v. Dunlap- State laws regarding burden of proof have to be applied in diversity cases.

b. Palmer v. Hoffman- Burden of proving contributory negligence in federal court is on the defendant, and was
proper because of local law
- federal courts have to apply.
3.

Choice of Law
a.

Two choices
i. Law of the place of the wrong- the law of a particular place where some particular event occurred
ii. Law of the forum- where the case is heard.
- Ex: A California person injures another California person in Oregon. Law suit can be brought in California but that State
court can use Oregon law.

b.

KLAXON CO. v. STENTOR ELECTRIC MANUFACTURING CO.

Rule: In diversity cases the federal courts must follow the law of the State as to burden of proof.
Facts: Plaintiff brought a diversity action for breach of K in the U.S.D.C. for the District of Delaware and obtained a verdict for
$100,000. The court, applying the law of N.Y. (the place of the performance of the contract), added prejudgment interest to that
sum. The 3rd circuit affirmed this addition of interest stating that the right to pre-judgment interest is a matter of substance, not
procedure, and so is governed by state law, the state law in which the state is the place of performance.

Holding: Reversed, remanded to see which states law would be applied. Federal courts in diversity cases were required by Erie
to apply conflict of law rules of the forum state.
Notes:
- Eliminates forum shopping that particular state.
c.

Outcome Determinative Test- GURANTY TRUST CO. v. YORK (U.S.,1945)

Issue: Whether or not state law governs diversity issues regarding statute of limitations? Whether it is substantive or procedural
law?
Rule: Reformulate it to Outcome determination Test- will the outcome be the same if it came under the State court.
Facts: This action was brought in the U.S. district Court, jurisdiction being based on diversity of citizenship; note holders of Van
Sweringen Corp. sued Guaranty Trust Co., the note holders trustee, for its alleged breach of trust, fraud, and .... Defendants
motion for summary judgment was granted. 2nd circuit reversed it. Supreme Court reversed the decision.
Holding: Whenever that law is authoritatively declared by a State, whether its voice be the legislature or its highest court, such
law ought to govern in litigation founded on that law, whether the forum of application is a State or a federal court and whether
the remedies be sought at law or may be head in equity.
Notes:
- Outcome Determination Test:
The Court noted that under the Erie Doctrine, in all cases where a federal court had jurisdiction solely because of diversity of
citizenship, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine
the outcome of a litigation, as it would be if tried in a state court.
- The doctrine required the federal diversity court to follow state law, and if the statute of limitations under state law barred
recovery in a state court, the federal court could not afford recovery. The Court reiterated that the source of substantive rights
enforced by a federal diversity court was state law, and that this law determined the outcome regardless of the forum or
whether the remedy was in law or in equity
Notes:
- Reasons for Statute of Limitations:
i. Limits cases to come to court docket
ii. We want people to have peace of mind, so they do not have worry anymore
iii. Want trials while the memory is fresh
- Are Statute of Limitations Procedural or Substantive
1. York wants it to be Procedural so that State laws do not apply.
2. Guaranty would want it to be substantive so that State law applies.
3. This case: State SoL should be applied
- New test was designed to give them an alternative forum but not an alternative law. (arguably covers procedural
matters that are outcome determinable)
1. Reduces forum shopping
2. Reduces discrimination.
Class Notes: 11/10
- Does this case discuss Constitutional Basis of the Erie Case
1. They talk about the policy that under lies the Erie policy. They state the Erie case is mainly for the forum shopping.
2. Proper distribution of judiciary power.
- What effect does the Outcome determinative Test have on the Federal Rules:
1. Ex: One federal rule states something and state federal states something else.
a. discovery
b. notice pleading
2. Therefore any procedural rule can be outcome determinative.

b. Applying the Outcome determinitative case

i. Some thought it was a negative impact on federal court independence
ii. Cases
1.

RAGAN v. MERCHANTS TRANSFER & WAREHOUSE CO. (U.S. 1949)

Issue: Whether the federal rules can be outcome determinative or not?
Rule: Accordingly, because the injured party would have been barred from recovery in state court for failing to
timely commence the action, he should be barred in the federal court.
Facts: P sues D in the district court for the district of Kansas for personal injuries arising out of a highway
accident. The applicable state statute of limitation was 2 years.
Notes:
- Shows how broad the outcome determinative test can become.

2.

WOODS v. INTERESTATE REALITY CO. (U.S. 1949)

Rule: Not allowed to bring suit because they had not properly registered in that state.
Facts: P, a Tennessee corporation, sues D, a citizen of Mississippi, in the District Court for the Northern District
of Mississippi for a brokers commission. A Mississippi statute requires a foreign corporation doing business in
the state to file a written power of attorney designating an agent for service of process and provides that any
foreign corporation not comply with this requirement shall not be permitted to bring or maintain any action or
suit in any of the courts of this state. The effect of this statute is to make the contracts of corporations void but
only to make them unenforceable. P therefore has not complied with the state statute. D moves for summary
judgment.
Notes:

4.

3.

COHEN V. B ENFICIAL INDUSTRIAL LOAN CORP. (U.S. 1949)

The bond requirement can affect the outcome because it would be harder to file derivative action. Unsuccessful
would be liable for the costs of the defense. Could not be dismissed as mere procedurally.

How could the bond requirement affect the case? Could make it impossible for the to bring the case. Bond
requirement is to make derivative actions more difficult. SO PROCEDURE CAN AFFECT THE
SUBSTANTIVE.

Federal Determination of State Law

a.

BERNHARDT v. POLYGRAPHIC CO. OF AMERICA (U.S. 1956)

Issue: Whether the federal courts are obligated to apply state decision certain arbitration clauses to be force able?
Facts: Petitioner, a Vermont resident, argued that an arbitration provision in his employment agreement with respondent, a New York
corporation, did not bar his federal court diversity suit for wrongful discharge, as governing Vermont law allowed such a provision to
be revoked prior to an arbitration award. The court agreed, saying that the United States Arbitration Act (Act), 9 U.S.C.S. 1-3,
incorporated into the contract's arbitration provision, was ineffective. While the Act made certain arbitration provisions enforceable, it
was inapplicable here because petitioner's duties under the agreement did not affect commerce. That the Act, which allowed for stays
in court proceedings when arbitration was pending, did not expressly condition the 3 stay to "transactions in commerce" was
immaterial, the court stated; each section was part of the field for which Congress was legislating. In diversity cases, the court
concluded, federal procedural law, but local substantive law, was to have been applied; petitioner's state-created right to recover for
discharge was merely enforced by federal procedure, and the outcome should not have differed from that of a state court proceeding.
Notes:
Rule:- Federal court must predict how the States highest court is likely to decide the case if the State Supreme court cases are too old.
(Bosch Case)

5.

Federal court is not obligated to follow lower State courts decisions. Only to try to predict what the highest court would do.

If the highest court is likely to overrule the case the federal court may look to lower courts, ,dicta

State Determination of State Law

a.

Shifting burden to state court

i. Abstention- denying the case based on unsettled public state law issue; denies to exercise the federal jurisdiction
ii. Certify the unsettled case to State law, to the highest court

b.

1.

State court must accept or refuse the certification.

2.

Causes delay for the parties

3.

Imposes burden on State courts

4.

Poses threat to the judicial function of the federal courts because it diminishes their authority and their sense of
responsibility

Sensitive Balancing Test BYRD v. BLUE RIDGE RURAL ELECTRIC COOPERATIVE (U.S. 1958)
Issue: Whether the work of the plaintiffs employer was work of the kind done by the defendants crewshould be decided
by the trial judge, as held in a South Carolina decision, Adams v. Davison, or by a jury, in line with federal practice? Erie
question is: should the judge or jury decide whether IC or employee.
Facts: Plaintiff was injured while performing work under that contract. The defense argues that workmens comp. bars the
plaintiff from bringing suit. Defendant argued that there was a procedure rule that would be outcome determinative. The
plaintiff would argue that its a procedure matter and should be taken by the federal court.
Analysis:
- First, since the Erie case states that the federal courts must respect the definition of state-created rights and obligations by
the state courts, they must look at the case on point from the South Carolina. Is Adams bound up with these rights and
obligations in this case so as to cause the federal court to have to follow it? There was no evidence that this was integral part
of the statute. They decided it is a weak state interest in this rule. Could have considered the state interests with:
1. Judges might have more expertise
2. Speedier trial
3. Juries might be unsympathetic to this issue
4. Judge decisions are easier
- Secondly, the Erie case also states that the federal courts should conform as near as may be to the state rules so that the
litigation would come out to have the substantially same findings as it would under the state court.
Notes:
- Considerations that need to be looked at:
1. York Outcome Determinative Test: If this was the only consideration then a strong argument can be made that the federal
court should follow State practice.
2. Influence of the 7th amendment of issuing fact questions to the jury.
- The character of the jury is important in the system
- The allocation of the judge and jury power is important
3. Uncertain that the outcome will be affected by a judge or jury (doesnt lead to forum shopping, probably lessens the
likelihood)

- Byrds Sensitive Balancing of Interest Test

1. The interest in the State Rule
2. The federal Policy- in favor of the federal rule
policy > small state interest? Then follow federal policy.
3. Consider the Outcome Determinative Test- this is uncertain
- Problems with this test
1. Inconsistent results
2. Difficult to weigh the States Interest (sometimes hard to determine legislative history) and hard to maintain objectivity in
weighing of state interest by a federal judge
3. Whether you could trust the Federal court to be impartial in weighing the States Interest (argument could be made in this
problem that the state interest was great)

- Erie Cases main points

1. Stop Forum shopping (not giving them an alternative law)
2. Stop Discrimination
Holding: The Supreme Court reversed the judgment of the court of appeals that directed a verdict for the respondent corporation in a
negligence action. The Court also held that petitioner was entitled to a jury trial, even though under state law petitioner would not have
received a jury trial. The Court stated that the federal policy favoring jury decisions of disputed fact questions should not yield to the
state rule.
c.

Federal Rules: HANNA v. PLUMER (U.S. 1965) FEDERAL RULES DONT CONFLICT WITH THE ERIE DECISION.
CAN FOLLOW THE RULES EVEN IF THE OUTCOME WILL BE CHANGED. AS LONG AS THE RULE APPLIES.
Issue: Whether in a civil action where the jurisdiction of the U.S. district court is based upon diversity of citizenship, service
of process shall be made in the manner prescribed by state law or that set forth in the Federal Rules of Civil Procedure.
Facts: H was claiming damages in the amount $10,000 for personal injuries resulting from an automobile accident in S.
Carolina from the negligence of Plumer, resident of Massachusetts. Service was made by leaving copies of the summons and
the complaint with respondents wife at his residence.
Holding: The Court reversed the decision of the court of appeals, which affirmed the grant of summary judgment to
respondent executor in petitioner injured suit for personal injuries. The Court held that service of process under the Federal
Rules of Civil Procedure was the standard, which the district court should have measured the adequacy of service.
Notes:
- What Law Governs with issues regards to Federal Rules:
1. Federal rules apply if it was passed in the Rules Enabling Act
- Rules shall not abridge or modify any substantive rights.
Test for this case
- (1)Test for validity- does the rule really regulate procedure.
1. Does the rule apply?
2. Then ask is the federal rule valid in under the Constitution and Rules Enabling Act
- (2)Is the rule under constitutional power? Yes, because if there is power to create the courts then there is power to create
rules to regulate the court. (evidence and procedure)
- (3)What do they say about the Outcome Determinative Test? The OTD test is not a litmus test. You have to look at the twin
policies of Erie rule (avoidance of inequitable administration of justice, and forum shopping)
- Every federal rule would then be outcome determinative test.
- The court moves the time of the outcome determinative test at the point where the choice is made between which
courts to file in.
- Questions whether anyone would select a federal forum because of the notice method.
- They distinguish Erie and its progeny (Ragan, Cohen and Woods), because there was no conflict with the federal rules.
- Why doesnt the Byrd Balancing test apply? Because of the supremacy clause, a federal statute is at issue and not a policy
question.
STATE LAW v. FEDERAL RULE
1.

Does the rule apply?

2.

Is there a conflict between state law and federal rule?

3.

If there is no conflict then the state law applies.

4.

If there is a conflict, is the law valid under the Rules Enabling Act? If it is then follow the federal rule because of its
supremacy of the federal law. (Does it abridge, enlarge, or modify any substantive right? Substantive v. Procedural).
a.

d.

To find that the rule is not valid a court must find that the Congress, Committee, and Court erred in its prima facie
case. (Meant as a deterrent to find rules invalid.) Court has never found this.

SZANTAY v. BEECH AIRCRAFT CORP. (349 F.2d 60, 1965)

Issue:
Facts: S bought a beech aircraft in Nebraska and flew it to Florida and thence to South Carolina, where it was serviced by Dixie
Aviation Co. during a brief stopover. They then left for Illinois, where they lived, but the plane crashed in Tennessee, killing all its
occupants. The Illinois personal representatives of the decedents each brought a diversity action in a federal district court in South
Carolina against Beech and Dixie, alleging negligent design and negligent service. B moved to dismiss the action based on a South
Carolina statute stating that a foreign corporation could be sued in a South Carolina court only be residents or nonresident plaintiffs
when the cause of action arose in South Carolina.
Holding: Affirmed, motion to dismiss case was denied.
- The court held that the statute did not restrict jurisdiction of the federal court in plaintiffs' diversity case because the countervailing
federal considerations were explicit and numerous. The federal jurisdictional and venue statutes did not affect the rules of decision by
which the parties' rights would be adjudicated; they only determined the forum.
Analysis:
- The court said that no State interests were involved.
- On the other hand there was significant federal interest in providing a forum that would have been defeated by the State. Law
- This court disregarded the States door closing law.
Notes:
- What would result under Hanna? Policy against forum shopping would seem to bring the State law.
e.

Day & Zimmermann, Inc. v. Challoner

Overview:
Issue: Should they over rule Claxton and go with the balancing rule where they balance federal issues in with the State law.
Overview: The district court submitted the case to the jury based on the Texas law of strict liability. The appellate court upheld
the judgment rendered for respondents. The appellate court refused to apply Texas choice-of-law rules because to do so would
have resulted in the application of the substantive law of Cambodia, the place of the injury, and Cambodia had no interest in the
case. The court vacated the appellate court's decision. The conflict-of-law rules to be applied by the federal courts in Texas in
diversity cases were the conflict-of-law rules applied by the Texas state courts. As the appellate court refused to apply Texas
conflict-of-law rules, the case had to be remanded.
Klaxon Rule: In diversity cases the federal courts must follow the law of the State as to burden of proof
Significance of this case

f.

The Byrd approach to not overturn settle precedent.

The bounds of settled precedent are critical to the importance of STARE DECISIS.

Walker v. Armco Steel Corp.

Overview: The injured person brought suit against the manufacturer within the state statute of limitations, but service was not
made until more than 60 days after expiration of the limitations period. Under Okla. Stat. tit. 12, 97 (1971), service was too late,
but service would have been timely under Fed. R. Civ. P. 3. The district court dismissed the complaint because the Oklahoma
tolling statute was an integral part of its statute of limitations. The court of appeals agreed, and the Court affirmed. The Court
reviewed prior rulings concerning statutes of limitation, and held that under those rulings, the state tolling provisions applied. The
Court noted that in diversity actions, Rule 3 governed the date on which various timing requirements of the Federal Rules began
to run, but it did not affect state statutes of limitation. On the other hand, the state statute was a statement of a substantive decision
by the state that actual service on the defendant was an integral part of the several policies served by the statute of limitations.
Rule 3 and Okla. Stat. tit. 12, 97 (1971) therefore each controlled its own intended sphere of coverage without conflict
Facts: W claimed that Armco Steels nail had a defect. He claimed that they were negligent. Based on diversity jurisdiction the
complaint was brought in District Court. Suit brought was after 2 years of statute of limitations were up. A says it was to late
under Oklahoma law. If the complaint is filed within the date of the limitation then its OK.
Holding: The Court affirmed the judgment of the court of appeals, which held that state law controlled tolling of the state statute
of limitations
Analysis
- They looked at the York case which led to the Ragan Case. This showed that the State Law rule determines the filing for statute
of limitations purpose because it would substantially change the outcome.
- They cannot give a longer life in federal court rather than State court. To do so would be inconsistent with Erie

- This case is barred if Ragan is good law. Walker argued that Ragan did not survive Hanna. Walker argued that the Oklahoma
statute is in direct conflict with rule 3. But this case was not in direct conflict with Rule3, because it does have to deal with Statute
of Limitation Issues.
Rule: Once a case has supported an Erie question, it wont change its mind. So since Walker case is factually the same as the
Ragan case then that case controls. Rule 3 and a state statute of limitation requiring notice do not conflict.
g.

Burlington Northern Railroad v. Woods

Issue: Under Hanna: Does state statute rather than rule 38 apply in federal court?
Rule: Rules regulating matters of procedure are clearly constitutional rules regulating matters falling into the area of procedure
and substantive material also are satisfy the constitution.
Facts: Diversity case where the W recovered money for personnel injuries. The appellate court affirmed based on a Alabama
statute that awards a penalty.
Holding: Reversed, holding that the mandatory affirmance penalty had no application to the judgment entered by a federal
diversity court because it conflicted with a federal rule of appellate procedure.
Analysis:
- This time there was a conflict between the rules.
Notes:

Why do you think they appealed? Allows them to delay payment.

Definitions by a commentator

h.

Procedural rule is on that is designed to make litigation a fair and efficient method. Process of enforcing the litigants
rights.

Substantive right is one or more nonprocedural rules that have no bearing on fairness or efficiency

Gasperini v. Center for Humanities, Inc.

Issue: NY law lets permits appellate court to review the size of jury verdicts and order new trials, when the jury award deviates
materially from what would be reasonable compensation. The 7th amendment states that the right trial by jury shall not be reexamined by any state and no fact by jury shall be reexamined. Does NY law apply in divreisty case in NY?
Facts: Federal court jury awarded $ 450,000 in compensatory damages to Petitioner journalist for the loss of 300 slide
transparencies. Respondent's motion for a new trial was denied. The appellate court set aside the verdict as excessive, relying on
N.Y. C.P.L.R. 5501(c) (McKinney 1995) which empowered New York appellate courts to review the size of jury verdicts and to
order new trials when the award materially deviated. It had substantive and procedural components. Substantive examine a
ludicrous award by jury. Procedurally look at what other courts have decided.
Holding: The United States Supreme Court vacated the judgment with instructions to the appellate court to remand the case to the
district court to revisit the motion for a new trial. The Court determined that the New York statute could properly be given effect
in federal court, without detriment to U.S. Const. amend VII, if the statutory review standard was applied by the federal trial court
judge, with appellate control of the trial court's ruling limited to review for abuse of discretion.
Notes and summary:
1st Situation- Supremacy Approach
Federal Rules (Evidence, Appellate Pro., Civ. Pro.)
nd

2 Situation Questions to answer when discussing the ERIE CASE?

1. Does the federal rule (law) apply?
2. Is there a conflict between the Federal Rule and State Rule? (Ragan, Cohen, Woods, etc..)
- argue both sides
- if the there is no conflict, then presumably apply Federal and State Rule.
- if there is a conflict go to step 3
3. Is the Rule Valid 28 USC 133? Does the federal abridge, modify, or enlarge any substantive right?
- Problem is defining substantive v. procedural (make arguments on an exam)
- They have never found that the federal does abridge, modify, or enlarge any substantive right.

Third situation- Federal Practice- something not compelled by rule or statute

1.

Byrd Balancing Test- balance the federal interest, state interest, and evaluate the outcome.

( A)
2.

a.

Byrd fed > state interests

b.

Gaspirini attempted balanced the interests

Federal Common Law

ClearField Trust Co. v. U.S. (318 U.S. 363)

Issue: Whether the U.S. delay in notifying precluded the government from collecting?
Rule: The rights and duties of the U.S. on commercial paper which it issues are governed by federal common law rather than local
law.
Facts: Petitioners, a retail store and a depository bank, sought review of an appeals court's order that reversed a district court judgment
holding that respondent United States was barred from recovery because respondent delayed in giving notice of the forgery of a check.
The check was obtained by an unknown person who transferred it to petitioner retail store in exchange for cash and merchandise, and
the check was endorsed to petitioner bank for collection. Neither petitioner had any knowledge or suspicion of the forgery. Each acted
in good faith.
Class Notes:
- Section 1345: actions brought where U.S. is a plaintiff; therefore its under federal law
- D.C. held that it should be governed by state statute, because there was no federal statute for U.S. to recover.
- What is the source of authority for Federal Common Law?? Is that the government was exercising a constitutional function. The
performance justifies the creation of the common law.
- Federal issues in some situations are so important that the rules of the case has to be federal.
- What about the Rules of the Decision Act?? It says that if there are no constitutional statute then they should use state law. ( RDA
is not restricted to Diversity cases)
- The Act says to use it when the cases apply. Its up to the federal court to decide when it applies or not.
What is to be the content of federal law? State law can be adopted as the federal law.
1. They can incorporate state law
2. Apply a uniform rule that will be applicable in all states.
- In this case they fashioned a uniform federal rule

3.

U.S. v. Kimbell Foods, Inc. (440 U.S. 715)

Rule: (1) Federal law governs and controls the Governments priority rights. Conversely, when there is little need for a nationally
uniform body of law, stat law may be incorporated as the federal rule of decision
(2) Adopting state law as an appropriate federal rule does not preclude federal courts from excepting local laws that prejudice federal
interests.
Facts: The Court granted certiorari in two cases to determine whether contractual liens arising from federal loan programs took
precedence over private liens, in the absence of a federal statute setting priorities. In the second case, a debtor obtained loans from
plaintiff government and gave a security interest in crops and equipment. Defendant repairman obtained a lien in the same property.
The court of appeals held in favor of the repairman under a special federal commercial law rule. Upon review, the Court affirmed
judgment in first case because state law gave preference to the wholesaler's lien.

4.

Illinois v. City of Milwaukee (406 U.S. 91)

Rule: When Congress addresses a question previously governed by a decision rested on federal common law, the need for such an
unusual exercise of lawmaking by federal courts disappears.
Facts: The State brought a federal action against 4 cities and 2 local sewerage commissions in Wisconsin, seeking to abate the public
nuisance allegedly caused by the defendants pollution of the interstate waters of Lake Michigan.

IV. What Law Governs A Particular Action? - State Courts

a.

Hinderlider v. La Plata River & Cherry Creek Ditch Co.

Rule: Whether the water of an interstate stream must be apportioned between the 2 states is a question of federal common law upon.

Facts: A Colorado corporation brought suit in a Colorado state court against the State Engineer of Colorado to enjoin him from
depriving the plaintiff of the use of the water of the La Plata River. The river ran from Colorado into New Mexico. A issue arose as to
the rights of the two states to its water.
b. Dice v. Akron, Canton & Youngstown Railroad (324 U.S. 359)
Rule:
Facts: Plaintiff brought an FELA action in an Ohio state court. The railroads defense was a release of all claims that was signed by
plaintiff. P claimed that it was void because he relied on false statements that the document was merely a receipt for back wages.

START HERE FOR SPRING 2015 EXAM:

II. Authority to Adjudicate
A. Supplemental Jurisdiction
1. Federal Question
A)

Bell v. Hood U.S. 1946

(1)

Plaintiffs allege illegal search and seizure in violation of the 4th and 5th Amendments to the United States Constitution

(2)

Argument that case did not state a claim under federal law:

(3)

(4)

(a)

Complaint states a claim for the state law of trespass

(b)

Rule 12(b)(6) motion because the Constitution does not authorize receipt of damages for constitutional violation
and Congress has not allowed this by statute

Courts response:
(a)

Look at the way the complaint is drawn to see if there is a right to recovery under federal law

(b)

2nd argument
(i)

Federal question jurisdiction is not defeated simply because of Rule 12(b)(6) failure to state a claim

(ii)

Must take jurisdiction to see if plaintiff could recover damages under the Constitution

Must be a substantial federal claim, claims that wont be able to get federal jurisdiction:
(a)

Where claim appears immaterial

(b)

Wholly insubstantial and frivolous

(5)

Dissents concernwould give federal courts jurisdiction over state law claims

(6)

On remand w/o any independent jurisdiction. Could the court hear the trespass issue? Yes under pendent claim
jurisdiction

2. Pendent Claim Jurisdiction

A)

B)

Defined
(1)

Used when a single plaintiff has a claim properly in federal court against a single defendant and the plaintiff appends/adds
onto his claim that in and of itself cannot be brought in federal court independently

(2)

Could arise when first claim is based upon federal law and non-diverse plaintiff seeks to add a claim under state law

(3)

Federal court can choose whether to use pendent claim or not.

Policies Promoted
(1)

Judicial efficiencymore efficient to have a single resolution of related cases (.

More efficient to have single

resolution of all matters and pendant J allows the combining of claims that would be otherwise two
separate matters. One fed proceeding. Is this a good justification? Yes.)

(2)

Encourages litigants to vindicate their federal claims in federal courts, where the federal judge has more expertise and
sympathy in federal issues. (Encourages litigates to try to mitigate fed claims in fed ct where judges would

be more experienced and independent then the state ct judges. P would be deterred from going to fed
ct why bec then it would be too expensive. Parties would be pushed into state cts where they can
litigate all claims together so not a good result to better t be have pendant justification.)
C)

D)

Critique
(1)

Expands federal court jurisdiction without constitutional support

(2)

Constitutional question was resolved in sodfjof when the S.C. stated that federal question is more than just the question
but the entire case.

Required Connection Between Federal and State Claims

(1)

Early history of Pendent claim (Hurn v. Oursler)

(a)

Federal judicial power extends to cases that include all related facts and issues

(b)
(2)

Required virtually total factual identity between the claims

Break through case on pendent claim jurisdiction (United Mine Workers v. Gibbs S.C. 1966) (What

must
connection be between fed claim and state claim? SC made clear that pendant J culd only be used in
conceptional or factual linkage to claim that was properly in fed ct and the clam that they are trying to
add onto it. nature of linkage? United mine works v. gibbs)
(a)

State and federal claims brought to the district courtJNOV on federal claim but district court heard the state
claim (sc said that fed cts can exercise pendant j whenever the relationship between fed question

claim and state claim is close enough to permit the conclusion that the entire action comprises
one constitutionality case. Ct explains this- state and fed must derive from common nucleus of
operative fact* if considered, P claims are such that he would ordinarily be expected in one
judicial proceeding and assuming sub of fed issue, there is power in fed cts to hear the whole)

(b)

(I)

One has to det if there is a sub non friv fed question- requirement coming from? Bell v
Hood. Excludes only cases in which the fed claim is not colorful

(II)

State law and fed claim must arise under common nucleus of operative fact- claim must
arise under the same transaction and that is the logical relation test to see if same
transactions

(III)

Can they be tried in same proceeding? Satisfy single trial expectancy trial

(IV)

fed ct have discretion to exercise pendant J

United States Supreme Court affirms sets out three element test: Gibbs Factors(i)

Must determine that there is a substantial, non-frivolous claim (Hood)

(ii)

State law claim and federal law claim must arise from a common nucleus of operative factsthis rejected
the Hurn requirement

(iii)

Claims would ordinarily be tried in one proceeding

(c)

If plaintiffs claim is one which the plaintiff would ordinarily be expected to try them all in one judicial proceeding
usually satisfied by the common nucleus of operative fact test

(d)

Types of cases where federal courts should not have jurisdiction:

(i)

If the federal claims were dismissed before trial (this was suggested by Gibbs)
( A)

(e)
(3)

(Supreme Court later softened thismust have sufficient judicial investment in the claim)

(ii)

If the state issue is predominant

(iii)

If it is likely that the jury will be confused by treating divergent legal theories

(iv)

If the state law is difficult or unresolved by the state courts

If the state claim is closely tied to federal policyargument for pendent jurisdiction might be strong

Ancillary Jurisdiction
(a)

(b)

Definition
(i)

Opportunity for defendant to include 3rd party defendants to assert claims against either the plaintiff or the
3rd parties over which the federal court doesnt have original jurisdiction but is related to the claim over
which the court has original jurisdiction (Requirement is that the Claim to be added must arise out of the
same transaction which was originally in federal court)

(ii)

Claim to be added must arise out of the same transaction which was originally in federal courtuse logical
relation test to determine if in the same transaction

(iii)

Purposemore efficient to try cases with one lawsuit instead of multiple

Rules resulted in the need for ancillary jurisdiction

(i)

Rule 13(a)compulsory counterclaims

( A)

Ex. A sues B (both citizens of different states), but there is a counter claim over which the court has
no jurisdiction.

(ii)

Rule 13(g)cross-claims, claim by one party against a co-party (defendant 1 sues defendant 2)

(iii)

Rule 14(a)impleader, defendant sues a party who is liable to defendant because of the original claim
brought by plaintiff
( A)

(c)

Questioning of Ancillary Jurisdiction (Owen Equipment & Erection Co. v. Kroger)

(i)

(ii)

Facts:
( A)

Decedent was electrocuted when he hit an electrical wire while operating a steel crane

( B)

Plaintiff (Iowa resident) sued Omaha Power District in federal court (diversity)

(C)

OPPD filed an impleader attaching defendantOPPD is dropped out of suit

( D)

Defendant is found to be citizen of Iowa

Supreme Court rejects jurisdiction:

( A)

Would flout congressional intent for complete diversity in 28 U.S.C. 1332

( B)

Plaintiff could circumvent complete diversity requirement by suing only diverse defendants and
waiting for them to implead non-diverse parties

(C)

Focused on posture of the party seeking the claim against a 3rd party

( D)
(d)

(I)

Plaintiff in an offensive posturesince she brought the suit in federal court she must abide
by the rules of the court

(II)

Ancillary jurisdiction is usually used by defendant hailed in to court against his will
(defensive posture)fairness to the party in the defensive statute should help guide the court

(III)

After Finley there was general questioning (undermining) of all supplemental jurisdiction
even though Finley claimed to only touch pendent party jurisdiction (rendered Gibbs brain
dead but would not discontinue life support)

Plaintiff cannot implead unless he would be able to file direct claim.

Hypo
(i)

Pendent party jurisdiction. sues 1 where there is federal diversity jurisdiction. Can court hear closely
related state law claim has against 2.
( A)

(II)

(4)

A (Texas) sues B (Arizona). B says if B is liable to A then C (Arizona) is liable to B.

Yes because
(I)

Efficiency

(II)

Federal judge can best deal with

Suppose we have P who sues D1 in fed district ct with fed question j. does fed ct have
discretion to hear closely related state law claim that the P has against D2? Yes- judicial
economy to allow hear this claim (After Gibbs case, many ct apply Gibbs doctrine to
apply pendant party jurisdiction- allows P with fed claim against D to assert fact non fed
claim against non diverse D. against first D and not the second, although both arise out of
same transaction Finley v US- this case gets overturned by statute)

Pendent Party Jurisdiction

(a)

Definition
(i)

(b)

Where plaintiff has claim against first defendant but not the second defendant but both the claims rise out
of the same transaction

Disallowance of Pendent Party Jurisdiction (Finley v. United States)

(I)

Facts: Ps children killed in airplane crash. P sued U.S. in federal court for negligence (federal claim with
exclusive jurisdiction). P tried to join nonfederal claim against a non-diverse second defendant (the
municipality who operated the airport). The court would not allow the court to hear that claim.

(II)

Rule: Pendent party jurisdiction is not permissible because there is no act of Congress authorizing the
jurisdiction

(iii)

Even where exclusive jurisdiction exists over a claim against on defendant, court cannot assert jurisdiction
over a state claim over a non-diverse party that is not independently a federal jurisdiction claim
( A)

(iv)

Against judicial economy

Reasoning of Court:
( A)

Judicially inefficient, because they will have to split the claims because both claims cannot be
brought in state or federal court.

( B)

Federal courts get their jurisdiction from two sources:

(C)

(I)

Article III of the United States Constitution; Const has to give ct power to take j

(II)

Congress via statutory grant; Act of Congress has to provide for J

No J granted in Article III or statuteno jurisdiction (problem? No act of congress- the

Gibbs ct held pendant j but problem n Gibbs is that they held it but didnt
specifically see whether there was statutory support for J and ct find no statutory
grant of j for pendant party j so F case insist and others say that pendant goes
beyond statutes but F ct didnt say that all types of PJ were invalid, but pendant
party j was invalid. Proble, at case is that ct is on slippery slope and hard to limit F
to pendant party j- all supplemental J were called into question. Absence of 1
statute j called all forms of pendant j as not having statutory support)

( V)

Gibbs allowed pendent claim jurisdiction without establishing authority via congressional statute

(VI)

Finley insists upon a statutory grant authorizing pendent party jurisdiction

(vii)

Although Finley was intended to limit only pendent party Js, all pendent jurisdictions were called into
question
( A)

Practical consequences of elimination of pendent and ancillary J.

(I)

(5)

Loss of judicial efficiency. Requiring claims to be split into federal and state courts.

Codification of Supplemental Jurisdiction

( A)

28 U.S.C. 1367 (Supp

j exercised when fed and non fed claims arise out of same nucleus of
operative fact or arise at same transaction. Use logical relation test when enough connections
between fed and non fed claims that litigating them together would be efficient and just; 1367aany civil action have original j, DC have supplemental J under art2- joinder and intervention of
parties; fed diversity- 1367b- diversity cases, limitations on supp J, prohibits fed cts to exercise
where it would be inconsistent with diversity statute)
(i)

Statute is a response to Finley

(ii)

Tried to codify Gibbs (common nucleus of operative facts) and expand it to all forms of supplemental
jurisdiction

(iii)

Subsection A

(iv)

(a)

Common nucleus of operative facts test is laid out

( B)

Includes federal question and diversity cases

Subsection B
( A)

Could be read broadly until examining legislative history. Special limitations to diversity actions:
(I)

Implemented concerns set out in Owen

(II)

Not allowed when it would encourage plaintiff to evade complete diversity requirement by
initially naming only those defendants who were diverse citizens and latter adding claims not
within original jurisdiction

(III)

Allowed when plaintiff is in a defensive posture

(IV)

Only prevents federal courts from hearing supplemental claims asserted by a plaintiff in a
negligence offensive posture against an non-diverse 3rd party (i.e. compulsory counter
claim)

(v)

Subsection C
( A)

( B)

Codification of Gibbs factors for when district court could decline jurisdiction:
(I)

The claim raises a novel or complex issue of state law

(II)

The claim substantially predominates over the claim or claims over which the district court
has original jurisdiction

(III)

the district court has dismissed all claims over which it has original jurisdiction

(IV)

In exceptional circumstances, there are other compelling reasons for declining jurisdiction

Discretionary Decline of Supp. J Example Executive Software v. United States District Court
(I)

An African-American woman formerly employed by an allegedly scientology-dominated

company, brought federal and state discrimination claims in a California state-court case.
Defendants removed. The federal district court chose not to retain jurisdiction over the statelaw claims, the court possibly concerned about mere docket congestion but simply citing to
Gibbs discretion.

B. Territorial Authority to Adjudicate

1. The Framework
a) History

B)

(1)

Early English proceduresheriff would arrest the defendant and he would await trial in jail

(2)

Eventually abandoned this idea and jurisdiction was established by service of process without need to wait judgment

Territorial JurisdictionA Starting Point (Pennoyer v. Neff, Supreme Court1878)

(1)

1st Lawsuit (Mitchell v. Neff) (why

should he be req to show that the ct has j? whether or not if the

problem we want to know the ct had J bc we want to be clear that the D had notice of proceedings so
D can defend- is notice of proceedings a concern? Concerned about something else bc notice is not
enough to get j. process of tribunals of one state cannot run into another state- notices are not
enough. Concerned with? Power, power to do this- the state has to have power and that the authority
of ever tribunal is necessarily restricted by the territorial limits of state in which it is est. within those
limits, the state has exclusive power and outside the limits the state has virtually no power- when cts
exceed pw, they, the judgment do not get full faith credit and fed ct treat those extras as nullities. Neff
is saying that he was not in Oregon so they had no power or J over him. traditional way to exercise
this power is service of power- assumption in Penn case is thats of P is a way to bring power of state
to bare and serve process so process is exercise of power and summons of D to file answer or suffer
default judgment. Why shouldnt a state be able to exercise auth or ppl or prop outside limits? What
interests are being protected by having a system that would requite a creditor to find out? ** it is a
way to give protection to debtors and could be sued if we didnt have limits on ability to sue us)
(I)

(b)

Ct says that process from tribunals of one state cannot run to another state. Source of
rules that relied on in Penn case? 14 am or 5am but in this case, they dont do this so what
is the source? Where getting rules from? principles of public law* pg 478 due process
is not applied bc it is not in effect. Rule that describe rights of independent states.1st
principle is that exists exclusive J and sov over persons and property in that state and 2.
no state has authority or property outside of its territory. These principles have problemsif Neff was served personnel in Oregon, would CA loose exclusive j? no bc of domicile
they are subject to tsuit in both states. How exclusive is the states power? Waive personal
J, you show up to ct, file a doc to make a appearance. What if Neff appears? Rule talk
about rights of sovereigns, so how can Neff give up the states rights? Logical difficulties.
Pennoyer set up specific approach to j and a power test and j based on authority within
cts territory and this power test imposed a categorization test on cts bc question of power
turned into over whom or what

Mitchell sues Neff in Oregon state court claiming Neff owed him for legal services

(2)

(3)

(4)

(c)

Neff was served by publication in local paper (Oregon allowed service of non-resident in paper)

(d)

Neff failed to responddefault judgment to Mitchell

(e)

Three days later Mitchell sells land to Pennoyer

2nd Lawsuit (Pennoyer v. Neff)

(a)

Neff sues to regain title to land

(b)

Lower court found for Neff because the affidavit was improper because of the power limited to the court not
whether the defendant received notice.

says there must be a showing by the court that it has territorial jurisdiction
(a)

Process of the tribunals of one state cannot run into other states

(b)

Authority of each tribunal is necessarily restricted by the territorial restrictions of the state

(c)

Within its limits, the state has almost exclusive power. When a court exceeds its power, the decisions are void.

(d)

J is based on the authorities territory.

Pennoyer gives rise to three categorizations for territorial jurisdiction: know these and go through all this information
when evaluating a claim
( A)

In Personam Jurisdiction
(i)

When judgment makes defendant personally liable

(ii)

Only by personal process within the forum state, or

( A)

(B)

(C)

Does not matter if the defendant was only in the state briefly

(iii)

By consent

(iv)

When impossible to serve others inside forum state there are other alternativesin rem and quasi in rem

(v)

Power over D herself so they will have personal J in her forum

In Rem Jurisdiction- lawsuit is regarding that prop

(i)

Property is the focus of the suit

(ii)

Personal service within the jurisdiction is not necessary

(iii)

Physical presence of the property within the state vests the state with jurisdiction to adjudicate the rights of
any individual whether that person was in the state or not

(iv)

Only allows the court to adjudicate rights of people anywhere in the world but only with respect to their
rights in that property

( V)

In rem jurisdiction didnt give authority to assess damages against any individual or in anyway control that
persons rights apart form that persons interest in the property

Quasi In Rem Jurisdiction using the prop as basis for J but the suit is not about the prop
(i)

Substance of the case has nothing to do with the in-state property but the state lacks authority to assert in
personam jurisdiction

(ii)

P Can assert jurisdiction within the state over D propery by attachment or garnishment at the beginning of
the suit to allow seizure of the property to secure any judgment that the plaintiff might ultimately obtain on
the claim

(iii)

Real property is ex! Land, real estate. Hard for intangible property like bank accounts, abstract entities

(IV)

Justice field- excludes

( A)

1. Cases involving status of state without other side- marriage one left state and
she wants a divorce. She speaking divorce has J to decree divorce without personal
service on absence of spouse bc marital status is like property. In rem j. cannot
decide question of alimony without having personum j over D

( B)

2. State might insist on consent of J in advance. If company wants to advance for

condition to engage in certain types of activates in state

c) Seizure of Property is not Constitutionally Necessary (Closson v. Chase, Wis.1914)

D)

(1)

Court saysactual seizure of the property is not constitutionally necessary

(2)

Plaintiff only has to direct the action toward some specific in-state property at the onset of the action

(3)

Butmost states require seizure of the property as a prerequisite for non-personal jurisdiction

Quasi In Rem Jurisdiction is Extended to Intangible Property (Harris v. Balk, Supreme Court--1905) Opened door to vast
expansion
(1)

Harris owed Balk money. Both residents of N.C. Balk owed Epstein money who was in Baltimore. When Harris was in
Baltimore Epstein added to writ. Harris paid Epstein and Balk later sued. 2 suits
(a)

1st suit Epstein v. Balk Marylands pretext is that property needs to be in Maryland Harriss debt was Balks
property because of debt

(2)

N.C. Supreme Court stated Maryland had no J because Harris was only temporarily in Baltimore. U.S. Supreme Court
overruled.

(3)

Debt clings to debtor and follows him wherever he goes.

(4)

Notice of debtee not requiredhe will get notice from seizure.

(5)

In rem J is important for state to have authority to quiet titles to property in territory

e) Two Exceptions from Jurisdictional Requirements

(1)

Cases involving the status of a states residence does not require personal servicemarriage (divorce when person has
left the state)
(a)

Marriage status is like propertyin rem jurisdiction

(i)

(2)

Plaintiffs state can only decree the divorcecant decide alimony or child support without in personam
jurisdiction over the defendant

State might insist upon consent to jurisdiction before it allows a person to engage in some activities in the state

2. Jurisdiction Over PersonsTheory in Evolution

a) Presence as Basis for Jurisdiction
(1)

Transient Jurisdiction
( A)

Physical presence in the state is enough to have jurisdiction ( Pennoyer v. Neff)

(b)

Jurisdiction is established if defendant is served in the state even if only for a few hours (Darrah v. Watson, Iowa
1873)

(c)

Jurisdiction is established if defendant is served above the state in an airplane (Grace v. MacArthur, Arkansas
1959) (Ct held that service was suff to raise in Arkansas J- transient J allow state to exercise J

over D if only in state for a short period of time if served with process within time period)
(i)

Enforcement of judgments in other states:

( A)

Judgment for plaintiff can be enforced in the state it was rendered

( B)

Enforcement of judgment in other states:

(C)

( D)

(I)

Bring action in other states courts

(II)

Defendant can collaterally attack judgment by claiming its invalid

Requirements for a valid judgment before it can be enforced:

(I)

Court must be competent to hear the casemust have subject-matter jurisdiction

(II)

Court must have sufficient basis for adjudicatory authority over defendant or other target of
actionmust have territorial authority

(III)

Person to be legally affected must have had the opportunity to be heard (due process)

If judgment is found to be validother state must give judgment the full faith and creditsame
effect of valid judgment in original state

( E)
(2)

The law applied to determine the validity of the judgment is the law of the rendering court subject to
certain constitutional limits

Exceptions to transient jurisdiction:

(a)

Cannot fraudulently entice a person into a state to serve them (Wyman v. Newhouse, 2nd Cir.1937)

(b)

In most states a non-resident party, witness, or counsel is immune from service of process when present in the state
for attendance at litigation and for reasonable time to and from

(C)

Burnham v. Superior Courtrevisit this one**

b) Domicile as Basis for Jurisdiction

(1)

Domicile alone is sufficient for jurisdiction (Milliken v. Meyer, Supreme Court1940)

(a)

Domicile in the state is alone sufficient to bring an absent defendant into reach of the states jurisdiction for
purposes of a personal judgment by means of appropriate substitute service

(b)

Authority of a state over one of its citizens is not terminated by his mere absence from the state

c) Consent as Basis for Jurisdiction

(1)

(2)

(3)

Consent before jurisdiction sought is usually effective

(a)

Usually in contracts that say defendant will consent tot jurisdiction if there is a breach

(b)

Actual consent to jurisdiction

(c)

Issue is if defendant voluntarily, intelligibly, and knowingly consented

Consent after the fact

(a)

Done by accepting or waiving service even though he is physically outside the state when he does the acts
constituting the acceptance or waiver

(b)

Done by entry of general appearance in an action by the defendant in person or by his authorized attorney

Implied Consent (Hess v. Pawloski, Supreme Court1927) base for

minimum contacts analysis

(a)

Massachusetts statute appointing state official agent for out of state drivers that drove through state

(b)

Notice done by registered mail to defendant

(c)

Power to regulate its justification even if state cant forbid the conduct (cars are dangerous machines)

(d)

Implied because presumes driver knows the law of the state before he drives through it

(e)

Problem with implied consentno clear stopping pointstate can regulate almost anything

(f)

Actual consent to suit is necessary*

d) Acts Done in State as Bases for Jurisdiction

(1)

State has power to adjudicate claims where defendant acted in the state and a claim arose from those actions

(2)

Cannot exclude defendant from doing business in the state and thus cannot establish consent as a condition to permitting
business to enter state Consent was a problem because individuals have a right to engage in business in the state.(Flexner
v. Farson, Supreme Court1919)

(3)

State can regulate and demand jurisdiction where special interest (Henry L. Doherty & Co. v. Goodman, Supreme Court
1935)

(4)

(a)

State has special interest in regulating certain industries (like securities) because of risk of fraud

(b)

State can demand jurisdiction in these special interest cases

(c)

Defendant was a NY Corporation with office in Iowa

When a state has a special interest in regulating activity personal jurisdiction can be recognized (e.g., real estate
ownership) (Dubin v. City of Philadelphia, Supreme Court1938) (Personal J was permissible when

commonwealth sued to statute)

(a)

Suing for injuries from fall on a sidewalk

(b)

Defendant can be held liable for suits arising from their land in a state in which they are not a resident

(c)
(5)

(6)

State has a special interest in regulating real estate ownership then J can be recognized.

If you sue in a jurisdiction then the court has jurisdiction over you for any cross-actions arising from the lawsuit (Adam
v. Saenger, Supreme Court 1938)
(a)

By the voluntary act to bring the original suit the plaintiff, submitted him to jurisdiction of the court

(b)

Court has jurisdiction for all purposes to give justice to defendant

(c)

Price a state may exact for opening its courts up to out-of-state plaintiffs

(d)

Contrasts with supplemental J which is subject matter jurisdiction as opposed to personal jurisdiction.

Appearance as Defendant
(a)

(b)

Defendant could ignore suit and collaterally attack the judgment when plaintiff tries to enforce the judgment in the
defendants state
(i)

If defendant tries to collaterally attack the judgment then he may not attack the merits of the claim**

(ii)

May only attack the validity of the judgment

Can challenge personal jurisdiction in the original suit

(i)

(ii)

Problems:
( A)

Used to beany appearance in case authorizes jurisdiction

( B)

Many states have allowed defendant a special appearance to challenge jurisdiction

(I)

Sole reason for appearance must be for special appearance

(II)

Not submitting to courts jurisdiction

(III)

Defendant must do nothing that looks like a general appearance

Federal rules have no provision for a special appearance

( A)

Defendant can raise jurisdiction question by a Rule 12(b)(2) motion or

( B)

As a defense in the answer

(C)

If defendant challenges personal jurisdiction, fails, then challenges the merits of the case
(I)

Some states say you lose the right to appeal and challenge of jurisdiction by going forward
and challenging the merits

(II)

Most states and federal courts, however, allow you to challenge the merits and appeal the
matter of jurisdiction

e) Jurisdiction Over Corporations

(1)

Domestic Corporationsincorporation in the state gives the state jurisdiction for any action against the corporation
regardless of where the action arose

(2)

Foreign Corporations
(a)

Originally could not get jurisdiction over corporations incorporated outside of the state unless they consented to
jurisdiction

(b)

Overcoming this:

(c)

(i)

Firstcorporation must consent to jurisdiction to do local business in the state and appoint an agent for
process (forced consent)

(ii)

Secondif foreign corporation did local business in state, personal actions could be brought against the
corporation for actions done in the state, personal actions could be brought against the corporation for
actions done in the statebreaking point because state did not have power to exclude corporations from
doing business in their state

(iii)

Thirdpresence of corporation in the stateif it does business in such a manner and to such an extent as
to warrant the inference that it is present in the state, allowed claims at least in the actions on claims arising
from business done within the state

Foreign corporation who did not consent, does business in the state, but the claim did not arise from the business it
did in the state

(3)

(i)

Some cases say no jurisdiction for claim unconnected to business in the state

(ii)

Some cases allowed

International Shoe and Its Progeny

(a)

Minimum Contacts (International Shoe Co. v. Washington, Supreme Court1945) ( MIN CONTACTS TEST- If

there are min contact such that the exercise of J will not offend notions of fair play and
substantial justice** means what? Pg 520. Justice Black thought that maj was creating a
natural law standard that would be manipulated to invalidate exercises of state power.
Concerned that state judges would invalid. Was this realistic or uphold j? judicial power was
going to be abused by upholding j bc they are dealing with local P suing out of state D and
judge is elected and pressure to reach conclusion to uphold)
(i)

Company wouldnt pay into state unemployment workers compensation fund

(II)

Pennoyer labels abandoned Presence is not a helpful terms because it just shows what a company does in
the state.

(iii)

Two Step Test:

(iv)

( A)

Level of activity in the forum state

( B)

Degree of claims relatedness to activity

Four Categories of Test for Minimum Contacts

(a)

Category #1Continuous and Substantial Activity and a Related Claimsufficient contact for
jurisdiction. International Shoe fits in this category. Generally recognized

(b)

Category #2Casual or Isolated Activity and an Unrelated Claimin general, insufficient contact
for jurisdiction

(c)

Category #3Continuous and Substantial Activity and an Unrelated Claim

(d)

(I)

When defendants activities are so substantial then the court can have jurisdiction over an
unrelated claim

(II)

General Jurisdictiona corporation might have sufficient contact with a state to justify
asserting jurisdiction over it for all claims

(III)

Specific Jurisdictiona court might be able to establish jurisdiction over a corporation but
only over claims related to that activity

Category #4Casual and Isolated Activity and a Related Claimdepends upon the nature of the
activity (ct recognized that these contacts might be suff to get personal J bec of

qualities)
(v)

Exercise of jurisdiction must not offend traditional notions of fair play and substantial justice

(VI)

International Shoe doctrine applies to corporate as well as individual defendants

(VII)

which category do we put shoe case? 1st category. Why? D had sold enough shoes to
generate sales every year and they had 11-13 ppl and this is continuous and sub activity
( A)

(b)

(c)

Is the claim related to the D state related activity? Yes. Cliam against the D is
directly related to the D activities in state bc the contribution was a % of the wages
paid to employees in state. Suff contact for J- generally recognized as. Reasonable
and just to permit the state to exercise J

General Jurisdiction (Perkins v. Benguet Consolidated Mining Co., Supreme Court1952)

(i)

Filipino businessman in Ohio conducting business from Ohio

(II)

Category #3Continuous and Substantial Activity and an Unrelated Claim

(iii)

General jurisdictiondefendant can be sued for unrelated activities if overall in-state activity is substantial
enough

Convenience Test (McGee v. International Life Insurance Co., Supreme Court1957)

(i)

Only activity in the statedefendant sold and maintained insurance policy

(II)

Category #4Casual and Isolated Activity and a Related Claim

(iii)

High-water Mark for personal jurisdiction

(iv)

Factors to consider for jurisdiction (McGee Test):

( A)

Plaintiffs interests and conveniences

( B)

Convenience of the witnesses

(C)

Defendants interests and conveniences

( D)

States interests in having the suit there:

( E)

(4)

(I)

Has a special interest in regulating insurers (statute)

(II)

Interest in provident effective remedy for their citizenry

(iii)

McGee broadens the focus: defendant and plaintiffs interests are now considered

(IV)

Two part approach after McGee:

Considerations
(I)

First consider minimum contacts

(II)

Second consider all the interests to determine whether exercising jurisdiction would be
reasonable

Example: Question 32 pg 535

(a)

Level of Activity in PA? Casual & Isolated Unrelated Claim (Cat. 2) generally no J

(b)

Interests of the more convenient

(c)

Interests of the - less convenient

(d)

PAs interests federal interest not state interest

(e)

Convenience of witnesses they are in TX and not convenient to proceed in PA

(f)

Likely that the case would not proceed in PA and would be dismissed as a lack of jurisdiction

f) Jurisdictional Statutes
(1)

Relaxation of jurisdiction authority in International Shoe encouraged states to expand their jurisdictional reach

(2)

Long-arm Statutes in General:

(a)

Base jurisdiction on defendants activities within the forum state or

(b)

Commission of any one of a series of enumerated acts within the jurisdiction

(c)

Long-arm statutes were narrow or broadsome extended to any basis except what is unconstitutional by state or
federal standards

(3)

Need statutes because courts dont have inherent power over jurisdiction

(4)

Illinois Long-arm Statuteinterpreted to the limits of due process (Nelson v. Miller, Ill.1957)
(a)

Example: Say that there is a condo owned in Chicago. Would it bring J under 17(1)(c) ownership, use, or
possession of any real estate situated within this State?
(i)

(5)

No unless the claim arose under the ownership, use, or possession of the estate

Example of interpretation of long-arm statute (Gray v. American Radiator, Ill.1961)

(a)

Plaintiff suing defendant who made a valve and sold it to an out-of-state boiler manufacturer who sold it to Illinois
companyboiler blows up in Illinois

(b)

Difficult to interpret tortious activitywhere did is take place?

(i)

(c)

Location of injury is easy except in cases where there is no physical injury (i.e. defamation)

Look at where the last event takes place to determine where tortious act occurred (boiler blew up in Illinois)

( D)

Nelson said that the courts could go to the limits of due process when the plaintiff alleges a tortious activity (even
if the act is found to be non-tortious there is in personam jurisdiction)

( E)

International Shoe analysis Category #4 Casual and Isolated Activity and a Related Claim which can support J
(i)

Interests
( A)

Plaintiffs convenience plaintiff lives there

( B)

Defendants interests?

(C)

State

( D)
(6)

(7)

regulation of products that enter the state

(II)

providing relief for their residents

Convenience of witnesses

Two step process for personal jurisdiction:

(a)

Is there a forum state statute authorizing assertion of personal jurisdiction over persons outside the forum state
under circumstances similar to the case?

(b)

Does the assertion of jurisdiction meet the constitutional standards of International Shoe and its progeny?

California long-arm statute: (maximizes the reach of the California court)

(a)

(b)
(8)

(I)

Advantages
(i)

Pulls two part inquiry into one questionare the due process requirements met?

(ii)

Just have to be concerned with International Shoe and progeny

(iii)

Maximizes jurisdictional reachbetter for plaintiff

Disadvantagesnarrow statutes give more warning to defendants about their being subject to state jurisdiction

Nelson Overruled (Cook Associates v. Lexington United Corporation, Ill.1981)

(a)

Illinois long-arm statute does go to the limits of due process

(b)

Have to do two-part analysisstatute and due process

(i)

(c)

Use in this case there is J but there is no K because the 2 positions were different and the first offer was
rejected.

Doing Business Standard

(i)

Doing business when conducting business of such a character and extent to warrant inference that the
corporation subjected itself to jurisdiction of the state

(ii)

No regularity of activitiesmust have fair measure of permanence and continuity

C. Some Complex Cases

1. Complex Problems of Relationship to the Forum State
(1)

Jurisdiction by Necessity (Mullane v. Central Hanover Bank & Trust, Supreme Court1950)
(a)

New York statute allowed pooling of trust funds

(i)

(b)

Central Bank wants an accounting beneficiaries given notice by publishing which out of state beneficiaries would
not see
(i)

(c)

Periodic accounting, which gives a decree that prevents challenges to the handling of the trust.

2 beneficiaries reps
( A)

Income beneficiaries

( B)

Principal beneficiaries

Court does not stress Pennoyer categoriesdont need in rem/in personam distinction, just need minimum
contacts
(i)

If the corpus was gone from mismanagement there would be no in rem but the beneficiaries would still
have a claim.

(ii)

Personal claim for breach of trust

( A)

(d)

(2)

Court opts for Jurisdiction by Necessity:

(i)

State must have the power to clear up title to property in the state

(ii)

Jurisdiction sometimes exercised in an action with multiple and indeterminate parties because practical
necessity requires that one forum have the power to adjudicate the claim

Unilateral Activities of the Defendant Cannot Satisfy Minimum Contacts Requirements (Hanson v. Denckla, United
States1958)
(a)

Delaware trust creator appointed new beneficiaries in Florida

(b)

Reinstates Pennoyer categoriesin rem action but the trust is Delaware instead of Florida

(c)

Floridas jurisdiction over Delaware trustee is unconstitutional

(d)

(e)

(i)

However minimal burden of defendant is in a foreign tribunal, cannot force jurisdiction unless defendant
has minimum contacts

(ii)

Trustee had no minimum contactsno office, no solicitation of business

Activities of Donner are insufficient:

(i)

Unilateral activities of those who claim some relationship with an out-of-state defendant cannot establish
minimum contacts

(ii)

Must be some act by which the defendant purposely avails himself to the privilege conducting activities in
the state thus invoking the benefits and privileges of the state

Distinguishes this case from McGee:

(i)

No acts by the Delaware trustee in Florida as the solicitation of the insurance K by the in McGee

(ii)

Solicitation in McGee was an act by which the defendant purposely availed himself of the privilege of
performing the benefits of the state invoking benefits and protection of its laws.
( A)

(iii)

Donners exercise of her power of appointment was a unilateral action and not an act that purposely
availed herself

No forum state interests

( A)

(3)

Personal jurisdiction over the absent beneficiaries is essential.

California had an interest to regulate insurance sales

(f)

Trustees business relationship with creator might be purposeful availment, but the court didnt want rich sisters to
take money away from the kids. Unsympathetic .

(g)

Restricts jurisdictionmust look at defendants activities

All assertions of state court jurisdiction must meet test in International Shoe and its progeny (Shaffer v. Heitner, Supreme
Court1977)
(a)

Derivative action brought on behalf of corporation because officers made Greyhound liable for anti-trust

(B)

Quasi in rem jurisdictioncourt seized stock shares in the state

(c)

Supreme Court reversed jurisdiction

(i)

All assertions of state court jurisdiction must meet test of International Shoe and its progeny

(ii)

Presence of property may bear upon jurisdiction by providing contact with the forum state and defendant

(iii)

Two examples where there may be an exception to the rule:

(iv)

( A)

Claim is to property itself as the source of the underlying controversy (in the case of title to the
propertydefendants claim to the property is the purposeful availment to the state)

( B)

Claim arises out of rights and duties of land ownershipsuit by a person injured on defendants
land claiming land was not safely maintained

Presence of property alone will no longer give jurisdiction, must show other ties among the defendant,
state, and the litigation
( A)

In this case property was unrelated to the claim.

(v)

May use quasi in rem jurisdiction if no other forum is available to the defendant

(vi)

Jurisdiction was found to be improperproperty did not show minimum contacts, no other acts by
defendant related to the claim in the forum state

b) The FrameworkRestructured or Resurrected?

(1)

Applying the Doctrines (Kulko v. Superior Court Supreme Court1978)

(a)

Mother and children moved to California, father assented

(b)

Mother in California wanted to increase child support, California upheld jurisdiction under long arm statute
because the father voluntarily assented to custody change

(c)

Supreme Court says no jurisdiction

(d)

(e)

(2)

(i)

Defendant did not purposely avail himself of the benefits and protections of California state law

(ii)

If jurisdiction were valid, defendant would have had to prevent the children from going to California to halt
jurisdictionthis would put an undue burden upon the family unit

(iii)

Defendant got no commercial benefit from sending children to California

(iv)

Would offend the notions of fair play and substantial justice if ex-spouse could decide where to sue the
other person

Argument for J over father in California

(i)

Consented and put daughter on plane to California isolated contact in a related claim

(ii)

Purposeful availment of benefits and protections of California law in giving benefits to his children.
School, roads, police, fire, etc.

(iii)

State of Californias interests

( A)

To make sure that the children there are supported

( B)

Convenient to the mother in California.

(C)

Witnesses in CA can attest to costs of living

Argument against J over father in California

(i)

Inconvenient for father

(ii)

Witnesses from Divorce are in New York that can say Fathers cost of living

(iii)

Fathers income evidence

Power Branch and Convenience BranchA Merging of the Doctrines (World-Wide Volkswagen Corp. v. Woodson,
Supreme Court1980)
(a)

Power Branch (Hanson and Pennoyer) Does the court have the power to try the case?
(i)

Power branch acts as threshold testmust be addressed 1st before determining jurisdictionif power test
is met then must go on to convenience test

(ii)

Inquiry focused upon defendants activities alone

(iii)

Quality/quantity of defendants state related activitiesminimum contacts (International Shoe)

(iv)

Defendants activity must purposely avail himself to the state (Hanson)

(v)

Defendants activity in the forum state must be such that should cause the defendant to reasonably
anticipate being hauled into the states court

(vi)

Minimum Contacts Analysis in this case

(vii)

( A)

Just happened to sell 1 car to NY residents in NY that drove through OK.

( B)

Did not purposely avail themselves to benefits of state of OK

Foreseeability of products ending up in state

( A)

Not unreasonable to subject defendant to suit in forum state if defendant makes effort to serve the
states market directly or indirectly

( B)

Reasonable person must expect to be sued in forum state

(I)

(b)

Convenience Branch (McGee) the court doesnt consider the convenience branchthere was clearly no
jurisdiction according to the power branch
(i)

(3)

E.g., state has jurisdiction over a defendant who has delivered products into the stream of
commerce with the expectation that it will be purchased by consumers in the forum state?
Not unreasonable

Even if OK was most convenient the due process clause divests the state of its J.

Another Overview of the Doctrines (Burger King Corp. v. Rudzewicz, Supreme Court1985)
(a)

Facts:
(i)

Burger King, a Florida Corporation, contracted with defendant in exchange for a fee, monthly payments,
and regulations

(ii)

Defendant from Michigan

(iii)
(b)

( A)

Applied and negotiated in Michigan

( B)

Signed contract that included submission to regulation by plaintiff

(C)

Agreed to application of Florida law in construing the contract

Plaintiff sues for breach of contract in Florida court, defendant is served in Michigan

Supreme Court rules that judgment was valid, applies a two step analysis:
(i)

(ii)

Power Branch
( A)

Were defendants activities such that he purposely availed himself to the forum state?

( B)

Has defendant purposely established minimum contacts (fair warning)?

(C)

Do minimum contacts relate to the claim?

( D)

Conduct must be such that they would reasonably anticipate jurisdiction was established

( E)

Two examples:
(I)

Interstate contractual obligationsparties who reach out beyond one state who create
continuing relations with parties in another state

(II)

Stream of Commerce reasonable to believe that manufactured items will end up in the
forum state

Convenience Branch
( A)

Five part analysis:

(I)

Burden on defendant

(ii)

Forum states interest in adjudicating the dispute

(iii)

Plaintiffs interest in obtaining convenient and effective relief

(iv)

Interstate judicial systems interest in obtaining the most efficient resolution of the
controversies

( V)

The shared interest of the several states in furthering fundamental substantive social policies

( B)

These serve to establish the reasonableness of jurisdiction upon a lessor showing of minimum
contacts than would otherwise be required

(C)

The convenience branch may render a jurisdiction unreasonable even with sufficient minimum
contacts

(iii)

Court left open the possibility that if undue influence or unweaning bargaining power were present that it
would make jurisdiction unreasonable

(iv)

What about an internet transaction?

( A)

Differences
(I)

Uneven bargaining power

(4)

(II)

Not an ongoing relationship

(III)

Less contact (minimum contacts)

(IV)

Online purchaser is not represented by counsel

Convenience Branch can overpower the Power Branch (Asahi Metal Industry Co. v. Superior Court, Supreme Court
1987)- this is in state opinion- reversed based on idea that string of commerce doctrine does not replaced PA as doctrine to
use and in this case there is no PA pg 593
(a)

Japanese corporation impleaded a Taiwan corporation who challenged jurisdiction when the original suit by an
American plaintiff was settled.

(b)

Cal. Said J was permissible. Supreme Court ruled that there was no jurisdictionapplied two-part analysis
(i)

Power Branchsplit on minimum contacts and stream of commerce

( A)

( B)

(C)
(ii)

Justice OConnor
(I)

Mere act of defendant placing product into the stream of commerce is not enough to make
purposeful availment

(II)

Need more to be a purposefully directed act to the forum state. There was no specific action
and Asahi does no business in California (advertise or solicit business) nor did they create or
control the distribution system that brought it to California.

(III)

Additional conduct might indicate an intent to sell the product in the state

(IV)

Defendants awareness that stream of commerce will bring product into state will not convert
the act into an act purposefully directed to the forum state

( V)

Defendant must intend to serve the market (e.g., designing product for forum states market,
advertising, establishing channels for providing advice for consumers in forum state,
marketing through distributors)

Justice Brennan- opinion that was held. The one that won
(I)

Asahi purposely availed itself

(II)

As long as party is aware that the final product is marketed in the forum state, defendant has
purposely availed himself

(III)

Most courtsjurisdiction based upon placement of a product in a stream of commerce is

enough to establish power branch

Stream of Commerce question left unresolved

Convenience Branch (Eight justices agreed)- Scalia had no opinion on this

( A)

Unreasonable to assert jurisdiction

( B)

Must consider

(C)

(I)

Defendantthere are unique burdens on one who must defend oneself in a foreign legal
system (defendant would have to come all the way to California and be forced to submit to
another countries laws when 1% of their total sales were to the other party)

(II)

Plaintiffvery slight interest, his claim has already been adjudicated and a noncitizen

(III)

Stateno California citizens were left in suit

(IV)

Interstate judicial system--? ? ?

( V)

Advancement of Substantive policies of the several states

Court analyzed the shared interests of the several states in furthering substantive social policies:
(I)

Procedural and substantive policies of other countries must be considered

(II)

When it is an interstate adjudication procedural and substantive policies of other states must
be considered

(III)

Must take great care when other nations are involved

(5)

(c)

The Convenience Branch can overpower the Power Branch

(d)

What if the CA resident sued both parties and had not settled. Would J be reasonable then? Yes
(i)

State now has an interest to protect citizens from foreign corporations

(ii)

The Supreme Court has never left an American plaintiff without a place to sue a defendant in a local forum

(iii)

Intermediate defendants tend to be excused as long as the ultimate defendant stays in the case.

Transient Jurisdiction Re-visited (Burnham v. Superior Court, Supreme Court1990)

(a)

Wife moved to California with the kids and sued the husband for divorce

(b)

Husband went to California on business, took child to San Francisco, served while in California

(C)

Shaffer had called jurisdiction into doubt when there is not enough minimum contactsdefendant argued that
International Shoe and its progeny should be used

(d)

CA argued that there was J because H was present in CA and personally served.

(e)

Supreme Court upheld Transient Jurisdiction

(i)

Justice Scalia
( A)

(6)

(I)

Have jurisdiction over person who is physically present in the state

(II)

In-state personal service has always been recognized as sufficient even if the claim is
unrelated to the activity

( B)

Jurisdiction on physical presence alone meets due process standards because it is a continuing
tradition of the legal system that defines traditional fair play and justice

(C)

Said Shaffer was referring to quasi in rem jurisdiction

( D)

Validity of in-state service is established by its pedigree

( E)
(ii)

Traditional form of jurisdiction

(I)

Focused upon traditional notions of fair play and substantial justice

(II)

Jurisdiction by in-state service is firmly approved by tradition and still observed

(III)

Court cannot find a widely followed traditional practice for jurisdiction is a violation of due
process

Emphasis on pedigree is improper because it would have justified quasi in rem as well

Justice Brennan
(a)

Shafferall rules of jurisdiction even ancient ones must satisfy contemporaneous notions of due
process

( B)

Transient jurisdiction upheld by International Shoe and its progeny

(I)

Defendant got benefits of California law by visiting Californiahealth and safety protected,
fruits of the economy, free to travel on state roads

(II)

Justice Scaliathat three days worth of benefits is inadequate for California to get
possession of his life belongings

(III)

Justice Brennancentury-old practice of transient jurisdiction should give reasonable notice

of jurisdiction

(IV)

Transient jurisdiction provides symmetrynonresident can sue resident and resident can sue
nonresident

Jurisdictional Reach of District Courts [Rule 4]

(a)

Rule 4(f)limits the service of process to defendants found in the territory of the state of the district court

(b)

Three exceptions to the limit:

(i)

Congress in some cases authorizes nation- or world-wide service of process

(ii)

Rule 4(e)authorizes federal courts to use forum state statutes for servicing process outside of the state
(long-arm statutes)

(iii)

Rule 4(f)serve outside forum state but within 100 miles of the claims action if necessary to add a 3rd
party under Rules 14 or 19

III.Venue, Transfer of Venue and Forum Non Conveniens

A. Venue
1. Defective venue does not render a judgment invalid
2. brings an action the waives in advance any objections to venue
B. Examples
1. Choosing venue
A)

S.D.N.Y. resident wants to sue person from Vermont. Accident happens in W.D.N.Y.
(1)

B)

Proper venues: Vermont, W.D.N.Y.

Same as above but with a claim solely in Quebec

(1)

Proper venue: Vermont

2. Transfer of venue (Forum nonconveniens)

A)

sued

C. 28 U.S.C. 1391
1. Jurisdiction is founded upon diversity may be brought only in
A)

A judicial district where any defendant resides, if all defendants reside in the same state

B)

A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated

C)

A judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no
district in which the action may otherwise be brought

2. Jurisdiction is not founded solely upon diversity may be brought only in

A)

A judicial district where any defendant resides, if all defendants reside in the same state

B)

A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated

C)

Same effect as 1391(a)(3)

3. Corporations do International Shoe for the district as if it were a state and if it is not satisfied then find the one with the most
4. Aliens can be sued in any district.
5. Forum nonconveniens is a discretionary action that court can choose to not hear the case despite it is a proper venue and jurisdiction.
When there is another more convenient court. Often a court will impose conditions before they dismiss. (Such as waiver of SoL,
consent to J, and etc.)
(1)

Bad conditions
(a)

B)

Limiting discovery to only 1 party, due process concerns, etc.

Factors Gulf Oil

(1)

(2)

Private convenience factors that affect the convenience of the litigants

(a)

Relative ease of access and sources of proof

(b)

Availability of compulsory process

(c)

Possibility of a view of the premises if a view would be appropriate

(d)

Enforceability of a judgment

(e)

All other practical problems that make a trial easy, efficient, etc.

Public interests factors that affect the interest of the forums

(3)
C)

(a)

Court congestion

(b)

Unfairness of burdening citizens of jury duty when the community has no relation to litigation

(c)

Where cases affect the interests of many people. A reason to try the case in a remote location.

(d)

Local interests in having local controversies decided at home

(e)

Interests in having a trial in a diversity case. In a home where the law is going to govern the action.

(f)

Avoidance of unnecessary problems and conflicts of law or the application of the forum law.

Unless the balance is struck strongly in favor of the defendant there is a preference for the s choice of forum

1404(a) and 1406(a) transfers

(1)

For the convenience of parties and witnesses and in the interest of justice a district court might transfer a civil action to
another district where it might have been brought (changed remedy from dismissal to a transfer of the action to a more
convenient forum)
(a)

Where it might have been brought

(i)

(ii)

Hoffman v. Blaski
( A)

Suit for patent infringement in Texas and wanted to transfer to Illinois.

( B)

Since defendants were willing to waive venue and personal J objections, was Illinois a district in
which an action might have been brought? No the willingness to waive is irrelevant. Might have
been brought is not read as might have been brought with s consent

Van Dusen v. Barrack

( A)

Suit in E.D.Penn. for wrongful death from air crash in Boston. Defendants moved to have case
moved to Mass. Dist. Court. and won. Court of appeals overturned

( B)

Plaintiffs were not qualified to bring the case in Mass. Dist. Court and thus Mass. Dist. Court was
not a court in which the action could have been brought.- Scotis reversed this. Bc reason they
couldnt bring in Mass DC has to due with the fiduciary not state law

(C)

What was the applicable rule of law on the transfer since there was a substantive difference (Mass.
was not favorable as Penn.)Feren

( D)

(iii)

(I)

S.C. held that transferee court is required to apply the state law that would have been applied
before the transfer

(II)

1404(a) should not be used to defeat the advantage of a plaintiff that has chosen a proper
court

What about when a plaintiff wants to transfer? Ferens v. John Deere

(I)

lost hand. Sued in W.D.Penn. then moved to S.D.Miss. (which would lengthen SoL)

(II)

Transferor law applies they wont deprive the of the benefit of the choice of law from
transfer.

1406(a): Courts can transfer a case when venue is improper. 1404 presupposes that the venue is proper.
(a)

Golbar treble damages action antitrust E.D.Penn. Dist. Court lacked J and transferred the case to
S.D.N.Y. by which time the SoL ran and S.D.N.Y. dismissed.
(I)

(b)

D)

1406 is broad enough to transfer a case no matter how improper

Martin v. Stokes
(I)

Diversity action against Ken. And Cal. Defendants and sue for injuries in a car crash

(II)

Defendants move to quash service and the court refused but transferred to W.D.Ken. who
dismissed based on Ken. 1 year SoL.

(III)

1406(a) applies the transferee law. 1404(a) applies tranferor law. The ct. app. remanded
to determine whether transferor court had J which would determine 1404 or 1406

Piper Aircraft Co. v. Reyno go through this case well

(a)

Plane crash in Scotland. was the estates of several Scottish citizens killed in the accident, bringing wrongful
death actions against . Alternative forums are California and Scotland. Plan was manufactured in Pennsylvania

and Hartzell made propellers in Ohio. Owner of plane was British. Operator was Scottish and wreckage was in
England. Reyno was the executrix and legal secretary to file the lawsuit. Brought the actions in California.
Surivors brought separate actions in UK. Reyno admits they were filed in U.S. because of U.S. law.
(b)

possibility of unfavorable change in law should not, by itself, bar dismissal

(c)

Why is this case in the U.S.?

(i)

b/c Scottish law doesnt recognize strict liability in tort

(ii)

Ps are basically forum shopping exactly what courts should discourage

(d)

Pipers records are in Penn. and Piper is based in Penn. (reason to transfer from Cal. to Penn.)

(e)

Piper transferred under 1404(a), but Hartzell moved to dismiss (Hartzell ended up transferring under 1406(a) b/c
there was no personal jurisdiction over Hartzell)

(f)

What law applies to claims against Piper?

(i)

(g)

based on Van Dusen they use Cal. choice of law rules (transferor), thus Penn. law would apply against
Piper based on Cal. choice of law rules

What law applies against Hartzell (propeller manufacturer from Ohio)?

(i)

also based on Van Dusen, use transferee law thus Penn. choice of law rules applies (which say that
Scottish law should be used)

(h)

Had Cal. court dismissed the claim entirely, the P would have to re-file elsewhere and lost the advantages of Cal.
choice of law rules

(i)

Factors that bear on ct. decision on ground of forum non-convenience

(i)

dismissal is never allowed that will result in a change of law that is not favorable to the P (3d Cir. said this)
Supr. Ct. says that choice of law considerations should usually be irrelevant, but where remedy is so
inadequate that it is no remedy at all, the unfavorable change in law may be given no substantial weight

(ii)

argument against moving case to Scotland (that it wasnt an adequate forum)

( A)

there is no strict liability, no jury trial, no contingent attorneys fees, smaller damages awards, and
may have a different sense of justice (dont help out P enough)

( B)

Scotland is a common law country and there is no danger they will be treated unfairly in those
courts.

(j)

Courts concern is over foreigners taking advantage of American law

(k)

Another consideration is that American judge isnt familiar with Scottish law, so it makes more sense to send the
whole case to Scotland and let them hear it
(i)

Scotland has a strong local interest it should have the local controversy tried at home

(ii)

American interest isnt sufficient here

(iii)

private interests factors

( A)

Pipers witnesses and documents are in U.S.

(I)

( B)

Plaintiffs witnesses/documents are in Scotland

(I)

(iv)

easier for Pipers witnesses to go to Scotland than for Ps witnesses to come to U.S.

public interest factors

( A)

(v)

Plane manufacturers

dont want to apply penn. law to Piper and Scottish law to Hartzell

presumption of plaintiffs choice of forum is overcome when the party is foreign

6. . Transfer
(1)

Permits transfer to a more convenient forum even though venue is proper

(2)

Norwood v. Kirkpatrick says that it allows an easier showing of convenience that when the standard was to dismiss. The
factors are still from Gulf Oil, but the courts discretion is wider.

(3)

After 1404(a) plaintiff can take advantage of transfer of cases as opposed to when there was only dismissal

(a)

Reasons
(i)

(4)

Amend the complaint with new defendants upon which the venue would not be proper

If the more convenient forum is another federal court the case can be transferred with no reason to dismiss. It is only
when the more convenient forum is another country will a case be dismissed on the grounds of non conveniens

7. Corporations
A)

Shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is
commenced

B)

In a state which has more than one districtdistrict can only assume jurisdiction where the defendant would have sufficient
contacts in that jurisdiction
(1)

Aliens can be sued in any district

IV. Opportunity to be heard

A. General Observations
1. Mullane revisited
A)

How does the court get J over non-resident trustees?

(1)

B)

Necessity jurisdiction court has to have the power to clear up controversies in the state

What kind of notice does the due process require?

(1)

NY statute required notice to beneficiaries by publication

(a)

Court set out standard to determine if notice was adequate

(i)

(b)

Plaintiff must give notice in a method as one that a person reasonably wanting to give notice to the would
actually send

Notice explained
(i)

Exceptions to publication notice insufficiency

( A)

Attachment of property
(I)

( B)
(ii)

Mortgagee bank that can be reasonably ascertained is not reasonable notified by publication

When the address is not known and cannot be ascertained by due diligence.

What if address is known

( A)

Personal service is fine

( B)

1st class mail is usually sufficient

(iii)

This was ok in this case because there were parties that interests and motivations that were parallel to the
absentees

(iv)

What if the notice is not actually received

( A)

If the notice is adequate their rights are extinguished even though they never know of the suit. They
can later challenge the adequacy of the suit and give some evidence that the efforts to notice were
not sufficient.

2. Seizure requires some kind of hearing before seizure. Sniadach employee withheld 50% income pending the outcome of a trial. Court
clerk summons garnishment at request of plaintiff. Defendant has to be served within 10 days. If defendant wins main suit on the
merits the wages are restored, but in the meantime the defendant is deprived of the wages until the end of trial
A)

appealed as violation of due process, court ignored. S.C. reversed.

(1)

S.C. focused on the tremendous hardship on behalf of the employee

3. Mennonite when there are other interests with substantial in the outcome (mortagage, etc.) the other parties must be sent notice as
well.
4. Fuentes v. Shevin
A)

FACTS

(1)

P purchased stove and stereo under conditional sales K that provided for monthly payments and repossession by seller in
case of default in pmt. by buyer

(2)

Seller retained a UCC security interest in goods pending full payment, but buyer was entitled to possession absent default

(3)

a year later, after a dispute over servicing the stove, P still owed $200 (of the approx. $600 total)

(4)

seller brought action for repossession, and obtained writ of replevin ordering state agents to seize stove and stereo

(5)

Florida statute provides for summary issuance of writ of replevin upon ex parte application to ct. by someone suing on
claim to possession of wrongfully detained property and upon the Ps posting of a bond for double the value of the
property
(a)

property is held for 3 days by the agent who makes the seizure, during which time D may regain possession of the
property upon posting his own bond for double the propertys value

(b)

if D does not act, the property then passes to P, pending the final disposition of the underlying repossession action

(6)

P sued in fed. court shortly after the seizure, on procedural due process grounds, and he lost

(7)

Supr. Ct. held that the Florida procedure violated the 14th Am. by failure to provide notice and opportunity to be heard
before deprivation of a possessory interest in property

(8)

(a)

prior hearing result is the only truly effective safeguard against arbitrary deprivation of property

(b)

Ct. idea is that competing presentations at the pre-seizure hearing is the best way to ensure accuracy and prevent
mistaken deprivations of property

if accuracy is the goal, then why is the adversary proceeding the only way?
(a)

(9)

how meaningful is a pre-procedure hearing that deals with seizure?

(10)

hearing is requires except in extraordinary situations

(a)

when the seizure is absolutely necessary to appear in court and

(b)

special need for prompt action

(c)

person initiating seizure is a government official

(11)

however, seizure prior to hearing might be allowable where creditor can make a showing that other party may destroy, etc.
the evidence (property)

(12)

why should creditors care about these hearings?

(a)

efficiency?
(i)

(b)

The constitution recognizes higher values than efficiency in trying to protect a vulnerable citizen

cost?
(i)

increased procedures that are required to bring about the desired result, and are these increased procedures
worth the extra cost that will be brought about

(ii)

creditors might increase their prices to offset these procedures; creditors might also use self-help to bring
about their desired results
( A)

(iii)

which would not be subject to due process limitations under constitutional law

The reason is to protect people

5. Mitchell v. W.T. Grant Co.

(1)

FACTS
(a)

D sold appliances to P under installment sales contracts

(b)

D sued a year later for overdue and unpaid balance P had paid less than a quarter of his total principal obligation

(c)

D alleged having a vendors lien on the goods securing unpaid balance, that would expire under state law if P
transferred possession

(d)

D then obtained writ and had state agents arrest P and seize the goods

(e)

P moved to dissolve the writ of sequestration for failure to provide procedural due process and submitted the
affadavit of its credit manager that attested to the debt of Mitchell and had the reason to believe that Mitchell
would dispose of the property

(2)

La. ct. approved the sequestration procedure (held it was constitutional)

(3)

S.C. affirmed (joining the dissenters from Fuentes) saying due process clause doesnt guarantee petitioner the use and
possession of the goods until all issues in the case were judicially resolved after full adversary proceedings had been
completed

(4)

White (majority) says that Fuentes is not overruled, but merely distinguished from this case
(a)

La. statute is procedurally different than the statute in Fuentes (they dont require a pre-deprivation hearing

(b)

What are the differences?

(i)

Ct. here requires a judge (Fuentes was the court clerk)

(ii)

La. procedure requires more than a bare conclusory claim (specificity is important)
( A)

(iii)

(5)

(6)

Fuentes specificity was minimal

standard to be applied in La. is more precise than the broad law standard in Florida
( A)

in La. you could get a writ for claiming ownership

( B)

Fla. you could get a writ if the property was wrongfully obtained

Powell (concurring) says that Mitchell substantially overrules Fuentes

(a)

Fuentes is overruled b/c Mitchell says you dont even need advanced notice of a hearing

(b)

2 prongs of Fuentes extraordinary situation analysis are not satisfied in Mitchell (WHAT ARE THE 2 PRONGS?)

Stewart (dissent) said that Mitchell unmistakably overruled the decision of the court that was barely 2 years old and
they did it without pointing out any change in societal or constitutional standards against stare decisis.
(a)

There was a shifting personnel on the court (Rehnquist and Powell)

6. North Georgia Finishing, Inc. v. Di-Chem

A)

FACTS
(1)

Di-Chem sued N. Ga. for goods sold and delivered, simultaneously obtaining process for garnishing Ds bank account
from clerk
(a)

Plaintiff or attorney had to

(i)

(2)

Make an affidavit before some officer or some clerk of any court in which said garnishment is being filed
( A)

Stating the amount claimed to be due

( B)

Reason to apprehend the loss unless garnishment is issued

(C)

must file a bond double the amount sworn to be due

( D)

can dissolve the garnishment by

after service of process D filed bond to dissolve garnishment and moved to dismiss garnishment proceedings and
discharge its bond (arguing violation of procedural due process for failure to provide notice and hearing in connection
with issue dealing with garnishment)- Georgia cts denied motion

B)

Decision of Ga. Supr. Ct. approved the garnishment

C)

S.C. says
(1)

Ga. ct. failed to apply Fuentes

(2)

Ga. statute was vulnerable for the same reasons in Fuentes

(3)

Bank account was garnished by issuance of court clerk (without notice to D, or participation of judicial officer)

(4)

Mitchell case didnt say procedure statute didnt require that judge issue writ, and affidavit didnt go beyond conclusory
assertions

(5)

Ct. relied in part on Fuentes

(6)

Would Ga. statute have been acceptable if it provided for an immediate post-seizure hearing?

(a)

Probably not b/c Mitchell seemed to require the additional safeguards (posting bond, etc?????)

7. Connecticut v. Doehr
A)

P sued D for battery and assault and seeks to attach the Ds house (to ensure that D had enough assets to pay for Ps recovery)
(1)

S.C. said Connecticut statute violates due process

(a)

B)

Whats the rule now for pre-judgment proceedings? (whats the test?)
(1)

C)

Due process is not a concept unrelated to place and context.

3 prong balancing test for pre-judgment seizure

(a)

Consideration of the private interest that will be affected by prejudgment measure

(b)

risk of an erroneous deprivation through procedures under attack and probable value of additional / alternative
safeguards

(c)

principal attention to interest of the party seeking the prejudgment remedy with due regard any ancillary interest
the government may have

Applied in this case

(1)

Interests - Attachment clouds the title, and prevents loans

(a)

(2)

Evaluate the risk of erroneous deprivation of property - Only a skeletal affidavit needed to be filed but this was a
complicated case (fist fight) and judge could not properly decide on Ps affidavit only (b/c it was factually based)
(a)

(3)

Although this is a partial impairment it is still subject to due process just like a full deprivation

Safeguards that State provides dont adequately reduce the risk.

(i)

Expeditious post attachment adversary hearing

(ii)

This was ok in Mitchell, but distinguished here b/c in Mitchell it involved uncomplicated matters, and the P
was required to post a bond and had a vendors lien to protect (none of that presence here)

Interest in favor of ex parte attachment

(a)

(b)

Ps interest no legal interest other than the mere fact of attachment

(i)

no allegation that D would transfer or encumber the real estate (to prevent P from reaching this property)

(ii)

thus no exigent circumstances that would justify moving this hearing before the trial.

Govt interest minimal b/c states only interest is protecting the Ps rights (and they were minimal here)

8. Possibility of waiver of notice Overmyer Co. v. Frick

A)

FACTS:
(1)

B)

Warehousing company Ks. And the company defaults on payments. After renegotiation work was resumed and Overmyer
was satisfied, but asked for more time to pay installment payments. New K with
(a)

New K had cognovits - consent to obtaining a judgment without hearing

(b)

Both parties were corporate parties represented by counsel

ISSUE: Can waive in advance the constitutional right to be heard?

(a)

C)

Yes. Just like people can waive 5th amendment rights if they are done voluntary, intentionally, knowingly, and
intelligently made
(i)

Here they did intelligently and intentionally waive the right.

(ii)

The case would have been different if this was a contract of adhesion where the received nothing for this
cognovits provision

APPLICATION:
(1)

How as the seller would you draft a K to get the cognovits term to apply? Make sure there
(a)

Have the consideration

(b)

Make it clear with notice

(c)

Discuss negotiation

(2)

How would you argue it was unconstitutional

(a)

Too fundamental to be waived

(b)

No consideration

(c)

Unequal bargaining power

V. Contours of Litigation
A. Former Adjudication
1. General Observations
A)

Res Judicata (Claim Preclusion)

(1)

Federal Rules dont provide for res judicata

(2)

Giving finality to judgments is one of the purposes of civil procedure

(3)

Res judicata is often used incorrectly to mean all forms of preclusionin fact, only refers to the prohibition of relitigating a claim which has already gone to judgment

(4)

Two main ideasmerger and bar:

(a)

(b)

(c)

Merger
(i)

Plaintiff has already obtained final judgment in his favor

(ii)

Claim is extinguished and merged into the judgment

(iii)

Cannot re-litigate in separate action

Bar
(i)

Plaintiff suffers judgment against her

(ii)

Claim is extinguished

(iii)

Barred from re-litigating claim in second action

The Merger and Bar are only applied when the second action is based on the same claim
(i)

Defendant has to plead claim preclusion as a defense to the second action

(ii)

Claim preclusion bars litigation on grounds that might have been presented in the first action but werent

b) Collateral Estoppel (Issue Preclusion)

(1)

Applicable in situations that are not covered by res judicata or claim preclusion because the second action is not based
upon the same claim

(2)

Forecloses re-litigation of issues that were actually litigated

(3)

(a)

Contested by the parties and submitted to the court for determination

(b)

Were essential to the first judgment

Important difference between claim preclusion and issue preclusion

(a)

Claim preclusionprecludes re-litigation of a claim without regard to what issues were litigated in the first action

(b)

Issue preclusiononly precludes the re-litigation of issues that were actually litigated and determined in the first
suit

c) Final Judgments
(1)

Claim preclusionjudgment that terminates litigation on the merits and leaves nothing to be done but enforce the
judgment bars grounds that are not presented
(a)

(2)

sues for personal injury from car accident. After judgment of fault (leaving damages for later) in s favor.
brings separate suit for property damage arising from the same accident. pleads claim preclusion. Claim
preclusion is not effective because the case is not terminated and is still waiting on the damages.

Issue preclusionmore strict, decided after adequate hearing and full deliberation, discretion of second court if it is
controlling. Precludes only issues actually litigated
(a)

Same scenario from above but retrying the same claim. Issue preclusion is after final judgment (after decision for
fault even though damages are not done)

(3)

(4)

A judgment iiss not deprived of finality for res judicata purposes just because
(a)

There is still time to file a motion in the trial court for a new trial or

(b)

That such a motion has been filed or

(c)

That an appeal has been taken

If a judgment is overturned plaintiff can still get relief from a second judgment based upon it by appropriate proceedings
[Rule 60(b)(5)]

2. Claim Preclusion
a) Dimensions of a Claim
(1)

Claim preclusion prohibits the re-litigation of a claim must ask: When are claims identical? What is the identity of a
claim?

(2)

Williamson v. Columbia Gas & Electric Corp.

(a)

1st ActionPlaintiff alleged defendant conspired to violate antitrust laws, Sherman Act (conspiracy)

(b)

2nd ActionPlaintiff sued defendant on Clayton Act (alleged defendant acted alone)

(c)

Actions in the same court at the same time based upon same actions of the defendant (trying to take over plaintiffs
business)

(d)

Lost in 2nd action due to stipulation and statute of limitations

(e)

Defendant motions for summary judgment on the 1st action claiming res judicata

(f)

Procedural issues

(g)

(i)

It is irrelevant which action was started first

(ii)

Doesnt matter if 2nd case was won on a stipulation and dismissed due to bar by SoL

Subject matter
(i)

Rejected traditional viewidentical claims based on different legal theories are different
( A)

(ii)
(3)

Same witnesses documents and such.

Used modern transactional approach

Modern Transactional Approach

(a)

Claim includes all rights of the plaintiff to remedies against the defendant with respect to the transaction or series
of connected transactions from which the claim arose.

(b)

Transaction is a pragmatic question and turns on factors in Restatements 24

(c)

(d)

(i)

Are facts related in time, space, origin, or motivation?

(ii)

Do the facts form a convenient trial unit? (e.g., same evidence, witnesses, etc.)

(iii)

Does their treatment, as a unit, conform to the partys expectations or business understandings?

Policy behind Modern Transactional Approach

(i)

Preserve judicial resources

(ii)

Persuade plaintiffs to bring their claims in one law suit

(iii)

Avoids inconsistent outcomes

(iv)

Not desirable to let plaintiff keep suing defendant on different theories until he wins (hits the jackpot) the
court system would lose integrity

(v)

Not good policy to allow plaintiffs to keep suing defendants as form of harassment

Concerns about claim preclusion

(i)

Doesnt defendant get a windfall victory?

(ii)

What about the concern for truth?

(iii)

What about cases like Williamson where it appears that the attorney set a trap door?

( A)
(e)

(f)

(4)

Then should pay for the mistakes either under harassment instead the lawyer should pay.

Splitting Claims
(i)

Whenever plaintiff is unable in the 1st action to present the entire claim because of a jurisdictional or
procedural limitation on the legal theory or remedy, plaintiff can bring the second action on that theory or
for that remedy

(ii)

Barred if plaintiff could have brought the entire suit in the same court system (Sutcliffe)

(iii)

If diversity or supplemental jurisdiction could be used to hear a state claim in federal court, 2nd action in
state court is barred (must be clear that plaintiff could have brought the state claim in federal court)

(iv)

If a could not bring all claims because of jurisdiction (legal theory or remedy) then the is able to bring a
2nd action the proper court
( A)

Example: unfair practice in state court and then antitrust claim in federal court. The 2nd claim is not
barred, because federal courts have exclusive J over antitrust.

( B)

Counterexample: fed court antitrust loses. Then 2nd action state court unfair competition. The
claim is barred.

Pending Case
(i)

Could have had 2nd case dismissed without prejudice because there was an impending action.

(ii)

But the plaintiff could have case retried or at least continued the Sherman Act case.

States Under Modern Transactional Approach

( A)

Smith v. Kirkpatrick (NY)

(i)

1st action breach of contract Statute of Frauds

( A)

(B)

1st action amendedbreach of informal oral contract and oral contract of joint venturedismissed

(ii)

2nd action quantum meruitpermitted

(iii)

Court used strict Same Evidence Test to prevent defendant (that overreached) from getting a windfall
victory
( A)

Different rights and wrongs in the claims when using a new substantive law

( B)

Same Claim if Same Elements but this used different evidence to prove different elements

(iv)

Still used by some states

(v)

Compare with Williamson?

( A)

Seems to be inconsistent since legal theory could have been advanced in theory one

( B)

Seems to have arisen out of the same transaction so under Williamson the claim would have been
barred.

OBrien v. City of Syracuse (NY)

(i)

1st actionde facto appropriation by the city dismissed and affirmed but court of appeals said might
have had cause for trespass

(ii)

2nd actiontrespass

(iii)

Plaintiffs arguments

(iv)

( A)

Actions have different theories (Smith)

( B)

Different evidence needed to establish the claims

Courts reply
( A)

De facto is an aggravated trespassevidence needed for each action is the same, identical if you use
the Same Evidence Test

( B)

Even if actions involved different elements of proof, 2nd action is barred because the state has
adopted the Modern Transactional Approach
(I)

Once a claim has been brought to final judgment, all claims out of the same transaction are
barred even if you use different legal theories

(II)
(C)
(v)

(5)

Claims are based upon the same actions of defendant (same transaction)

To the extent that Smith is inconsistent, it is overruled (but other states may still use test similar to
Smith)

Remaining claims against the city

( A)

Not barred because they are based upon actions after 1973

( B)

Barred because no timely notice of claim on the city. Only gave notice of the 1973 events.

Federal suits on res judicata

( A)

Hennepin
(i)

(b)

Facts
( A)

Plaintfiff sued defendant on written contract for refusing to take and pay for 800 tons of paper when
K limits it to 600 tons. Argued that orally the K was modified that minimum was 600 tons purchased
and then changed to 800 tons.

( B)

Court struck part of claim under parol evidnce

(C)

Action 2 plaintiff tried to reform the K to the true intent of the parties.

(ii)

Different legal theory with the same transaction does not make a different claim. Nor does the fact that they
sought a different remedy.

(iii)

Must bring all theories of recovery or action on the same transaction in the 1st suit

Sutcliffe
(i)

4 cases filed in the same district court, basis is for rent due for occupancy of the same real estate for
different periods of time

(ii)

District courts jurisdiction was limited to matters of less than $10,000, had to go to Court of Claims to sue
for more than that (since defendant was United States Navy)

(iii)

Defendant wanted to dismiss the last 3 suits due to the prior pending action

(iv)

( A)

Dismiss without prejudice if another action on the same claim with the same parties is pending in
the same court while the present action is commenced and the action is still pending

( B)

Used to avoid harassment of repetitive law suits

(C)

To establish the defense, you must establish the actions involve the same claim and that a judgment
in one would bar judgment in the others

Court
( A)

Suits involving the same claim because of an ancient principle that claims for amounts due under a
lease must include all amounts due at the time the suit is brought (done to avoid piecemeal
adjudication)

( B)

Limit of district court to $10,000 does not change the res judicata result because plaintiff could have
brought all claims by selecting the Court of Claimsthis court is in the same system of courts as the
original court
(I)

(c)

The exception of not being able to bring all claims to one trial when they can bring the claim
within the same system of courts.

(C)

Less severe remedy of prior pending action might bar use of res judicatasome courts say that
defendant who does not object to another suit pending means that defendant acquiesces to waiving
res judicata

( D)

These cases say to use Modern Transactional Approach

(I)

Apply to extinguish a claim by plaintiff against defendant

(II)

Even if plaintiff in the 2nd action presents evidence or legal theories not brought in the 1st
action (Williamson and OBrien)

(III)

Even if plaintiff is seeking remedies not demanded in the 1st action (Hennepin)

Commercial Box

(i)

Contract to deliver ammunition boxes. The delivery location is changed and there is a different requirement
for the boxes at new location and the boxes must be sent somewhere else and then sent to location again.

(ii)

1st actionrecover loses in labor and lumber incurred in the re-delivery, plaintiff won

(iii)

2nd action

(iv)

( A)

Arose from the same contract as the 1st actioncontract terms let defendant deduct discount if
payment is made within 10 days of delivery

( B)

Allege defendant wrongfully deducted discounts from its payment prices

Court of Appeals
( A)

Narrowly defines transaction

( B)

Claims were different because 2nd claim was based on different wrongful acts

(C)

(v)

(I)

1st claim based on unilateral K change

(II)

2nd claim based on Uniroyals action to discount

Could define transaction more broadly as arising out of the same contract and do the 3 Modern
Transactional Approach element analysis
(I)

Argument for same claims they come from the same K and the K is the underlying
transaction

(II)

Argument against they are different actions

Point of caseproblems with the Modern Transactional Approach

( A)

Hard to figure out which factual groups constitute the same transaction

( B)

Court could use discretion to create ad hoc decisions

(C)

Why court took the narrower viewinfluenced because defendant told plaintiff that if the 1st action
was confined then defendant would have higher chance of paying plaintiff

(d)

Does it matter if the court defines the claim narrowly or if it accepts certain exceptions to res judicata? Might be
more fair to have exceptions so the judgments are not made in an ad hoc fashion

(e)

Hypo case
(i)

Trust established to attain highest income

(ii)

It loses money
( A)

(F)

Causes of action
(I)

Beneficiaries file for loss of investment

(II)

B sues for breach of fiduciary duty and removal of trustee

(iii)

Do these actions arise from the same transaction

(iv)

Arguments
( A)

Same transaction (Broad definition) both claims deal with the loss of income

( B)

Different transaction (Narrow definition) two separate actions because of different behaviors
(I)

First action is that trustee would lift investment restriction

(II)

Second action is general mismanagement and fiduciary duty

Harrington
(i)

Both suits were over the same transaction (sex discrimination)

(ii)

2nd suit used new legal theory ( 1983) because Supreme Court decision during the 1st suit overruled a
case that did not allow plaintiff to use 1983 (Monroe)

(III)

Res judicata still applies even if intervening change in laws

( A)

2 actions based on same transactionsame act of discrimination

( B)

1983 claim was available at time of 1st actionplaintiff could have challenged the validity of
Monroe just like the plaintiff who won the case

(C)

(iv)

Even if plaintiff had lost on 1983 suit in the 1st action because of Monroe, res judicata would still
apply after the change in law because a judgment on the merits even if erroneous will be deprived of
its preclusive effect only if vacated, reversed, or set aside on direct appeal

Hope for plaintiffexception to res judicata

( A)

Neither must be applied if their application would contravene a public policy or manifest injustice

( B)

Applying might contravene a public policy

1.
2.

(v)
(6)

Policy of awarding compensatory damages for sex discrimination

Court said this is not as important as other policies (racial discrimination, cooperating without
the police)
3. Was unfair but not manifestly unjust
4. Court shows it is tough to establish either exception to res judicata
Plaintiff could have asserted the 1983 claim without violating Rule 11 if she had asserted a good faith
argument to change existing law

Would it be better to create exceptions or continue to make the courts define broadly and narrowly to seek justice

b) Adjudication Not on the Merits

(1)

Historically judgment must be on the merits, based upon the substance of the suit (Waterhouse)
(a)

After trial or

(b)

Motion for summary judgment

(c)

Counterexample
(i)

(2)

Rule 12(b)(6) - Traditional Approach. (Keidatz v. Albany)

(a)

Claim 1: Action to rescind a contract alleging fraud and failure of consideration and did not allege damages
because it did not allege that the property was worth less than they had agreed to. The claim was dismissed for a
missing element in the complaint.

(b)

Claim 2: alleged fraudulent inducement to buy and corrected the defect in the pleadings.

(c)

Dismissal (12(b)(6)) did not bar a second action where the plaintiff corrects the defects in the pleading.
(i)

(3)

Trial that was dismissed because it was prematurely brought was not decided on the merits so res judicata
did not ban bringing another suit on that claim

True even if the plaintiff had taken advantage of the opportunity to amend the complaint

Rule 12(b)(6) - Federal Courts (Rinehart v. Locke)

(a)

1st suitcivil rights action under 1983 for unlawful arrest, Rule 12(b)(6) dismissal, defect was that plaintiff
failed to allege that defendant lacked probable cause to arrest plaintiff, judge did not allow plaintiff to amend, no
appeal from P.

(b)

2nd suitmore than a year later, identical complaint in substance, plaintiff alleged lack of probable cause

(c)

Plaintiff barred in brining second suit

(i)

Court in 1st action denied leave to amendliberal standard to allow amendments, district court may have
abused its discretion, plaintiff did not appeal this
( A)

The should have appealed the denial of the amendment

(ii)

Plaintiff argued traditional approach allows 2nd suit when he corrects the defect in the pleadings

(iii)

Courtrejects this argument, Rule 41(b) makes earlier dismissal preclusive, adjudication on the merits
unless court in its order states otherwise

(iv)

( A)

Dismissals under the subdivision that are adjudication on the meritsfailure to prosecute, failure to
obey court order or rule

( B)

Dismissals not provided by the rule that is adjudication on the meritscourt says you have to look
at whether the defendant is put to inconvenience of preparing to meet the merits

(C)

Dismissal that does not state it is without prejudice is a bar

Could question the decision since defendant might not have been inconvenienced because it did not take
much to defeat the 1st suit

(v)

(4)

Better approach
( A)

Consider the purposes of res judicataincentive for plaintiff to combine all the claims in one suit
(liberal amendment policy is warning to plaintiff to bring all claims as one)

( B)

Apply res judicata because plaintiff can amend when he finds new information

Traditionally, judgment was a bar only if it was based on the substance of the action (on the merits), now applied more
broadly (even if judgment was not actually based upon the evaluation of the substance of the claim)

c) Counterclaim
(1)

When a defendant actually raises a counterclaim then all aspects of it are subject to the rules of claim preclusion, and
must assert all claims that arise out of the transaction.

(2)

What happens when a defendant fails to raise a counterclaim that arises out of the same situation
(a)

Multiple situations
(i)

(ii)

Fails to raise a permissive counterclaim can the defendant sue later?

( A)

In general, the defendant is unaffected by claim preclusion with respect to that claim.

( B)

However, if the raises the same facts as a defense that would support a permissive counterclaim,

(C)

Example: Schwabe v. Chantilly, Inc.

(I)

Claim 1: Suit for failure to pay rent. The raised defense saying they were fraudulently
induced to lease and won.

(II)

Claim 2: Suit for the fraud and malicious prosecution.

(III)

2nd claim not barred 1) In Wisconsin all counterclaims were permissive. 2) When permissive
counterclaim facts are shown they are not precluded from filing another action as long as
they won the first action.

(IV)

Arguments for: should be able to choose their own claim

( V)

Arguments against: Undermines the policy of settling all related actions in one case.

Fails to raise a compulsory counterclaim

( A)

Claim preclusion or something similar applies when you fail to assert a counter claims
(I)

( B)

(C)

Some see it as equitable estoppel or waiver instead of seeing it as res judicata doctrine.

Horne v. Woolever Some Jurisdictional

(I)

Action 1: Suit in Ohio court for personal damages and removed to federal court and did not
assert a counterclaim and the case was settled and dismissed with prejudice

(II)

While action 1 was pending, sued for personal injuries from same car crashes brought in
federal.

(III)

New asserted that judgment 1 was bar. Rule 13 required him to assert his own claims. Even
though Ohio had no comparable rules. Ohio state court had to give the federal court full faith
and credit.

Whitney v. Dindo
(I)

sued for damages suffered in a car crashed while was driving.

(II)

sued saying that put his arm through the steering wheel.

(III)

2nd case was not allowed because it was a compulsory counterclaim.

(IV)

Dindo argued 1) 2) asserting rule would be inequitable because he did not realize he had a
counterclaim until the 1st action ended (court accepted this as a possible argument)

( V)

This is a better approach

3. Issue Preclusion (Collateral Estoppel)

A)

The doctrine of issue preclusion forecloses the issues that were actually litigated, that is, were contested by the parties and were
submitted for summation for the court and were necessarily decided by the court

B)

Requirements of the Rule

(1)

What was decided in the first case? (Little v. Blue Goose) pg 716
(a)

1st suitdefendant sued plaintiff for damage caused in a collision, defendant won after trial before the justice of
the peace, appeal was dismissed.

(b)

2nd suitplaintiff sued defendant for injuries in collision, executrix alleged defendant was negligent and was
wanton and willful in the negligence in city court
(i)

(c)

(d)

(2)

Why 2nd suit not barred by claim preclusion because of compulsory counterclaim?
(i)

Illinois may not have compulsory counterclaim rule

(ii)

Justice of the Peace had limited jurisdiction and could not hear the 2nd suit

Executrix was bound by the 1st action even though she was not a party
(i)

Raises the idea of privity

(ii)

Apply the rule when the second action is between persons parties or in privity with the parties

(iii)

Executrix is the successor in the interest of plaintiff and is bound in litigation failures

(iv)

If executrix was hurt in the crash and is now suing for her own injuriesnot bound by the 1st suit unless
she allowed plaintiff to sue on her behalf

How do you determine which issues were actually decided in the 1st action?
(a)

Ask the judge to write up what was decided at the time of judgmentrequired by Rule 52

(b)

Jury trial
(i)

Cant ask jurors to tell you reasoningnot all will agree

(ii)

Have to look at what was necessarily determined by looking at the pleadings and the jury instructions

(iii)

Reason backwards to determine what should have been decided to warrant the outcome

(c)

The earlier decision must mean that plaintiff was contributorily negligent because defendant won against plaintiff
preclusive

(d)

Willful negligence claim

(e)

(f)
(3)

Executrix won.

(i)

1st suit necessarily found defendant not contributorily negligent because defendant won against plaintiff
preclusive

(ii)

Precluded because plaintiff was required to plead and prove freedom from contributory negligence

Fair to give the judgment of a Justice of the Peace a preclusive effect? (Limited jurisdiction and de novo appeal)
(i)

De novo appeal (hear the suit anewnone of judges findings are considered except, perhaps, his
reasoning) might indicate reason for no preclusive effectnot much faith in Justice of the Peaces
decisions

(ii)

If 1st action was a very small claimproblem because defendant does not have much of an incentive to
litigate the claim (issue of fairness)

If plaintiff had won the 1st action, on a general verdict, you cannot tell what issues were resolved (plaintiff
contributorily negligent or defendant not negligent), so there is no preclusive effect

Issue must actually be litigated and determined (Jacobson v. Miller)

(a)

(b)

Facts
(i)

1st actionfor rent, no denial of execution of the lease

(ii)

2nd actionrent again for the same lease, defendant denies execution of the lease

(iii)

No preclusionissue of leases execution was not actually litigated and decided in the 1st action

(iv)

Could argue that the lease was held to be valid in the first action therefore issue preclusion

(v)

Judge probably felt in this case that the lease was invalid

When is collateral estoppel not allowed

(i)

Default judgmentsnothing was litigated or decided

(c)

(4)

(ii)

Admissions during discovery

(iii)

Stipulations

(iv)

Judgments on settlement

(v)

Consent judgments sometimes have collateral estoppel effect if intended by the parties

When collateral estoppel is allowed

(i)

Summary judgmentson the merits

(ii)

Directed verdictsnot on the parties consent

Necessary/Essential to the judgment

( A)

Cambria v. Jefferymajority view

(i)

1st actionJeffery sued Cambria for injuries, Cambria won, both were negligent

(ii)

2nd actionCambria sued Jeffery, appeals court holds that the 1st action/judgment did not adjudicate that
Cambrias servant was negligent

(iii)

No collateral estoppel

(iv)
(b)

( A)

Issue was actually litigated1st requirement met

( B)

No preclusion because it was not essential or necessary to the judgment of the 1st actionsole basis
was defendants contributory negligence

(C)

Finding necessary/essential to the judgment

Did the party to be precluded have any incentive to appeal or overturn the earlier finding?

(II)

plaintiff would still win because defendant was still contributorily negligent

(III)

no incentive to appeal because it would not change the result

(IV)

Did the finding support the 1st judgment?

( V)

plaintiffs negligence in the 1st suit does not support judgment for plaintiff in that case

(VI)

only finding supporting judgment was defendants negligence in the 1st case

(VII)

Purposedo not want to encourage the courts to make unnecessary pronouncements

Exception: Heavily criticized minority view if the finding was heavily litigated and intentionally decided.

Quesiton 6 pg 725
(i)

A sues B on the interests of a note and B alleges fraud in the execution of the note. Upon trial A gets verdict
and judgment. After maturity A sues B for the notes principle. Is the prior judgment conclusive on the
question of fraud?
( A)

(ii)

Yes because 2 judgments are necessary for A to win. Thus the finding of fraud was binding.
Additionally there was an incentive for B to appeal because he would win both if he could prove it.

What if there was a general verdict for B? Could B use the prior judgment as a defense?
( A)

(5)

(I)

No because either of the 2 judgments could be found for B. There is an ambiguity whether B won on
fraud defense or release defense. Can't use the fraud finding if we dont know if there was one.

What if party wins with Alternative Determinations?

(a)

Party wins upon the determination of two issues, either of which standing alone would be sufficient to support
judgment in his favor

(b)

1st Restatementjudgment is binding on both issues

(c)

This is dealing with a different idea than Cambria because the finding of defendants negligence would not support
the 1st judgment

(d)

Halpern v. Schwartz
(i)

Three alternative theories, one was on defraud of creditors

(ii)

Not preclusive to any of the alternative grounds (contrary to the 1st Restatement), not sure which ground
defendant won on

(iii)

Support of the case

( A)

( B)

Not clear if they were carefully considered

(II)

Might have been carefully consideredmust plead fraud with particularity because it has the
ability to damage a person

Since alternative grounds, parties lack incentive to appealloser has little incentive to appeal
erroneous finding because judgment would be appealed on other grounds

Sometimes other side will argue that alternative ground is just dicta

( V)

There is a problem. In a Halpern v. Schwartz jurisdiction, what if you had 2 alternative grounds for remedy
and you can foresee that there will be future litigation?

(vi)

Probably just choose 1 theory and not both of them. So in a J like this most likely will forego 1
theory.

Majority of jurisdictions say alternative holdings each of which would independently supported the holding
have issue preclusion to each alternative holding

What about inconsistent judgments?

(a)

(7)

(I)

(iv)

( A)

(6)

Judge may not have given careful consideration to each alternative ground if the 1st action was
clearly sufficient to support the judgment

The last judgment in time is controlling

Berlitz School of Languages in America v. Everest

(b)

(i)

First Action found that a disclaimer was sufficient to dispel any confusion about who was putting the books
out.

(ii)

2nd action sued under federal law of smaller insufficient disclaimer and likely to confuse consumers about
the origins of the goods.

(iii)

Collateral estoppel barred litigation because the difference in the size and the name in the disclaimer were
not sufficient to warrant a new claim in the preceding. If the facts had been more substantial then collateral
estoppel would not have barred the proceeding.

(iv)

What about the problem that 1st action was state claim and the second was a federal court? Irrelevant
because the facts and actions were the same. It is the same issue in both actions.

How far does Collateral Estoppel reach? How close do the facts have to be?
(i)

If they are sufficiently different Collateral Estoppel does not apply.

c) Exceptions to the Rule

(1)

United States v. Moser

(a)

1st actiondefendant sued for retirement pay of next higher rank, Moser in naval academy during the civil war
(statute allowed higher rank when serving in the civil war.) The case came out in his favor

(b)

Another suit said statute did not apply to academy cadets, relied on an overlooked statute

(c)

Later Moser suits, relied on the 1st judgment and gave benefits to Moser
(i)

(d)

Governments appealed arguing that collateral estoppel should not apply to the issue of law wrongly decided
in the first trial

Supreme Court
(i)

Collateral estoppel does not apply to pure issues of law

( A)

Not estopped from saying the law is otherwise

( B)

Arguments
(I)

Apply to the issues of lawjudges are better able to resolve legal disputes than factual
disputes, so give a collateral estoppel effect

(II)

No collateral estoppeldo not freeze the law, later judges are equally capable of resolving
the law

(III)

(ii)
(2)

(3)

Collateral estoppel if the case involves a fact, question, or right distinctly adjudged in the 1st
action and this cannot be disputed in subsequent actions even if it was erroneouscollateral
estoppel may apply to mixed issues of law and fact

This court held that this was a mixed issue of law and fact and collateral estoppel should apply.

Question 20 pg 735
(a)

1st Action Tomatoes are duty free

(b)

2nd Action Tomatoes require duty

(c)

3rd Action A imports more tomatoes and he has to pay.

Montana v. United States

(a)

1st actionUnited States challenged tax on public construction contracts on grounds of discrimination in Montana
state court, state tax upheld

(b)

2nd actionUnited States challenged tax in federal court

(c)

Questions
(i)

Are the issues the same in each action? Yes, the issue of the constitutionality of the tax

(ii)

Are there any exceptions to issue preclusion here?

( A)

Have controlling facts or legal principles changed significantly?

(I)

Factsjudgment must be made based upon those facts? No major change

(II)

Lawmust be a major doctrinal shift

( B)

Pure issues of law in successive actions involving substantially unrelated claimsimportant in

constitutional litigationdont want to freeze litigation/development in law

(C)

Reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation
government chose the state court in the first action

(4)

Limited jurisdiction courts will preclude a 2nd action of a decision that had a monetary amount limits. Special court will be
given the benefit of the doubt unless the decision was made outside of their specialty.

(5)

Unforeseeability of future litigation

(a)

Apply collateral estoppel to issues determined in the 1st action only when it is reasonably foreseeable that the
issue would be of importance of possible future litigation (Evergreens)

(b)

Justificationnot as much incentive to litigate an issue if you could not foresee the importance of future cases

(c)

Spilker v. Hankin
(i)

1st actiondefendant gave attorney several notes for legal services, did not pay 2nd note, defendant
pleaded duress . . ., attorney wins, no appeal

(ii)

2nd actionDefendant sues for remaining notesmoves for collateral estoppel

(iii)

Normal ruledefenses which fail in 1st suit are normally foreclosed to subsequent litigation

(iv)

Exceptionwhere applying collateral estoppel would contravene important public policy

(v)

(6)

( A)

Fee contracts between attorney and client are a special concern to the courtsthese override
applying collateral estoppel

( B)

Seems to be a very general exception to issue preclusionwhere there is a strong public policy that
counsels against issue preclusion then it is not used

Could read this rule narrowly

( A)

Only precludes fiduciary relationships

( B)

Based upon plaintiff did not have adequate incentive to litigate the issue because 1st case was for a
small amount

Restatement 28
(a)

Party against whom collateral estoppel could not as a matter of law have obtained a review of the 1st actions
judgment

(b)

(7)

(i)

Two actions involve claims that are substantially different (Montana, Moser)

(ii)

New determination is warranted to take change of the law into account (Montana)

(c)

Warranted by differences in the quality/extensiveness of the procedures (Montana)

(d)

Party had a significantly heavier initial burden, the burden has shifted, adversary now has a significantly heavier
burden

(e)

Clear and convincing need for a new determination

(i)

Potential adverse impact of determination on public policy (Spilker)

(ii)

Subsequent action not sufficiently foreseeable (Evergreens)

(iii)

Party did not have adequate opportunity/incentive to obtain a full and fair adjudication of the 1st action
(Spilker)

Federated Department Stores v. Moitie

(a)

1st claim dismissed for failure to state a claim, only 5 appealed, later reversed

(b)

2nd new action on another theory, not allowed because of collateral estoppel

(c)

Court of Appeals

(d)

(8)

Issue is of law

(i)

Non-appealing parties may benefit from a reversal when their position is closely interwoven to that of the
appealing party

(ii)

Claim preclusion should give way to simple justice and public policy

Supreme Court
(i)

Rejected the interwoven exception

(ii)

Rejected the exclusion of simple justice

( A)

Justice is when claim preclusion is applied even-handedly

( B)

No principle of law or equity can sanction the rejection of the rejection of claim preclusion

(C)

Reject exception to res judicata on public policyhas to be end to litigation

(III)

Harrington allowed exception to res judicata for public policy reasonsdistinguish Moitie since this was
business matters

(iv)

Does not affect Spilkers policy exceptions for issue preclusion because this case is over claim preclusion

Exceptions based upon the posture of the party

(a)

If in 1st action you are in special posturerepresentative for a trustee

(b)

No bar in 2nd action if it is brought in the individual capacity of the representative

(c)

Special posture in the 1st action meant that there was no fair and full opportunity to have the case litigated

4. Effects on Persons Not Parties

a) Persons Bound by Prior Judgment
(1)

Traditionalonly binds parties and those in privity (a relationship between two parities out of which arises mutuality of
interestnon-party bound by judgment both in claim preclusion and issue preclusion)

(2)

Restatement 83
(a)

Does not discuss privity

(b)

Three categories where non-parties are bound

(i)

Persons actually represented by a party to an action (principles represented by agents, beneficiaries

represented by trustee)

(ii)

Successors in interest to a partys property involved in an action (A conveys property to C after judgment,
C bound to 1st action)

(iii)
(3)

(4)

Indemnity- he didnt cover this

(a)

Have a relationship where if one party is subjected to liability, another party will indemnify the party for his loss
insurers are Indemnitor, policy holder is indemnitee

(b)

Indemnitee can vouch in the indemnitor by giving notice of an action and offer control of the defense

(c)

Bound by judgment once you are vouched in irrespective if they control the defense

(d)

Indemnitor represented by indemnityrepresentation allows privy of a stranger to the action

Show-World v. Walsh
(a)

1st actionlandlord sued to challenge safety order against a tenant

(b)

2nd actiontenant sued on similar grounds

(C)

Res judicata did not bar the action

(i)

(ii)

(iii)

(5)

Non-parties who control the prosecution or defense of an actionperson must have effective choice in the
legal theory and proof advanced in the suit and have a chance to appeal the suit

Extent that property interests can establish privity

( A)

Existence of landlord/tenant relationship is not enough at least not where landlord is asserting
tenants constitutional rights

( B)

Might be enough if the case is over the title

Extent to which strangers conduct can make it privity

( A)

Conduct was Show-Worlds failure to intervene

( B)

Mere failure to intervene is not enough to make it privity

Virtual representation
( A)

May be applicable

( B)

Sometimes may say person bound by a judgment even though he was not a party if the party to the
suit is so closely aligned with their interests to be their virtual representative

(C)

Court said it was not enough for privity here

( D)

Virtual Representation Doctrine is very narrowly appliedmust have a finding of an expressed or

implied reliance where the party to the 1st action is accountable to the non-party; i.e. accountable in
class action where the government sues for citizens

Neenan v. Woodside Austoria

(a)

1st actionHuppman sued for damages in a crash, won because defendant (bus driver) was negligent and plaintiff
not contributorily negligent

(b)

2nd actionplaintiff (passenger on bus) sued Huppman and defendant for personal injuries, judgment against
both, Huppman tried to introduce the 1st judgment to preclude finding his negligence (She won against woodside
and huppman)

(c)

No collateral estoppel

(d)

(i)

Neenan had not had her day in court in the 1st suitshe was neither a party nor in privity to the first action

(ii)

Issue was not foreclosed by the 1st judgment

(iii)

Holding she was bound is not consistent with Due Processmust have an opportunity to be heard or so
identified with a party that her interests were litigated (virtual representation)

Intro to next section: What if Neenan had claimed in action #2 that woodside had already been found negligent in
action #1? Should a stranger to the first litigation be able to benefit from that judgment? Courts typically said that
a stranger could not do this.

b) Persons Entitled to Benefits of Prior Judgment

(1)

Mutuality of estoppel
(a)

Traditional approachpersons could not benefit from collateral estoppel unless they would also be bound by the
judgment

(b)
(2)

Turns on fairness of due process

Some exceptions were developed over time

(a)

(b)

(C)

Indemnity
(i)

Example sues employee of company that was in an accident.

(ii)

Action 2 sues employer for the same crash. The court used the first action judgment against the plaintiff
to preclude a judgment. This was to protect the employers right of indemnity.

American Button v. Warsaw Button

(i)

Action 1 A sued B for breach of K and lost

(ii)

Action 2 A sued C for inducing B to breach and the court applied preclusion principles even though C was
not bound by a prior judgment.

(III)

Rule: Judgment in favor a person charged with commission of a tort is normally precluded a complaint
against another party that caused the first to act in such a manner.

Bernhard v. Bank of AmericaCA

(i)

1st actionBernhard sued Cook saying the money was embezzled, court says it was a gift

(ii)

2nd actionsued defendant as executrix seeking to recover money Cook withdrew, Bank said plaintiff was
collaterally estopped to dispute the money as a gift

(iii)

Rule: Doctrine of mutuality of estoppel is rejected

( A)

Due Process forbids assertion of res judicata or collateral estoppel against a party unless a party or
privity to the 1st action there is no compelling reason for the party asserting res judicata or collateral
estoppel to be required to be a party or privity in the 1st action

(iv)

Argument against mutualityplaintiff already had a chance to argue the issue and would not be efficient to
allow re-litigation of an issue

(v)

Arguments for mutuality

( A)

Findings in litigation do not represent the truthjust resolution of a particular case

( B)

Not applying mutuality gives a stranger to the 1st action a free ride to have the issue determined

(C)

Not efficient to give up mutuality because defendants in 1st action will have to litigate everything
strenuously because the judgment could be used against them in a later case

( D)

Bernhard view became very influential, and the language of the case seemed to reject the whole doctrine of
estoppel.

(e)

Four situations to understand how far courts are going to go Bernhard

(i)

(ii)

(iii)

Plaintiff sues defendant and defendant wins, loser plaintiff sues new defendant, can new defendant use
collateral estoppel?
( A)

Strongest case for collateral estoppel

( B)

Courts use estoppelplaintiff chose the court and the adversary in the 1st suit

(C)

Defensive use of collateral estoppel (here) presents fewer difficulties than an offensive use. (Using
as shield rather than sword.)

Plaintiff sues defendant and plaintiff wins, loser defendant sues new defendant, can new defendant use
collateral estoppel?
( A)

Defensive use of collateral estoppel

( B)

Party to prior action did not choose court in that actionmight be reason not to allow collateral
estoppel, could have been an inconvenient forum
(I)

Difficult to defend there or

(II)

Hard

Plaintiff sues defendant and defendant wins, new plaintiff sues loser plaintiff, can new plaintiff use
collateral estoppel?
( A)

Offensive use of collateral estoppelplaintiff using judgment against defendant

( B)

(iv)

Significant that it is used as a sword rather than a shield

(I)

Creates liability problem against loser plaintiffopen up liability from all sides

(II)

Plaintiffs can wait and see attitude and take advantage of 1st judgment

Plaintiff sues defendant and plaintiff wins, new plaintiff sues loser defendant, can plaintiff use collateral
estoppel?
( A)

Hardest case for collateral estoppelproblem of the multiple claimant

(I)

( B)

50 passengers and 1 passenger loses to the railroad. Then each passenger loses, but 1
passenger does win. Can the next passenger win by collateral estoppel? Probably not.

Collateral estoppel may be too powerfuldeny collateral estoppel to later plaintiff if defendant has
prevailed in any prior action

(f)

Tendency in some courts to permit defensive use and not allow offensive use

(g)

Federal Courts
(i)

Blonder Tongue v. University of Illinois

( A)

1st actionplaintiff sued defendant for patent infringement, plaintiff lost because patent was invalid

( B)

2nd actionplaintiff sues new defendant over patent, issue is the validity of the patent

(C)

New defendant could use prior judgment to show invalidity of the patentdefensive use of
collateral estoppel

( D)

(ii)

(I)

Supreme Court rejected mutuality as a matter of federal law at least to the extent of defensive
use of collateral estoppel

(II)

The Court questioned if it is any longer tenable to give more than one opportunity to litigate
an issue (lead to inefficiency, makes litigation look like a Gaming table as long as there was a
long list of defendants they could bring claims)

Safeguardsnot used to preclude re-litigation if

(I)

1st action failed to allow fair opportunity procedurally, substantively, and evidentially to
litigate the issue

(II)

Factors (who chose the forum in the first action, incentive to litigate, prior case a rare case
where the court failed to grasp the technical subject matter of the issues, was the party
deprived of crucial evidence and witnesses)

Parklane v. Shore
( A)

1st actionseeking damages, over misleading proxy statement

( B)

2nd actionSEC filed same suit as the 1st, sought injunctive relief, trial by judge

(C)

1st plaintiffs moved for summary judgmentdefendant collateral estopped from litigating issue

( D)

Court of appealsno collateral estoppel would not allow for trial by jury

( E)

Supreme Court

( F)

(I)

Allowed offensive use of issue preclusion

(II)

Preferable approach is to grant the trial court the discerning if offensive use of collateral
estoppel is appropriate in the situation

Several factors in deciding not to use offensive use of collateral estoppel

(I)

If 2nd plaintiff could have easily joined the 1st lawsuitproblem of the wait and see
plaintiff, increases litigation and does not promote judicial economy

(II)

Were there any legal impediments to jointing the action? The plaintiffs could not have joined
the suit because of a statute

(III)

Were there any practical impediments to joining the action? (cost and inconvenience)
Supreme Court does not deal with this question

(IV)

Is it unfair to foreclose re-litigation by the defendant when the plaintiff could not easily have
joined the action3 categories of concern

were there different stakes at issue in the earlier litigationproblem of lack of incentive to
litigate, especially if future law suits are unforeseeable
------ can argue that the SEC claim was about an injunction and not about damages
Collateral estoppel is unfair if the 2nd action gives defendant procedural opportunities that
were unavailable in 1st action
------ 2nd action would have been in front of a jury and not the judge, but the court says this is
not procedural
Inconsistent results weigh against the use of collateral estoppelif the judgment youre
trying to rely upon is inconsistent with one or more previous judgments the judgment itself is
called into question
------- This judgment from SEC action is not inconsistent with any previous decision
( V)
(iii)

Taking factors into consideration court says it is not unfair to apply offensive collateral
estoppel in this case

United States v. Mendoza

( A)

Mendoza petitioned for naturalizationrelied on 1975 decision saying 45 Filipino war veterans
were entitled to naturalization

( B)

Could Mendoza use non-mutual offensive collateral estoppel against the government?

(C)

Court says nonon mutual collateral estoppel offensive collateral estoppel may not be used against
the government

( D)

The government is in a different position than private litigantgovernment has lots of litigation
with important legal questionslots of suits involving the same issues

( E)

Many bad consequences if they allowed this to happen:

( F)

(I)

Would thwart the development of important questions by freezing the first final decision
rendered on a particular issue

(II)

Prevent courts from exploring difficult questions

(III)

Force government to appeal every decision

Montana is not called into questionCourt says it will accept preclusion when parties to the suit are
the same