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) 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
(2) 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
(3) 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(e)(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) Fraud assumes a flaw in character so more is at stake
in alleging it- nation values reputation
(4) 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(e)(1)
(viii) Form 9 model of negligence pleading quotes
Rule 84 selectively
(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.
(5) Notice Pleading v. Code Pleadingmust assert more factual
information in Code Pleading
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(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.
(6) 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:
(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 he 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.
(f)

Rule plaintiff can put forth facts in claim that would

entitle him to relief without evidence arrival of notice
pleading.

(7) 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
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(8) The court is not going to spend time fleshing out the facts
in the complaint.
e)

Statements of Claim in the Alternative

(1) Rule 8(e)(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
(2) 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
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(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) Mohammed v. Union Carbide Corp. 1985
(a) Construction company looses contract with Union
Carbide alleges libel and slander, joining antitrust
frivolous suit
(b) Summary judgment for the defendant on all counts
(c) Defendant moves to recover attorneys fees Rule 11
(d) Judge ruled:
(i)

Rule states an attorney must make reasonable

inquiry into the operative facts and relevant law
before submitting pleading.

(ii)

Focus of court examine efforts undertaken by

attorney to investigate claim before filing

(iii) Plaintiff conceded he had no evidence that Gandol

had uttered a slanderous statement or published a
libelous account concerning him
(iv) Plaintiffs attorney offered no evidence of inquiry
argued he pursued claims in good faith
(v)

By definition charges of defamation are notorious,

public acts

(vi) Attorney sanctioned for libel and slander claim but

not antitrust
(e) Rule Counsel must make reasonable inquiry into
the operative facts and relevant law before submitting
pleading
(6) Murphy v. Cuomo- 1996
(a) Murphy sprayed with Cap-Stun. No sufficient claimlegal grounds brought against plaintiffs attorney for
signing complaint. Even after discovery, had no factual
grounds for claim.
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(b) P was alleging that police were in secret test with CapStun
(7) 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:
(i)

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
(e) Rule Claim must be grounded in existing law or
present good faith argument for modification or
extension of existing law
(8) Sanctions more likely to be imposed for Rule 11 in Civil
Rights cases.
(a) Judges are suspicious of those cases and believe they
misuse federal courts
(9) 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)

Purpose protect defendant from surprise at trial

(2) Burlington Transp. Co. v. Josephson 1946

(a)

Doctor sues city for false arrest special damages

(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

(3) 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)

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)

(4) 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.

(5) 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.
h)

Pleading Requirements
(1) Letherman v. Tarrant County Narcotics 1993
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(a) Two homes searched 4th Amendment pleading

requirements for civil rights
(b) In one house a dog dies in the other the homeowner
is assaulted
(c) 5th District ordered the complaints dismissed because
of heightened pleading requirements for civil rights
suits
(d) Supreme Court finds:
(i)

Federal Rules do not require claimant to set out in

detail the facts upon which he bases his claim

(ii)

Must rely upon summary judgment and control of

discovery to weed out unmeritorious claims

(e) Rule Liberal notice pleading is acceptable in civil

rights cases District Courts still require detailed
pleadings in civil rights cases, though
(2) Decker v. Massey-Ferguson, LTD. 1982
(a) Stockholder alleges securities fraud heightened
pleading in fraud cases
(b) Stock price goes from $20 to $3
(c) Stockholder alleges defendants:
(i)

Disseminated false and misleading information

about the Company and omitted material
information from annual reports and SEC filings

(ii)

Made wrongful foreign payments bribes

(d) Rule 9(b) Heightened pleading requirement for

securities fraud fraud claims must specify facts,
cannot be based on conclusory allegations
(e) Court found:

(f)

(i)

Without Rule 9(b) cases have a higher settlement

value courts want to limit in terrorem
settlement value of cases many companies
would prefer settle than risk damaging their
reputation

(ii)

Only claim upheld was on wrongful bribes had

sufficient facts to show fraud might have occurred

Rule Fraud allegations must be pled in detail

2.

DEFENSES
a)

AND

OBJECTIONS

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) 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

(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
(b) 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:
(i)

Statute of Limitations

(ii)

Contributory Negligence

(e) Rule 12 (e) Plaintiffs claim is too vague Motion for

a more definite statement
(i)
(f)

b)

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

Manner of Presenting Defenses and Objections

(1) Rule 12(b)
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(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) Form 19 is a form of motion.
(5) 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 preanswer 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(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
(a)

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

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

process
(ii)

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.

(iv) Rule 12(h)(3) Rule 12(b)(1) lack of subjectmatter jurisdiction may be raised at any time
(2) Defenses properly raised by answer
(a) 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
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(3) Objections under 12(e) & (f) must be raised in initial preanswer 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 4850, question
1620
(a) Plaintiff claims damages for mental anguish suffered
by him by reason of defendants negligence
(b) Defense counsel knows:
(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
(c) Defense investigation of the facts indicate:
(i)

Likelihood that the plaintiff cannot prove

negligence

(ii)

Wish to challenge the venue

(iii) Plaintiff was contributorily negligent

(d) 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

13

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

(e) Raise defenses first by pre-answer motion then with

answer
(i)

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)

(ii)

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
(iii) If Rule 12 motion is not successful then file an
answer:
(a)

(f)

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

(6) Coleman v. Frierson 1985- District Court

14

(a) Investigator finds fraud and fired failure to state a

claim after judgment
(i)

answered in timely manner, but were dilatory in

the discovery process so trial court granted P
default judgment.

(b) 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

15

(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

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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:
(a) Assert the negative (denial)
(b) Assert further matters invalidate claim (avoidance)
(c) Take both positions
(4) 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
(5) Some states force a reply to an affirmative defense

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4.

COUNTERCLAIMS
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) Judicial efficiency is rational behind rule:
(i)

Avoids simultaneous litigation

(ii)

Reduces risk of inconsistent judgments

(iii) Avoids wasting time and money

(2) 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) Compare logical relationship test with Williams
same evidence test below.
(6) 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
18

(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:
(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.
(g) Rule Court defined transaction refers to the affair as
a whole. It isnt very well defined.
(3) Common transaction tests to see if counterclaim is
compulsory:
(a) 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

19

(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.
(b) 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

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5.

AMENDING
a)

THE

PLEADINGS

Amendments Before Trial

(1) 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
(2) 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)

Continuance delay or postponement

(3) 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

(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)

21

(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.
c)

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) Evidence at trial was probably not showing negligence
of handling of timbers
22

(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?

23

e)

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)

Blair court would have allowed a change in

Sierocinski from negligence in mixing powder to in
constructing container.

(d) 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)

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.

(2) 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.)
24

(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.

25

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) Costly process usually rich won in litigation
(2) 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)

26

(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)

Not relevant except in calculation of

Punitive damages

(d) Rule 26(b)(2)- specific provisions authorizing case-bycase 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

(2) 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

27

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

(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

(b) 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.

(c) 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.
(2) What good did these changes do?
(a) Save time and money by making suit go more quickly
judicial efficiency
28

(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) 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
(b) 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

(5) 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) 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
(2) 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

29

(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) 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
(3) Process of oral deposition:
(a) Notice
(i)

Rule 30(b)(1):
(a)

Must give reasonable notice to parties

(b) Specifies time and place of deposition

(c)
(ii)

States the name and address of each person

being deposed

May subpoena a deponent

(iii) Notice is sufficient to make a party appear at

deposition
(b) 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

30

(a)

No judge is present to objections become

questionable

(4) Objections
(a) Two situations:
(i)

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)

(ii)

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
(iii) 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
(5) 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
(6) 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
31

(7) 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
anti-trust laws
(c) Court held:
(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

(d) Rule cannot ask purely legal questions in depositions

or facts about the claim in legal terms
(10)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

32

(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.

33

Interrogatories to Parties [Rule 33]

(4) Served upon parties only not to exceed 25 interrogatories
in number
(a) Unlike written questions and oral testimony that can be
for nonparty witnesses
(5) 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:
(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
(8) 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
(9) Objections to Interrogatories
(a) Outside the scope of the claim- irrelevant information.
(b) Seeking privileged information
(c) Unduly burdensome or vague and ambiguous
(10)OBrien v. International Brotherhood of Electrical Workers
1977
34

(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.

35

g)

Requests for Admission [Rule 36]

(1) 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
(2) Sanctions under Rule 37(c) discourage capricious denials

h)

Production of Documents and Things [Rule 34]

(1) 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
(2) 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.
(3) How to produce documents
(a) Client produces documents
(b) Before submitting them to adversary must review to
see:
(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

(c) 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

36

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)

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.
(3) 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
(4) 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:
(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

(d) Rule Party must show good cause and condition must
be in controversy
37

(5) Exchange of Reports

(a) 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

(b) 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

(c) 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

38

Sanctions for Failure to Make Discovery [Rule 37]

(6) Rule 37(a)
(a) A party can get an order compelling disclosure or
discovery
(7) 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.
(8) 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
(9) Exceptions
(a) 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
(b) Party cannot be excused because discovery was
objectionable unless the party sought and obtained a
protective order
(10)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
39

(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
(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

(d) 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

40

(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)

In discovery context- default judgment is the

ultimate sanction, but there are other sanctions
present. Why do we protect it more?

Court said that Coca Cola formula was necessary bc

they couldnt tell if the products were different unless
they looked at the formula.
(i)

Except for a few privileged matters, nothing is

sacred in civil litigation.

(11)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.

41

(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

42

j)

Supplementation of Responses
(1) 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
(2) Calling a non-disclosed witness
(a) Judge might exclude the evidence
(b) Judge might grant a continuance to deal with the new
evidence
(3) 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:
(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

43

(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

(4) Other products of discovery

(a) May be used so far as permissible under rules of
evidence
(b) Rule 36 requests for admission are binding
(5) 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
44

45

l)

Work Product
(1) Must ask some questions about the information
(a) Is it relevant?
(b) Subject to the attorney client privilege?
(2) 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)

Could use the information compiled by

attorney to answer interrogatories. Question
46

would have to be framed correctly. Can't talk

about all efforts of attorney. Would need to
stick to asking about the facts
(d) 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
(3) 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) 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
(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:
(i)

The personal observation of plaintiff after the

accident

(ii)

The accident report by the highway patrol

(e) Court ruled:

(i)

Plaintiffs measurements gathered after injury of

their infant child could not compare with the
precision of the insurance adjusters figures
47

(ii)
(f)

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)

If one party knew and the other didnt one side

would have a large advantage at trial.

(5) 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:
(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
(c) 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)

Exception legal malpractice?

(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

48

(c) Government responds saying request is for opinion

work product
(d) Court ruled:
(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)

(e) Rule Documents not prepared in anticipation of

litigation are outside of the scope of Rule 26(b)(3)
(7) 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:
(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
(d) Rule Discovery of intangible work product is not
acceptable
(8) 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
49

(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
(9) 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)

Witnesses are no longer available.

(b) Defendant would have undue hardship

getting the materials substantial equivalent
(iii) Under Rule 26(b)(3):
(a)

Must show substantial need and that the

party is unable to obtain substantial
equivalent of the materials without undue
hardship

(b) Opinion Work Product

(i)

Records of oral statements, personal memos,

unrecorded statements, conclusions, and mental
impressions of an attorney

(ii)

Under Hickman:
(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
(iii) Under Rule 26(b)(3):
(a)

The court shall protect against disclosure, so

more than likely not.

(iv) 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.

50

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) This is one way around 26(b)(3) nonparties can
request their statement then give it to opposing party
(3) 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) 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
(2) 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,
51

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)
(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
(iii) 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

(iv) 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
(v)

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
52

(9) Berkley Photo, Inc. v. Eastman Kodak Co. 1977

(a) Plaintiff requests discovery of four notebooks prepared
by defendants attorneys
(b) Notebooks were given to experts to help in preparing
their deposition testimony
(c) Judge let defendant get away with it this time but next
time its discoverable
(d) Rule A partys delivery of materials to an expert to
prepare testimony might waive work-product immunity

53

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:
(i)

Some need showing of substantial effort to keep it

secret

(ii)

Information cannot be generally available outside

of the organization

(b) Must be good cause disclosure would cause harm to

the party
(3) 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
54

(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?

55

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:
(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
(5) 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
56

hold trial on the other. If both are insufficient, then plaintiff

may move for judgment on the pleadings.

57

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)

Rule 12(c)- motion on the pleadings- only on

pleadings, not affidavits, etc. like summ. judgmt.

(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:
(i)

Pleadings

(ii)

Depositions

(iii) Answers to interrogatories

(iv) Admissions
(v)

And any other similar material which would

represent admissible evidence

(g) 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
58

(iv) Meeting the burden but not shifting it means that

a reasonable party could find for either party
must go to trial
(h) 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)

Note- there must be a sufficient claim though.

(3) American Airlines v. Ulen 1949

(a) 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
(b) Usually plaintiffs are not the movant in summary
judgment
(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
(c) Usually you dont see a motion for summary judgment
granted in a negligence case this is negligence per se

59

(negligence as a matter of law) conduct violates a

statute while being negligent
(i)

A jury usually decides if it was a reasonable

action.

(d) Issue #1: Was plaintiff entitled to summary judgment?

(i)

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
(ii)

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
(iii) According to information from interrogatories
defendant was clearly negligent
(e) 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

60

(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
(4) 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)

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
61

(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)

(ii)

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

(c)

(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

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)

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.
62

(iii) 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
(e) Brennan (dissent, Celotex)- motion was prematureneed 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?
(f)

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)

, 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

(5) Frito-Lay v. Willougby 1988

63

(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 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
(6) 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.

64

B.

Trial- a method of adjudication

1.

THE JURY
a)

General
(1) 7th Amendment guarantees a right to a jury trial
(a) 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
(2) 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) 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
(2) 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

65

(ii)

No verdict shall be taken from a jury reduced in

size to fewer than six members

(3) 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:
(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

(4) 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 one

this 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.
(5) Unanimous five-person juries violate the Constitution
(Ballew v. Georgia)
(a) 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
66

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

67

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) 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.

(b) Challenges for Cause

(i)

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.

(c) Peremptory Challenges

(i)

Three allowed in Federal courts

(ii)

Allow litigants to dismiss a juror on a gut feel

(d) 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
(e) Race or gender may not be reason for peremptory
challenges (Supreme Court decision) Batson v.
Kentucky (sp?) race; JDB (?) v. Alabama gender
68

(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.

69

ORDER

AND

d)

METHOD

OF

PROOF

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
(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

(c) 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
(d) Court doesnt leave burden wholly on jury:
(i)

Must be preponderance of evidence in favor of the

party who bears burden
70

(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
(e) Evidence not constituting affirmative evidence:
(i)

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)
(ii)

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
71

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.

(iii) 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..

(iv) 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
72

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)

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?

(f)

(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)
73

(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

(g) 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

(4)

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
(5) 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)

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)
(ii)

Clear and convincing evidence (fraud claims)

Usually preponderance of the evidenceexistence

of the fact is more likely than not
74

(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 (Fraud

clear 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)

Not widely adopted.

(c) 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%)
(d) 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
75

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.

76

e)

Order of proof
(1) Ordinarily plaintiff has initial obligation to bring forward
evidence in support of the disputed elements of the claim
(a) Why is this? He is launching a claim that we have no
reason to suppose is meritorious.
(2) Process:
(a) 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.
(b) 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?

(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

(iv) In theory only supposed to put on case in chief

judges allow some leeway and allow the plaintiff
attorney to anticipate defenses and rebut them
(3) Defendants Case (or side without the burden of proof)
(a) Defendant may cut short and rest without offering
proof
(i)

Defendant is confident the plaintiff has not

sustained the burden of proof
77

(ii)

Defendant has little evidence or may risk

backfiring

(b) Ordinarily, proceeds to offer his own evidence

78

2.

MOTIONS
a)

AT THE

CLOSE

OF

ALL

THE

EVIDENCE [Rules 50(a) & (b)]

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)]

(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

c)

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) Favorable Evidence Only Test

(a) Court only looks at evidence favorable to the opponent
of a motion
(b) Completely ignores all other evidence
(2) 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
(3) Qualified Favorable Evidence Test
79

(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.)
(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.
(vii) 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.
80

(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)

Scintilla rule case could go to the jury under

any evidence. Directed verdict when only
there is no evidence. Later overruled.

(c) 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.

(d) 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

(a)

P and other employee say practice was

established
81

(b) Strong testimony contrariwise

(iv) 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
(v)

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
82

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.
(ix) 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.
(4) Federal Standard
(a) Scintilla rule- case can go to jury if theres any
evidence that could support a verdict
(5) 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

83

3.

SUBMISSION
a)

TO JURY AND

RETURN

OF

VERDICT

PG

179

Types of Verdicts
(1) 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 facts
many times interrogatories accompany jury charge
Only says who wins.
(c) Judge determines the type of verdict to use
(2) 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)

Dont know whose argument they will be assisting

since they are only finding facts. Eliminates bias.

(c) Some argue it improves the efficiency and reliability of

the judicial process
(3) 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

84

b)

Jury Instructions (Rule 51)

(1) Jury instructions come from counsel on both sides
(2) Jury instructions are generated from:
(a) Pattern jury instructions
(b) Counsels own legal research
(3) 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

85

4.

MOTIONS AFTER VERDICT

a)

Renewed Motion for Judgment as a Matter of Law [Rule

50(b)]
(1) 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
(2) 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) Extremes:
(i)

Directed verdict standard

(ii)

Judge asking if jurys verdict was right

(iii) Standard must be between those two

miscarriage of justice standard
(b) 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
86

(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

87

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
88

(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

89

3.

THE JUDICIAL POWER

a)

OF THE

UNTIED STATES

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:
(a) Federal question cases arising under the Constitution,
laws of the United States, and treaties
(b) Cases of admiralty and maritime jurisdiction
(4) 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
(5) 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
(6) 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
90

(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

91

4.

HOW CONGRESS
COURTS
a)

HAS

VESTED ORIGINAL JURISDICTION

IN THE

DISTRICT

Congressional Provisions to Classes of Cases or

Controversies
(1) Controversies
(a) 1332 Diversity of Citizenship controversies of
citizen of one state and a citizen of another state
(2) 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)
92

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
93

(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.
(a)

Did congress intend to invalidate the

contract.

(b) Was it a violation of due process.

(iii) Court should pay attention to the well pleaded
allegations those necessary to state a claim- not
those anticipated in defense
(iv) 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.

(3) Supreme Court raised this issue of jurisdiction on their own

without 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,
94

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.

95

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) 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
(2) 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
(3) 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

96

(iv) Plaintiff had livestock in Illinois but chickens in

Oklahoma
(v)

House in Illinois had burned down

(vi) Plaintiff allegedly told some people he intended to

leave Oklahoma for Illinois after the trial was over
(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)

Standard:
(a)

Physical presence of residence

(b) Intent to remain in state indefinitely

(c)
(ii)

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

(4) 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
(5) 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
(6) Foreign citizens who are undocumented aliens
(a) 1332(a)(2) gives jurisdiction over foreign citizens
doesnt matter if they are domiciled in the states
(7) 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
(8) Domicile of Corporations
97

(a) 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

(b) Determining principle place of business (Kelly v. United

States Steel Corp.)
(i)

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
(ii)

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)
(iii) 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
(c) Unincorporated associations

d)

(i)

Associations, unions, partnerships

(ii)

Citizen of each and every state and country of

which one of its members is a citizen

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
98

(b) , makes federal courts deal with state law

99

7.

REMOVAL
a)

OF JURISDICTION OF THE

DISTRICT COURTS

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) 1441(a)
(a) Diversity of citizenship makes case removable
(b) Actions under FELA may not be removed
(i)

Railroad employees

(ii)

Seamen

(2) 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
(3) Removal must be made within 30 days

100

8.

POSSIBLE REVIEW
a)

BY THE

SUPREME COURT

OF

STATE COURT ACTIONS

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) 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
(2) Procedure
(a) 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

(3) 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

101

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.

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

2. 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
102

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

103

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
104

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
105

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

106

- 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.
107

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:
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.

4. 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
108

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)
-

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

5. 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
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
b. 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

109

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
110

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
111

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?
112

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. 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.
d. 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.
113

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

The Byrd approach to not overturn settle precedent.

The bounds of settled precedent are critical to the

importance of STARE DECISIS.

f. 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
114

(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.
115

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

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

h. Gasperini v. Center for Humanities, Inc.

Issue: NY law lets 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 trial by jury shall not be re-examined
by any state. Does NY law apply?
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
116

Federal Rules (Evidence, Appellate Pro., Civ. Pro.)

2nd 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. Byrd fed > state interests
b. Gaspirini attempted balanced the interests
B. Federal Common Law
1. 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:
117

- 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
2. 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.
3. Illinois v. City of Milwaukee (406 U.S. 91)

118

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.

119

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:
(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
(3) 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

(4) 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)

Defined
(1) Used when a single plaintiff has a claim properly in federal
court against a single defendant and the plaintiff appends
onto his claim that in and of itself cannot be brought in
federal court independently
120

(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.
b)

Policies Promoted
(1) Judicial efficiencymore efficient to have a single resolution
of related cases
(2) Encourages litigants to vindicate their federal claims in
federal courts, where the federal judge has more expertise
and sympathy in federal issues.

c)

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.

d)

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) Required virtually total factual identity between the
claims
(2) Break through case on pendent claim jurisdiction (United
Mine Workers v. Gibbs S.C. 1966)
(a) State and federal claims brought to the district court
JNOV on federal claim but district court heard the state
claim
(b) United States Supreme Court affirms sets out three
element test:
(i)

Must determine that there is a substantial, nonfrivolous 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

121

proceedingusually 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)

(ii)

(Supreme Court later softened thismust

have sufficient judicial investment in the
claim)

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
(e) If the state claim is closely tied to federal policy
argument for pendent jurisdiction might be strong
(3) Ancillary Jurisdiction
(a) 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

(ii)

Claim to be added must arise out of the same

transaction which was originally in federal court
use logical relation test to determine if in the
same transaction

(iii) Purposemore efficient to try cases with one

lawsuit instead of multiple
(b) Rules resulted in the need for ancillary jurisdiction
(i)

Rule 13(a)compulsory counterclaims

(a)

(ii)

Ex. A sues B (both citizens of different

states), but there is a counter claim over
which the court has no jurisdiction.

Rule 13(g)cross-claims, claim by one party

against a co-party (defendant 1 sues defendant 2)

122

(iii) Rule 14(a)impleader, defendant sues a party

who is liable to defendant because of the original
claim brought by plaintiff
(a)

A (Texas) sues B (Arizona). B says if B is liable

to A then C (Arizona) is liable to B.

(c) Questioning of Ancillary Jurisdiction (Owen Equipment

& Erection Co. v. Kroger)
(i)

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 defendant

OPPD is dropped out of suit

(d) Defendant is found to be citizen of Iowa

(ii)

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
(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 jurisdictioneven though
Finley claimed to only touch pendent
party jurisdiction (rendered Gibbs brain
dead but would not discontinue life
support)
123

(d) Plaintiff cannot implead unless he would be

able to file direct claim.
(d) 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)

Yes because
(i)

Efficiency

(ii)

Federal judge can best deal with

(4) Pendent Party Jurisdiction

(a) Definition
(i)

Where plaintiff has claim against first defendant

but not the second defendant but both the claims
rise out of the same transaction

(b) 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)

Against judicial economy

(iv) 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:
124

(c)
(v)

(i)

Article III of the United States

Constitution

(ii)

Congress via statutory grant

No J granted in Article III or statuteno

jurisdiction

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)

Loss of judicial efficiency. Requiring

claims to be split into federal and state
courts.

(5) Codification of Supplemental Jurisdiction

(a) 28 U.S.C. 1367
(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
(a)

Common nucleus of operative facts test is

laid out

(b) Includes federal question and diversity cases

(iv) 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
125

(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)

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
(b) Example Executive Software v. United States
District Court
(i)

An African-American woman formerly

employed by an allegedly scientologydominated 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
state-law claims, the court possibly
concerned about mere docket
congestion but simply citing to Gibbs
discretion.

126

BEGIN SPRING 2009

B.

Territorial Authority to Adjudicate

1.

The Framework
a)

History
(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

b)

Territorial JurisdictionA Starting Point (Pennoyer v. Neff,

Supreme Court1878)
(1) 1st Lawsuit (Mitchell v. Neff)
(a) Mitchell sues Neff in Oregon state court claiming Neff
owed him for legal services
(b) Neff was served by publication in local paper (Oregon
allowed service of non-resident in paper)
(c) Neff failed to responddefault judgment to Mitchell
(d) Three days later Mitchell sells land to Pennoyer
(2) 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.
(3)

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.

(4) Pennoyer gives rise to three categorizations for territorial

jurisdiction:
(a) In Personam Jurisdiction

127

(i)

When judgment makes defendant personally

liable

(ii)

Only by personal process within the forum state,

or
(a)

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
(b) In Rem Jurisdiction
(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

(c) Quasi In Rem Jurisdiction

c)

(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)

Can assert jurisdiction within the state 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

Seizure of Property is not Constitutionally Necessary

(Closson v. Chase, Wis.1914)
(1) Court saysactual seizure of the property is not
constitutionally necessary
128

(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
d)

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)

Plaintiffs state can only decree the divorcecant

decide alimony or child support without in
personam jurisdiction over the defendant

(2) 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)
129

(b) Jurisdiction is established if defendant is served in the

state even if only for a few hours (Darrah v. Watson,
Iowa1873)
(c) Jurisdiction is established if defendant is served above
the state in an airplane (Grace v. MacArthur, Arkansas
1959)
(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)

(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)
(d) If judgment is found to be validother state
must give judgment the full faith and credit
same effect of valid judgment in original
state
(e)

The law applied to determine the validity of

the judgment is the law of the rendering
court subject to certain constitutional limits

(2) 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
130

(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) 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
(2) 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
(3) Implied Consent (Hess v. Pawloski, Supreme Court1927)
(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 point
state can regulate almost anything
(f)

d)

Actual consent to suit is necessary

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
131

(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
Court1935)
(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
(4) 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 Court
1938)
(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) State has a special interest in regulating real estate
ownership then J can be recognized.
(5) 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.
(6) Appearance as Defendant
(a) Defendant could ignore suit and collaterally attack the
judgment when plaintiff tries to enforce the judgment
in the defendants state

132

(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

(b) Can challenge personal jurisdiction in the original suit

(i)

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
(ii)

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)

e)

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

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:
133

(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 state
breaking 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
(c) 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
(i)

Some cases say no jurisdiction for claim

unconnected to business in the state

(ii)

Some cases allowed

(3) International Shoe and Its Progeny

(a) Minimum Contacts (International Shoe Co. v.
Washington, Supreme Court1945)
(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:

(a)

Level of activity in the forum state

(b) Degree of claims relatedness to activity

(iv) 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.
134

(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
(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
(d) Category #4Casual and Isolated Activity
and a Related Claimdepends upon the
nature of the activity
(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
(b) 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
(c) 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

135

(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:

(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:
(e)

Considerations
(i)

First consider minimum contacts

(ii)

Second consider all the interests to

determine whether exercising
jurisdiction would be reasonable

(4) 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)
f)

Likely that the case would not proceed in PA and would

be dismissed as a lack of jurisdiction

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
136

(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)

No unless the claim arose under the ownership,

use, or possession of the estate

(5) 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)

Location of injury is easy except in cases where

there is no physical injury (i.e. defamation)

(c) 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
(i)

regulation of products that enter the

state

(ii)

providing relief for their residents

137

(d) Convenience of witnesses

(6) 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?
(7) California long-arm statute: (maximizes the reach of the
California court)
(a) 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

(b) Disadvantagesnarrow statutes give more warning to
defendants about their being subject to state
jurisdiction
(8) 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)

Use in this case there is J but there is no K

because the 2 positions were different and the
first offer was rejected.

(c) Doing Business Standard

C.

(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

Some Complex Cases

1.

Complex Problems of Relationship to the Forum State

(1) Jurisdiction by Necessity (Mullane v. Central Hanover Bank
& Trust, Supreme Court1950)
138

(a) New York statute allowed pooling of trust funds

(i)

Periodic accounting, which gives a decree that

prevents challenges to the handling of the trust.

(b) Central Bank wants an accounting beneficiaries given

notice by publishing which out of state beneficiaries
would not see
(i)

2 beneficiaries reps
(a)

Income beneficiaries

(b) Principal beneficiaries

(c) 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)

Personal jurisdiction over the absent

beneficiaries is essential.

(d) 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

(2) 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
(i)

However minimal burden of defendant is in a

foreign tribunal, cannot force jurisdiction unless
defendant has minimum contacts

139

(ii)

Trustee had no minimum contactsno office, no

solicitation of business

(d) Activities of Donner are insufficient:

(e)

(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)

Donners exercise of her power of

appointment was a unilateral action and not
an act that purposely availed herself

(iii) No forum state interests

(a)
(f)

California had an interest to regulate

insurance sales

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
(3) 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
140

(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:
(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
(iv) Presence of property alone will no longer give
jurisdiction, must show other ties among the
defendant, state, and the litigation
(a)
(v)

In this case property was unrelated to the

claim.

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
(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
141

(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
(d) 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

(e) 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

(2) 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
142

reasonably anticipate being hauled into the

states court
(vi) Minimum Contacts Analysis in this case
(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
(vii) 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)

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

(b) Convenience Branch (McGee) the court doesnt

consider the convenience branchthere was clearly no
jurisdiction according to the power branch
(i)

Even if OK was most convenient the due process

clause divests the state of its J.

(3) 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

(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

(iii) Plaintiff sues for breach of contract in Florida

court, defendant is served in Michigan
143

(b) Supreme Court rules that judgment was valid, applies

a two step analysis:
(i)

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)

(ii)

Two examples:
(i)

Interstate contractual obligations

parties 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
144

(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

(ii)

Not an ongoing relationship

(iii) Less contact (minimum contacts)

(iv) Online purchaser is not represented by
counsel
(4) Convenience Branch can overpower the Power Branch
(Asahi Metal Industry Co. v. Superior Court, Supreme Court
1987)
(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)

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

145

(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)

(b) Justice Brennan

(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
(c)
(ii)

Stream of Commerce question left unresolved

Convenience Branch (Eight justices agreed)

(a)

Unreasonable to assert jurisdiction

(b) Must consider

(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)
(c)

Advancement of Substantive policies of

the several states

Court analyzed the shared interests of the

several states in furthering substantive social
policies:
146

(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
(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.
(5) 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)

Traditional form of jurisdiction

(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

147

(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
(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
(e)
(ii)

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 symmetry
nonresident can sue resident and
resident can sue nonresident
(6) Jurisdictional Reach of District Courts [Rule 4]

148

(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,
A.

B.

Transfer of Venue and Forum Non Conveniens

Venue
1.

Defective venue does not render a judgment invalid

2.

brings an action the waives in advance any objections to

venue

Examples
1.

Choosing venue
a)

S.D.N.Y. resident wants to sue person from Vermont. Accident

happens in W.D.N.Y.
(1) Proper venues: Vermont, W.D.N.Y.

b)

Same as above but with a claim solely in Quebec

(1) Proper venue: Vermont

2.

Transfer of venue (Forum nonconveniens)

a)

C.

sued

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

149

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) Limiting discovery to only 1 party, due process
concerns, etc.
b)

Factors Gulf Oil

(1) 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.
(2) Public interests factors that affect the interest of the forums
(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
150

(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.

(3) Unless the balance is struck strongly in favor of the

defendant there is a preference for the s choice of forum
c)

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)

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
(ii)

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.
(c)

What was the applicable rule of law on the

transfer since there was a substantive
difference (Mass. was not favorable as Penn.)
(i)

S.C. held that transferee court is

required to apply the state law that
would have been applied before the
transfer

151

(ii)

1404(a) should not be used to defeat the

advantage of a plaintiff that has chosen
a proper court

(d) 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.

(iii) 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)

1406 is broad enough to transfer a case

no matter how improper

(b) 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
d)

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
152

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)

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

(g) 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-conveniens
(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)
153

(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)

Plane manufacturers

(b) Plaintiffs witnesses/documents are in

Scotland
(i)

easier for Pipers witnesses to go to

Scotland than for Ps witnesses to come
to U.S.

(iv) public interest factors

(a)
(v)
6.

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

. 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
154

(i)

Amend the complaint with new defendants upon

which the venue would not be proper

(4) 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) Necessity jurisdiction court has to have the power to clear
up controversies in the state

b)

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)

Plaintiff must give notice in a method as one that

a person reasonably wanting to give notice to the
would actually send

(b) Notice explained

(i)

Exceptions to publication notice insufficiency

(a)

Attachment of property
(i)

Mortgagee bank that can be reasonably

ascertained is not reasonable notified by
publication

(b) When the address is not known and cannot

be ascertained by due diligence.
(ii)

What if address is known

(a)

Personal service is fine

155

(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)

2.

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.

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
156

(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
(a) prior hearing result is the only truly effective safeguard
against arbitrary deprivation of property
(b) Ct. idea is that competing presentations at the preseizure hearing is the best way to ensure accuracy and
prevent mistaken deprivations of property
(8) 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)

The constitution recognizes higher values than

efficiency in trying to protect a vulnerable citizen

(b) cost?
(i)

increased procedures that are required to bring

about the desired result, and are these increased

157

procedures worth the extra cost that will be

brought about
(ii)

creditors might increase their prices to offset

these procedures; creditors might also use selfhelp to bring about their desired results
(a)

which would not be subject to due process

limitations under constitutional law

(iii) 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)
158

(ii)

La. procedure requires more than a bare

conclusory claim (specificity is important)
(a)

Fuentes specificity was minimal

(iii) 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
(5) 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?)
(6) 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)

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

159

(2) 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)
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) Due process is not a concept unrelated to place and
context.

b)

Whats the rule now for pre-judgment proceedings? (whats the

test?)
(1) 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

c)

Applied in this case

160

(1) Interests - Attachment clouds the title, and prevents loans

(a) Although this is a partial impairment it is still subject to
due process just like a full deprivation
(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) 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)

(3) Interest in favor of ex parte attachment

(a) 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.

(b) 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) 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

b)

ISSUE: Can waive in advance the constitutional right to be

heard?

161

(a) Yes. Just like people can waive 5th amendment rights if
they are done voluntary, intentionally, knowingly, and
intelligently made

c)

(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) 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

(b) Bar
162

(i)

Plaintiff suffers judgment against her

(ii)

Claim is extinguished

(iii) Barred from re-litigating claim in second action

(c) The Merger and Bar are only applied when the second
action is based on the same claim

b)

(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

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
(a) Contested by the parties and submitted to the court for
determination
(b) Were essential to the first judgment
(3) 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) 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.

163

(2) 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) A judgment is 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
(4) 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
(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

(g) Subject matter

164

(i)

Rejected traditional viewidentical claims based

on different legal theories are different
(a)

(ii)

Same witnesses documents and such.

Used modern transactional approach

(3) 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
(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?
(c) 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

(d) 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)

Then should pay for the mistakes either

under harassment instead the lawyer should
pay.

(e) Splitting Claims

165

(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.
(f)

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.

(4) States Under Modern Transactional Approach

(a) Smith v. Kirkpatrick (NY)
(i)

1st action breach of contract Statute of Frauds

(a)

(ii)

1st action amendedbreach of informal oral

contract and oral contract of joint venture
dismissed

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
166

(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.
(b) 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

(a)

Actions have different theories (Smith)

(b) Different evidence needed to establish the

claims
(iv) 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

(c)

(v)

(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)

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

167

(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.
(5) Federal suits on res judicata
(a) Hennepin
(i)

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 and then changed to 800 tons.

(b) Court struck part of claim under parol

evidnce
(c)
(ii)

Action 2 plaintiff tried to reform the K to the

true intent of the parties.

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
(b) 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
(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

168

(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

(iv) 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.

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)
(c) 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.
169

(ii)

1st actionrecover loses in labor and lumber

incurred in the re-delivery, plaintiff won

(iii) 2nd action

(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
(iv) 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 view

influenced 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
170

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)

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

(f)

(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)

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
171

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
(iv) 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

(v)

1. Policy of awarding compensatory

damages for sex discrimination
2. 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

(6) 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)

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

(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.
172

(c) Dismissal (12(b)(6)) did not bar a second action where

the plaintiff corrects the defects in the pleading.
(i)

True even if the plaintiff had taken advantage of

the opportunity to amend the complaint

(3) 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, plaintiff did not have leave to amend,
no appeal
(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)

(ii)

The should have appealed the denial of the

amendment

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
(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

(iv) Could question the decision since defendant might

not have been inconvenienced because it did not
take much to defeat the 1st suit
(v)

Better approach

173

(a)

Consider the purposes of res judicata

incentive 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
(4) 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)

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
174

(v)

(ii)

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)

Some see it as equitable estoppel or

waiver instead of seeing it as res
judicata doctrine.

(b) 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.
(c)

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)
3.

This is a better approach

Issue Preclusion (Collateral Estoppel)

175

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)

Executrix won.

(c) 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

(d) 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
(2) 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
176

(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 plaintiffpreclusive
(d) Willful negligence claim
(i)

1st suit necessarily found defendant not

contributorily negligent because defendant won
against plaintiffpreclusive

(ii)

Precluded because plaintiff was required to plead

and prove freedom from contributory negligence

(e) Fair to give the judgment of a Justice of the Peace a

preclusive effect? (Limited jurisdiction and de novo
appeal)

(f)

(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

(3) Issue must actually be litigated and determined (Jacobson

v. Miller)
(a) 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

177

(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

(b) When is collateral estoppel not allowed

(i)

Default judgmentsnothing was litigated or

decided

(ii)

Admissions during discovery

(iii) Stipulations
(iv) Judgments on settlement
(v)

Consent judgments sometimes have collateral

estoppel effect if intended by the parties

(c) When collateral estoppel is allowed

(i)

Summary judgmentson the merits

(ii)

Directed verdictsnot on the parties consent

(4) 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

(a)

Issue was actually litigated1st requirement

met

(b) No preclusion because it was not essential or

necessary to the judgment of the 1st action
sole basis was defendants contributory
negligence
(c)

Finding necessary/essential to the judgment

(i)

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

178

(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
(iv) Exception: Heavily criticized minority view if the
finding was heavily litigated and intentionally
decided.
(b) 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)

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.

(5) 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

179

(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)

Judge may not have given careful

consideration to each alternative ground if
the 1st action was clearly sufficient to
support the judgment
(i)

Not clear if they were carefully

considered

(ii)

Might have been carefully considered

must plead fraud with particularity
because it has the ability to damage a
person

(b) Since alternative grounds, parties lack

incentive to appealloser has little incentive
to appeal erroneous finding because
judgment would be appealed on other
grounds
(iv) 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?
(a)

Probably just choose 1 theory and not both of

them. So in a J like this most likely will forego
1 theory.

(vi) Majority of jurisdictions say alternative holdings

each of which would independently supported the
holding have issue preclusion to each alternative
holding
(6) What about inconsistent judgments?
(a) The last judgment in time is controlling
180

(7) Berlitz School of Languages in America v. Everest

(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.
(b) How far does Collateral Estoppel reach? How close do
the facts have to be?
(i)

c)

If they are sufficiently different Collateral Estoppel

does not apply.

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)

Governments appealed arguing that collateral

estoppel should not apply to the issue of law
wrongly decided in the first trial

(d) Supreme Court

(i)

Collateral estoppel does not apply to pure issues

of law

181

(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) 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 erroneous
collateral estoppel may apply to mixed
issues of law and fact
(ii)

This court held that this was a mixed issue of law

and fact and collateral estoppel should apply.

(2) 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.
(3) 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
182

(ii)

Lawmust be a major doctrinal shift

(b) Pure issues of law in successive actions

involving substantially unrelated claims
important in constitutional litigationdont
want to freeze litigation/development in law
(c)

Reason to doubt the quality, extensiveness,

or fairness of procedures followed in prior
litigationgovernment 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 notes

moves 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
(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
(v)

Could read this rule narrowly

(a)

Only precludes fiduciary relationships

183

(b) Based upon plaintiff did not have adequate

incentive to litigate the issue because 1st
case was for a small amount
(6) 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) Issue is of law
(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)
(7)

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
(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

(d) Supreme Court

(i)

Rejected the interwoven exception

184

(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
(8) Exceptions based upon the posture of the party
(a) If in 1st action you are in special posture
representative 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) Non-parties who control the prosecution or

defense of an actionperson must have effective
185

choice in the legal theory and proof advanced in

the suit and have a chance to appeal the suit
(3) Indemnity
(a) Have a relationship where if one party is subjected to
liability, another party will indemnify the party for his
lossinsurers 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
(4) 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)

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

(ii)

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
(iii) 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

186

(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
(5) 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
(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)
(d) 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) Turns on fairness of due process
(2) Some exceptions were developed over time
(a) Indemnity
(i)

Example sues employee of company that was in

an accident.
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(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.

(b) 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.
(c) 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
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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)

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)

(ii)

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

(iii) 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) 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
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(iv) 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)

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.

(b) Collateral estoppel may be too powerful

deny 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
(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)

(d) Safeguardsnot used to preclude re-litigation

if

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(ii)

(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 judgment

defendant collateral estopped from litigating
issue

(d) Court of appealsno collateral estoppel

would not allow for trial by jury
(e)

(f)

Supreme Court
(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

191

(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)

Taking factors into consideration court

says it is not unfair to apply offensive
collateral estoppel in this case

(iii) 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
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litigation with important legal questionslots

of suits involving the same issues
(e)

Many bad consequences if they allowed this

to happen:
(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
(f)

Montana is not called into questionCourt

says it will accept preclusion when parties to
the suit are the same

193