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Pennoyer v.

Neff (1878)
Mitchell brought suit against Neff to recover unpaid legal fees. Mitchell published notice of the lawsuit in an
Oregon newspaper but did not serve Neff personally. Neff failed to appear and a default judgment was entered
against him. To satisfy the judgment Mitchell seized land owned by Neff so that it could be sold at a Sheriffs
auction. When the auction was held Mitchell purchased it and later assigned it to Pennoyer.
Neff sued Pennoyer in federal district court in Oregon to recover possession of the property, claiming that the
original judgment against him was invalid for lack of personal jurisdiction over both him and the land. The
court found that the judgment in the lawsuit between Mitchell and Pennoyer was invalid and that Neff still
owned the land. Pennoyer lost on appeal and the Supreme Court granted certiorari.
Can a state court exercise personal jurisdiction over a non-resident who has not been personally served while
within the state and whose property within the state was not attached before the onset of litigation?
Holding and Rule (Field)
No. A court may enter a judgment against a non-resident only if the party 1) is personally served with process
while within the state, or 2) has property within the state, and that property is attached before litigation begins
(i.e. quasi in rem jurisdiction).
Since the adoption of the Fourteenth Amendment, the validity of judgments may be directly questioned on the
ground that proceedings in a court of justice to determine the personal rights and obligations of parties over
whom that court has no jurisdiction do not constitute due process of law. Due process demands that legal
proceedings be conducted according to those rules and principles which have been established in our systems of
jurisprudence for the protection and enforcement of private rights.
To give legal proceedings any validity, there must be a tribunal with legal authority to pass judgment, and a
defendant must be brought within its jurisdiction by service of process within the state, or by his voluntary
The substituted service of process by publication in actions brought against non-residents is valid only where
property in the state is brought under the control of the court, and subjected to its disposition by process adapted
to that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest
therein; in other words, where the action is in the nature of a proceeding in rem.
The Oregon court did not have personal jurisdiction over Neff because he was not served in Oregon. The courts
judgment would have been valid if Mitchell had attached Neffs land at the beginning of the suit. Mitchell could
not have done this because Neff did not own the land at the time Mitchell initiated the suit. The default
judgment was declared invalid. Therefore, the sheriff had no power to auction the real estate and title never
passed to Mitchell. Neff was the legal owner.
Judgment for Neff affirmed.

McDonald v. Mabee (1917)

A person domiciled in Texas left the state intending to make his home elsewhere, his family residing there meanwhile. During his
absence, an action for money was begun against him in a Texas court. After returning and remaining for a short time, he departed
finally and established a domicile in another state. The only service in the action was by publication in a newspaper after his final
departure. Based on this service, a personal judgment for money was rendered against him which was sustained under the laws of
Texas by the supreme court of the state. Held that the judgment was absolutely void under the Fourteenth Amendment.
Quaere whether the judgment would have been good if a summons had been left at his last and usual place of abode in Texas while the
family was in that state and before the new domicile was acquired?
An ordinary personal judgment for money, invalid for want of service amounting to due process of law, is as ineffective in the state of
its rendition as it is elsewhere.
Since judgments are of reciprocal obligation, a judgment void if sued on by the plaintiff is void also when interposed by the defendant
as a bar to the original cause of action.


Hess v. Pawloski (1927)

Hess (D), a resident of Pennsylvania, negligently struck and injured Pawloski (P) while driving in Massachusetts. Pawloski brought
this action against Hess in Massachusetts. The court established personal jurisdiction over Hess under a statute whereby non-resident
motorists involved in accidents in Massachusetts consented to the appointment of the Registrar of Motor Vehicles as the drivers agent
for service of process. Process was served on the Registrar of Motor Vehicles as Hesss agent and Hess received actual notice of the
suit. Hess contested jurisdiction.
The trial court and the Supreme Judicial Court on appeal held that the courts jurisdiction was valid. Pawloski won the case on the
merits in a jury trial. Hess appealed to the Supreme Court on the grounds that the Massachusetts court did not have personal
jurisdiction over him and the method of service of process used violated his due process rights under the Fourteenth Amendment.
Was the Massachusetts law that stated that out of state drivers gave implied consent to the appointment of the Registrar as agent for
service of process constitutional?
Holding and Rule
Yes. A state has the power to legislate that non-residents who use its highways consent to the appointment of a third party as agent for
the service of process in that state for actions arising from use of the highways.
This decision came twenty years before International Shoe Co. v. Washington and used implied consent rather than minimum contacts
to establish jurisdiction over the defendant. By choosing to drive in a state, a non-resident demonstrates that the state is not so
inaccessible or remote that it would be unfair to subject him to suit in that state. The Massachusetts statute sought to put out-of-state
drivers on the same level as resident drivers and did not discriminate against them.

International Shoe Co. v. Washington (1945)

International Shoe Co. (D, appellant) was a Delaware corporation with its principle place of business in St. Louis, Missouri. It had no
offices in the state of Washington and made no contracts for sale there. International Shoe did not keep merchandise in Washington
and did not make deliveries of goods in intrastate commerce originating from the state.
International Shoe employed 11-13 salesmen for three years who resided in Washington. Their commissions each year totaled more
than $31,000 and International Shoe reimbursed them for expenses. Prices, terms, and acceptance or rejection of footwear orders were
established through St. Louis. Salesmen did not have authority to make contracts or collections.
The state of Washington brought suit against International Shoe in Washington State court to recover unpaid contributions to the
unemployment compensation fund. Notice was served personally on an agent of the defendant within the state and by registered mail
to corporate headquarters. The Supreme Court of Washington held that the state had jurisdiction to hear the case and International
Shoe appealed.
Did International Shoes activities in Washington make it subject to personal jurisdiction in Washington courts?
Yes. Minimum contacts with the forum state can enable a court in that state to exert personal jurisdiction over a party consistent
with the Due Process clause.
A casual presence of a corporation or its agent in a state in single or isolated incidents is not enough to establish jurisdiction. Acts of
agents of the corporation, because of the nature, quality, and circumstances of their commission, may be deemed sufficient. Consent
may be implied from the corporations presence and activities in the state through the acts of authorized agents.
The activities carried on by defendant corporation in Washington were systematic and continuous rather than irregular or casual. The
defendant received the benefits and protection of the laws of the state and is subject to jurisdiction there.
Relevant factors
International Shoe had conducted systematic and continuous business operations in Washington. A large volume of interstate
business for the defendant was created through its agents within the state and the corporation received the benefits and protection of
Washingtons laws. International Shoe had established agents in the state permanently.
Affirmed judgment for the plaintiff.

McGee v. International Life Insurance Co.

In 1944, Lowell Franklin, a resident of California, purchased a life insurance policy form an insurer subsequently bought by
Defendant International Life Insurance Co., who then mailed a reinsurance certificate to Franklin in California offering to insure him.
Franklin accepted the offer and paid premiums by mail from his California home to Defendants office in Texas until his death in
1950. When the beneficiary, Plaintiff McGee, notified Defendant of Franklins death, they refused to pay. Neither the original insurer
nor respondent ever had any office or agent in California.
Is a non-resident corporation isubject to jurisdiction in a state in which it never had any agent or office, merely because it was a party
to a contract with a resident of the state?
No. The Supreme Court of the United States ruled that the Due Process clause did not preclude the California court from entering a
judgment binding on Defendant. The Supreme Court found that it is sufficient for purposes of due process that the suit was based on a
contract that had substantial connection with California. A state has a manifest interest in providing effective means of redress for its
residents when their insurers refuse to pay claims.
The Supreme Court, in considering fact the contract was delivered in California, the premiums were mailed from there and the
insured was a resident of California when he died, combined with the recognition that modern transportation and communication have
made it much less burdensome for a party sued to defend themselves in a state where they conduct business, found that it did not
violate just and fair play for the California court to enter a binding agreement on International Life. Moreover, the Court reasoned that
California residents would be at a severe disadvantage if they had to leave their own state to obtain payment from their insurance

Hanson v. Denckla
Mrs. Donner, a Pennsylvania resident, established a trust in Delaware naming a Delaware bank (Denckla, D) as trustee. Donner was
the income beneficiary of the trust during her lifetime and the remainder was to go to her beneficiary. Donner moved to Florida and
drafted a will naming her daughters (Hanson, P) as her primary heirs. Two grandchildren, the daughters of Donners third daughter,
were named as the beneficiaries of the trust.
Donner died and Hanson brought suit in Florida seeking to have the balance of the trust fund placed into the estate for probate on the
grounds that the appointment of Donners grandchildren as beneficiaries was invalid. While that suit was pending another suit was
filed in Delaware to determine the status of the trust.
The Florida court found in favor of Hanson, holding that the trust was invalid and that the balance of the trust belonged to the estate.
In the Delaware proceeding, Hanson asserted that the judgment in Florida was res judicata in regards to the Delaware action. The
Delaware court held that the Florida court did not have in personam jurisdiction over defendant trustee and refused to honor the
Florida courts judgment. The Delaware court found that the trust was valid.
The U.S. Supreme Court granted certiorari to resolve the issue of whether Florida or Delaware had jurisdiction over the trust assets
and whether the Florida court could acquire jurisdiction over the defendant.
How extensive must a partys contact with a state be for the courts of that state to be able to exercise jurisdiction over that party?
There be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State,
thus invoking the benefits and protections of its laws.
A state cannot exercise jurisdiction over a nonresident defendant if that party has only sporadic and inadvertent contacts with the state.
The court held that while International Shoe Co. v. Washington expanded the power of states to obtain personal jurisdiction over
parties there were still limits to that power.
Nonresidents must be protected from the burden of defending a suit in a distant and inconvenient court. In this case the defendant bank
had no office and transacted no business in Florida. The court held that this cause of action did not arise from acts or transactions in
Florida. There must be some act by which the defendant purposely avails itself of the privilege of conducting activities within the
forum State. There was no such act here.
Judgment of the Delaware court affirmed.
Dissent (Black)
Florida is the most convenient forum. Donner lived in Florida, her heirs lived there, she died there, and her administrators lived there.
The defendant purposefully chose to carry on business with a Florida resident. There are sufficient contacts with Florida to justify
jurisdiction over the defendant and it was not unfair to subject the bank to suit there. Florida has a strong interest in this litigation.

Gray v. American Radiator & Standard Sanitary Corp

Phyllis Gray (Plaintiff) was injured when a water heater exploded. This took place in Cook County, Illinois. Subsequently, Plaintiff
brought suit in Illinois against both Titan Valve Manufacturing Company (Titan) and American Radiator & Standard Sanitary
Corporation (Defendant). The suit alleged that the safety valve had been negligently constructed for use in the water heater.
The water heater, which was the subject of this action was assembled in Pennsylvania by the Defendant. The valve that exploded was
manufactured in Cleveland, Ohio by Titan. Titan had no connection to the State of Illinois, except that its valves were used in
conjunction with water heaters sold to consumers within the state. Defendant filed a cross-claim against Titan, alleging that Titan
made certain warranties to Defendant; and that if a judgment was given against it, it should be indemnified by Titan. The court granted
Titans Motion to Dismiss both Plaintiffs complaint and Defendants cross-claim.
Rule of Law
In a products liability action, a defendant who sells products that he knows will be used within a given forum may be required to
defend an action within that forum state, if the product sold in fact causes injuries within the state.
Whether the Illinois Long-Arm Statute violates the due process guarantees of the United States Constitution?
The Illinois Long-Arm Statute does not violate the Constitutional guarantees of due process. The test established in International Shoe
has now been relaxed so that it is sufficient to satisfy due process if the act or transaction itself has a substantial connection with the
forum state. The courts located where the injury occurred, provide the most convenient forum. Since the injury occurred in Illinois,
Illinois substantive law will govern, witnesses who will testify regarding the extent of the injury are most likely to reside in Illinois,
and other evidence is more likely to be found in the forum state. Therefore, Defendants connections to the state are sufficient to
satisfy due process.
The jurisdictional requirements have been eroded substantially since the decision in Pennoyer v. Neff. In large part this is due to the
evolving nature of interstate commerce. Now, with the growing interdependence of business enterprises, a manufacturer seldom deals
directly with consumers in foreign states. However, this fact should make the manufacturers aware that their products are being used
within foreign states on a greater basis than ever before.

World-Wide Volkswagen Corp. v. Woodson (1980)

The Robinsons (P) purchased an Audi from Seaway Volkswagen, Inc. (D1), a New York car dealership. One year later while driving
through Oklahoma, another car hit them from behind, causing a fire which caused severe injuries to Mrs. Robinson and her two
The Robinsons brought a products liability suit in state court against four parties including Seaway and its distributor, World-Wide
Volkswagen Corp. (Ds). The defendants were New York corporations and conducted no business in Oklahoma. The defendants entered
special appearances claiming that Oklahoma could not exert in personam jurisdiction over them by virtue of the Due Process Clause of
the Fourteenth Amendment. The trial court found that it had jurisdiction and the Oklahoma Supreme Court denied defendants request
for a writ of prohibition to restrain the trial judge from exercising in personam jurisdiction over them. The U.S. Supreme Court
granted cert.
In order to exercise personal jurisdiction over a nonresident party, how extensive must the partys contacts be to satisfy due process?
The partys contacts with the state must be such that maintenance of the suit does not offend traditional notions of fair play and
substantial justice. The relationship between the party and the state must be such that it is reasonable to require the corporation to
defend the particular suit which is brought there.
A state court may exercise personal jurisdiction over a party only if the party has minimum contacts with the forum state (International
Shoe Co. v. Washington). The court held that there was a total absence of circumstances that are necessary to permit an exercise of
personal jurisdiction. The defendants did not solicit business in Oklahoma through salespersons or advertising reasonably calculated to
reach the state.
Although it was foreseeable that one of their cars could be involved in an accident in Oklahoma, foreseeability alone is not sufficient
for personal jurisdiction under the Due Process Clause. The degree of foreseeability that must exist is not the mere likelihood that a
product will find its way into the state, but that the defendants conduct and connection with the state are such that he should
reasonably anticipate being haled into court there. Purposeful availment provides clear notice of jurisdiction.
Judgment reversed.
Dissent (Brennan)
States may exercise jurisdiction over a defendant even if that party has not deliberately or purposefully sought contact with the state. It
would be difficult to believe that the defendants truly believed that none of the cars they sold would ever leave the New York area.
Their contacts with Oklahoma were not extensive but it was reasonable for them to be subjected to jurisdiction. Fairness dictates that
the sale of a mobile item such as a car should satisfy the minimum contacts necessary for jurisdiction

Walden v. Fiore
In 2006 Gina Fiore and Keith Gipson traveled from Las Vegas, Nevada to Atlantic City, New Jersey, to San Juan, Puerto Rico before
returning to Las Vegas by way of Atlanta, Georgia. The two are professional gamblers with residences in California and Las Vegas. At
a Transportation Security Administration (TSA) checkpoint in San Juan, Fiore and Gipson were subjected to heightened security
because they were travelling on a one-way ticket. TSA officers search the gamblers luggage and found $97,000 in U.S. currency. San
Juan Drug Enforcement Administration (DEA) officers arrived and questioned the pair to determine whether the money was the
proceeds of illegal drug trade. Fiore and Gipson stated that the cash was their seed money and winnings from gambling. The DEA let
Fiore and Gipson board the plane to Atlanta with their luggage.
When Fiore and Gipson landed at Atlanta Hartsfield-Jackson International Airport, Anthony Walden and other DEA agents approached
and questioned them. Fiore and Gipson repeated their story and produced records of their travels. When a drug-detecting dog pawed
Gipsons bag once, Walden stated that he had probable cause to seize the cash and took both Fiore and Gipsons bags before allowing
them to continue on to Las Vegas without the money. When Fiore and Gipson got to Las Vegas they sent records of their gambling
earnings along with past tax returns to prove their status as professional gamblers to Walden. Walden refused to return the money and
referred the matter to a U.S. Attorney in Georgia based on a false probable cause affidavit. The U.S. Attorney found no probable cause
and ordered the money returned. The money was returned to Fiore and Gipson seven months after it was seized.
Fiore and Gipson sued Walden in the U.S. District Court for the District of Nevada alleging that the seizure violated their Fourth
Amendment rights. Walden moved to dismiss for lack of personal jurisdiction, and the District Court granted the motion. The U.S.
Court of Appeals for the Ninth Circuit reversed, holding that the court did have personal jurisdiction because Walden intentionally
caused foreseeable harm in Nevada by falsifying the probable cause affidavit and attempting to secure the seized funds permanently
for the Atlanta DEA.

Does due process allow the Nevada court to exercise personal jurisdiction over Walden?
Is the District of Nevada the place where a substantial part of the events or omissions giving rise to the claim occurred for
purposes of establishing venue when all of defendants alleged acts or omissions happened in another district?


Justice Clarence Thomas delivered the opinion for the unanimous Court. The Court held that the district court could not
exercise personal jurisdiction over Walden because he lacked contacts with Nevada. The Due Process Clause of the
Fourteenth Amendment requires that a non-resident defendant have a substantial connection with the state in which he is
sued. This connection must arise from the contacts that the defendant himself creates; yet all of Waldens conduct occurred in
Georgia. The fact that Fiore and Gibson were injured in Nevada was insufficient to establish personal jurisdiction over
Walden their only connection to Nevada was that they chose to reside there during the months the money was seized.

Judgment reversed

Burger King Corp. v. Rudzewicz

Rudzewicz (D) and MacShara entered into a franchise contract with Burger King Corp. (P) to open a restaurant in
Michigan. Burger King was incorporated in Florida and a choice of law clause in the contract indicated that Florida law
was controlling. The contract allowed Rudzewicz to use Burger Kings trademarks and service marks for 20 years in
Michigan. All financial obligations owed to Burger King were sent to Florida and D received training in Florida. An
economic downturn led to decreased sales and Rudzewicz failed to meet his obligations under the contract.
Burger King brought a diversity suit against Rudzewicz in the Southern District of Florida. Rudzewicz and MacShara
moved to dismiss on the grounds that the court did not have personal jurisdiction over them because they did not have
sufficient minimum contacts with the state. The court denied Rudzewicz motion and ruled that jurisdiction was proper
under Floridas long arm statute. The court entered judgment in favor of Burger King and Rudzewicz appealed.
On appeal, the court held that while Rudzewicz had sufficient contacts with the state of Florida to satisfy the states long
arm statute, the exercise of personal jurisdiction was fundamentally unfair and was a violation of due process. Burger
King appealed.
Must a plaintiff show that an out of state defendant has both minimum contacts with the forum state and that it is fair
and equitable to require a defendant to defend a suit in the state?
What factors must the court balance in addressing reasonableness in jurisdictional analysis?
No. A plaintiff need not show that an out of state defendant has both minimum contacts with the forum state and that it
is fair and equitable to require the defendant to defend a suit in the state.
The factors the court must balance in addressing reasonableness in an analysis of personal jurisdiction are:

the extent of a defendants purposeful interjection in the forum state;

the burden on the defendant in defending in the forum;
the extent of conflict with the sovereignty of the defendants state;
the forum states interest in adjudicating the dispute;
the most efficient judicial resolution of the controversy;
the importance of the forum to the plaintiffs interest in convenient and effective relief; and
the existence of an alternative forum.

The court held that jurisdiction is proper when the defendants contact proximately results from actions by the defendant
such that they create a substantial connection with the forum state.
Due Process protects an individuals liberty interests in not being bound by judgments of a forum in which he has
established no meaningful contacts, ties, or relations. See International Shoe Co. v. Washington.
The court held that there must be fair warning that a particular activity may subject a party to suit in another jurisdiction.
See Shaffer v. Heitner. The fair warning requirement is satisfied when a party has purposefully directed his activities at the
forum. See Keeton v. Hustler Magazine, Inc. Parties who reach out and create continuing relationships and obligations in
another state are subject to regulation and sanctions in that state for the consequences of their activities. The foreseeability
that is critical for due process is that the defendants conduct and connection with the forum are such that he would
reasonably anticipate being haled into court there. See World-Wide Volkswagen Corp. v. Woodson.

Reasonable anticipation is demonstrated when a party purposefully avails itself of the privilege of conducting activities
within the forum thus invoking the benefits and protections of its laws. See Hanson v. Denckla. Once purposeful
availment and minimum contacts are satisfied, the four World Wide factors must be analyzed.
Establishing that the defendant has minimum contacts creates a rebuttable presumption that it is fair to require him to
defend there. The burden shifts to the defendant to show that it would be unfair to defend in the state. The question of
fairness requires a balancing of: the forums interest in the litigation, the plaintiffs interest in efficient and convenient
relief, the demands of the federal system as a whole, the best interests of the federal system, and the defendants interest in
not having to defend a suit in a remote or disadvantageous forum.
The court held that in this case the franchise agreement with Burger King allowed Rudzewicz to benefit from an
association with a Florida corporation for twenty years. Rudzewicz had continuing and direct contacts with Burger King.
The fact that Rudzewiczs contacts were purposeful allowed the state to exercise personal jurisdiction despite that those
contacts were minimal. The contract indicated that Florida law would apply. It cannot be a shock that Burger King would
sue Rudzewicz there for a breach of the contract in light of the clear contractual terms of the agreement.
Rudzewicz had not shown that he would be unfairly prejudiced or harmed by a trial in Florida and the purposeful
involvement of Rudzewicz in the contract met the minimum contact requirements.
Judgment for defendant Rudzewicz reversed

J. McIntyre Machinery v. Nicastro

An accident severed four fingers off the right hand of Robert Nicastro who was operating a recycling machine used to cut
metal. A British company manufactured the machine and sold it through its exclusive U.S. distributor. Nicastro sued J.
McIntyre Machinery, Ltd., the British company, and its U.S. distributor, McIntyre Machinery America, Ltd., in New
Jersey state court for product liability. The state supreme court reversed a trial court's dismissal, finding that the foreign
company had sufficient contacts with the state
May a consumer sue a foreign manufacturer in state court over a product that the foreign company marketed and sold in
the United States?
No. The Supreme Court reversed the decision of the lower court in a plurality opinion by Justice Anthony Kennedy.
"Although the New Jersey Supreme Court issued an extensive opinion with careful attention to this Court's cases and to its
own precedent, the 'stream of commerce' metaphor carried the decision far afield," Kennedy wrote. "Due process protects
the defendant's right not to be coerced except by lawful judicial power." Justice Stephen Breyer, joined by Justice Samuel
Alito, concurred in the judgment, writing: "I do not doubt that there have been many recent changes in commerce and
communication, many of which are not anticipated by our precedents. But this case does not present any of those issues.
So I think it unwise to announce a rule of broad applicability without full consideration of the modern-day consequences."
Meanwhile, Justice Ruth Bader Ginsburg dissented, joined by Justices Sonia Sotomayor and Elena Kagan. "Inconceivable
as it may have seemed yesterday, the splintered majority today 'turn[s] the clock back to the days before modern long-arm
statutes when a manufacturer, to avoid being hauled into court where a user is injured, need only Pilate-like wash its hands
of a product by having independent distributors market it.'
Decision Reversed

Goodyear Goodyear Dunlop Tires Operations, S.A. v. Brown

Brief Fact Summary
Two American boys living in North Carolina were killed in a bus accident in France. Their parents filed against the tire
company in North Carolina.
Synopsis of Rule of Law
A state has no general personal jurisdiction over a foreign subsidiary of a U.S. corporation if the subsidiary has no
ongoing or organized business relationship with the state.
Two American boys were killed in a bus accident in France as the result, so the parents (P) claimed, of a defective tire
manufactured at the Turkish subsidiary of Goodyear Tire and Rubber Company (D). The parents (P) sued Goodyear USA
(D) and three of its subsidiaries (D) in Turkey, Luxembourg and France. Goodyear USA (D) is based in North Carolina
but the subsidiaries (D) have no direct connection with the state as they have no place of business in North Carolina, no
accounts in any bank in the state, nor do they employ any one in North Carolina. They also do not run or manage any
advertising there nor do direct business there. Some of their products reach the distribution network through other
Goodyear subsidiaries and are sold here. Thus the subsidiaries (D) claimed that the state of North Carolina had no
personal jurisdiction in the case, and moved for dismissal of the case on this ground. This was denied by the trial court,
and the decision was affirmed by the state Court of Appeals on the basis that the general jurisdiction of the court over the
subsidiaries (D) existed because their products were distributed in the state through the stream of commerce.
Issue. Can a foreign subsidiary of a U.S. corporation be held to be under the general personal jurisdiction of a state when
it lacks any organized or continuous business relationship with the state?
(Ginsberg, J.) No.
A state does not have general personal jurisdiction over a foreign subsidiary of a U.S. corporation if there are no
systematic and persistent business contacts between the state and the subsidiary. The precedent cited was International
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) and cases based on it. Here a line was drawn between general and
specific personal jurisdiction,such that general personal jurisdiction was explained as being due to a defendant being
under the states laws as a result of continuous and systematic business relations with the state. The state therefore can
exercise personal jurisdiction over the defendant for any legal claim, even if the claim should not be related to the
subsidiarys activities in the state. Specific personal jurisdiction is due to an existing connection between the state and the
claim, and the state has jurisdiction only in that area. In the present case, the North Carolina courts failed to make this
distinction. The single fact of the subsidiaries products being present in the state, without their being related in any way to
the subject of the claim, and even though such presence was not owing to their actions, was used as justification for the
exerciseof jurisdiction over them. The decision was therefore reversed.
The issue in this case was the difference to be made between the two kinds of personal jurisdiction, that is, general and
specific. General jurisdiction means the state has authority to allow any claim against a defendant provided the defendant
has organized and continuous relationship with the state. Specific jurisdiction means the state has authority to hear a claim
against a defendant only in a specific instance where the state is connected to the subject of the claim. In the present case,
as the accident and the manufacturer of the tire were both out of North Carolina, the state has no connection with the
subject of the claim and hence has no specific jurisdiction. General jurisdiction also could not be allowed because of the
stream-of-commerce exception

Shaffer v. Heitner
Brief Fact Summary
Plaintiff stockholder brought a shareholders derivative action in Delaware state court against Defendants,
corporations incorporated in Delaware with their principal place of business in Arizona, and corporate officers
of the corporations (Defendants). Plaintiff moved to sequester Defendants property, which was stock in the
company, located in Delaware as defined by the Delaware statute. Defendants moved to quash the summons and
to vacate the sequestration order, arguing that both exercising personal jurisdiction and seizing Defendants
property violated due process.
Synopsis of Rule of Law
When the only contact the defendant has with the forum state is the location of property as defined by statute in
the forum state, the forum lacks personal jurisdiction over the defendant unless the minimum contacts test of
International Shoe is satisfied
Plaintiff, a stockholder for Greyhound Corp., a company incorporated in Delaware with its principal place of
business in Arizona, sued Greyhound Corp., Greyhound Lines, Inc., (a subsidiary of Greyhound Corp.) and
present and former officers of the two companies for violating duties to Greyhound Corp. by causing it to be
liable for damages in an antitrust suit and a fine in a criminal contempt action in Oregon. Plaintiff filed a motion
for sequestration of the officers stock. Under a Delaware statute, Delaware is the situs of all stock in Delaware
corporations. The stock was seized. Defendants were notified by certified mail of the sequestration and notice
was published in a Delaware newspaper. Defendants entered a special appearance so they could move to quash
service of process and vacate the sequestration order. Defendant argued that the order violated due process and
therefore the property could not be attached in Delaware. In addition, Defendants argued that they did not have
the minimum contacts with Delaware required to establish jurisdiction under International Shoe Co. v.
Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In addition, Defendants argued that the
sequestration procedures were inconsistent with the Sniadach cases (see Sniadach v. Family Finance Corp., 395
U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969)). The Court of Chancery found for Plaintiff and the Supreme
Court of Delaware affirmed the Court of Chancery. The Supreme Court of Delaware reasoned that the Sniadach
cases involved default judgments and not compelling a party to appear. This court furthered reasoned that
sequestration procedures help to adjudicate claims of mismanagement against Delaware companies, and do not
cause permanent deprivation of property to their shareholders. Defendants appealed.
In order for the forum state to exercise in rem jurisdiction on a nonresident, must the nonresident have
minimum contacts with the forum state such that the defendant has purposefully availed itself of the benefits of
that states laws? If so, must the cause of action be sufficiently related to the contacts the nonresident has with
the forum state?
Yes to both. Judgment reversed. In rem is not a proceeding against the property, it is a proceeding against a
persons interest in the property. You need to give an owner of property reasonable and appropriate notice of an

in rem proceeding so that he or she recognizes that such a proceeding directly affects his or her interests.
Having property in a state does not give the state jurisdiction over causes of action unrelated to the property
unless the person also passes the minimum contacts test articulated in the International Shoe decision. If it is
unconstitutional to exercise jurisdiction over the person directly then it should be unconstitutional to assert
jurisdiction indirectly. Plaintiffs argument that Delaware has an interest in asserting jurisdiction over corporate
fiduciaries is not established by Delaware law. Delaware law determines that it has jurisdiction over Defendants
because Defendants property is in Delaware; and not due to their status as corporate fiduciaries. First, the
statute authorizing jurisdiction does not specifically apply to stockholder derivative actions. Moreover,
Plaintiffs inability to secure jurisdiction over seven of the defendants because they didnt have property in
Delaware shows that there is no necessary relationship between corporate fiduciaries and stockholders. In
addition, Plaintiff has not demonstrated that Delaware is a fair forum. Plaintiff must demonstrate more than the
applicability of Delawares laws to the controversy to establish a basis for jurisdiction. Plaintiffs argument that
Defendants have received benefits from Delaware laws only demonstrates that it would be appropriate for
Delaware law to govern obligations between Defendant and stockholders. This argument does not require that
Delaware be permitted to exercise jurisdiction, especially considering its lack of a long-arm statute.
Concurrence. Justice Stevens: The majority should not broadly eliminate in rem jurisdiction by stating that there
is no personal jurisdiction if the only contact the defendant has with the forum state is property located in the
state. There are other means of acquiring jurisdiction over local actions that may be unintentionally limited by
this broad language. Justice Brennan (concurring in part and dissenting in part): The Delaware sequestration
statute embodies quasi in rem jurisdiction that is no longer valid. The parties did not make the minimum
contacts test an issue so the court should not have decided this issue. There is no proper factual record for
determining the level of contacts in this case. This is also a constitutional question, and this decision will reach
to all the state statutes that permit quasi in rem action through sequestration of property. The general rule is that
the forum state has jurisdiction over the directors and officers of a corporation chartered by the state in a
shareholder derivative action. A states valid substantive interests are considerations in assessing the
constitutionality of exercising jurisdiction. Delaware has interests in preventing local corporations from being
victims of foreign stockholders and in regulating its own corporations. In addition, jurisdiction can be based on
out-of-state activities that have foreseeable effects in the forum state. Delawares failure to express an interest in
corporate fiduciaries does not pertain to the minimum contacts analysis. In addition, there was purposeful
availment of the forums laws because the corporate officers entered business relationships with Greyhounds
stockholders pursuant to the laws of Delaware.
As the concurring opinions illustrate, it is highly unlikely a court has personal jurisdiction over a non-resident
defendant that is absent from the forum state when the only contact is property owned by the defendant located
within the forum state. Even if the property is connected to the suit, minimum contacts must still be established
in compliance with the International Shoe test.

Rivell v. Lidov
Revell sues Lidov and Columbia University for defamation arising out of Lidovs authorship of an article that
he posted on an internet bulletin board hosted by Columbia. At the time of the articles production, Lidov had
never been to Texas, perhaps to change place, or conducted business there. He did not know that Revell lived in
Texas. Revell sues the Board of Trustees of Columbia, whose principal offices are in NYC, and Lidov, a Mass
resident in the Northern District of Texas.
Trial court dismisses for lack of personal jurisdiction. Revell appeals.
Can the operation of an internet site support the minimum contacts necessary for the exercise of personal
Must examine the interactivity and nature of the forum contacts.
Addressing General Jurisdiction: The maintenance of a website is a continuous presence everywhere in the
world, the cited contact of Columbia with Texas are not in any way substantial. 4000 registered domain
names were not enough to create general jurisdiction in Bird v. Parsons; Columbia website had not more than
20. In this case, any user of the internet can post material to the bulletin board. This means individuals send
information to be posted and receive information that others have posted. It is interactive and its interactivity
should be evaluated.
Court relies on Calder, which said that Florida resident can sue National Enquirer in Cal for libel because
enquirer expressly aimed their conduct towards California. Revell wants to argue for the application of the
effects test in Calder. For the effects test: There is no reference to TX, it doesnt refer to the TX activities of
Revell, not directed at TX readers as distinguished from other states. In Young v. New Have Advocate, the
court reasoned that the application of Calder in the Internet context requires proof that the out of state
defendants internet activity is expressly directed at or directed to the forum state. The post to the bulletin was
direct at the entire world, or perhaps just concerned U.S. Citizens, not directly at Texas.
Lidov would know that his article would hit hard wherever Revell lived, but that is the case with virtually all
defamation cases. A more direct aim is required.

Mullane v. Central Hanover Bank & Trust Co.

Central Hanover Bank (P) was the trustee of a common trust fund formed by pooling the assets of a number of
smaller trusts. Central Hanover Bank petitioned to the New York Surrogates Court for a judicial settlement of
the trust. The only notice provided to beneficiaries was via publication in a newspaper. Mullane (D) was
appointed attorney and special guardian for a number of beneficiaries who either were unknown or did not
Procedural History
Mullane objected to the statutory provision for notice by publication, arguing that it was unconstitutional for
lack of due process under the Fourteenth Amendment. The Surrogates Court overruled Mullanes objection and
the ruling was affirmed on appeal to the New York Supreme Court Appellate Division and the New York Court
of Appeals. The United States Supreme Court granted cert.
Is notice given to out of state parties by publication in a newspaper, when the parties addresses were
known, constitutional in light of the Due Process Clause of the Fourteenth Amendment?
Holding and Rule
No. Notice given to out of state parties by publication in a newspaper, when the parties addresses were
known, is unconstitutional in light of the Due Process Clause of the Fourteenth Amendment.
Notice must be reasonably calculated to inform known parties affected by the proceedings. However,
constructive notice by publication was acceptable with regard to missing or unknown parties or for those whose
whereabouts could not be ascertained by due diligence or for whom future interests were too conjectural to be
known with certainty.
Judgment reversed.

National Dev. Co. v. Triad Holding Corp. Case Brief

Defendant, a citizen of Saudi Arabia, had residences around the world. He owned an apartment in New York.
While he was in New York, his maid at his apartment was served with summons. FRCP allow service to
individuals other than the D, who are of suitable age and who are residing at Ds dwelling house or usual place
of abode. D claims that his NY apartment did not meet this criteria.
Court denied defendants motion.
Was the service of process valid?
Defendant owned the NY apartment and he maintained and made improvements to the apartment. Every year,
D spent about 34 days at this apartment. Also, D was present in NY and living in his apartment when the
service took place. Furthermore, in a previous proceeding, D had listed his NY apartment as his residence.
Therefore, the service of process was valid.

Connecticut v. Doehr
Brief Fact Summary
In conjunction with a civil action for assault and battery against Brian K. Doehr (Respondent), John F.
DiGiovanni (Petitioner), submitted an application for an attachment in the amount of $75,000 on Respondents
home in Meridan, Connecticut. Respondent challenged the constitutionality of the attachment statute, the
General Statutes of Connecticut, Section 52-278(e) (1991), under the Due Process Clause of the Fourteenth
Amendment. The Supreme Court of the United States granted certiorari to resolve the conflict in authority
between the United States Court of Appeals for the Second Circuits ruling that the statute was unconstitutional
and the District Courts decision to uphold the statute.
Synopsis of Rule of Law
Prejudgment attachment without prior notice and an opportunity for a hearing violates the Due Process Clause
of the Fourteenth Amendment.
Petitioner submitted an application to the Superior Court of Connecticut for an attachment in the amount of
$75,000 on Respondents home in Connecticut in connection with a civil action for assault and battery. The suit
did not involve the Respondents land nor did the Petitioner have any interest in Respondents home or property.
Connecticuts prejudgment attachment statute authorizes the attachment of real estate without prior notice or the
opportunity for a prior hearing. The statute does not require the posting of a bond. Based upon Petitioners
affidavit that the Respondent willfully, wantonly and maliciously assaulted the Petitioner, the Superior Court of
Connecticut judge found probable cause to sustain the validity of the Petitioners claim and ordered
attachment of the Respondents home in the amount of $75,000. Only after the sheriff attached the property was
the Respondent given notice of the attachment. Respondent filed suit against Petitioner in Federal District Court
claiming that the statute was unconstitutional under the Due Process Clause of the Fourteenth Amendment. The
district court upheld the statute. On appeal, the court of appeals reversed the district courts decision. The
Supreme Court of the United States granted certiorari.
Whether a state statute that authorizes prejudgment attachment of real estate without prior notice or the
opportunity for a hearing, without extraordinary circumstances, and without the requirement that a person
seeking attachment post a bond satisfies the Due Process Clause of the Fourteenth Amendment?
No. The judgment is affirmed and remanded for further proceedings. Prejudgment attachment provisions that
fail to provide prior notice or preattachment hearing without some showing of exigent circumstances violates
the requirements of due process. In order to determine what process is due when the government seeks to
deprive an individual of their property, the following three step analysis must be completed: 1) the private
interests that will be affected; 2) the risk of erroneous deprivation; 3) and the governments interests. Here,
however, the inquiry is slightly different because prejudgment remedy statutes deal with disputes between
private parties. Therefore, instead of considering the governments interests, principal attention must be given to

the interest of the party seeking the remedy. In the instant case, homeowners interests would be significantly
affected by attachment even though there is no interference with possession of property because it could cloud
title and interfere with borrowing on the property. Second, there is a substantial risk of erroneous deprivation
since it is state practice to rely on conclusory affidavits and does not lend itself to documentary proof. Third, the
interests of the Petitioner are too minimal, the only interest the Petitioner has in the Respondents real estate is
to ensure the availability of assets to satisfy the judgment if he prevailed on the merits of the claim. Petitioners
interest in attaching the property does not justify the burdening of the Respondents ownership rights without a
hearing to determine the likelihood of recovery. Due process also requires that the Petitioner post a bond in
addition to requiring a hearing or showing of some exigency. A danger exists that property rights may be
wrongfully deprived without the safeguards of a bond, even with a hearing or exigency requirement.
Concurrence. The concurrence is in agreement with the decision of the court that the Connecticut attachment
statute fails to satisfy the Due Process Clause of the Fourteenth Amendment. However, the courts holding
requiring the bond requirement is both unnecessary and not useful. The court should wait for more concrete
cases, which present issues involving bonds to make such a decision. Agreement with the court that the
Connecticut statutes validity should be determined by applying the test set forth in Matthews v. Eldridge, 424
U.S. 319 (1976). It fails this test.
The factors used in the case to determine what process is due when the government seeks to deprive an
individual of their property was set forth in Matthews v. Eldridge, 424 U.S. 319 (1976). The factors are as
follows: 1) consideration of the private interest that will be affected by the prejudgment measure; 2) an
examination of the risk of erroneous deprivation of such interest through the procedures used; 3) the probable
value of additional or alternative safeguards; and 4) the Governments interest, including the function involved
and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id. at 335. In Connecticut, the same test was used; however, the focus was different. In contrast to Mathews, the
court emphasized that principal attention is to be paid to the interest of the party seeking the prejudgment
remedy, with due regard for any ancillary interest the government may have in providing the procedure or in
reducing its burden by not providing greater protections.

Strawbridge v. Curtiss
Plaintiff, a resident of Massachusetts, brought action against Defendant, a resident of Vermont, and other Ds,
residents of Massachusetts. Action brought in Federal Court based on diversity of citizenship.
Lower court dismissed for lack of subject matter jrx.
Does federal court have subject matter jurisdiction when one defendant is from different state but other
defendants from the same state as plaintiff?
Holding: No
You need complete diversity in order to have subject matter jurisdiction. Even one defendant who is from the
same state as the plaintiff, destroys diversity.
Federal courts are courts of limited jurisdiction. Federal courts have subject matter jurisdiction over cases
brought under federal laws (federal question jurisdiction) or under diversity of citizenship (complete diversity).

Mas v. Perry
Mr. Mas and Ms. Mas (P) were graduate assistants at Louisiana State University in Baton Rouge. After their
wedding at Ms. Mass home in Jackson, Mississippi they returned to Baton Rouge and rented an apartment from
Perry (D). The plaintiffs later discovered that Perry had been spying on them through two-way mirrors in their
bedroom and bathroom during the first few months of their marriage.
The Mases brought this lawsuit against Perry in federal district court in Louisiana. The husband was a citizen of
France and did not have permanent resident status in the United States and the wife was a resident of
Mississippi. At the time this lawsuit was filed the couple lived in Louisiana but had not decided where they
would live after Mr. Mas completed his Ph.D.
Perry moved to dismiss on the grounds that there was no diversity of citizenship between the parties because the
Mases and Perry were all domiciled in Louisiana. The district court denied Perrys motion and the jury found in
favor of the plaintiffs. The defendant appealed.
What is required in order for a party to change its place of domicile?
Domicile requires two things: taking up residence in a different domicile with the intention to remain there. A
person remains a domicile of one place until that person has adopted a new domicile through physical presence
and intent to remain.
Domicile is determined as a matter of federal law, not state law. The state of a persons residence is not
necessarily the state of domicile for purposes of establishing diversity jurisdiction.
Mr. Mas can establish diversity jurisdiction against Perry in any case because 28 USC 1332(a)(4) does not apply
to aliens who are not permanent residents of the United States, regardless of their place of domicile.
Formerly, the domicile of a wife was deemed to be that of her husband. The court abandoned that rule in this
case and held that for diversity purposes a womans domicile does not change solely by marrying an alien.
Judgment for Mas affirmed.

Randazzo v. Eagle-Picher Industries


Plaintiff sued some corporations for his injuries caused by asbestos. In his complaint, P failed to list place of
incorporation or principal place of business for some of the corporations. Ps amended compalint also failed to
provide this information.


Did the federal court have subject matter jurisdiction based on diversity where the plaintiff fails to provide the
place of incorporation or principal place of business of the corporate defendants?




A corporation has dual citizenship. For diversity purposes, a corporation is a resident of the place of its
incorporation and the place where it has its principal business. Both of these places must be diverse from the
plaintiffs residency in order to establish diversity jurisdiction. In this case, the plaintiff failed to provide
sufficient information to establish subject matter jurisdiction.


Lets assume that Yahoo Inc. is incorprated in Delaware and it has its principal place on business in California.
A plaintiff from Delaware or from California cannot sue Yahoo in a federal court based on diversity

Hertz Corporation v. Friend

Brief Fact Summary
Hertz Corp. (D) had a class action suit against it. It tried to get the suit removed to federal court, citing diversity
jurisdiction as the ground. However, the employees (P) raised the objection that since California was the
principal source of revenue for Hertz (D), and most of its business activities were performed there, California
should be deemed the principal place of business.
Synopsis of Rule of Law. The term principal place of business in the federal diversity jurisdiction statute
means the location from which the major activities of the corporation are directed, coordinated and controlled
by the high level officers of the corporation.
Hertz Corp. (D) had a class action suit brought against it by its California-based employees (P), who claimed
that it had violated Californias wage and hours labor statutes. Hertz Corp. (D) attempted to have the case
removed to federal court on the ground of diversity jurisdiction, which makes provision for a corporation to be
deemed a citizen of any state by which it has been incorporated and of the state in which it has its principal
place of business. The employers (P) raised the counter-claim that California was the principal place of
business, because the corporation received more income from this state than any other, and also because it
conducted most of its business in California.

The question is whether the phrase principal place of business in the federal diversity jurisdiction statute
refers to the place which serves as headquarters or the center of operations planning
The term principal place of business in the federal diversity jurisdiction statute means the place where the
cardinal activities of business are carried out, like high-level planning, directing and coordinating corporate
strategy and daily activities. It has also been called the nerve center test by some courts. It means the place
where the high level officers meet for these activities. The statutory intent of the term is clarified by the use of
the singular word place rather than places. Moreover this definition makes the application easier and more
straightforward in the interests of upholding judicial power. The history of the statute also seems to confirm that
this was the intent of the lawmakers, by refusing to accept a more complex definition like the place which
supplies half of gross income as initially suggested by the Judicial Conference and later rejected as impractical.
The concept of the place being a nerve center is simple to grasp and to apply. While every such test will have
its drawbacks in terms of administrative ease and fulfilling the purpose of the statute, some complexity must be
accepted so that the rule may be clear enough to satisfy the need.
The nerve center test in relation to a corporation considers a single place and not the activity of the corporate in
the whole state as relevant. The Court considers that this view of the matter increases its ease of applicability
and its predictability as regards result, as well as being in conformity with earlier phases of defining the phrase
in law. The aim of this legislation was to prevent the determination of the citizenship of a corporate from being
complex and impractical. This case is important in that it may help to make this decision as to corporate
citizenship more predictable and uniform, especially removing the multifactor tests and assessment of statewide
activity among several states in which the corporate had a presence, based on which the principal place of
business was to be decided.

Belleville Catering Co. v. Champaign Market Place L.L.C.

Brief Summary
Plaintiffs, a corporation and its guarantors, sued defendant corporation, invoking diversity jurisdiction pursuant
to 28 U.S.C.S. 1332. Defendant counterclaimed. A jury trial was held in the United States District Court for
the Central District of Illinois, ending in a verdict of $ 220,000 in defendant's favor on the counterclaim.
Plaintiffs appealed.
Plaintiff corporation asserted it was a citizen of Missouri, as were its guarantors. The complaint also alleged that
defendant was a Delaware limited liability company (LLC), with its principal place of business in Illinois. The
court noted that counsel and the trial judge assumed that a LLC was treated like a corporation and thus was a
citizen of its state of organization and its principal place of business. That was incorrect. Rather, LLCs were
citizens of every state of which any member was a citizen. Furthermore, plaintiff corporation appeared to be
incorporated in Illinois rather than Missouri. Defense counsel related that several of its members were citizens
of Illinois.

As citizens of Illinois were on both sides of the suit, the court lacked diversity jurisdiction.
Moreover, defense counsel stated that one of its members was another LLC that was asserting
confidentiality for the members of the LLC.

The court held that it was not possible to litigate under diversity jurisdiction with details kept
confidential from the judiciary.
Thus, federal jurisdiction had not been established.

Lastly, the court ordered counsel to continue their representation without additional fees.
The judgment of the district court was vacated, and the proceeding was remanded with instructions to dismiss
the complaint for want of subject-matter jurisdiction.

Louisville & Nashville Railroad Co. v. Mottley

Brief Fact Summary
Defendants, the Mottleys, were issued a free lifetime pass for use on the Louisville and Nashville Railroad.
Several decades later, Defendants sued Plaintiff Louisville for refusing to honor the free pass pursuant to an act
of Congress making free passes unlawful.
Synopsis of Rule of Law
Subject matter jurisdiction, based on a suit arising under the Constitution and laws of the United States is
established only when the plaintiffs statement of his own cause of action shows that it is based upon those laws
or the Constitution.
Defendants were injured in a railway accident. To settle their claims, Plaintiffs, in 1871 gave them a lifetime
pass for free transportation on the line. Several decades later Congress made free passes unlawful. Plaintiffs
therefore refused to honor the Defendants passes, citing the new federal legislation. Defendants sued in federal
court seeking specific performance of the contract. The trial court ruled in favor of the Defendants and this
appeal followed.

Whether federal question jurisdiction is established where the only reference to federal law in the complaint is
the plaintiffs allegation of what he anticipates will be the defense to his cause of action.
No. The judgment of the trial court was reversed and the case was remanded to the circuit court with
instructions to dismiss for want of jurisdiction.
A suit arises under the United States Constitution and laws of the United States only when the plaintiffs
statement of his own cause of action shows that it is based upon those laws or the Constitution. It is not enough
for a plaintiff to allege an anticipated defense to his cause of action and assert that the defense is invalidated by
some provision of the United States Constitution
There are two ways to establish federal court subject matter jurisdiction. One is through diversity of jurisdiction.
The other is federal question jurisdiction, i.e. the complaint must allege some violation of Constitution or some
federal statute. Although the court found that the defendants allegations show that in the course of litigation a
question under the United States Constitution would arise, this did not satisfy the courts requirement for federal
question jurisdiction that the plaintiffs original cause of action arise under the Constitution.

Grable & Sons Metal Products v. Darue Engineering

The IRS seized property owned by Grable and gave Grable notice by certified mail before selling the property
to Darue. Grable sued in state court, claiming Darue's title was invalid because federal law required the IRS to
give Grable notice of the sale by personal service, not certified mail. Darue removed the case to federal disctrict
court, arguing that the case presented a federal question because Grable's claim depended on an interpretation of
federal tax law. The district court agreed and ruled for Darue. The Sixth Circuit affirmed the decision.
Did a case involving the interpretation of federal tax law belong in federal court and not the state court where it
was filed?

In a unanimous opinion delivered by Justice David Souter, the Court held that the case involved a federal
question and could thus be removed to federal court. Federal-questions jurisdiction, the Court reasoned, lay over
some state-law claims that implicated significant federal issues. In this case, the national interest in providing a
federal forum for federal tax litigation warranted moving the case to federal court

Bates v. C & S Adjusters, Inc

Synopsis of Rule of Law
The statutory standard for venue focuses not on whether a defendant (creditor) has made a deliberate contact
with the venue, but on the location where the events occurred.
Phillip E. Bates (Plaintiff) commenced this action in the District Court for the Western District of New York
following receipt of a collection notice from C & S Adjusters, Incorporated (Defendant). Plaintiff alleged a
violation of the Fair Debit Collection Practices Act. Plaintiff had incurred the debt in question while he was a
resident of the Western District of Pennsylvania. The creditor also had its principal place of business in that
district. The creditor referred the matter to Defendant, a local agency, which transacted no business in New
York. After Defendant mailed a collection notice to Plaintiff in Pennsylvania, the postal service forwarded the
notice to Plaintiff at a new address in New York. Defendant filed a Motion to Dismiss for Improper Venue,
which was granted by the District Court for the Western District of New York.

Whether venue exists in a district in which a debtor resides and to which a bill collectors demand for payment
was not deliberately forwarded?
Venue was proper under 28 U.S.C.A. Section: 1391(b)(2) because a substantial part of the events giving rise to
Plaintiffs claim occurred in the Western District of New York. Here, the collection notice is located in New
York. Therefore, venue in New York is proper. The United States Court of Appeals for the Second Circuit
reversed and remanded the case.
This case involves unique circumstances, because Defendant did not intentionally forward the collection notice
to Plaintiffs new address in New York. Prior cases dealt primarily with the collection agencys deliberate
contact with the debtor. The court decided that under the 1990 venue statute, the fact that a creditor did not
intend to have a communication reach a debtor at a new address is inconsequential. Since the focus of the
statute is not upon the attempted contacts, but rather where the action occurred, venue is proper in the debtors
new state if a substantial part of the events giving rise to the claim occur in that new state.

Piper Aircraft Co. v. Reyno

Brief Fact Summary
Plaintiffs sued Defendants, in state court arising from injuries sustained in a plane crash in Scotland. The cases
were removed to federal court and transferred to the District Court of Pennsylvania. Defendants moved to
dismiss under the doctrine of forum non conveniens, arguing that the better forum was located in Scotland.
Synopsis of Rule of Law
The doctrine of forum non conveniens allows a court to dismiss a case that was brought in the wrong forum.
When all or most of the significant events, witnesses and evidence are centered in one location, then a court
must dismiss a case brought in another location under the doctrine of forum non conveniens unless the alternate
forum provides the plaintiff with absolutely no remedy. Whether the law of the forum chosen by the plaintiff is
more favorable to the plaintiff should not be given weight.
There was a plane crash in Scotland, where five citizens of Scotland were killed. The aircraft was manufactured
in Pennsylvania by Piper Aircraft Company (Defendant) and the propellers were made in Ohio by Hartzell
Propeller, Inc. (Defendant). The plane was registered in Great Britain and owned and operated by people from
the United Kingdom. The wreckage was in England. An investigation conducted by The British Department of
Trade concluded that there was no evidence of defective equipment and that the crash was probably due to pilot

error. Reyno, Plaintiff, a legal secretary for the attorney of the decedents survivors, was appointed
administratrix of the decedents estate by a California probate court. Plaintiff commenced separate wrongful
death actions against the Piper and Hartzell in California Superior Court, claiming negligence and strict liability.
They also filed suit in the United Kingdom against the owner and operator. Plaintiff admits that she filed suit in
the United States because of its laws regarding liability and capacity to sue. Defendant filed motion to remove
to the District Court in California which was granted. Piper moved to transfer to the District Court in
Pennsylvania. Hartzell moved to dismiss for lack of personal jurisdiction or, in the alternative, to transfer. The
District Court quashed service and transferred the case to Pennsylvania. Plaintiff then served Hartzell with
process in the District Court in Pennsylvania. Defendants moved to dismiss for forum non conveniens.
The District Court of Pennsylvania granted the motions based on the analysis articulated in [Gulf Oil Corp. v.
Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)], namely that: 1) An alternative forum existed in
Scotland; 2) The plaintiff only filed in the U.S. for the favorable law; 3) There were overwhelming connections
with Scotland; 4) Witnesses and evidence were beyond the reach of compulsory process.; 5) All of Defendants
witnesses are in Great Britain; 6) There should be only one trial to preserve judicial expense and avoid the risk
of inconsistent verdicts; 7) Scottish law would apply to Hartzell, and Pennsylvania law would apply to Piper,
which would be excessively confusing for a jury; 8) The jurors have little connection to the controversy; 9)
Scotland has a substantial interest in the outcome of litigation.
The Circuit Court reversed and remanded District Courts decision. It held that the District Court abused its
discretion when using the Gilbert analysis. In addition, the court baed its argument on several additional factors:
(1) dismissal is never appropriate where the law of the alternative forum is less favorable to Plaintiffs; (2)
Plaintiffs choice of forum deserves substantial weight even though they are non-residents; (3) Defendants did
not prove that all their witnesses were in Great Britain; (4) Defendants inability to implead other defendants
would be burdensome but not unfair; (5) viewing the wreckage and Scottish topography was not that
significant; (6) application of foreign law does not require dismissal; (7) Pennsylvania and Ohio would be the
governing law anyway, because these states have the greatest policy interests; and finally (8) a dismissal for
forum non conveniens should not result in a change in the applicable law, just a change in the location of the
trial. T
he Supreme Court read this holding to mandate that dismissal is automatically barred if it would lead to a
change in the applicable law unfavorable to the plaintiff.
Issue. Should a case be dismissed on the grounds of forum non conveniens when all the witnesses and evidence
are in another country, the other countrys jurors would be more connected to the problem, it is inconvenient to
the parties to try the case in the jurisdiction where it was brought, and the other countrys law will be applied?
Yes. Reversed.
The possibility of a change of law should not be given substantial weight in a forum non conveniens analysis.
Plaintiffs can choose among many forums, and generally choose the most favorable one. If they do not choose
the most favorable but the action can be dismissed anyway, it would not be proper. In addition, courts would
have to interpret the law of foreign districts, which would pose a lot of problems and inconsistencies. This is
why there is a doctrine of forum non conveniens, to get rid of this kind of confusion.

Upholding the Court of Appeals judgment would also increase the flow of litigation, and the courts would be
Choice of law should only be considered in this scenario when the remedy in the alternative forum is totally
inadequate or when the alternative forum lacks subject matter jurisdiction. The facts of the case do not show
either scenario.
Giving the plaintiffs interests less weight is justified when the plaintiffs are foreign. Under this circumstance,
the choice of forum is not necessarily convenient. The connections with Scotland were not necessarily
overwhelming, but the District Court correctly found that there would be fewer evidentiary problems. If
Defendants had to prove exactly what persons it would be difficult to identify and bring as witnesses,
Defendants required expenditures would defeat the purpose of their motion.
Even if Scottish law would not apply, the other public interest factors would be sufficient to support dismissal.
There is a local interest. The American interest is not sufficient.
Choosing a particular forum because the law is more favorable to the plaintiff cannot be given any substantial
weight under a forum non conveniens analysis. Although the general rule is that a court should not dismiss a
case on grounds of forum non conveniens unless there is an alternate forum in which the plaintiff can pursue a
remedy, this rule only requires that the plaintiff be able to file a proper lawsuit in that alternate forum.

Baldwin v. Iowa State Traveling Mens Association


P brought action against D (an Iowa company) in Missouri state court, which D successfully removed to
Missouri federal court. D made a special appearance to challenge the service of process and personal
jurisdiction. The court denied the motion. D filed no answer and did not appear. The court filed a judgment
against D. P filed action against D in Iowa to recover the Missouri Courts judgment but D again brought the
challenge to service of process and personal jurisdiction.


Whether the Missouri courts denial of Ds motion precluded the D from raising the same issue in Iowa court.




Under the principle of res judicata, once the Ds motion was denied in Missouris court, he was bound by that
ruling. D cannot raise the same issue in another court. D could have fought the case in Missouri and then raise
the issue during appeals process in Missouri. But he did not. Therefore, the Missouri courts ruling is binding.

Dioguardi v. Durning
Brief Fact Summary
Plaintiff sued Defendant in federal court on vague allegations that Defendant stole Plaintiffs merchandise and
sold Plaintiffs merchandise at a prohibited price. The District Court ordered Plaintiff to amend the complaint.
Plaintiff alleged more facts and the District Court dismissed Plaintiffs claim on the grounds that the complaint
did not state facts sufficient to constitute a cause of action.
Synopsis of Rule of Law
A complaint need only state a claim upon which relief can be granted. It does not necessarily have to contain
facts that can support a cause of action.
Plaintiff Dioguardi filed a complaint stating that at an auction Defendant Durning, the Collector of Customs for
the Port of New York, sold his merchandise at public custom to another bidder at Plaintiffs price of $110 and
not Defendants price of $120. In addition, Plaintiff alleged that three weeks before the sale, two cases of the
merchandise disappeared. Plaintiff alleged that he filed a claim for the merchandise from Defendant, which
Defendant denied. Plaintiff claimed $5,000. The District Court dismissed the complaint with leave for Plaintiff
to amend, on the ground that the complaint fails to state facts sufficient to constitute a cause of action.
Plaintiff added more allegations and filed an amended complaint. The District Court rendered a final judgment
for dismissal on the grounds that Plaintiffs complaint did not state facts sufficient to constitute a cause of
action. Plaintiff appealed.
Did Plaintiff complaint need to contain facts sufficient to constitute a cause of action?
No. Reversed and remanded.
Plaintiffs complaint need only contain a statement that shows he would be entitled to relief.
The complaint is not clear but it does allege that Defendant took Plaintiffs tonic and Defendant sold its tonic
for less than a price Defendant allegedly was supposed to sell it. If Plaintiff proves these allegations, Plaintiff
would be entitled to relief. Therefore, the complaint should not have been dismissed.
This case illustrates the standard for evaluating a complaint against a motion to dismiss under Federal Rules of
Civil Procedure 12(b)(6) (failure to state a claim upon which relief can be granted). This standard is known as
notice pleading. A complaint need only state grounds which would entitle the plaintiff to relief. It need not
contain specific allegations of facts that would constitute some specific cause of action. A complaint can be
vague and incoherent, but if there is a discernable ground for relief, the complaint should not be dismissed for
failure to state a claim.

Bell Atlantic Corporation v. Twombly

Brief Fact Summary
Plaintiffs, subscribers to local phone and internet services, sue Bell Atlantic and local telephone companies
alleging violations of anti-trust laws, allowing each local phone company to monopolize its own market.
Synopsis of Rule of Law
Under 1 of the Sherman Act, stating a claim requires a complaint with enough factual matter (taken as true) to
suggest that a valid claim arises.
Plaintiffs were subscribers to local phone and internet services. They alleged that Bell Atlantic and local
telephone companies violated that anti-trust laws by agreeing not to compete with each other and by agreeing to
exclude other potential competitors, allowing each local phone company to monopolize its own market.
What a plaintiff must plead in order to state a claim under 1 of the Sherman Act.
Applying the general standards to a 1 claim, the court held that stating such a claim requires a complaint with
enough factual matter (taken as true) to suggest that an agreement was made. Here, the antitrust conspiracy was
not suggested by the facts, which thus fails to state a valid 1 claim.
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the
pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds
upon which it rests, Conley v. Gibson. This required more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action are not sufficient.

Ashcroft v. Iqbal
Brief Fact Summary
JavaidIqbal (P) was a Pakistani citizen who was arrested on criminal charges and detained by federal officials
following the terrorist attack on 9/11. He filed suit against federal officials on the ground that his imprisonment
was under conditions that infringed on his constitutional rights. The defendants moved the court to dismiss the
complaint on grounds of facial insufficiency.
Synopsis of Rule of Law
A complaint must be non-conclusory,ie, base allegations on facts and be believable under the rules of logic and
circumstances to be considered well-pleaded.
JavaidIqbal (P) who is a Muslim and a Pakistani citizen was arrested by federal officials on charges of criminal
activity, and detained after the terrorist attack on 9/11. He filed a case against them in a federal court on the
ground that he was not allowed to exercise his constitutional rights during his confinement, because of his race,
religion and country of origin. The complaint specifically named the former U.S. Attorney General John
Ashcroft (D) and FBI Director Robert Mueller (D) as well as others. Ashcroft (D) and Mueller (D) moved court
to throw out the case as facially insufficient, and also defended their actions on the ground of qualified
immunity since they were holding office at the time of the incident. The motion was not granted by the district
court, and they filed an interlocutory appeal in the Second Circuit Court of Appeals. This was affirmed, and the
U.S. Supreme Court granted a writ for judicial review of the lower courts decision.
Does a complaint need to be non-conclusory, that is irrefutably supported by facts, plausible under the
circumstances of the case and factually true, to be well-argued?
(Kennedy, J.) Yes. A well-pleaded complaint requires to be supported by allegations containing factual content
which leads to the conclusion given, and have factual and plausible arguments which cannot be easily
disproved. In this case, Iqbal (P) pleaded that the federal government had adopted a policy detaining all Arab
Muslims after the terrorist attack of 9/11, until they were individually declared non-criminal by the FBI. It was
claimed that this policy owed its origin to Ashcroft (D) and its adoption and widespread usage to Mueller (D).
This allegation did not have factual content that would enable the court to come to the reasonable conclusion
that the defendant actually is liable for the alleged misconduct. Moreover, the complaints were not plausible
enough to raise the claim above the speculative level, but were mere conclusions. Even if an allegation is not
supported by facts to the point of probability, the court requires more than conclusory statements. The facts
which were required to support the complaints were not sufficiently provided. Thus the standards of pleading
required in a complaint to avoid its dismissal, as set by this Court in the case of Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), were not met. The conclusory allegations against Ashcroft (D) and Mueller (D) were not
such as would meet with instant belief nor were they supported by facts. Instead, the grounds for detention were
plausible and did not violate the constitution. In his complaint, Iqbal (P) argued that Twombly set the standard

only for cases of antitrust pleadings, but this argument is unsupported because Twombly sets the standard of
good pleading for all civil cases. Iqbals (P) argument that Fed. R. Civ. P. 9(b) allows him to bring in general
arguments rather than specific ones for an alleged violation of the constitution does not hold good, since the
stated rule gives more flexibility to the pleading but does not take priority over Rule 8 which requires factual
pleading; instead Rule 9 (b) requires very specific factual support for the listed claims. The decision was
reversed and the case remanded.
(Souter, J.) In accordance with the judgment in Twombly, non-conclusory allegations should be accepted as true
unless they are so incredible as to be obviously untrue. The main points of the complaint are non-conclusory
and the complaint was therefore sufficiently supported by facts to be facially sufficient.
(Breyer, J.) The lower court chose to dismiss the case rather than order minimally intrusive discovery which
would have been more fitting, and could have anticipated a motion for summary judgment.
In a civil action, it is no longer enough to give general notice of the plaintiffs claim while pleading, but the
defendant has the right to know the factual allegations which support the claim. This may make litigation less
common because the strict criteria make non-factual allegations easy to dismiss. However, this case only
highlighted the need for factual pleading and did not give rise to any stringent new rule. The emphasis in Iqbal
is that the allegations must be plausible enough (even if not probable, and when still unproven) to allow the
court to infer reasonably that the facts could point to misconduct on the defendants part.

Swanson v. Citibank
Gloria Swanson (plaintiff) applied for a home-equity loan with Citibank, N.A. (Citibank) (defendant). Upon
speaking to a Citibank representative, Swanson suspected that the representative was discouraging her from
applying because she was black, and asked to speak with a manager. Swanson disclosed to the representative
and manager that she had previously been denied a home-equity loan by another bank. The manager informed
Swanson that it was more difficult to obtain a loan at Citibank than at other banks. Swanson nevertheless
applied for a loan the next day. Citibank conditionally approved Swanson based upon her representation that her
home was worth $270,000.00. Citibank thereafter arranged for Andre Lanier (defendant) of PCI Appraisal
Services (PCI) (defendant) to appraise Swansons home. Lanier appraised Swansons home at $170,000.00.
Swanson subsequently hired another appraiser, who valued her home at $240,000.00. In light of Laniers low
appraisal, Citibank declined to grant Swanson a home-equity loan. Swanson brought suit against the defendants,
alleging they violated Fair Housing Act 3605 by working together to devalue her home in the appraisal as a
pretense to deny her a loan on account of her race. The defendants filed a motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. The district court dismissed her complaint for failure to state a

Leatherman v. Tarrant County

Brief Fact Summary
This action arose out of two separate incidents involving the execution of search warrants by law enforcement
officers. Leatherman (Plaintiffs) sued several law enforcement officers asserting that police conduct violated the
Fourth Amendment to the United States Constitution. The United States District Court of the Northern District
of Texas dismissed the complaints and the United States Court of Appeals for the Fifth Circuit affirmed the
dismissal. The Supreme Court of the United States granted to certiorari to resolve a conflict among various
court of appeals regarding the heightened pleading standard.
Synopsis of Rule of Law
If Rule 9(b) of the Federal Rules of Civil Procedure does not require specific pleading of a certain type of
claim, the court cannot interpose a higher standard of specificity.
Both cases involve the execution of search warrants by law enforcement officials, which arose out of the
forcible entry into Plaintiffs homes based on the detection of odors associated with narcotics. One of the
plaintiffs alleged that he was assaulted by the police officers, and the other claimed that the police entered her
home in her absence and killed her two dogs. Plaintiffs sued law enforcement officials asserting that the police
conduct violated the Fourth Amendment of the United States Constitution. The United States District Court for
the Northern Division of Texas dismissed the complaints because they failed to meet the heightened pleading
standard. The United States Court of Appeals for the Fifth Circuit affirmed the judgment and the Supreme Court
of the United States granted certiorari to resolve conflict between court of appeals concerning the heightened
pleading standard.
Whether a federal court may apply a heightened pleading standard in civil rights cases?
No. Judgment is reversed.
A court cannot require a higher standard specificity for a certain type of claim that is not enumerated in Rule
9(b). Rule 9(b) imposes a particularity requirement in cases of fraud and mistake, however the rule does not

have any reference to complaints alleging municipal liability. This is the theory of expressio unius, when it lists
specific causes of action it is meant to exclude the rest.
Rules 8 and 9 could be rewritten by the legislature, but in the absence of such an amendment, the courts must
rely on summary judgment and discovery to weed out the non-meritorious claims.
This case overturned the ruling in Cash Energy, Inc. v. Weiner, 768 F.Supp. 892 (D. Mass. 1991). This case
makes it clear that federal courts are not to interpose a requirement of fact pleading into the federal rules.

Marsh v. Coleman Company


P [employee] brought action against D [employer] for breach of contact and age discrimination on 1/19/1990. P
was fired on 1/20/1989. P later amended complaint and tried to bring in cause of action for fraud based on
events that allegedly took place in 1985. Statute of limitations for the new cause of action was 2 years.


Was the new cause of action covered under the relation back doctrine?




Relation back doctrine applies to events where the original complaint places a defendant on notice of the new
causes of action. Here, the age discrimination and the fraud causes of actions arose out of completely different
transaction, occurrence, or conduct. The P, by filing the discrimination action against D did not place D on
notice of the fraud claim. Therefore, the amended claim does not relate back.


Relation back means that you treat the amended pleading as though it was filed when the original was filed, so
it can avoid a statute of limitations problem.

Rector v. Approved Federal Savings Bank


Plaintiff attorney, personally and as a trustee, sued defendant bank alleging conspiracy, Racketeer Influenced
and Corrupt Organizations Act, and fraud claims. The case was dismissed and the bank moved for sanctions.
The motion was granted and the attorney appealed. The court of appeals vacated and remanded. On remand the
United States District Court for the Eastern District of Virginia again imposed sanctions. The attorney appealed.
The current motion for sanctions stemmed from the underlying suit which arose from an agreement in which the
attorney, both personally and as trustee of a charitable remainder trust, agreed to sell to the bank his majority
interest in a different bank. The attorney alleged that the bank failed to pay at least $ 20 billion dollars of the
agreed purchase price. After the complaint was dismissed the bank moved for sanctions pursuant to Fed. R. Civ.
P. 11. On the first appeal the attorney did not assert the 21-day safe harbor provision of Fed. R. Civ. P. 11. On
his second appeal, for the first time, the attorney asserted the 21-day safe harbor defense.
The court of appeals affirmed and held the 21-day safe harbor provision was not jurisdictional and the attorney
waived the defense when he failed to raise the argument to the district court in the first instance and he failed to
raise it on the first appeal.
The judgment was affirmed.

United Oil Co. v. Parts Associates, Inc.


Plaintiff oil company brought an action in indemnity and contribution against defendant dye manufacturer and
defendant brake cleaner distributor to recover the amount the oil company paid in settlement of certain product
liability claims. Before the court were motions to compel discovery responses from both defendants.
The underlying product liability claim involved a person who allegedly developed liver disease as a result of his
exposure to certain chemicals. The theory of the contribution and indemnity lawsuit was a failure to properly
warn about the dangers of liver damage from exposure to the dye manufacturer's red and blue dyes and the
distributor's brake cleaner. One of the primary discovery issues was whether the dye manufacturer and brake
cleaner distributor had to respond to discovery seeking information concerning any other claims or lawsuits
involving similar issues.

The court determined that the oil company successfully demonstrated the relevance of such requests to
its failure to warn claim.

The court limited the discovery to other claims involving alleged liver disease.

However, the court did not limit the discovery to the exact same product at issue in the product liability

Instead, the court compelled responses with respect to claims regarding other products containing the
same chemical compounds.

The court reasoned that such information was probative of what the manufacturer and distributor knew
or should have known about the liver toxicity of the chemicals at issue.

The court granted the oil company's motions to compel in part and denied the motions in part.

Zubulake v. UBS Warburg LLC

Brief Fact Summary
Plaintiff, Laura Zubulake, brought gender discrimination and wrongful termination suits against Defendants,
UBS Warburg LLC et al., and she sought access to emails that were stored and archived by Defendants.
Synopsis of Rule of Law
A court will weigh the cost of accessing the electronic data using a comprehensive set of factors, and will
determine whether the data should be available for discovery, and which party to place the cost of the discovery.
Plaintiff was hired in 1999 as a senior salesperson for Defendant company. Plaintiff was passed over for a
promotion, and the person who ended up with the job, Matthew Chapin, proceeded to harass Plaintiff. Plaintiff
filed a charge of gender discrimination with the EEOC, and she was fired shortly thereafter. Plaintiff then filed
federal, state and city charges of gender discrimination. Plaintiff requested all of Defendants email
correspondence concerning Plaintiff as part of discovery, and they initially agreed to a scope of discovery.
Defendants did not turn over archived emails because they claim that it would cost $175,000 not including
attorneys fees to gather the data.
The issue is whether Defendant is required to produce the electronic data to comply with discovery.
The court looked at the proportionality test of Rule 26(b)(2) of the Federal Rules of Civil Procedure and applied
it to the electronic communication at issue. Any electronic data that is as accessible as other documentation
should have traditional discovery rules applied. For less accessible data, a cost-shifting analysis will be used,
and Defendants should take a representative sample to determine the value of the information in that data. The
court offered a seven-factor test that is based on traditional discovery rules.
The court listed an extensive amount of factors, such as the amount in controversy, the stakes in the litigation,
etc., which emphasizes the case-by-case nature of the analysis.

Hickman v. Taylor
Brief Fact Summary
Following an accident involving one of their tug boats, two tug owners (Defendants) fearing litigation, hired an
attorney who interviewed several of the surviving crew members of the tug accident. A year later, after filing
suit against the tug owner, a representative of one of the victims of the accident filed an interrogatory requesting
the content of the interviews conducted by the tug owners attorney with the survivors.
Synopsis of Rule of Law. While the protective cloak of attorney-client privilege does not extend to information
that an attorney secures from a witness while acting for his client in anticipation of litigation, an attempt,
without necessity or justification, to secure written statements, private memoranda and personal recollections
prepared or formed by an adverse partys counsel, falls outside the arena of discovery.
In 1943 a tug, the J.M. Taylor sank while engaged in helping to tow a car float of the Baltimore and Ohio
Railroad across the Delaware River at Philadelphia. The accident, in which five of the nine crew members
drowned was unusual in nature and the cause was unknown. Three days later Defendants employed a law firm
to defend them against potential suits by representatives of the deceased crew members and to sue the railroad
for damages to the tug. The following month, the attorney for Defendants privately interviewed the four
survivors and took statements from them with an eye toward anticipated litigation. Hickman (Plaintiff), a
representative of one of the five victims, brought suit in federal court naming as defendants the two tug owners.
One year later, Plaintiff filed 39 interrogatories directed to the tug owners. The 38th interrogatory requested that
the tug owners disclose whether any statements of the surviving crew members were taken following the
accident, and if so, to include copies of such statements in writing, and if oral, to set forth in detail the exact
provisions of such statements. The tug owners answered all of the interrogatories in full, except number 38.
They admitted that statements were taken, but declined to summarize them or provide their contents. They
based their refusal on the ground that such requests called for privileged matter obtained in preparation for
litigation. The district court held that the requested matters were not privileged. Upon their refusal, the tug
owners were held in contempt. The Third Circuit Court of Appeals reversed the judgment of the district court.
The Supreme Court of the United States then granted certiorari.
Whether, without a showing of prejudice by the moving party, statements made to discoverable, if they were
taken in anticipation of litigation and contained among them the personal recollections and thoughts of
opposing counsel.
No. The Supreme Court affirmed the judgment of the Circuit Court of Appeals overturning the order for
discovery. Discovery has ultimate and necessary boundaries. Limitations come into existence when the inquiry
encroaches upon the recognized domains of privilege. The protective cloak of this privilege does not extend to
information that an attorney secures from a witness while acting for his client in anticipation of litigation.
However, an attempt, without necessity or justification, to secure written statements, private memoranda and
personal recollections prepared or formed by an adverse partys counsel, falls outside the arena of discovery.
The policy underlying the work product immunity is the necessity for the lawyer to investigate all facets of the
case and develop his theories without fear of having to disclose his strategies or information that is unfavorable
to his client. A lawyer is protected against disclosure in discovery of information generated by the litigation
process itself but not against disclosure of underlying historical facts. Concurrence. Justice Robert H. Jackson

concurred. Justice Jacksons concurrence focused on the demoralizing effect on law practice if lawyers were
required to write out and deliver to their adversaries an account of what witnesses have told them.
Ultimately, the Supreme Court held that the crews conversations with Fortenbaugh did not come under the
attorney-client privilege. Materials prepared for litigation are protected from discovery by a qualified immunity.
This case holds that to compel documents that may be privileged by containing attorney work product, the
moving party must show that it has no other method of obtaining the information, and that denial of his motion
to compel will really harm his case. Moreover, the court, before it was codified in the Federal Rules, recognized
the strong policy interest in allowing lawyers to work with a degree of privacy, finding that if such materials
were open to opposing counsel, much of what is now written down would remain unwritten. Thus, because
Plaintiffs attorney could have interviewed the survivors on his own, their identity being well known, the court
saw that there was no significant harm in not allowing Plaintiffs access to the statements.

Ager v. Jane C. Stormont Hospital & Training School for Nurses


Defendnt, through interrogatories, wants to know the identities of all experts P consulted for the trial. P, after
some objections, agreed to give the names of only those experts who were expected to testify at trial but refused
to give the identities of experts who were not expected to testify at trial.


Plaintiff held in contempt for failing to comply with the discovery orders.


Can a party discover the identities of experts the other side consulted even if these experts are not expected to
testify at trial?


No, but there are very rare exceptions.


Under FRCP 26, discovery of experts who were informally consulted but will not be testifying at trial is not
allowed. The court considered public policy reasons for this prohibition. Court stated that revealing the

identities of experts will prevent experts from giving their free opinions on the matters. But there will be some
cases where identities of experts who are not expected to testify may be discovered. For this, there has to be a
case-by-case analysis.

Brief Fact Summary

In a libel suit, the Court of Appeals erred in finding that a standard of proof, by which the plaintiff would have
to prove his case at trial, did not apply when considering a summary judgment motion.
Synopsis of Rule of Law
The inquiry involved in ruling on a summary judgment motion, requires the court to use the substantive
standard of proof that would apply at the trial on its merits.
Facts. Carto, a publisher, and the Respondent, Liberty Lobby (Respondent), the organization Carto headed, filed
a libel suit against The Investigator magazine, its president and its publisher, the Jack Anderson (Petitioner). The
Respondent accused the Petitioner of publishing articles portraying the Respondent as a neo-Nazi organization.
Petitioner moved for summary judgment on the basis that Respondent was a public figure and no actual malice
on the part of the Petitioner could be proven. The trial court granted the motion. On appeal, the Respondent
argued that for purposes of opposing the summary judgment motion, the trial court required it to show that
actual malice existed by a clear and convincing standard, rather than by a preponderance of the evidence
standard. The Court Appeals held that a reasonable jury could conclude actual malice could have been used and
that it was irrelevant on a motion for summary judgment what the actual standard was.

Whether a factual dispute requiring submission to a jury must be guided by the substantive evidentiary
standards that apply to the case.
Yes. The Court of Appeals erred in holding that the heightened evidentiary requirements that apply to proof of
actual malice need not be considered for the purposes of a motion for summary judgment. Remanded.
It is for the fact finder, not the court to decide the merits of a case and the burdens of proof that qualify. If a
party has shown the elements of his cause of action, he has presented a prima facie case that must survive
summary judgment.
When determining if a genuine factual issue as to actual malice exists in a libel suit brought by a public figure, a
trial judge must bear in mind the actual quantum and quality of proof necessary to support liability under the
substantive test. Judges must be careful not to weigh the evidence and determine the truth of the matter during
summary judgment, but determine whether there is issue for trial. The question the Court of Appeals should
have asked here was whether the evidence in the record could support a reasonable jury finding that the plaintiff
had shown actual malice by clear and convincing evidence or that he had not. The mere existence of some
factual dispute between parties, alone, does not preclude a finding of summary judgment; rather, there must be a
genuine issue of material fact. Summary judgment may only be granted if a genuine issue of material fact is
present between parties. Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.