CIVIL PROCEDURE OUTLINE:

I. INTRODUCTION TO THE CIVIL PROCESS:

Civil procedure provides the mechanism through which disputes are resolved, when persons involved in
disputes cannot follow the usual process of resolving disputes
Substantive law (rights, duties, & obligations) vs. procedural law (rules that govern rights, duties, &
obligations; provides a mechanism for applying substantive laws to concrete disputes)
Adversarial process: the litigants themselves carry the burden of presenting the facts
Study of civil procedure: study of how substantive law is enforced
THE JUDGES ROLE:
o Bands Refuse Removal, Inc. v. Borough of Fair Lawn (1960): Facts: Carpassos entered into
contract w/ Borough for garbage collection. Borough required permit to collect garbage, and
denied permit. Procedural Facts: Judge communicated w/ s attorney before trial and
discussed production of witnesses. Judge secured files & documents from prosecutors office &
sifted them in advance; called witnesses on his own motion or had amicus (friend of the court
who acts for one party in brief) to do so. Judge produced a large number of witnesses and added
their testimony into evidence. Judge created new issues never mentioned in pre-trial order.
Rule: Trial judges must behave reasonably and exercise only limited power in calling witnesses
and presenting new issues.
Amicus in this situation acts as a proxy.
Judges are typically unprepared & ignorant in our system, so when they get overly
involved they often make mistakes.
Judge must give parties affected by new issues full & fair opportunity to meet
those issues.
Carpassos should have been given reasonably time to answer cross-claims from

Substantive justice vs. procedural due process: fairness of process is important b/c the
losing party will be more likely to accept the outcome
o Kothe v. Smith (1985): Facts: Judge directed counsel for parties to conduct settlement
negotiations. Judge recommends the case to be settled for between $20,000-$30,000, and states
that if it goes to trial and then the parties settle, he will sanction the parties (either one or both).
s tell judge they would settle for as low as $20,000; however, their lowest communicated offer
to s was $50,000. The parties settle one day after trial. Rule: Although judges can encourage
settlement negotiations, the imposition of a sanction, especially on only one party, is excessive.
Rule 16-c(9): At any conference under this rule consideration may be given, and the
court may take appropriate action, w/ respect to9.] settlement and the use of special
procedures to assist in resolving the dispute when authorized by statute or local rule.
[encouragement of pre-trial settlement discussion]
Rule 16(f): sanctions if party is unprepared or fails to participate in good faith
had no indication that party would settle in the vicinity of $20,000
Sanctions: not related to liability
SETTLEMENTS: act as benchmarks, but they fail to provide precedents (no rule is
established)
Pros: allows more cases to go through court system
Cons: Not the same sense of vindication.
o Confidential: nobody will know what case settled for -> people dont
know what their rights cost
Court recognizes a gap b/w substantive rights & outcome of litigation (being in
the right is not always sufficient to receive your due in the system: this raises
questions about the meaning of the legal process.

How confident are you in your ability to persuade others about the
truth?
Litigation forces people to contemplate settlement: more information is
revealed; more pressure from judges
o

II. STAKES OF LITIGATION

DAMAGES:
o *MONETARY DAMAGES [COMPENSATORY/PUNITIVE]:
COMPENSATORY:
Medical expenses, lost wages, pain and suffering
Value of lost property: FMV/sentimental value
PUNITIVE [non-compensatory]: intended to deter; when there is evil motive or intent
1.] Outrageousness of the conduct
2.] Wealth of the
3.] Limited by:
o Fairness
o Subject to review by judge - Remititor of Damages: judge reviews and
determines whether number is right (pain and suffering, etc.); Additor
of Damages: judge reviews & escalates damages
o Non-punitive damages: handed down to deter constitutional
violations
Carey v. Piphus (1978): Facts: Two students suspended from schools w/o procedural
due process. Complaints sought declaratory & injunctive relief, along w/ punitive
damages. Holding: Nominal damages of one dollar awarded. Rule: In the event does
not put on evidence of injury due to denial of due process, in most situations he will be
awarded only nominal damages but no compensatory (non-punitive) damages.
Application of tort principles to come up w/ damages in this case does not really
work
What is lost? accuracy of outcome; feeling that the government has treated
you fairly
Judge has to determine what the outcome would have been if Piphus had been
able to state his case.
o **EQUITABLE RELIEF (SPECIFIC PERFORMANCE, INJUNCTION, ETC.)
Smith v. Western Electric Co. (1982): Facts: shares office w/ other employees who
smoke & suffers from severe adverse reaction. told not to submit any more
complaints through anonymous complaint procedure. NIOSH recommended smoking
policy which was not followed by . eventually given the choice b/w respirator or
demotion. Holding: has stated a claim upon which relief can be granted; he should be
given opportunity to prove allegations. Rule: The criteria for granting a permanent
injunction include: 1.] whether has actually succeeded on the merits; 2.] whether
has an adequate remedy at law; 3.] whether risks imminent irreparable harm; 4.]
whether the balance of hardships weighs against issuance of injunction; 5.] whether
injunction would serve public interest; 6.] whether the court can, as a practical matter,
issue the injunction.
Balancing the hardships in this case: If Smith is free to smoke, then the
company will suffer. (employees will be unhappy)
Requirements for a Preliminary Injuction:
o 1.] strong likelihood of success on the merits
o 2.] likelihood of irreparable harm
o 3.] balance of harm

o 4.] Advancing of public interest

Temporary Restraining Orders (obtained in ex-parte basis proceedings in
which the other side is not in front of the judge; cannot last for more than ten
days) vs. Preliminary Injunctions (issued after both sides have notice and
opportunity to be heard and served; last much longer and can eventually turn
into permanent injunctions)
NON-COMPLIANCE W/ AN INJUNCTION: Walker v. City of Birmingham (1967):
Facts: BHAM officials received temporary injunction of petitioners from participating
in parade demonstrations w/o a permit. Petitioners had made request for permits but
were denied. Petitioners violated injunction and paraded, the second of which resulted
in violence on Easter Day. Motion to dismiss injunction filed after parades. Petitioners
found in contempt of court. Rule: In the fair administration of justice, no man can be
the judge of his own case.
CONSEQUENCES:
1.] Criminal contempt: violation of court order is prosecuted as a
crime; violation must be proved beyond a reasonable doubt; has right
to jury trial if he faces prison sentence longer than 6 months
2.] Compensatory civil contempt: court orders to pay in amount
to compensate for s violation of equitable decree
3.] Coercive civil contempt: impose punishment on in order to
ensure future compliance; if you comply, the punishment will stop
under these circumstances makes no sense: petitioners are
probably happy to comply in the near future since they
probably dont have any marches planned
4.] Collateral Bar rule: In a show cause hearing, the target of the
hearing cant challenge the validity of the underlying decree. The only
issues that can be raised are 1.] whether there was an order and 2.]
whether you knowingly violated it. Challenging the order should be
done by motion to dissolve the injunction before violation of the
injunction.
Validity of underlying merits can be challenged at some other
proceeding -> you should not be the judge of your own case
*1.] BHAM parade ordinance: Had the petitioners attempted to apply to AL
courts for an authoritative construction of the ordinance, courts have given
licensing authority granted in ordinance a narrow & precise scope.
*2.] Injunction: Petitioners should have applied to AL courts to have injunction
modified or dissolved in order to raise constitutionality question.
*3.] Administration of parade ordinance: Had petitioners applied for a
permit to the commission or any commissioner after the injunction was issued,
and the permit was refused, the claim of arbitrary/discriminatory administration
would have been considered by state circuit court upon motion to dissolve
injunction.
MLKs theory: If judge articulates an unjust law, then I dont have to abide by it
The judicial order (injunction) is more sacred than the law (ordinance)
JUSTICIABILITY: requirement under federal law that a case be definite & concrete, that the
parties have real and adverse legal interests, and the dispute itself is admitting of specific legal
relief through a decree of conclusive character.
Doctrines:
1.] ripeness: controversy has already erupted; the legal issue is in a concrete
context
o Imminence is necessary:

Society should not be reactionary but should wait for harm to

have occurred
Waiting for full-blown injury means you dont have to engage
in worst case scenario prediction
2.] standing: whether or not has demonstrated that he/she is among the
injured.
3.] mootness: you have to have standing which continues for the duration of the
lawsuit
4.] requirement to avoid feigned or collusive cases: must actually desire to
assert interest; no test/hypothetical cases
***COSTS OF LITIGATION: Attorneys fees
Rule 54: loser pays winners litigation costs under certain circumstances
Certain costs: transportation of witnesses, filing fees, photocopying, etc.
English rule: fee shifting; encourages lavish spending; exonerated should not
be impoverished by the cost of mounting a successful defense; if knows they
are bringing a frivolous lawsuit, he wont bring dubious claims; problem: poor
people are discouraged from filing lawsuits
American rule: parties bear their own cost of litigation and attorney fees;
encourages conservative spending; encourages settlement; contingent fee
mechanism allows poor people to bring suits.
Venegas v. Mitchell (1990): Facts: in the suit and attorney agreed on a contingency
fee contract of 40%. Contract allowed attorney to apply for and collect any attorney fee
award made by the court, prohibited from waiving attorneys right to court-awarded
attorneys fees, and allowed attorney to intervene to protect interest in fee award. Rule:
A civil rights is obligated to pay the contractually obligated contingency fee, even
if the attorney receives a statutory award.
Purpose of 1988: for civil rights to secure competent counsel -> depriving
s of option of promising to pay more than statutory fee would not further the
statutes purpose
Concept of reasonable attorneys fee is elastic: in this case they used the
lodestar method (reasonable rate * hours worked; doubled b/c of competent
work by the attorney)
American system: lawsuit must be frivolous in order for the fee-shifting to
occur.

III. PLEADING: describing & defining the nature of the dispute between parties
HISTORICAL EVOLUTION OF PLEADING:
o Single Issue Fetish: A case was postured for resolution once the parties were deemed to be at
issue.
One could challenge technical sufficiency of the complaint (demurrer) or deny substance
of allegation (traverse)
Lawyer back in the day would try to keep the case at pleading and look for technical
deficiencies -> cases turned on lawyerly manipulation rather than merits of the case
Lawyers would sometimes bet wrong and challenge case on technical rather
than substantive merits
Writs: One had to fit the case into a specific form of action; choose writ carefully at the
outset
o Common Law Pleading: Abolishes writ system & eliminates the distinction b/w law and equity
Other side must be given notice
o FIELD CODE: exists at the state, not federal level -> courts fetishize facts & avoid need for
excess facts

Gillespie v. Goodyear Service Stores (1963): Facts: alleged in complaint s

trespassed upon the premises occupied by s residenceassaulted the and placed her
in great fearcaused her to be seized and exhibited to the public as a prisoner. Rule: A
demurrer will be sustained if s complaint does not state facts sufficient to constitute
any cause of action.
Complaint alleges legal conclusions, not facts -> Other side must have adequate
notice of the nature of the lawsuit
Complaint needs: what occurred, when it occurred, where it occurred, who did
what, relationship b/w and or of s inter se.
Fact-specificity: meant to prevent frivolous lawsuits; its hard to prevent stating
things in a conclusory manner
Lawyers screwed up the complaint: dont want to replead b/c they dont want to
admit to that
o FEDERAL RULES which govern modern pleading:
Rule 4: civil action is commenced w/ filling of complaint
Rule 7: defines pleading pleadings consist of a complaint, an answer, and a reply;
everything else is a motion
Rule 8: outlines general rules of pleading
8(a)(2): A pleading which sets forth a claim for reliefshall contain a short
and plain statement of the claim showing that the pleader is entitled to
relief.
Requirements for specificity in pleading depends on the theory of the case ->
more specificity if the legal theory is in question. Generality is beneficial b/c
you may not know every legal argument that supports your case until you go
through discovery; leaves room for the case to grow.
Discovery encourages less specific statement of case.
Rule 10: describes form of pleading
SPECIFICITY [Rule 12]:
o United States v. Board of Harbor Commissioners (1977): Facts: Government states in
complaint, the s, and each of them, own and operate offshore facilitiesfrom which oil was
discharged into the Delaware Riveror the s, and each of them, took actions which caused
such oil to be discharged. s filed Rule 12(e) motion for a more definite statement. Rule: It is
improper to use a Rule 12(e) motion to obtain admissions from a claimant in the hopes of
clearing the way for a later Rule 12 (b)(6) motion to dismiss for a failure to state a claim.
Government sues everyone who owns a company on the water -> s say this is not
specific enough
s need more information before filing Rule 8 (b) [requires to admit or deny
averments upon which the adverse party relies]; s are trying to find out what the
government knows b/c they dont know if they were the ones caught this time around
s motion for a more definite statement is an effort to flesh out the governments case
Affirmative defense: Act of God caused oil leakage
12 (e): court does not allow it b/c it is harassing to s and wastes time.
o Mitchell v. Archibald & Kendall (1978): Facts: shot sitting in his truck after being directed to
park truck across the street from the s loading dock. alleges loading dock was an extension
to s premises. Rule: Where the refuses to file a Rule 15 motion to amend the complaint, and
instead elects to stand on a flawed original complaint, he has relinquished any alternative legal
theory on appeal.
s fail on the question of law regardless of how it is plead: according to ALI, premises
limited to actual property possessed by business
Court will not supply w/ alternative legal theory; he must supply it himself

Sufficiency of a complaint rests on the sufficiency of some legal theory: s duty to

supply a legal theory. ( could have suggested extended premises theory; instead,
set forth a new theory of liability)
Pleading specifically: if attorney is working on contingent fee basis, he will know
sooner rather than later whether legal theory will be tossed
Pleading generally: force the other side to do more research & delay the case
Litigation is organic: you dont know all the details or what the winning argument is up
front
RULE 9: HEIGHTENED REQUIREMENTS FOR SPECIFICITY
o Rule 8 sets out general rules -> Rule 9 creates exceptions
o Rule 9(b): In all averments of fraud or mistake, the circumstances constituting fraud or mistake
shall be stated w/ particularity. Malice, intent, knowledge, and other condition of mind of a
person may be averred generally
o Rule 9 encourages 1.] innovation & investment in innovation; absent some sort of check, 2.]
lawsuits hurt investors in a corporation; 3.] reputation interests
o Rule 9 tries to limit the in terrorem value of lawsuits: the court wants to throw out frivolous
lawsuits; it doesnt like the idea of shareholders being able to cripple companies
o Ross v. A.H. Robins Company (1979): Facts: s purchased common stock of company. Prior
to close of class period, disseminated statements to investing public detailing safety, efficiency,
etc. of Dalkon Shield. s charge that s knew or recklessly disregarded the fact that there were
serious questions as to safety and efficiency of Dalkon Shield during class period. s point to
study during class period discussing negative side effects. Rule: Where s aver actual
knowledge, must specifically plead a factual basis for their conclusory allegations regarding
that knowledge, giving a proper timeline.
needs to bridge the connection b/w s and negative report; fail to indicate when s
came into possession of safety information.
Ruling is inconsistent w/ Rule 9, which says knowledge only needs to be plead
generally.
could have plead: Manufacturer such as has an R&D department; they should have
known that there were some risks associated w/ it [Gabriellson maybe contacted them]
o Cash Energy, Inc. v. Weiner (1991): Facts: s alleged environmental contamination of property
by corporations. s allege in complaint that at all relevant times, these four actually
participated in and exercised control over the affairs of one or more of the corporate s. Rule:
Despite the wording in Rule 8(a) in regards to pleading, particularity in pleading which involves
an outline or summary of facts, is necessary in todays courtroom.
Rule 8(a)(2): A pleading which sets forth a claim for relief shall contain a short and
plain statement of the claim showing that the pleader is entitled to relief.
Rule 8(f): All pleadings shall be so construed as to do substantial justice. - requires
judges to exercise some degree of discretion
Environmental violation: consequences could be severe; defense against a nonmeritorious claim can be very expensive
Keaton: rules of pleading have become less generous over the years (9(b), 8(f), 12(e));
s essentially wont know the rules of the game until they try to plead
Judges are shaping policy at the pleading stage -> using procedure to shape
substance
Rules are not supposed to be case specific; judges shouldnt be allowed to
make procedural decisions on the fly
o Leatherman v. Tarant County Narcotics (1993): Facts: Two separate incidents involving
execution of search warrants by local law enforcement officers. Rule: Unless enumerated by the
Federal Rules (Rule 9), the court can only enforce the notice pleading standard.

The Federal Rules have already enumerated the situations in which there is a need for
particularity.
For now, Federal Courts must rely on summary judgment and control of discovery to
weed out unmeritorious claims.
Rule 9(b) does not mention civil rights actions -> should be able to say specifically I
dont know but this is what happened to me
Court seeks clarity in pleading requirements
Rule 7(a): court may order a reply to an answer; the court can then require greater specificity on answer
CONSISTENCY & HONESTY IN PLEADING:
o Rule 11: authorizes the sanctioning of counsel for bad faith in filings of pleadings or motions
(pleading: representation by council that all facts were made in good faith)
1983 Amendment: required council to investigate all claims and investigations;
presented a problem for many types of lawsuits especially civil rights s since
much of the evidence was in the hands of the
1993 Amendment: changes standard from good faith -> reasonableness under the
circumstances; now sanctions are to be tailored to the specifics of the case to ensure that
particular types of lawsuits (civil rights) are not to be deterred; monetary sanctions
discouraged
11 (b)(1): harassing & causing unnecessary delay
11 (b)(2): adequate legal inquiry
11 (b)(3): adequate factual inquiry
Monetary sanctions are discretionary (limited by the nature of the remand)
Non-monetary sanctions: referred to Bars committee for misconduct; banned from
courtroom; very public reprimand reputation sanctions
o Zuk v. Eastern Penn. (1996): Facts: Zuk, psychologist, had two family session taped by EPPI.
EPPI duplicated films and rented them through their library. Zuk demanded film back. Zuks
attorney filed lawsuit based on copyright infringement, which he had weak grasp of. Zuk had no
factual evidence other than conjecture. Holding: Sanctions proper under Rule 11 (b)(2) and (3).
Rule: When imposing sanctions under Rule 11, the court must take into count the s &
attorneys investigations into both fact and law, and should consider a wide range of possible
sanctions to offer minimum punishment.
Discovery: not intended to permit speculative pleading of a case first and then purse
discovery to support it
11 (c)(1)(a): safe-harbor provision sanctions may only be imposed if the violator has
been warned and given an opportunity to desist (21 day grace period); in this case, the
attorney waived his 21 day period b/c he stated he wouldnt withdraw in oral
arguments [only applicable w/ motions brought by one party, not by courts own
initiative (c)(1)(b)]
o Rule 11 (3): the allegations and other factual contentions have evidentiary support or, if
specifically so identified, are likely to have evidentiary support after a reasonable opportunity
for further investigation or discovery.
o McCormick v. Kopmann (1959): Facts: McCormick killed when truck operated by Kopmann
collided w/ him. McCormicks wife brought suit, pleading in the alternative in two counts.
Count I alleged Kopmann was negligent and drove his car over center line. Count IV alleged
Huls sold McCormick too many beverages which rendered him intoxicated, causing him to drive
his car into Kopmann. Rule: Where the does not know which of the inconsistent averments is
true and which is false, the alternative counts are allowed.
Policy reason: controversies settled and complete justice in single action
, in good faith, does not know which of the averments is true and which is false; key
witness is deceased.

If the suits were joined, there is the possibility of inconsistent results; furthermore, each
party would blame the other. Good for in this case, b/c jury will perceive its role as
having to decide b/w the two, or possibly even both.
s PRE-ANSWER MOTIONS [RULE 12] pre-answer motions can file before answering
complaint:
o Rule 12 (b)(1): claim that a court lacks subject matter jurisdiction over a particular lawsuit
classification of case
Federal Question Jurisdiction & Diversity of Citizenship Jurisdiction
o Rule 12 (b)(2): personal jurisdiction of ; as a , you are objecting to courts authority to enter
judgment against you; whether court has authority to bind you
o Rule 12 (b)(3): venue objection to geographical location as to where the suit is being litigated
o Rule 12 (b)(4): service of process of ; technical violation
o Rule 12 (b)(5): (same)
o Rule 12 (b)(6): failure to state a claim
o Rule 12 (b)(7): defense that a necessary party be joined; answer does not need to be filed until
that party is properly joined
o Pre-answer motions: point out that /lawyer did something wrong -> why not sit back and
watch s screw up
o Rule 12 (g) [consolidation provision]: if a party has filed a pre-answer motion and omits Rule
12 pre-answer motions that are available, party may be barred from any more pre-answer
motions
o Rule 12 (h): established waiver regime of Rule 12
Rule 12 (h)(1): category of disfavored defenses (Rule 12 (b)(2-5)): these defenses are
going to be waived forever if they are omitted from pre-answer motion
Rule 12 (h)(2): category of favored defenses (Rule 12 (b)(6,7)): these defenses can be
asserted in pleading if they are not asserted in pre-answer motion [can also be made at
motion for judgment on pleadings; trial on merits]
Rule 12 (h)(3): category of most-favored defenses; includes 12 (b)(1) motion
challenging subject matter jurisdiction (can be made whenever, including on appeal)
o ***When has filed a complaint and has not responded will seek 1.] entry of default, and
then seek to reduce default to 2.] judgment.
s DEFAULT: Rule 55 failure to answer
o Default: forecloses further litigation about s liability, but leaves open how much liability
o 55 (b)(1): [circumstances where an entry of default can be reduced to a judgment on the same
day] clerk can enter judgment if the claim if for sum certain -> if you can say specify amount,
clerk can grant judgment
o Shepards Claim Service v. William Darrah & Associates (1986): Facts: s attorney involved
in mix-up w/ secretary. Attorney thinks that extension of 45 days is tacked onto the 30 days
given to file answer. seeks default. Rule: Where there is no evidence of culpable conduct on
behalf of , the court leans on the side of leniency in assessing whether to grant default.
Holding represents uneasiness about granting actual relief in a non-adversarial setting ->
this is about people fighting for the truth
System compensates by asking judge to take a more active role in scrutinizing the claim
judicial activism protects -> conflicts w/ supposed neutrality of judges
files formal notice of appearance to contest s damages: He is entitled to three days
notice before the hearing on a default judgment by the judge
Three factors in deciding whether or not to set aside default:
1.] whether it will prejudice [in this case there has been no preparation
prejudice]
2.] does have a meritorious defense [want to have case resolved on merits
rather than technical issues; do you have a decent defense?]

3.] culpable conduct of [lawyers conduct was careless and inexcusable; still,
this is an ambiguous standard court does not want to have dispositive
standard]
Bottom line: client should not be punished for lawyers screw-up

s ANSWER:
o Requirements when answering complaint: Rule 8 (b) you have to admit or deny the averment;
if you are w/o particular knowledge to admit, you should deny based on insufficient knowledge
o may want to assert additional matters to defeat s claim, assert his claim against (counterclaim), bring another party into the litigation (cross-claim/third-party claim)
o Rule 11: when you sign pleading, you are saying that you have written your response in good
faith; you must at least engage in a preliminary factual inquiry so that at least your denials are in
good faith
o s averment treated as true after files an answer
o David v. Crompton & Knowles Corp. (1973): Facts: averred that it was w/o sufficient
knowledge or information to admit or deny the allegation later discovered it was not liable
for the machine; information was w/in its control the whole time. Rule: Where knowledge is
peculiarly w/in control and knowledge of , an averment in complaint stating it is w/o sufficient
knowledge or information is deemed admitted.
Court is unsure what to do in this situation; better response: file a 12(b) motion for a
more definite statement clean up averment to respond better
General way to respond to complaints: deny everything that you possible can; admit
only what you cannot in good faith deny
o Affirmative Defense: Gomez v. Toledo (1980): Rule: Where qualified immunity benefits the ,
he has the burden of raising the affirmative defense.
Affirmative Defense: even if the allegation is proven, there is an excuse that is
recognized under the law
1.] policy avoid fishing expeditions; 2.] fairness (does it seem right to impose burden
of pleading affirmative defense on ); 3.] probability (in the normal lawsuit, what is
typically plead)
If does not assert affirmative defense, it has been waived -> can be raised in an
amended answer though
s COUNTERCLAIMS:
o Rule 13: If the s claim arises out of the transaction or occurrence that is the subject matter of
the opposing partys claims, then if certain other requisites not here pertinent are met, it is
compulsory.
Compulsory claims: claims ancillary to the claim asserted in the complaint and no
independent basis of federal jurisdiction is required. [must be filed w/ original claim]
Used for consistency of outcome
Common sense approach to deciding whether claim is compulsory: similarity
of events
o 1.] There must be a logical relationship (flexible standard) -> same
transaction or occurrence
o 2.] Bose test: same evidence standard -> If you have to use different
evidence to support counterclaim as to primary claim, it is permissive
Rule 13 (g): there is no such thing as a compulsory cross-claim -> court does
not want to put s in position of weakening each others cases for the benefit of
the
o Indemnity: insured sues insurer for indemnification; only time a
cross claim b/w insured and insurer occurs is when the s claim
against the insured is going to succeed

Permissive claims: counterclaim is unconnected w/ transaction out of which primary

claim arose & independent jurisdictional grounds are required [not required to be
filed w/ original claim of ]
is required to assert independent basis for subject matter jurisdiction
Does not arise out of same transaction or occurrence
Set off: is not seeking affirmative relief but instead to reduce s recovery
o Damages must be liquidated and grow out of contract/judgment
o Wigglesworth v. Teamsters (1975): Facts: alleges union and president violated certain of his
rights protected by Act, as he was prevented from exercising his right to free speech at union
meetings and was denied request to have union membership informed of their rights. Rule:
Where the same evidence cannot support or refute the opposing claims, the counterclaim is
deemed permissive. Furthermore, the set off rule does not apply to the permissive
counterclaim if damages are not liquidated and grow out of contract or judgment.
Subject matter jurisdiction on s claim: it is a federal question; s counterclaims are
not federal claims they arise under state common laws [tort]
Logical relationship: Bracey uses a but for test but for the first event, the second
event would not have occurred
s counterclaim divided into two parts: 1.] technical aspect of abuse of process
(separate evidence); 2.] malicious motive (there is an overlap)
o Abuse of process: using the law wrongly; asserting a malicious claim w/ bad motives
Issue is not whether the underlying suit has merit, but whether process is used for some
collateral purpose -> Malicious prosecution relies on the same evidence
VOLUNTARY DISMISSAL: RULE 41
o Rule 41: places limits on circumstances where can dismiss his/her own lawsuit
41 (a): voluntary dismissal (i) allowed before answer or motion for summary judgment
[must be signed by all parties or court order]
41 (b): involuntary dismissal
41 (c): counter, cross, & third party claims
41 (d): recycle claim
o Reasons for Rule 41:
1.] court becomes invested & we do not want to waste judicial resources
2.] If judge invests some energy, it seems wasteful for to pull case
3.] s should not be able to shop around for most sympathetic judge
4.] Acknowledge that being is burden of some experience
o Systems approach to voluntary dismissal: system does not care about s ability to abort a
lawsuit except to the extent that the system has been invested in the lawsuit
o Structural biases against once expenses in the litigation process rise
o Only one dismissal by notice, second is considered w/ prejudice
o D.C. Electronics, Inc. v. Nartron Corp. (1975): Facts: Upon filing suit, obtained TRO and
scheduled hearing for preliminary injunction. After TRO was dissolved, withdrew its request
for a preliminary injunction and thereafter gave notice of voluntary dismissal. Rule: The courts
decision on a TRO has no impact on a motion for voluntary dismissal.
Harvey: preliminary injunction hearing had been held; court stated could not abort
lawsuit; judicial expenses in litigation [merits were reached since preliminary injunction
was denied]
Rule 41(a)(i): clear and ambiguous; no room for judicial ambiguity according to the
court
Merits in this case were not reached
can protect himself by filing answer or motion for summary judgment
AMENDMENTS TO PLEADING:

10

o
o

Rule 15(a): A party may amend the partys pleading once as a matter of course at any time
before a responsive pleading is served or, if the pleading is one to which no responsive pleading
is permitted and the action has not been placed upon the trial calendar, the party may so amend it
at any time w/in 20 days after it is served. Otherwise, a party may amend the partys pleading
only by leave of court or by written consent of the adverse party; and leave shall be freely
given when justice so requires.
Strong presumption created that amendments should be allowed -> up to the discretion
of the judge
Rule 15 motions are going to be granted b/c system wants resolution on the merits
Jacobs: action filed before statute ran, but amendment was filed after statute ran
There must be an excuse as to why you didnt plead accurately at time of pleading; if
not, you cant amend
Rule 15(b): Amendments to conform to the evidence -> if we are going to resolve all the
dispute on the merits, we should exhaust all of the claims of liabilities
David v. Crompton Knowles Corp. (1973): Facts: s denied on grounds of lack of knowledge of
s allegation that it designed, manufactured, and sold machine. now seeks to amend pleading.
Rule: Where the would suffer prejudice from an amended complaint, including a barring from
instituting an action against another party, and the has been lead to believe the s pleadings,
an amended complaint will not be granted.
Prejudice Arguments:
Statute of limitations: delay would result in s statute of limitations running,
prohibiting from instituting action against another party
cannot be considered negligent for not discovering s alleged defense -> if
had given indication of defense earlier, would have been given sufficient time
to investigate relationship b/w and Hunter
cannot get to evidence which is no longer available
Substantial preparation costs for some issues
Passing of time: prejudice per se; memories fail, recollections weaken
Possibility: Hunter could determine from face of complaint that wanted to sue it ->
should be allowed to make an amendment to relation back
Rule 15 (c) [relation back]: 1.] amended pleading arose of same conduct
transaction, occurrence in original pleading ; 2.] party will not be prejudiced in
maintaining defense on merits; 3.] knew or should have known that, but for a
mistake concerning identity of proper party, action would have been brought
against party
RULE 15 (c): Swartz v. Gold Dust Casino, Inc. (1981) [Liberal Interpretation]: Facts:
injured in fall of staircase. s listed in complaint included Gold Dust and Does I V. alleged
that negligently permitted staircase to become tread bare, worn, and slippery. After hiring
engineering consultant and finding out that stairway did not conform w/ local building code,
prayed to amend complaint and substitute Cavanaugh for Doe I. [After statute of limitations has
passed] Rule: For a relation back of amendments to be brought, 1.] the claim asserted in the
amended pleading must have arisen from the conduct, transaction, or occurrence set forth in the
original pleading; 2.] the new must have received notice of the action w/in the limitations
period; 3.] the new should have known that but for the mistake concerning the identity of a
proper party, the action would have been brought against him.
Court looks to prejudice, not delay
Same transaction/occurrence: Broader test than the one used in counterclaims -> it
includes conduct/duty; from s perspective test, she looks to occurrence (I fell, what
difference does it make how I did it); if the test is same evidence, she loses
Court applies violation of same obligation test same basic injury but different mode
in breach of duty of care (Blair)

11

Notice: In CA, if you knew anything about the lawsuit at all, that was enough; potential
should be able to rest easy if statute of limitations has run -> prejudice results from
lost evidence
Foster flexibility in pleading as long as it does not jeopardize the purpose of
the statute of limitations, which are:
o 1.] Notice: want parties to have fair notice of the nature of the
suit/breach
o 2.] Avoid prejudice that occurs b/c of destruction of time sensitive
evidence
Restrictive rules of relation back:
1.] Someone who knows identity and something about additional party is denied
relation back
2.] If mistake is a result of deficit of actual knowledge and not identification,
there is no relation back.

ESTABLISHING STRUCTURE & SIZE OF DISPUTE:

Rule 17 (a): every action must be prosecuted by real party in interest
o Party must be entitled to benefits in action and must be substantially interested in action
o Protects the interests of the : works to ensure that the is not wasting his time w/ a particular
lawsuit
o Res judicata: claim or issue preclusion -> once lawsuit is resolved, that is it
Rule 18 [JOINDER OF CLAIMS]: bring all types of unrelated claims against single in single lawsuit
o Policy reason: efficiency -> why not let all claims be resolved at once
o There is no guarantee that there is going to be a single trial for all at once -> the court has the
power to sever claims tried [Rule 42: court can sever a claim if it is convenient & it avoids undue
prejudice towards the ]
PERMISSIVE JOINDER OF PARTIES:
o Rule 20 (a): relief jointly, severally, or in respect of arising out of the same transaction,
occurrence, series of transactions or occurrences
There must be a sense of relatedness
o Kedra v. City of Philadelphia (1978): Facts: Series of brutal acts committed by Philadelphia
policemen against s. allege s as City of Philadelphia, Police Commissioner, and various
police officer and officers. One specific event might involve different actors then the others.
Rule: Where the events which give rise to s claim arise out of the same transaction yet may
cause prejudice to some of the s involved, the judge may wait until after discovery to decide
whether to separate trials or make other orders.
Transaction test: events occur in systematic pattern -> this can extend over a long period
of time
Judges may be more liberal in civil rights cases -> concrete evidence of abuse, however
(claims are reasonably related)
o Insolia v. Phillip Morris (1999): s claim that there was a tobacco industry-wide conspiracy to
defraud consumers about the addictiveness of cigarettes. The allegations are well supported by
facts. Rule: Where there are multiple s, the events spanned over a long period of time, and
different facts are needed to prove different cases, s claims should be separated. [is this really
different from Kedra?]
Advantage to s of severed claims:
s wanted joinder to pool litigation costs; if they are split up, they have to bear
litigation costs fully
Protective orders: isolate s informationally
s conspiracy claims look more suspicious if they are brought individually
Court is concerned about trial management:

12

Judicial resources would be wasted b/c of juror confusion.

COMPULSORY JOINDER OF PARTIES:
o Rule 19: someone not a party to the lawsuit SHOULD be joined
o Janney Montgomery Scott v. Shepard Niles (1993): Facts: , an i-banking corporation
organized under Penn law, files a federal court claim against Shepard Niles, which is
incorporated under NY law. District Court granted Niles Rule 12 (c) motion for judgment on
pleadings for failure to join Underwood. Janney & Underwood entered into i-banking
agreement; Janney served as advisor to Underwood and its subsidiaries, including Niles. Rule:
Steps to Rule 19:
1.] Ask whether the party is necessary:
o 19 (a)(1) [in the persons absence complete relief cannot be accorded
among those already parties.] -> Contract b/w Underwood/Niles looks
like joint and several liability
o 19 (a)(2): or the person claims an interest relating to the subject of the
action and is so situated that the disposition of the action in the persons
absence may...
(i) [disposition of the action in parties absence may impair or
impede the absent persons ability to protect that interest] ->
1.] Court says it is possible Niles might not even be held liable
in federal action; 2.] stare decisis there may be persuasive
but no mandatory effect [courts argument doesnt make sense
b/c federal law is typically precedent over state law] 3.] only
portion of contract (breach) would be resolved; 4.] there is no
risk of double liability -> issue preclusion only applies to
parties in privity or persons in private action
If Underwood wanted to, it could seek to intervene
under Rule 24 and argue that it wants to intervene to
protect its interest -> supplemental jurisdiction
(ii) [leave any of the person already parties subject to a
substantial risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of the claimed interest] ->
Presumably, Niles can sue Underwood after judgment for
contribution; question is whether Niles will be found liable in
federal action, then liable again in state action
2.] Ask whether the party is indispensable: nonseverable and failure to join
means action is dimissed
IMPLEADER: -> -> 3rd party
o Rule 14(a): Impleader is proper only if third party is or may be liable to for all or part of the
s claim against the .
o Clarke v. Associates Commercial Corp. (1993): Facts: s property and body assumed damages
arising out of s agents repossession by force, of a tractor. alleges it hired, Howard, who
subcontracted w/ Clark to repossess unit. s filed third-party complaint seeking indemnity from
its employee and two parties who assisted in repossession. Holding: Indemnity to third-party s
is allowed. Rule: For a to implead a third party , there must be similar transactions or
occurrences between the original action and third-party suit.
Third party claim does not need to be based on the same theory as the main claim
s allowed to plead in alternative [Rule 8]: 1.] there is no agency b/w them and 3rd
party -> we are not liable for them; 2.] they are our agents
Connection b/w original action & third party action: derivative liability suit -> one event
gives rise to subsequent cascading liability (3rd party is responsible for the tortious

13

conduct that gave rise to the original suit and the is being held vicariously liable for
actions of the 3rd party )
Does the relationship b/w the three parties make a convenient trial package?
Can file plea for damages against third-party s even though the claim is unrelated to
claim giving rise to 3rd party claims -> Rule 18: once you bring someone into the
courtroom , you can bring whatever you want
Could file suit for diminished value against 3rd party -> Rule 20
INTERPLEADER: mechanism through which , who is potentially subject to multiple claims of
recovery from a limited liability pool, can require all potential claimants to join in a single action
o State Farm Fire & Casualty Co. v. Tashire (1967):
Rule 22: requires interpleading party to show that there is a risk of multiple liability ->
in this case, State Farm has a suit w/ -1 from CA seeking $20,000 and a suit w/ -II
from OR seeking $20,000, so State Farm could have to pay twice
In reality, State Farm probably does not have this risk b/c it has limited liability
capped at $20,000. Nevertheless, it needs to file this interpleader or otherwise
spend the litigation costs defending itself in 35 other claims.
Interpleader action does protect the shares of the claimants -> claimants here are
sufficiently adverse (each wants a piece of $20,000)
State Farm does not have to wait for claims to be reduced to judgment before
brining interpleader action -> first claimant to obtain judgment would
appropriate all or disproportionate share
Greyhound: switched sides in case; initially wanted some money from State Farm; now
wants everyone to sue them now given their specific amount of money (argument
rejected)
Passengers cannot be treated as Rule 19 compulsory parties: Canadians arent held
under American Federal Jurisdiction
Interpleader does not function as a bill of peace: pro-rata share would be unfair for
s w/ larger damages;
INTERVENTION: litigation devise employed by an outsider who has an interest in a lawsuit and wants
to voluntarily join as a party [Rule 24]
o Rule 24: anyone shall be permitted to intervene in an action: 1.] when a statute of the
United State confers an unconditional right to intervene
o Natural Resources Defense Council v. U.S. Nuclear Regulatory Comm. (1978): Facts: Federal
statute requires impact statements for issuance of licenses for operation of uranium mills by
NRC. NRC, however, does not prepare such licenses when it has agreement w/ state. s want
application of federal regulations in full force. NRC has agreement w/ New Mexico, who issued
license to U. S. Nuclear w/o need for impact license. American Mining Congress & KerrMcGee, two other uranium mills in NM seek to intervene. Rule: When granting an applicants
motion to intervene, the court looks to 1.] whether the applicant has an interest which would be
impaired by the outcome,2.] the chance of the impairment, and 3.] whether one of the parties
adequately represents the applicant.
Rule 24 (use of property or transaction; interpreted broader even though
grammatically it should be interpreted more narrowly) vs. Rule 19
Economic interest captures the courts attention: Kerr-McGee has a general interest
(Court makes a tacit judgment about who the real players are)
Allard v. Frizell: general interest of the public in protecting birds is not a
protectable interest
o Profit motive: valid; environmental concern: invalid
o Amicus curiae: brief by intervenor cant bring issues before the court;
only speak when spoken to

14

Impairments [Rule 24 (a)(ii): the disposition of the action may as a practical matter
impair or impede the applicants ability to protect that interest, unless the applicants
interest is adequately represented by existing parties.]
United: license was being held up in litigation
Kerr-McGee: concerned w/ general requirements
o 1.] interests: KM concerned about how business is going to change ->
requirement of license; termination of agreement b/w NRC & state
o 2.] chance of impairment: There might not be a stare decisis affect:
the case might be settled, but NM might be forced to change legislation
as a result; considerations in the future for requirements of
environmental impact situation might be relatively the same
o 3.] Inadequate representation: United could settle case for 25 year
license; licenses could be issued prospectively
CLASS ACTIONS: Rule 23
o Basic inquiry is comparable to a decision as to whether a party is necessary; class action inquiries
are much more factual (difficult to make generalizations about type of cases)
o Denial of certification results in suit continuing on individual basis
o Benefits to : 1.] cheaper; 2.] easier to litigate; 3.] finality
o Disadvantages to : 1.] might not only be liable for damages, but attorney fees as well; 2.]
Atmospherics: looks bad if there are bunch of people accusing you of something; 3.] Fighting
class certification is itself a delay tactic
o Hansberry v. Lee: Facts: s bought and moved into home in Chicago, covered by racially
restrictive covenant. Owners of neighboring homes brought suit to oust s. Trial court stated
they were bound by previous decision in Burke, which held that restrictive covenant was
enforceable. s in Burke stipulated that proper number of signatures had been received on
covenant, but changed circumstances made sale legal. Rule: For members of a class to represent
others, they must first be designated a class and have the same interests as others.
Hansberry s (long term purchase of property) and Burke s (short term rental) did
not have same interests
s in Burke
Benefit of class action to : can foreclose and bind parties that do not
participate in litigation; comparatively, litigation is typically binding only on the
people who participated in the litigation
Burke s mistakenly said that 95% of owners in the area signed the covenant
-> this objection can always be raised by future members of the class action
(must not allow mistakes to be the basis for disallowing representation b/c it
undercuts the very purpose of class action litigation)
Rule 23 (e): Courts should scrutinize all class action settlements to prevent unfairness
Court is looking out for the class as whole
Bands Refuse: shouldnt judges by detached umpires and not get into the
business of forcing settlement or even making sure settlement is fair
o Holland v. Steele (1981): Facts: Civil rights action. , GA jailhouse, restricted s access to
counsel and to courts in civil matters. filed class action pursuant to Rule 23(a) and Rule 23(b)
(2); seeks to have certified as a class all persons who are/will be detained by . argues class
certification is inappropriate, b/c jail is composed of both pre-trial detainees and sentencees.
Rule 23(a) Prerequisites of Class Action lawsuit:
1.] class is so numerous that joinder of all members is impracticable [is there a
good reason to depart from case-to-case litigation/Numerosity]
o There are unidentifiable inmates at class certification -> joinder of
unknown individuals is impracticable
2.] there are questions of law or fact common to the class

15

Common factual questions: acts, omissions, policies of s in denying

access to counsel
o Common questions of law: violations of 6th, 14th Amendments & GA
Constitution
o Link of similarity analysis w/ concern over judicial economy
3.] the claims or defenses of the representative parties are typical of the claims
or defenses of the class [are the individual class s the right structure for the
litigation]
o Possibility if there is not sufficient typicality: break class up into subclasses
o s policy applied across the board
4.] the representative parties will fairly and adequately protect the interests of
the class
o s representative is statewide legal program
Rule 23(b)(1): most concerned about s -> might be subject to multiple
liability/lawsuits
Rule 23(b)(2): the party opposing the class has acted or refused to act on grounds
generally applicable to the class, thereby making appropriate final injunctive relief or
corresponding declaratory relief w/ respect to the class as a whole.
Rights pertain to both detainees and sentencees
Smith v. Western Electric: probably could not have brought suit under this, b/c
seemed more effected by the smoke
Rule 23(b)(3): money
Eisen v. Carlisle & Jacquelin (1974): Facts: , odd lot trader, filed class action lawsuit on behalf of
himself and other odd-lot traders on NYSE, a class of roughly 6 million. Holding: Individual notice is
required to be sent to all class members who can be identified w/ reasonable effort. Petitioner must bear
cost of notice to this class.
o Rule 23 (c)(2): requires individual notice to all members who can be identified through
reasonable effort. -> notice is not a discretionary consideration
o Court cannot conduct a preliminary inquiry into merits of suit and assign costs of notice
Contrary to Rule 23 (c)(1): court must determine whether a suit dominated class action
may be maintained as such as soon as practicable after commencement of the action.
Little difference b/w assigning costs and TRO or preliminary injunction; costs are
arguably higher to s in those situations
Bottom line: Courts impose burdens on s w/ peak at merits
o Notice: provides potential claimants the opportunity to opt-out if they dont want to be part of the
class
Intervention: may be tough to intervene; representation has already been found to be
adequate cutting against the second factor of Rule 24 (1.] parties themselves do not
adequately represent you; 2.] judicial review does not sufficiently represent your claim)
o Bracey: lawsuit like this should be allowed to be brought -> we dont want to create a system
which immunizes wrongdoers from liability
o Court typically peaks at merits anyways -> usually court is going to determine prior to class
certification whether states a claim
o

DISCOVERY
Assuming the case cannot be dismissed, claims of parties have been identified, and structure of litigation
has been set up -> move to discovery
Purposes:
o 1.] obtain a certain amount of pre-trial disclosure of evidence (parties have deeper understanding
of nature of litigation) -> this eliminates surprise

16

Risk of surprise is a catalyst which precipitates the truth; it will put subtle pressures on
witnesses to come clean
o 2.] Preservation of evidence that might be lost before trial -> we can keep everything such that
we may need it at trial .
o 3.] provides a mechanism for narrowing the issues of the dispute
Expected value of litigation: Probable value discounted by likelihood of judgment minus costs E = (P*J)
C. [discovery facilitates chances of reaching expected value]
How it works:
o 1.] scrutinize the complaint -> give enough information to put him on notice, nothing more
Manage discovery in what you expose
Other side, try to get a peek at it
o 2.] Initial disclosure: comes before anything else [Rule 26]
Dont have to turn over facts harmful to the case, but you have to disclose relevant
material
Rule 37 (c)(1): failure to disclose in the initial disclosure prevents ability to use evidence
later
Rule 26 (e): duty to supplement -> constantly give things up
Jumpstart the litigation: whose needed to get the litigation going
Give over any piece of information that supports your case -> determined by facts and
circumstances of the case
o 3.] Documents first: they dont lie & they are easy to destroy:
Document retention policy: keeping any class of documents away for a certain period
of time
Try to describe documents by categories -> a lot of the time you dont know what you
even looking for
Subject matter related
Types of documents: reimbursements
Helpful documents: calendars, expense reimbursements, things which can pinpoint a
person at a particular place
Rule 11: file when you dont get any documents
Opponent must give you ever document which supports the substance of their pleadings
Responding party needs to provide a written response of what will be provided and what
will not be provided
Assemble and review your documents before they are distributed:
Document review: cull out privileged material & what may not be responsive
to request
o 4.] Seek interrogatories: write questions and answer questions from the other side
o 5.] Depositions
Offer no additional information
o 6.] Admissions: once you have nailed the other side nailed down, you send other side document
saying you are going to admit to this
Clarifies the issue before trial
Unlike Rule 8, a party may only make claim of insufficient knowledge after a
reasonable inquiry
MANAGING SCOPE & BURDEN:
o Davis v. Ross (1985): Facts: seeks information concerning s net worth & annual income,
documents reflecting billing of law firms (how much attorney is getting paid to testify), and list
of employees who have complained to and nature of their complaint. seeks discovery of s
treatment w/ psychiatrist. Holding: 1.] must obtain special verdict that is entitled to
punitive damages against before he is allowed to obtain information regarding personal net

17

worth and annual income. 2.] Where a witness entire livelihood derives from employment by the
party for whom he testifies, courts still decline to infer bias from the mere fact of employment ->
deny motion to compel discovery of legal fees. 3.] When the mental or physical condition of is
an issue, the physician-patient privilege is waived and cannot be invoked to foreclose discovery
of relevant evidence.
Inquiry to decide whether Net Worth/Income is relevant: 1.] see what issues are raised
in pleading; 2.] ask whether the information which is sought relates to facts that are
a consequence to resolving those issues [common-sense approach]
Might be relevant in the fact that judge when assessing punitive damages
must assess the s ability to pay
could amend issue and stick in theory that wealthy people disregard the wellbeing of the lower class
Collateral purpose problem: people seek discovery for collateral purposes
(extort settlement out of someone)
Insurance coverage for defamation claim: now required on initial disclosure
Theory: wealthy people tend to disregard the rights of other people which is
relevant to a claim of defamation
Rupert standard: court might be concerned w/ information effecting jurys
decision
suffers from poor lawyering -> should have articulated a way to information she seeks
to complaint (Ross personal desires are relevant)
s lawyer could just have asked for names of people that she has fired in the
past
Payment to Attorney: Information seems relevant b/c attorney is going to testify that
Ross was good and Davis was bad
Psychiatrist Report: signals to other parties who have not yet filed defamation suits
that they are going to be in trouble -> information becomes public knowledge once
privilege is waived; may be able to sue for something said in psychiatric reports
Privileged information: more relevant than information in trial
Protective Order: other side signs an agreement that it will not use information outside
of scope of litigation
Kozlowski v. Sears, Roebuck, & Co (1976): Facts: severely burned when pajamas
manufactured & marketed by was caused to ignite. filed interrogatory seeking record of all
complaints & communications concerning personal injuries or death allegedly caused by burning
of childrens night-ware manufactured by . Rule: Where compliance w/ a Request for
Production would be costly or time-consuming, and this is a product of the deficiency of the ,
there is not sufficient reason for granting of protective order.
Rule 33 (d): allows you to produce all your documents; bury important documents and
shift the burden to the to find what they want [inefficient, b/c should bear burden]
-> option produce documents when answering an interrogatory
must show that burden is comparable b/w and
Possible Objections by Sears:
1.] Time frame: procure a time frame
2.] narrow scope of products requested
3.] complaint should be limited to people claiming serious injury
4.] geographic: Sears is a multi-national, which Sears are we talking about?
5.] Manufacturer is not Sears
Court doesnt like Sears challenge of impossibility: court will most likely challenge
them to show that it is impossible

18

Type of Discovery would not work in negligence case: negligence is concerned w/ one
particular case; selling defective product to multiple people does not prove that the
product sold to you was defective
Procedure might overcome substantive law [case wont be decided on the merits]:
cost of producing data is so outrageous that it is far too expensive when balanced against
the benefit the other party will get; will say if they are required to produce documents,
they will just settle
Collateral Purpose: Court doesnt want s to use discovery as collateral
purpose; court might take a preliminary look at the merits of the case to see if
the even has a chance to recover
EXEMPTIONS FROM DISCOVERY:
o Rule 26(b)(3):
o Hickman v. Taylor (1947): Facts: s attorney privately interviewed survivors and took
statements from them w/ eye toward anticipated litigation. Interviewed other people believed to
have information & in some cases took memoranda of what they had. Rule: Where relevant and
non-privileged facts remain hidden in an attorneys work product and where production of those
facts is essential to preparation of ones case, discovery can properly be had once the one who
would invade the privacy established adequate reasons to justify production through a subpoena
or court order. [opinion work product is protected, regardless]
Attorney-client privilege: does not work in this situation the witnesses work for the
attorneys client, but they are not the client.
Adversarial process: demolished when as in this situation one side does all the
work and just gives it up to the other side; the other side can easily obtain the
information themselves
If this were allowed, attorneys would never write anything down; it might even
require you to misrepresent what you have. [outcome of litigation is less
efficient and less accurate]
There is no cost to protecting work product: get the information through
interrogatories
Attorney becomes less of an officer & more of a witness
26(b)(3): Work product also applies to insurance adjusters: other people deserve
protection
could just: 1.] file interrogatory (ask the questions that elicits the facts fo the
statements made to the attorney); 2.] ask s to produce written documents & statements
upon proper showing; 3.] direct interviews w/ witnesses themselves.
o Upjohn Co. v. U.S. (1981): Facts: Accountants at discovered subsidiary made illegal
payments. conducted an in-house investigation, prepared questionnaires, and interviewed
recipients of questionnaires. Rule: 1.] The attorney-client privilege extends to employees other
than the upper echelon, such as mid-level employees who have an impact on a companys
future legal decisions. 2.] An extremely strong showing of necessity and unavailability must be
made before any work-product materials can be discovered.
Distinction b/w ordinary work product and opinion work product (mental impressions,
conclusions, legal theories)
Analysis turns on attorney-client privilege: Court wants to promote candid
conversations between client and lawyer; not entirely clear if candor is the real reason to
have privilege, since people will probably be honest anyways
Lawyers motivations: lawyer must have full internal investigation of matter
prevent him from having to testify against client
Client can go ahead and be deposed by s attorney himself underlying facts are not
privileged

19

Courts definition of client includes everyone who implements advice given by the
counsel down to low level management
May or may not include former employees
Control group test: members of senior management that guide multiple operations are
the client; CEOs members of the Board [too narrow according to Court]
Good formula: Control group (presumptively included) plus other individuals
(presumptively included), provided they meet the following criteria:
1.] information needed to supply factual basis of legal advice
2.] talk to employee about scope of duties
3.] employee knows he is getting questioned for purposes of rendering advice to
corporation
4.] employee understands conversation is confidential
o IN-HOUSE EXPERTS:
Rule 26 (b)(4)(a): the facts known and opinions held by non-testifying experts who are
retained or specially employed in anticipation of litigation or preparation for trial are
subject to discovery on in exceptional circumstances.
In re Shell Oil Refinery (1990): Facts: refinery blows up; experts working for Shell
take pictures and test the part that explodes; not allowed to discover interviews w/
experts not testifying at trial. Rule: 1.] Where employees are given tasks solely for the
preparation of trial/litigation - even if they were not compensated additionally given
exclusive assignment, or given tasks which help improve the companys
operation/product design, they are still considered specially employed. 2.] Where a
party seeks discovery of test results of s expert witness not testifying at trial b/c it is
too cheap to run the same tests, Rule 26 (b)(4)(a) does not apply.
Policy reason: dont want attorney to build a case off adversary
o should pay for its own experts
o Allowance of some discovery of expert witness so that can crossexamination of expert can take place
Rule 26(a)(2): requires expert to set out entire direct testimony that they intend
to give out at trial. [exhibits have to be disclosed; list of publications written in
last ten years by expert; list of cases expert has testified in last four years]
o b/c lawyers dont know what experts are going to say in their reports,
they arent named until the lawyer has seen the report
Rule 26(b)(4)(a): deposition of experts
Rule 26(b)(4)(b): applies to witnesses retained, but non-testifying
o Non-testifying experts in this case help s attorney figure out how to
litigate case -> similar to work-product
o Retain a non-testifying expert b/c if an expert is going to testify against
you, you want to retain them and make it harder on the other side since
they wont be able to use the expert
o Courts sanction shopping of experts
o Attorneys should be allowed the flexibility to change experts
By going in-house, Shell saves money; court likes that it is economical
Rule 45 [unaffiliated experts]: 1.] party may quash a subpoena of an expert
working in the area if that expert does not want to be called as an expert; 2.]
being an expert does not give you immunity from testifying as a witness -> if an
accident reconstructionist sees an accident, he can be called as an ordinary
witness, but he cant be called as an expert witness
INFORMAL DISCOVERY [Rule 26(b)(3) Investigation/Fact Gathering w/o Judicial Assistance]

20

Corley v. Rosewood Care Center (1998): Facts: conducted interviews w/ non-party witnesses
under oath & w/ court reporter present. Court held nothing in Federal Rules restricts counsels
private inquiry into facts underlying clients claim. Rule: The Federal Rules of Civil Procedure
do not prohibit parties from conducting interviews w/ non-party witnesses; instead, they only
concern whether statements are discoverable and w/ which the uses they may be put to trial.
Informal discovery w/o written record is the best
Informal discovery becomes work product -> underlying facts are discoverable,
however
Con: informal discovery cannot be used as evidence at trial; potentially harmful in that it
can be discovered by other side
First session w/ witness is unreliable -> witnesses dont remember things
properly
Dont want to formalize discovery of your own witnesses b/c witnesses get better the
more times they talk to a lawyer
If you want to nail down other side to a particular decision, formal discovery restricts the
ability of a witness to change his testimony at trial
MANDATORY DISCLOSURE & PROTECTIVE ORDERS [Federal Rule 26(c)]:
o Rule 26(a)(1)(c): requires to serve computation of damages
o Rule 37: Authorizes severe sanction in cases of willfulness, bad faith, and fault
o First step to secure sanctions: meet & confer w/ the other party; if the other party continues to be
dilatory , then you can go to the court to seek motion to compel
o Rule 37(a): second step to secure sanctions against opposition -> motion for an order to compel
discovery
37(a)(3): evasive or incomplete answers constitute a failure to respond
o Rule 37 (b): cannot get these sanctions if responds
o Rule 37 (c): allows further sanctions to be authorized by Rule 37 (b); failure to disclose justifies
sanctions w/o an order to disclose; requires meeting or attempted meeting before order to compel
is granted
o Rule 37 (d): complete and utter failure to respond
o Cine 42nd Street Theater Corp v. Allied Artists (1979): Facts: reached agreement w/ to defer
discovery on damages until it could retain expert to review rival box offices receipts.
Subsequently filed inadequate answers, failed to obey orders by the Magistrate, filed deficient
answers. Magistrate concluded willful conduct. Rule: Where gross professional negligence has
been found that is where counsel clearly should have understood his duty to court the full
range of sanctions may be marshaled.
Magistrate: authorizes severe Rule 37 sanction
Order to compel: typically oral (makes sense to be in writing, though)
Society Internationale Rule: Where the failure to comply is beyond the forces of control
of party which has not complied w/ the order, presumably that person cannot be
punished for failing to do what could not have done.
Fault: Court looks to whether failure to respond was due to willfulness, bad faith, or
fault -> draws the line at gross negligence
Sanctions punish both the client & the lawyer -> lawyer can be sanctioned independent
of Rule 37 (b) [Rule 11] -> Client could turn around and sue lawyer, but the system
does not want to encourage clients to be adversarial w/ lawyers
Purposes of Sanctions:
1.] Party will not profit from failure to comply
2.] deterrents which seek compliance deter specific party from doing this
again
3.] courts consider general deterrent effect orders may have on instant case &
on other litigation
o

21

Inconsistent w/ civil dispute resolution: dispute resolution is usually

b/w the parties and should not be used to solve public problems
o Consistent w/ civil dispute resolution: in order to assure that the courts
are seen as a fair way to resolve conflict, procedures need to be stable.
Bottom line: Ultimate sanctions are not warranted if the absence of compliance is due to
something beyond the partys control and not due to 1.] willfulness, 2.] bad faith; 3.]
fault
Contrast w/ default: party that doesnt answer complaint in a timely manner is treated w/ less
sympathy than party that doesnt comply w/ discovery
o

SUMMARY JUDGMENT: adjudication on evidence before trial -> no genuine issue as to any material fact
and moving party is entitled to judgment as a matter of law.
has burden of proving affirmative defense
Nature of burden of proof borne by movant: 1.] burden of persuasion; 2.] burden of production
o Burden of persuasion: burden of having to persuade a trier of fact as to accuracy of factual/legal
assertions (requires preponderance of evidence standard, 51%; qualitative)
When compared to the evidence opposed to it, the evidence asserted has more
convincing force than the opposite evidence.
o Burden of production: talk about quantum of evidence needed to keep case going (quantum of
evidence such that reasonable trier of fact could find for the movant)
Burden of persuasion & production lie w/ at beginning of lawsuit:
o Burden shifts to when he makes affirmative defense
o When presents enough evidence that reasonable trier of fact could find for him, and there is no
rebuttable evidence coming from , the trier of fact must find for -> judgment as a matter of
law: judge will step in and say you lose (Rule 50); non-movant fails to meet burden of
production
o If meets burden of production, trier of fact has opportunity to decide the case
o If provides so much evidence that line goes all the way back to , burden is back to to push
it back so case can be decided by jury.
Summary judgment vs. judgment as a matter of law:
o Has non-moving party met burden of production? If not, there is no genuine dispute of material
issue of fact
o Distinguishing Features:
1.] Timing:
Summary Judgment: typically occur pre-trial
Judgment as a matter of law: occurs after has put on everything he has to put
on
2.] What movant must show:
Summary Judgment: affirmative representation -> cannot simply require
disclosure of non-movants case
Judgment as a matter of law: dont require affirmative showing on part of
movant
Adickes v. S.H. Kress & Co. (1970): Facts: sued alleging conspiracy b/c and police to arrest her b/c
she was in company w/ blacks. moved for summary judgment putting on following facts: 1.] manager
of store had no communication w/ police officer, 2.] affidavits of two police officers stated there was no
request by the manager for to be arrested; 3.] , in deposition, said she had no knowledge of
communications b/w employees and police. Held summary judgment inappropriate. Rule: Where the
evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary
judgment must be denied even if no opposing evidentiary matter is presented. (adopts the maximal
approach, perhaps middle)

22

Court: failed to show absence of genuine issue of material fact -> did not foreclose possibility
that policeman reached understanding w/ s employee.
Inference goes to a state of mind which is difficult to refute
o Justification for requiring to come forth w/ evidence before trial: judicial economy
Theory: If case would not survive at trial b/c there is not sufficient evidence, would it
not be more convenient and economical for /court to find that out in advance.
It saves money for ; probably does not want to posture case for dismissal -> the
longer it hangs in, the more chance of settlement; anything can happen w/ a jury
o Burden of production: allows you to get to a jury
o Summary Judgment & Work Product: court & movant take a peak at trial preparation isnt
that kind of like work-product?
o Three Approaches:
1.] Traditional: must offer so much evidence such that no reasonable jury could find
for . (maximal approach)
2.] Currie: need do nothing more than move for summary judgment (minimal
approach); does not have to show much of anything; has to come forward and show
that it has enough evidence to get to a jury (put the other side on notice if they have the
burden)
3.] Louis: minimal approach says it is too easy for to move for summary judgment (it
will become a tool for harassing) -> if you are a party who is moving who does not
have the initial burden of proof, it must put enough evidence on to support a verdict in
his/her favor.
Celotex Corp v. Catrett (1986): Facts: s husband died from exposure to asbestos from fifteen
corporations. granted summary judgment b/c was unable to produce evidence in support of her
allegation in her wrongful death complaint that decedent had been exposed to petitioners asbestos
products. Rule: The burden on the moving party may be discharged by the showing that there is an
absence of evidence to support the non-moving partys case. [adopts standard closer to minimal
approach]
o Court: summary judgment should not be a rare occurrence
o Celotex standard applied to Kress: Motion for summary judgment still fails, since has
testimony that policeman was in store at the time (not admissible, but evidence does not have to
be)
o Brennan (dissent): If burden of persuasion at trial would be on non-moving trial, party moving
for summary judgment may satisfy burden of production in Rule 56 two ways:
1.] moving party may submit affirmative evidence that negates an essential element of
the nonmoving partys claim
2.] the moving party may demonstrate to the Court that the nonmoving partys evidence
is insufficient to establish an essential element of the nonmoving partys claim. [under
this would have to show absence of proof that s husband was exposed to products]
Todays standard: will not come forward w/ much of anything & will be put to test
Rule 56(f): if someone files a motion for summary judgment based on a little evidence and says that you
dont have enough evidence to get to the jury, under Rule 56 (f) you can claim that summary judgment is
premature.
o has no right to Rule 56(f) discovery -> it is the judges decision to say yes or no
o must specify a specific area he will search which relates directly to the summary judgment
o Unlike general discovery, you must persuade court that discovery is going to lead to something
o Negative: conceding that you dont have requisite information to respond to summary judgment
-> telling the court your case is weak
o tips hand about everything he has in case
Rule 11: sufficient investigation to justify motion for summary judgment or sanctions are waged
MEETING THE BURDEN OF PRODUCTION:
o

23

Arnstein v. Porter (1946): alleges numerous songs by taken from s copyrighted songs.
Held summary judgment improper: s credibility, denials left to jury. Rule: With credibility a
vital factor, is entitled to a trial where the jury can observe the witnesses while testifying.
Standard: Summary judgment is appropriate only if indubitably [w/o a doubt]
did not have access to s composition; if there is the slightest doubt, then summary
judgment is proper [not good law anymore]
Arnsteins copies were widely disseminated; there may be some basis that Porter may
not have been forthright
Inference here is similar to inference in Adeckis (meeting of the minds) -> this is a
strong inference
Would a court really uphold a verdict for Arnstein based on evidence presented? ->
majority sidesteps this issue; there might be cross-examination at trial which gets an
admission/new evidence
Bottom line: Speculation of possibility of new evidence undermines utility of summary
judgment -> it means that chances for summary judgment are going to be routinely
denied
Demeanor evidence disappears w/ the witness and the reviewing court cant
access it -> appeal would go s way anyway
Disbelief evidence alone cannot possibly satisfy burden of production;
otherwise burden of production is no burden at all
Porter has met Celotex requirement
Decision puts things out of balance: general lack of enthusiasm for summary judgment
as proper means of resolving disputes [looks more like Adeckis case]
Dyer v. MacDougall (1952) [restoration of balance]: filed complaints for libel and slander.
Witnesses each denied any instances of libel and slander, and chose not to depose any of them.
Rule: Where the possibility exists that may extract admissions in open court which he was not
able to get through depositions, must still depose witnesses in order to see if there is any basis
for witnesses admitting to awe of judge.
Court: no reason to expect that witnesses would change tune at trial -> additional
depositions would have possibly showed that witnesses were crafty or defiant, and that
would suggest to court that witnesses would change their tune as they got to the stand
must supply extrinsic evidence -> circumstantial evidence to create the
inference that discrimination was present
Where Porter said we should indulge in certain amount of speculation, Dyer says we
dont
Restores importance of summary judgment
Celotex: requires just a sufficient demonstration of proof on issue i.e., that statement
was not uttered (affidavit should be enough)
Between summary judgment & judgment as a matter of law:
Civil disputes held in bench trial at election of s: can elect jury or judge trial
Civil cases: six member jury (typically need to be unanimous)
If summary judgment fails -> 1.] pre-trial conferences/settlement devices; 2.] jury

MOTIONS FOR JUDGMENT AS MATTER OF LAW: evidence is so compelling that only one result can
follow
Directed verdicts: take cases away from juries
Historical argument: because we have taken cases away from juries all along, there is nothing
unconstitutional about awarding a directed verdict
Galloway v. United States (1943): Facts: seeks insurance benefits b/c he went crazy in the army.
must show continuous disability; however, five year gap exists where he has no evidence for. himself
cannot testify, neither can wife (insurance reasons). Chaplin, who observed was in the Army while

24

was in Navy. Physician did not examine during gap. Directed verdict ordered. Rule: Where the
inference to reach the s conclusion is great, and the had the ability to provide evidence in support of
the inference, a directed verdict will be ordered against the .
o Judge orders directed verdict b/c juries are unpredictable and might be able to find for ; jury
would have to disregard instructions, however, b/c there was no continuous disability
o Court doesnt like s to sit on errors that could have been remedied early on; if there was some
fatal defect to s case, we like s to raise that early on.
Reasons:
1.] Judicial economy
2.] if you really care about juries, you should want the jury verdict to stand
o Reason for majoritys decision: answer has to do w/ gap -> court struggles w/ how to make
sense of the time period; court says we dont think we can fill this in and neither can a jury,
judge denies the reliability of expert conclusion by Dr. Wilder
o Speculation & conjecture should not do the work of probative facts
o Even if government had helpful/harmful information that would help get to jury, government is
under no obligation to provide information to
o Dissent: w/o weighing the credibility of witnesses, if there is no room for difference of opinion,
then the case can be decided before a jury
Lavender v. Kurn (1946): Facts: hit by mail hook of mail car or backing train. puts on evidence
such that it is conceivable he got hit by the hook. s theory is that was attacked and killed. Held that
sufficient evidence exists of negligence on part of s to justify submission of case to jury. Rule: Where
facts are in dispute or the evidence is such that fair minded men may draw different inferences, a measure
of speculation and conjecture is required which is left for the jury.
o There is not a complete absence of probative facts; speculation and conjecture is not a
problem [case is similar in fact, but different in theory to Galloway, which stood for
speculation should not do the duty of probative facts.]
o Standard: Just a scintilla of evidence is needed by if files motion for directed verdict
[probabilities dont matter that much]
o Court: this case should go to jury b/c reasonable minds defer; a jury can ignore what evidence it
wants to ignore
Standard for going to jury: in light of all the evidence, a reasonable jury could
find for ; if not, directed verdict to
Guenther v. Armstrong Rubber Co. (1969): Facts: remembers the tire to be a 15 black wall tire but
the defective tire was a 13 white wall tire. No proof that had anything to do w/ black wall tires except
that was responsible for 75-80% of tires the shop sold. Rule: Where there are two conflicting
testimonies which decide the crux of the case, it is left for the jury to resolve the problem.
o could amend complaint: party is not bound by representation in complaint (a persons
recollection is often unreliable)
o Possibilities in fact:
1.] Mr. Smalls works for Sears possible that he could grab another tire and claim it was
defective
2.] Mr. Smalls heard the explosion (did not see it)
3.] 18 months went by while tire sat in Sears office -> possible that tire experts
encountered a year and a half later was different.
Sometimes courts are willing to draw the line at some level of statistical significance:
99%. [statistical evidence says nothing about the actual event -> gets only to the generic
likelihood of an event happening, but not to the specific.]
MOTIONS FOR A NEW TRIAL: court is in position of weighing evidence when considering motion of new
trial

25

 Ahern v. Scholz (1996): Facts: Breach of contract dispute. Jury found in breach of agreement, owing
$500,000. Trial court found both breach agreement; however, s breach was not material b/c the
provision that he is alleged to have breached is subject to multiple interpretation or damages associated w/
breach are not material. (same conclusion as jury) Rule: Where the ruling is not against the clear weight
of the evidence or based on evidence which is false and a reasonable basis exists for the jurys verdict, the
court will not grant a new trial.
o Standard of review (trial court): deferential to jury finding
o Standard of review (appellate court): will reverse only if clear abuse of discretion by trial court
o Trial court & jury are on the frontlines of litigation they know what the evidence is and are in
the best position to decide whether verdict is against clear weight of evidence.
Interplay b/w directed verdict (Rule 50) & motion for a new trial (Rule 59): can be filed simultaneously;
standards for granting the two motions are different
o Rule 50 (b): Motion for Directed Verdict after the trial and in the alternative, the party may
also make a Rule 59 Motion for a New Trial
50 motion standard: no rational finder of fact could find for the non-mover; more
stringent
59 motion standard: verdict entered against the movant is against the clear weight of
the evidence
A court may be unconvinced that no rational finder of fact could find for non-movant but
convinced that verdict in his favor would be against clear weight of evidence
o 50(c)(1): court grants motion for directed verdict -> ruling for new trial should be granted at the
same time (should be granted in the alternative; in case the directed verdict is reversed upon
appeal there is an alternative ruling already in place remedy would be a new trial)
o 50(c)(2): allows a party that prevails by trial by jury but loses on directed verdict to move for a
new trial
o Rule 60: motion for relief from judgment; KEY: must point to some newly discovered evidence;
it is evidence that did not exist before [standard: against the clear weight of the evidence]
Newly tendered evidence v. newly discovered evidence: not the same to discourage
counsel from withholding evidence during the trial
New evidence: must be admissible; must be able to overturn the result; must have been
discoverable but not discovered during the trial (there must be a good reason why it
wasnt discovered earlier)
PERSONAL JURISDICTION:
Court has to have requisite authority to decide a case
Two forms of Jurisdiction:
o 1.] Personal: circumstances under which a court has authority to make binding determinations as
to particular parties in a case
What about who presumably does not invoke consent to enter binding judgment
against it?
o 2.] Subject matter: kind of jurisdiction that deals w/ courts authority to decide a particular type
of case.
TRADITIONAL APPROACH:
o Pennoyer v. Neff (1877): Facts: Mitchell sued , a CA resident, in Circuit Court of OR.
owned property in OR. Mitchell served notice to through publication, once a week for six
weeks. failed to answer; Mitchell executed against s tract of land in OR & transferred title to
. Held OR did not have personal jurisdiction. Rule: Judgment in personam requires personal
service of process in the state. Substituted service by publication is allowed where 1.] property
is brought under court by seizure or some equivalent act; 2.] judgments in rem.
Notice: in regards to property, notice is not needed; law presumes that property is always
in possession of owner/agent. (constructive notice)

26

POWER: personal jurisdiction more concerned w/ power rather than notice

o Power of court to issue binding rulings against a particular
Two principles of public law, not constitutional:
o 1.] Every state possesses independent & exclusive jurisdiction over
land and people w/in its territory
CA does not lose exclusive jurisdiction over Neff if he is
served in OR -> both States can assert personal jurisdiction
over Neff
CA must recognize judgment by OR
o 2.] No state can exercise direct jurisdiction over people or land
outside of its territory
If Neff shows up in OR, he consents to the jurisdiction of OR
Types of personal jurisdiction: power to exert personal jurisdiction rooted in the
concept of presence
In personam: established through personal service (summons)
o Against persons actually present in state
o Lawsuit against person for money damages
In rem: focus directly on property so that result of case determines what
happens to property
o Against the thing (property): disposition is over property regardless of
who claims to have title to it
o Pure in rem: clears up title to real estate; doesnt care about individual
litigants
o Jurisdiction by necessity or custom: language resembling justification
for in rem -> state must have right to clean up property rights in the
state
Nature of in rem: lawsuit that is directed at the property, but the effects of it are
limited to the parties of the lawsuit
o Ex: suppose there is a sale, and you want to enforce sale of that
property; proceeding would direct attention to property & seek to
resolve title of property to you (concerned only about specific rights to
property)
o Eye towards individual litigants in the case.
Quasi in rem: in personam proceeding, but you have no way of asserting
jurisdiction -> use property as lure in order to reel in individual using property
(by attachment, garnishment, etc); state has no authority; only have to defend
yourself up to the value of the property
Exceptions:
1.] if you are inquiring to status of states inhabitants, you dont need to use
personal service -> (status = marriage)
2.] state might consent to jurisdiction in advance to allow individual to engage
in certain types of activities w/in states borders
Harris v. Balk (1905): Facts: : resident of NC who owes $180; : resident of NC, who owes
Epstein $300; Epstein: resident of MD. While is in MD, he is sued by Epstein for the debt
owed to Epstein. pays the $180 to Epstein in MD, but then is sued for the same $180 by Balk
in NC. Balk claims MDs judgment for garnishment against does not control the NC court b/c
there was no jurisdiction over in MD. Rule: Where there is a law of the state providing for the
attachment (securing of a persons property to seize a judgment) of the debt and the creditor of
the garnishee could himself sue in that state, then, if the garnishee be found in that state, and
process be generally served upon him therein, the court thereby acquires jurisdiction over him
and can garnish the debt due from him to the debtor of the .

27

Obligation of the debtor to pay his debt clings to and accompanies him wherever he goes
Pretext of jurisdiction in MD is presence of property in state of MD (Harris is
the walking embodiment of debt) -> Quasi in rem jurisdiction
Court opens itself to cases where debtor is not a person but a corporation
Better limitation: distinguish b/w tangible & intangible property
had to give adequate notice to Balk (which he did) -> Balk was aware of entire
situation
Problems w/ quasi in rem & in rem deepen -> rule in Pennoyer is based on real property
Difficulty in treating other forms of property in manner consistent w/ Pennoyer
o Hess v. Pawlowski (1927): Facts: sued , a Penn resident, in Mass. for personal injuries
suffered in Mass. auto accident. Mass statute states using automobile in Mass equates to implied
consent of personal jurisdiction. Rule: States may make and enforce regulations reasonably
calculated to promote care on the part of all even if they provide implicit consent through
implied appointments. [bridge which connects 19th century and 20th century minimum contacts
analysis]
Expands basis of jurisdiction by allowing personal jurisdiction based on implied consent
(personal jurisdiction was anachronistic)
As a technical matter, no problem w/ notice -> consistent w/ Mass. statute
However, Mass. statute does not require any notice (implied consent)
Conflict w/ Pennoyer: car would still have to be in Mass -> here there is a service of
process running outside the states borders (no such thing as territorial limits)
Rule: makes an exception if regulatory nature is involved
There is minimum contact w/ the state
MINIMUM CONTACTS APPROACH:
o International Shoe v. Washington (1945): Facts: , Delaware corporation, does business in
many states. employs agents in WA, who exhibit samples and solicit orders from prospective
buyers. failed to make unemployment payments in WA pursuant to statute. has no office in
WA, makes no contract for purchase or sale there, maintains no stock, and makes no deliveries of
goods in interstate commerce. Held sufficient minimum contacts to assert personal jurisdiction.
Rule: Due process requires that in order to subject a to a judgment in personam, if he be not
present w/ in the territory of the forum, he have certain minimum contacts w/ it such that
maintenance of the suit does not offend traditional notions of fair play & substantial justice.
[only applies to specific jurisdiction]
Under Pennoyer, an argument can still be made for basis of jurisdiction: makes sense
that WA could assert jurisdiction b/c agent lives in WA
Problem w/ Pennoyer standard: it is too vague -> presence merely symbolizes
activities of a corporation; it tells us nothing about whether those activities
should be liable in the first place [presence is a conclusion, not an analysis]
First prong: what are the contacts
Systematic & continuous business conduct
Large volume given in amount of commissions
has the benefit of WA laws: if there is a problem, presumably they can sue in
WA (so what, though, is that a special benefit? everyone receives protection)
Second prong: estimate of inconveniences (different for corporation & individual)
A trial away from home would render assertion of jurisdiction unreasonable
Cannot say that maintenance of suit in WA is unreasonable/undue procedure
o McGee v. International Life Ins. Co. (1957): Facts: CA resident has a life insurance policy w/ a
CA insurance Co., which is bought out by a TX Co. Decedent paid premiums from home in CA;
nor previous insurance company had office in CA; neither solicited in CA w/ the exception of
this policy. Rule: Where a suit was based on substantial connection w/ a state, it is sufficient for

28

purposes of due process and , as a corporation from outside the state, to be subjected to suit in
that state. [High water mark for personal jurisdiction -> takes International Shoe rule and pushes
it to the outer limits]
Infusion of a vague due process standard -> focus on fairness; balance of equities
seems to favor
Easier for corporation to go to court in CA then it is for to go to court in TX
Due process is nestled into an estimation of inconveniences and contacts
Quality of the contacts is critical: solicitation took place in CA, delivery of policy in
CA, payment of premium in CA -> Court is less concerned about the volume
LONG ARMED STATUTES:
o Gray v. American Radiator (1961): Facts: injured by water heater explosion. manufactures
valves for the water heater. does no business in Illinois, has no agent there, and sells completed
valves to American Radiator. Rule: If a corporation elects to sell its products for ultimate use in
another State, it is not unjust to hold it answerable there for any damage caused by defects in
those products. (substantial use & consumption test)
Commercial transactions: result from substantial use and consumption in the state.
(stream of commerce)
Case involved LONG-ARMED STATUTE of Illinois: delineated reach of states
assertion of personal jurisdiction
Due Process: Outer boundary of states assertion of personal jurisdiction ->
cant justify extension of personal jurisdiction beyond the point where it seems
fundamentally fair
Statute acknowledges authority that court already possesses; state does this in
case court is not inclined to assert personal jurisdiction (qualifies as enabling
legislation -> tells court to extend jurisdiction in this trajectory)
Reading of statute: sets forth location of tortious act is where the injury occurs -> this
injury occurs in Illinois
Irony: statute calls for commition of tortious act -> we dont even know if a tortious
act has been committed; not found out until jurisdiction issue is settled first
Illinois might have stretched statute too far; later amended
IN REM JURISDICTION
o Shaffer v. Heinter (1977): Facts: is a non-resident of DE who owns one share of Greyhound
stock; brings suit in DE b/c of activities that took place in OR; also filed an order of
sequestration to get to the stocks in DE Corp, certificates of which were not held there. s
notified of suit by certified mail and publication in newspaper. Holding: Quasi in rem
jurisdiction could not be asserted. Rule: The fairness and minimum contacts standard of
International Shoe apply to cases involving quasi in rem jurisdiction.
Derivative lawsuit: individual shareholder believes the company is doing something
wrong and brings suit to discipline company
Sequestration of property violates Due Process: infringes on rights of property owner
where there are no sufficient procedural safeguards in place -> not fair
Court wants minimum intrusion on rights of property holder w/ an eye towards
personal jurisdiction -> move not to stifle movement of capital
Delaware law: based jurisdiction on presence of property in state, not on appellants
status as corporate fiduciaries -> Delaware should just enact a statute for implied consent
w/ corporations (like Hess statute)
Type III case
o Types:
1.] true in rem proceedings
2.] quasi in rem jurisdiction: relation b/w claim & property
Type I: asserts a pre-existing right to property

29

Remedy which is sought is specific to the property [ex: I defrauded you

of $100,000 stocks and bonds; there is a safe deposit box in the state w/
$100,000 in stocks and bonds; jurisdiction is satisfied]
Type II: suits for injury on land of absentee owner: tort liability (presumably
you could this under long armed statute, analogous to Hess)
3.] quasi in rem: no relation b/w claim and property
REFINING MINIMUM CONTACTS ANALYSIS:
o World Wide Volkswagen (1980): Facts: s purchased Audi from Seaway, retailer. s named as
defendants Seaway and World Wide, distributor. involved in accident in Oklahoma. OK long
armed statute: allows personal jurisdiction exercised for tortious injuries in state caused by
company which regularly does/solicits business in OK, engages in persistent course of
conduct, derives persistent revenue, etc. s do no business in OK, do not ship or sell products to
state, do not have agent in OK nor purchase advertisements there, and no showing that any
automobile of theirs had entered OK. Holding: OK long-armed statute cannot constitutionally
stretch to s. Rule: Where the s conduct and connection w/ the forum state are such that he
should reasonably anticipate being haled into court here, there exists sufficient minimum
contacts w/ the State for personal jurisdiction to be enforced.
Foreseeability: alone is not a sufficient benchmark for personal jurisdiction -> this rule
could be enforced by all owners of chattels (amenability to suit would travel w/ chattel)
Jurisdiction turns on whether tried to serve market directly or indirectly
Four factors of reasonableness:
1.] forum states interest in adjudicating dispute
2.] s interest in obtaining immediate & effective relief
3.] Interstate judicial systems interest in obtaining the most efficient resolution
to controversies
4.] Shared interest among several states in furthering fundamental substantive
social policies
PURPOSEFUL AVAILMENT: seek to serve theory -> retailer should expect to be
sued where it seeks to serve consumers
In this case, sure it is foreseeable that cars move and will be driven across the
country; it is not foreseeable in the seek to serve sense though
Seek to serve: one seeks to serve by putting products into a stream of
commerce w/ ultimate expectation that they will be sold to consumers in foreign
state (if Audi did so in this case, presumably German gas tank manufacturer
would be liable also)
Audi & Volkswagen: most likely liable everywhere
o Calder v. Jones (1984): Facts: National Enquirer published uncomplimentary statements about
CA actress, . sued FL residents/editor and writer of the articles in CA. CA has jurisdiction.
Rule: Where there is a tortious injury and the harm suffered by the tortious injury is w/in a
particular state, and the aim of the tortious injuries is focused at an individual whose injuries
would be felt at that particular state , jurisdiction over s w/in that state is allowed.
National Enquirer: not objecting to purposeful availment/ seek to serve theory
Effects test: what are the potential effects of ones conduct
1.] the forum is the focal point of the tortious conduct
o s knew impact of harm on would be in CA; brunt of injury would
be felt by where she lives and works in and where National Enquirer
has largest distribution in
o s could reasonably anticipate being haled into court
o s actions not judged according to employers activities
2.] the forum is the focal point of the harm
o

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Concerned CA activities of CA resident; entertainers television career

was centered in CA; emotional distress and injury suffered in CA
3.] useful only in context of intentional acts
Limit: Burt v. Board of Regents Dr. sends bad letter of recommendation from
NB to CO where now is; court says jurisdiction in CO is ok b/c the effects of
the negative statements occur in CO
[General Jurisdiction] Helicopteros Nacionales de Columbia v. Hall (1984): Facts: Four
Americans, employed by Consorcio, were doing work in Peru when killed in a helicopter crash.
Helicopters owned by Helicopteros. s hired in TX; helicopter deal negotiated in TX;
helicopters bought from TX company; Americans trained in TX. Holding: There were not
substantial enough contacts to fulfill general jurisdiction.
General jurisdiction: substantial contacts, where contacts are unrelated to the claim
Purchase of contract unrelated to crash; moreover, purchase of contract is not
systematic and continuous
Not satisfied: training was part of a package of goods & services purchased by
; furthermore, employees present in TX for short time
Used to provide alternative forum to bring a lawsuit -> bring suit in forum
where claim arises or in s home state
Home base approach: allow for it where is headquartered; possible that a
company will have a substantial contact in a forum state other than which it is
headquartered
Specific jurisdiction: systematic & continuous -> minimum contacts where contacts
are related to the claim
lawyer probably muffed the trial -> should have considered specific
jurisdiction; claim should have been related to pilot failing to do what he was
trained to do -> training becomes of elevated importance
Fairly malleable -> applied in McGee
Premised upon certainty: if doesnt want to take chance in encountering
problems, you can always sue in s home state
Another way to get Helicopteros into court: indemnity claim by Consorcio
Burger King Corp. v. Rudzewicz (1985): Facts: s hale s into court through FL long-armed
statute. s are MI residents owning franchise in MI who failed to make franchise payments to
, a FL corporation. brings suit in FL. s sent contract to FL and made telephone calls there.
Most of their dealings were w/ the FL headquarters. Boilerplate form on contract: FL law
applies.
Standard:
1.] Purposeful Availment: whether parties reached out beyond their own
state to create a relationship and obligation w/ a citizen or entity of another state
o Look to contract; knew they were dealing w/ headquarters in FL
o Use any tools in toolbox for purposeful availment: reaching out,
foreseeability, seek to serve, etc.
2.] Reasonableness: fair warning that particular activities might subject them to
jurisdiction of a forum state [presumption of reasonableness where has
purposely directed activities to the forum state]
o has burden of showing that jurisdiction is not reasonable
o Case will only be dismissed if there is a compelling showing that
assertion of jurisdiction is unreasonable.
Asahi Metal Industry Co. v. Superior Ct. (1987): Facts: , CA resident, injured himself when
tire blew out in motorcycle accident. , Asahi, is component manufacturer of valve. Asahi
indemnifies Cheng Shin, who manufactured tube in rear tire. Cheng-Shin cross-complains
against Asahi. Rule: purposefully avails himself towards the forum state when the product is
o

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placed in the stream of commerce and purposefully direct the product towards the forum state.
[stream of commerce plus] [Two prongs: purposeful availment & reasonableness]
Specific jurisdiction
Judges split on whether standard should be stream of commerce or stream of commerce
plus
Rationale behind stream of commerce plus: it doesnt make sense to bind you
to actions you dont know about
Argument for stream of commerce: 100,000 units from are finding their way
into CA
All judges agree on reasonableness prong: it would be unreasonable to hale Taiwanese
manufacturer into court
o Burnham v. Superior Ct. (1990): [personal service in obtaining jurisdiction] Facts: married to
wife in NJ. Wife moved to CA; upon visiting on business and picking up kid, is served w/
summons of copy of divorce petition. Rule: Pennoyers embodiment of service of personal
jurisdiction survives absent minimum contacts.
If Burnham was not personally served, there would have been no personal jurisdiction.
(insufficient minimum contacts)
J. Scalia: assess reasonableness based on tradition and historical pedigree -> does this
offend tradition?; we cannot invalidate what was required in 1868 based on public
attitude
J. Brennan (concurrence): all rules of jurisdiction must comport w/ contemporary
norms of due process -> judges consider a multitude of factors and make case-by-case
analysis when deciding whether jurisdiction was reasonable
Burnham purposefully availed himself when he went to CA & got tagged there
Problem w/ this explanation? it proves too much; explanation means personal
jurisdiction should be proper w/o personal service
Rumors of death of tag jurisdiction are greatly exagerrated
o Millenium Enterprises Inc. v. Millenium Music (1999): Facts: Millenium Enterprises based in
OR; company sells products through mail, telephone orders and its website. has stores in North
Carolina & South Carolina, along w/ some web presence. Distributor, Allegro, which is located
in OR accidentally sent credit documents to in OR. Both entities used the same trade name in
different places. Rule: The modern approach appears to be couched in due process thus the
reasonableness prong allows the minimum contacts prong to persist.
Calder effects test: no use here; there is no reason to think that was directing its
actions at OR
Court maybe uses a little of the Worldwide foreseeability test
Distinction b/w active, interactive, and passive websites:
1.] Active: website is reaching out to the reader/consumer
2.] Passive: website is just a posting; according to Bracey, no websites are truly
passive
o Becomes a problem in defamation cases just posting defamatory
statements invite jurisdiction wherever the person being defamed is
o Drudge: doesnt warrant personal jurisdiction wherever injuries occur
3.] Interactive: website -> only purchase in OR is a sham, and amends
website to say that it does not accept orders from outside of NC; website has a
lot of local content
o Inquiry is going to be very fact specific
CONSENT AS SUBSTITUTE FOR POWER:
o Insurance Corporation of Ireland, Ltd. v. Compagnie des Bauxites de Guinee (1982): Facts:
is a DE corporation owned by PA and Republic of Guinee where it operated mines and had a $10
million insurance policy w/ , a Great Britain Corporation. sued on insurance policy in PA

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Fed. Court. filed answer in the case and then refused to allow some discovery but allows;
nevertheless, it allows some discovery b/c it doesnt think jurisdiction is right. Rule: who
wrangles through discovery in essence consents to jurisdiction.
Options available to :
1.] Do not wrangle, accept default; concede the merits and contest jurisdiction
(if you lose on jurisdiction, you are screwed)
2.] Try to litigate jurisdictional question as defense in court where action is
filed; if jurisdiction argument is rejected, has to appeal
o Rule 12 (g): all Rule 12 motions made at same time; you have to file
objection to personal jurisdiction as part of pre-answer strategy
Reasonable conclusion by court: s were already doing business in the U.S. & were
litigating a discovery dispute all the way to the Supreme Court. It did not seem like they
were that inconvenienced by that.
o Carnival Cruise Lines, Inc. v. Shute (1991): [reverse of the issue of consent to jurisdiction;
forum selection clause snuck in] Facts: s bought tickets from travel agent in WA for cruise
on s ship. On back of tickets, paragraph stated all disputes would be litigated in FLA. On
cruise, was injured in international waters. Court held s request for jurisdiction in WA
improper. Rule: Where companies provide for a forum selection clause yet do not have a bad
faith motive in including them, they are enforceable.
Problem w/ 9th Circuits decision, which allowed for personal jurisdiction in WA: used
reasonableness as a trump card -> it only comes in after you have made your case for
personal jurisdiction. (9th circuit held it would be unreasonable to force s to litigate in
FLA)
Supreme Ct. does not care about whether s are old and cant travel to FLA ->
efficiency is the key: it is efficient to have lawsuits in FLA, and those efficiencies are
transferred over to the customers (since cruise starts in LA, not many people are going to
be filing lawsuits in FLA -> can externalize/maintain price)
THE NOTICE REQUIREMENT
o Federal Rules 3-6 & 17: 14th Amendment; requires reasonable notice and right to be heard
Rule 4: service of summons and complaint
Rule 5: once service of process has been achieved, all subsequent filings can be
delivered through mailing
o This is not a jurisdiction requirement -> it is an additional Constitutional requirement
o Mullane v. Central Hanover Bank & Trust Co.: Facts: is a bank in business of managing trust
funds. It is a trustee of particular common trust fund w/ 100 trust-holders. sends notice out to
all trust beneficiaries letting them know what happened to their trust over the course of the year.
Holding: Income beneficiaries, whose interest revolved around high yield investments, required
more notice than publication as compared to principle beneficiaries. Rule: The method by which
you provide notice has to be reasonably calculated to apprise interested parties of the litigation.
Case does not fall under in rem or in personam for out-of-state beneficiaries; it does
seem more connected in rem, however, since they do process property is in NY.
States more demanding in terms of requiring proper notice
VENUE: determines where within a particular court system a case can be brought
o State court venue provisions: often provide that cases must be brought in county where one of
the parties resides or does business, where the claim arose, or where property in dispute is
located
o 1391(a): governs venue in diversity cases, authorizes venue in
1.] a judicial district where any resides, if all s reside in the same state
2.] a judicial district in which a substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property that is the subject of the action is
situated, or [varies based on the substantive law underlying the claim]

33

3.] a judicial district in which any is subject to personal jurisdiction at the time the
action is commenced, if there is no district in which the action may otherwise be brought
[liability occurs outside of the country and no is a resident of the district]
o 1391 (b): civil actions founded on federal law
1.] same
2.] same
3.] a judicial district in which any may be found, if there is no district in which the
action may otherwise be brought.
o Fallback provisions: only apply if there is no district, anywhere in the U.S., which would be a
proper venue under either of the first two subsections
o Convenience & reasonableness: where the evidence is; what gives rise to the lawsuit
o Bates v. C&S Adjusters: Facts: entered into credit transaction while living in PA and then
moves to NY. Creditor employs C&S who mails collection notice to PA address. Post office
subsequently forwards it to the NY address. wants venue in NY. Rule: Receiving notice in
NY constitutes a substantial event sufficient to satisfy 1391 (b)
o Other important points:
1.] venue may be waived -> must object to venue when responding to s complaint
2.] beware of special venue provisions
3.] certain interests in land treated as local actions.
THE DECLINE OF PERSONAL JURISDICTION:
o 28 USCA 1404: In the event that you dont have jurisdiction and the party moves to dismiss but
states in the alternative to have the case transferred, you can transfer it
o Piper Aircraft Co. v. Reyno (1981): Procedural Facts: files claim in CA state court.
removes it to CA federal court. Piper moves to transfer its portion to federal court of PA b/c it is
based in PA, records & witnesses as to construction are in PA. Court additionally transfers case
for Hartzell to federal court in PA. Holding: CA law applies to Piper; PA law applies to Hartzell.
CA court had jurisdiction in regards to Piper: it purposefully availed itself to CA; had
repair shops there
Significant contacts analysis in regards to Hartzell: Scottish law applies
Abuse of Discretion: look to private & public factors on balance it looks like this
particular court should not have the case
Private factors: inability to implead potential 3rd party s
Public factors: interest of justice analysis; does it really make sense to apply
two different nation state laws to one plane crash
o Determination of personal jurisdiction & venue will determine which body of state law applies
o Governmental interest test: which state has the greatest interest in resolving this litigation?

SUBJECT MATTER JURISDICTION:

One does not have to make subject matter jurisdiction objection up front -> it can be used later on even
though it is in bad faith. [compare to personal jurisdiction, which must be raised up front]
DIVERSITY OF CITIZENSHIP:
o 28 U.S.C. 1332: provides for original jurisdiction in federal district courts of all civil actions
that are between, inter alia, citizens of different States or citizens of a State and citizens of
foreign states and in which the amount in controversy is more than $10,000
1.] creates an amount-in-controversy requirement
Determined by amount claimed by in good-faith, unless it appears to a legal
certainty that the claim is really for less; does not do a lot to keep you out of
federal court
s claims cannot be aggregated to meet requirements
2.] must be complete diversity b/w the parties all s in a suit are from different
states than all s at the time suit is brought

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Citizens of different states:

o State citizenship for diversity purposes equated to common law concept
of domicile; [domicile: state where he has taken up residence w/ the
intent to reside indefinitely, i.e. to make it his home]
Indefinitely: no definite intent to leave to make a home
elsewhere no definite plans to move at a particular time or
upon the occurrence of a particular event

Corporations:
1332 (c)(1): corporations are now citizens for diversity purposes of both the state
where their principal place of business is located and the state in which they are
incorporated
Principal place of business: definable center of productive activities of the
corporation manufacturing or other profit-making activity that the corporation
is engaged in [place of operations or bulk of corporate activity test]
nerve center test: used for corporations whose day-to-day activities are so
dispersed as to make it artificial to characterize one state as center of productive
activities -> look to site of corporate headquarters or home office from which
activities are coordinated
o Mas v. Perry (1974): Facts: Mas, citizen of France, who moved to LA w/ wife. Judy Mas is a
citizen of MISS. Both were married graduate students in LA landlord installed two-way
mirrors in their apartment and watched them for four months. Held Mr. Mas domiciled in
France; Ms. Mas domiciled in MISS. Holding: Since Mrs. Mas did not have the intention of
staying in LA but rather the intention of returning to MISS, she is domiciled in MISS.
Courts typically do not want to see diversity cases -> tend to go to trial; they also tend to
not settle
Why do s seek to litigate in Federal Court? federal court might be more intimidating
for , thus being more inclined to settle; might not be as familiar in federal court as
they would be in state court; metropolitan dockets are notoriously slow (docket control)
CASES ARISING UNDER FEDERAL LAW: 28 U.S.C. 1331
o Statute -> original jurisdiction (narrow construction); Constitution -> ultimate jurisdiction
o Federal question jurisdiction: provides uniformity in interpretation; federal judges more
sympathetic to federal law
o Louisville & Nashville R.R. v. Mottley (1908): Facts: s given lifetime passes for free travel on
railroad in settlement of a claim for injuries they had suffered in an accident. After honoring
passes for thirty years, railroad refused to renew b/c Congress passed statute barring railroads
from giving free transportation. Railroad defended on ground that federal statute barred renewal.
s argued: 1.] statute was prospective only; 2.] if statute were interpreted to bar their passes, it
would be unconstitutional under the 5th Amendment, since it would deprive them of vested
property rights w/o due process of law. Well-pleaded Complaint Rule: The court, in deciding
whether the case arises under federal law, asks whether the would have to raise the federal
issue in a complaint which includes the elements she needs to prove to establish her claim, and
only those elements.
s did not have to refer to federal law in complaint: adequate claim for relief by
alleging only contract, breach, and demand for specific performance
Does not matter if s claim includes anticipated defenses of which involve federal
law
o Holmes test: jurisdiction under 28 U.S.C. 1331 if the source of the s enforceable legal right
against is federal law
Ex: federal copyright statute creates federal substantive right (right to exclusive use of
original work) and also vests in right to sue for violation
o

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What happens if federal statute authorizes suit, but only to enforce a state cause of action
(not clear whether court will conclude arising under jurisdiction exists)
o Substantial Federal Issue test: state cause of action can suffice, if proof of that cause of action
requires proof of a proposition of federal law
Parallels Mottleys well-pleaded complaint rule: the court looks at what the must
establish as part of her case
Ex: sues for bad faith discharge (state law claim) but alleges that she was fired for
refusing to violate federal accounting requirements
o Merrill Dow Pharmaceuticals Inc. v. Thompson (1986): [federal law creates a substantive
right, but does not [expressly] authorize plaintiffs to sue for violation of that right] Facts:
s sued for damages allegedly caused by Bendectin, drug manufactured by . s asserted
claims based on negligence, breach of warranty, and strict liability all state law tort theories.
One negligence theory was that Merrell Dow gave inadequate warnings of the risks of Bendectin,
b/c the warnings did not meet labeling requirements of Federal Food, Drug, and Cosmetic Act.
[complaint alleged state cause of action (negligence) but asserted that s could prove this state
cause of action by showing a violation of the substantive standard governing warnings in the
federal statute] Rule: A statute that creates a federal substantive right, but is held not to create a
private right to sue to enforce that right, will not support arising-under jurisdiction under
1331.
Court must inquire whether Congress intended to authorize a private right of action for
damages
Smith: state cause of action can suffice, if proof of that cause of action requires proof of
a proposition of federal law (in Smith though, federal law did not create the right for the
to sue to enforce it)
Reconcile w/ Merrill Dow based on how substantial or central the federal issue
is to the case -> Smith turns on the construction of federal law
SUPPLEMENTAL JURISDICTION:
o PENDENT JURISDICTION asserted jurisdictionally proper claim against a nondiverse party and added on a related state law claim
United Mine Workers of America v. Gibbs (1966): Facts: asserted federal claim
against under Labor Management Relations Act & state law claim for interference w/
contractual relations. Both claims were based on same dispute, concerning the opening
of a particular mine. There was no independent basis for subject matter jurisdiction over
interference claim: no diversity b/w parties in Gibbs and interference claim arose under
state law. Rule: So long as asserts a proper claim based on federal law, diversity, or
some other federal ground, the federal court has the power at least the constitutional
power to hear other claims arising out of the same common nucleus of operative
facts.
Two part test:
o 1.] determine whether federal component is substantial; colorable
o 2.] state law claim arises from a common nucleus of operative facts
Once judge determines he has power to hear related claim, he must then
determine whether it makes sense to exercise that jurisdiction. Factors include:
o 1.] whether state law claim predominates
o 2.] whether it would require court to decide sensitive or novel issues of
state law
o 3.] whether hearing claims together might confuse jury
o 4.] whether federal issues are resolved early in the case, leaving only
state law claim for decision
Bracey rule: Common sense balancing test that is used to compare importance
of common and different facts to support each set of claims

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ANCILLARY JURISDICTION: related claims were asserted by s or other additional parties

after the initial complaint
Counterclaim: courts typically uphold jurisdiction over state law counterclaim -> arose
out of same transaction as main claim
Third party claims: typically extended to ones that bore a logical relationship to main
claim
1367:
Pendent jurisdiction: power to decide state law issues raised by federal claims & state
law issues that are sufficiently related to federal claims
Ancillary jurisdiction: jurisdiction to decide claims raised by against either or third
party which court did not have jurisdiction over
a.] constitutional power to hear the related claim: exists if there is a proper
claim w/in the jurisdiction of the federal court and the related claim arises from
the same nucleus of operative facts
b.] court must determine whether there is a statutory grant of jurisdiction over
the related claim
o still preserved limits on ancillary jurisdiction claim against third party
non-diverse with no independent basis for subject matter jurisdiction
c.] court decides based on discretion whether to hear related claims [alters
discretionary calculus under Gibbs]
Romero exception to complete diversity rule: permits court to disregard a nondiverse party on a separate ground of federal jurisdiction
Palmer v. Hospital Authority of Randolph County (1994): Facts: Palmer (wife) gets either no
treatment or negligent treatment while in labor at hospital. Palmer later dies w/ unborn child.
Her husband, living in GA at the time, moves to AL and sues hospital and Dr. Bates. Federal
claim against Bates is dismissed.
5 potential grounds for lawsuit in state claims: GA wrongful death, medical malpractice,
Hospital Care for Pregnant Womans Act, common law, Federal COBRA claim
Anchor claim: Georgia federal COBRA claim against hospital
State claims against hospital: pendant claim jurisdiction; all arise from the common
nucleus of facts
AL state law claims against hospital: pendant jurisdiction; same set of events yet
is now suing as a survivor
GA state law claims against Bates: pendant jurisdiction; same claims that has
alleged against hospital, except now they are alleged at Bates
AL state law claims against Bates: since you already have him in court now as a
pendant , common nucleus of fact (pendant + pendant ) jurisdiction over pendant
claims made over pendant (pendant + pendant )

ERIE DOCTRINE:
Swift v. Tyson (1842): Rule: In diversity cases, the federal court should examine all common law
authorities (cases from the state in which it sat, from other states, federal courts, English courts, etc.) to
ascertain the proper rule.
o Judge looked to sky for law
o Problem:
1.] created potential for manipulation (Black & White Taxicab Co.: , originally a KN
corporation, reincorporated in Tennessee so that it could bring suit in Federal Court in
Kentucky) [forum shopping]
2.] consistency & uncertainty (state & federal court in same state enforce different
standards)
3.] vague notion of equal protection

37

 Erie Railroad Co. v. Tompkins (1978): Facts: lost arm when hit by projection from s train while
walking on pathway along tracks. Injury was likely result of negligence; no evidence though that s
employees acted willfully or wantonly in creating the danger, which was the standard for PN law. Federal
district court concluded that it was not bound by PN decision and followed federal decisions which held
railroads owed duty of due care to users of lateral pathways. recovered in federal district court, though
he would have lost if the case had been brought in state court. Rule: Federal courts sitting in diversity
cases, when deciding questions of substantive law, are bound by state court decisions as well as state
statutes. [If application of federal law would substantially effect outcome, state law must be applied]
o 1.] Swift did not result in uniformity of common law: state judges discovered true principles on
their own and did not follow common law decision of federal judges; no uniformity ->
multiplicity of rules on recurrent issues
o 2.] grave discrimination (Black & White Cab)
o 3.] Swift was unconstitutional: authorized federal judges to make law in areas in which federal
government has no delegated power [constitution commands federal judges to follow state law]
o The constitutional authority of federal courts to determine federal procedure is uncontested;
substantive-procedural distinction starts to develop
[PROCEDURE]: Guaranty Trust Co. v. York (1945): Issue: Whether federal diversity court must apply
the state statute of limitations to a claim, or whether it was free to apply its own more flexible laches
doctrine to the case. Rule: If following a federal practice that differed from state procedure might
significantly affect the result of a litigation, the court must apply the state rule instead, to prevent
diverse parties from gaining unfair advantages simply b/c they can choose federal court.
o outcome-determinative test required federal courts to apply state law, as a matter of policy, not
constitutional compulsion
o Court holds it hat on uniformity: uniformity more important than following a separate federal
rule whenever it constitutionally could
Byrd v. Blue Ridge Rural Electrical Cooperative (1958): Issue: Whether the judge or the jury should
determine the s status as an employee of the . State law left the question to the judge, but the
practice in federal court was to send such issues to the jury. Rule: Federal courts should apply outcomedeterminative state law even on procedural issues as to which there is federal constitutional authority to
make its own rule, unless doing so is outweighed by countervailing federal policies that arise from the
federal courts status as an independent judicial system. [York + rule; balancing test]
o Countervailing federal policy: constitutional right to jury trial under the 7th Amendment
o Categorized as procedure: having a judge or jury decide whether is statutory employee of is
a form or mode
Hanna v. Plumer (1965): Facts: served process on , executor of Mass. estate, by leaving summons
and complaint at his home w/ a person of suitable age and discretion. Mass. statute required in-hand
service upon executor.
o Rationale: not every difference b/w state and federal rules leads to
1.] forum shopping:
Doubtful that would choose federal court over state court simply to avoid
serving in person
2.] equitable administration of the laws:
Difference b/w last and usual service and in-hand service is not an
examination of inequitable administration of the laws
Focus is on substantiality b/w difference of federal & state law: if there is a big
difference, then you apply state regime; if there is not, you apply the federal one
o Cases which involve Federal Rules of Civil Procedure (constitutional & statutory authority):
Source: necessary and proper clause; Congress and Court have broad constitutional
authority to promulgate any rule that is arguably procedural. [Rule 4 in this case is
grounded in Congressional authority]
Federal rules are safe from state encroachment

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 General Rules:
o 1.] Constitutional provision always prevails over state law
o 2.] Federal statute prevails over state law if it can be rationally classified as procedural.
o 3.] Federal Rule of Civil Procedure prevails over state law -> as long as rule is a procedural
regulation
o 4.] State law prevails over federal judicial practice if difference b/w it and federal practice could
prove outcome determinative, in the sense that following a separate federal practice could lead
to forum shopping or inequitable administration of the laws.
PRECLUSIVE EFFECTS ON JUDGMENTS:
Preclusive: way in which a final judgment in a case precludes re-litigation
o CLAIM PRECLUSION (res judicata): bars same claim in subsequent proceeding if first
proceeding has been reduced to final judgment (binding effect of previous judgment can bind
something that was not necessarily decided)
Virtues of claim preclusion:
1.] saves court time efficient (we want to promote judicial economy)
2.] creates incentive to join all theories of lawsuits into single lawsuit
3.] prevents serial litigation maybe for in terrorum effect or just to harass -> this
presents chance of inconsistent outcomes
Collateral: If first lawsuit is decided on the merits, party is collaterally estopped from
re-litigating issue in subsequent proceeding.
Manego v. Orleans Board of Trade: Facts: , black person, filed initial claim which
was conspiracy based on race. First claim was against Board of Selectmen, Bank, and
Willard. s motion for summary judgment granted. filed second claim against Board
of Trade, Bank, and Willard and was based on conspiracy & anti-trust. Held res judicata
bars second claim. Rule: Where the same set of circumstances which were needed to try
the first case are needed to try the second case, the second claim is precluded.
Transactional analysis: time, space, origin motivation; depends on how
broadly or narrowly the court construes the situation (this is a pragmatically
subjective exercise)
o if the court used a rights & duties analysis, the second claim would not
have been barred -> cannot discriminate against someone in the first
lawsuit vs. violation of duty not to stifle competition in the second
Claims against Board of Trade who were not a party in the first case: there is no
res judicata analog to the necessary party doctrine
Could Manego have added anti-trust claim in earlier lawsuit? yes, Rule 20
would have allowed him to add Board of Selectman
Core events overlap; it seems it would be convenient to bring both claims
Amending claim:
o Rule 15(a): if it happens before trial
o Rule 15(b): after trial
o Rule 60(3)(b): facts do not come up until post-judgment; move
judgment w/ respect to new evidence; and if you lose, you can still
appeal
Is a second claim denied if trial judge dismisses s motion for joining claims
most likely
o ISSUE PRECLUSION:
Issue preclusion (collateral/direct estoppel): binding effect of a decision w/ respect to
a particular issue in an earlier case. Once judgment has been made, party cannot relitigate issue even if subsequent litigation raises separate claims.

39

Direct estoppel: works in case which has not been conclusively decided on the merits
(first lawsuit) but some issue in that case has been decided, then party is directly
estopped from re-litigating issue in same proceeding
Process for deciding what issues were resolved in the first case:
Pleadings
Transcripts
Justice of the Peaces opinion
Do not talk to jurors b/c they are not always logical
Reason our way to conclusion
Little v. Blue Goose Motor Coach Co.: Facts: Little & BG get into accident; Little dies.
Justice of Peace decided Little was contributorily negligent. Little turns around and sues
BG in city court of East STL. Holding: Simple negligence claim is barred b/c he was
contributorily negligent. Littles willful negligence claim is not completely barred
however, first suit decided bus company was not negligent, thus if BG was negligent, it
could not have recovered b/c of contributory negligence doctrine.
Little should have raised claim as counter-claim (he didnt b/c he needed more
damages)
Widow is bound to justice of peace proceeding even though she wasnt a party
to the proceeding:
o Privity: court treats widow and as same party; successor in interest
o No privity: if widow was in the same car as ; difference b/w privity
and proximity/participant.
Hardy v. Johns-Manville Sales Corporation: Facts: Earlier case 6 manufacturers
were found liable for asbestos related injuries b/c of s use of their products which did
not adequately for-warn them in their use of products. Current case s suit against
same 6 manufacturers w/ new set of claims. Held s are not precluded from bringing
suit. Rule: Where there are real differences between two sets of s, even if the decision
effecting the initial s was a binding legal determination, the second set of s will not
be collaterally estopped.
Previous decision was ambiguous as to particular points -> decision was not an
absolute finding
Effect of previous decision: it articulated and clarified legal principles that
should be applied to asbestos litigation in the future but did not resolve factual
disputes related to s.
Previous finding of liability is preclusive only if facts are very closely tailored
Ways to structure first case in way to have preclusive effect on future cases ->
using a class-action and creating sub-classes (Hansberry) of groupings of s
that have shared characteristics
Offensive non-mutual collateral estoppel:
Mutuality: you would have been bound by the decision had it gone the other
way
If there are two sets of s (group who brought initial suit, and then a group
who was injured and brought another suit), second group is bound by mutuality
w/in themselves but not b/w each other
Use the former adjudication offensively against the s: if the first class of s
find the airline negligent then the second set of s come in and use the
resolution offensively
Commissioner of IRS v. Sunnen: Facts: 1935 Board of Tax Appeals: royalties are not
taxable to Sunnen, but are taxable to wife. Following change in tax laws, Board of Tax
Appeals finds payments made to wife under new contracts that are modeled on original
1928 contract are taxable to Sunnen, not wife. Rule: Where there is a new contract

40

every year and new assignment in income, there is a new transaction. Rulings on
previous transactions do not have preclusive effect on subsequent transactions.
Court: if they are going to give preclusive effect to determination, contract has
to be identical in all respects; subsequent contracts in this situation were a little
different
POLICY - Decisions of legal issues do not freeze the law: there is a greater
likelihood that new litigation provides us w/ an opportunity to further
understand the law and get it right subsequently (nature of the common law)
Courts reasoning: the tax law has changed, the world has changed, and that is
the main reason why we should not be bound.

Step I: general vs. specific jurisdiction

Step II: purposeful availment/reasonableness (tortious act?)

41