I. Introductory Material A. Outline of the Procedure in a Civil Action 1. Decision to file suit: a.

is issue one for which law will grant relief b. probability of winning a lawsuit? c. whether winning will be worth the time, effort, and expense it will costs compared to alternatives to suit (settlement, arbitration, self-help) 2. Selecting proper court a. Jurisdiction over the subject matter b. Jurisdiction over the person 3. Commencing the Action a. gives notice to by service of process - summons, which directs to appear under penalty of - default - personal service generally used, sometimes - substituted service (paper or mail) okay 4. Pleadings and Parties a. Complaint: pleading served with the summons b. Three objectives served by pleadings: i. basis for identifying and separating the legal and factual contentions, so that legal issues may be disposed of early ii. pleadings may be intended to establish in advance what a party proposes to prove at trial, so opponent will know what contentions he must prepare to meet iii. pleadings may be intended to give each party only general notice of contentions, relying on subsequent stages to ID detailed contentions 5. The Response a. Motion to Dismiss i. lack of jurisdiction ii. failure to state a claim b. Motion to Dismiss will be granted when: i. the injury is one for which the law furnishes no redress ii. the may have failed to include an allegation on a necessary part of the case iii. complaint may be so general or confused that court find it does not give adequate notice of what s claim is c. if Motion to Dismiss is denied or not made - must file an ANSWER i. admit or deny allegations made ii. plead any affirmative defenses d. new matters raised in answer generally automatically taken as denied by , unless a counterclaim is made e. has to respond to a s counterclaim B. Opportunity to be Heard - Due Process Clause imposes limitations on the use of provisional remedies like temporary restraining orders, preliminary injunctions, etc, b/c they do not provide an adequate opportunity to be heard 1. Fuentes v. Shevin (1972) U.S. Supreme Court a. Issue: whether the Florida statute which permits goods to be seized by creditors in a case of non-payment, violates the consumers constitutional due

Comment [L.R.1]: Using simply a process where the creditor requests writ from court clerk w/ a convincing showing that they are entitled to possession, and deposits a bond

process rights by failing to provide hearings at a meaningful time (before the goods are taken) b. Holding: PA and FL laws allowing deprivation of property w/o prior opportunity for hearing denies individuals due process rights. c. Rationale: (from class notes) If you only hear one side of story (debtor has no chance to protect rights) less likely to get right answer story. 2) protect against fraud, or ability to take when the taker doesnt have right 3) protect against imbalance of power removing consumers voice permanently. d. Dissent: giving her a hearing wont change anything. She probably cant afford a lawyer. AND this decision ignores creditors rights. 2. Mitchell v. W.T. Grant Co. (1974) U. S. Supreme Court a. Issue: Whether the Louisiana law, authorizing seizure of property w/o a hearing, provided the creditor submits a detailed application to a judge, and the judge authorizes the repossession, and a bond is posted by the creditor in case of error violates the due process rights of the debtor. b. Holding: The Louisiana law (as described above) does not violate the debtors constitutional rights. c. Rationale: In contrast to Fuentes, the detailed facts supporting the repossession have to be laid out for a judge, prior to authorization allows judge to determine if it is appropriate Judge authorizes, rather than clerk d. NOTES: Note that two additional conservative judges joined the court between Fuentes and Mitchell changing 4-3 decision to 5-4 3. No. GA Finishing, Inc, v. Di-Chem, Inc. (1975) U.S. Supreme Court a. Issue: whether GA law, which allows a petitioner to make an affidavit to a court clerk, as long as reason is given and bond is posted, and to then garnish a debtors property to pay for debt, is unconstitutional as a violation of the debtors due process rights b. Holding: The court held that the procedure described above (the simple act of filing a petition, with reasoning and bond, to a court clerk, in order to garnish anothers property for debt without hearing or other review) was unconstitutional. c. Rationale: Affidavit can be filed by person with little factual knowledge of case, and containing little factual basis to clerk, not judge The court does not distinguish between business property and personal property in due process cases. II. Getting Defendant Into Court A. Personal Jurisdiction 1. Definitions: a. in personam: action directly against a person b. in rem: action against a thing (property, status). If property in question is w/in courts jurisdiction, courts decision is binding against all interest holders of the property even those living out of jurisdiction c. quasi-in-rem: court renders judgment for or against a person, but recovery is limited to value of property that is w/in the jurisdiction. (In traditional intl law if is non-resident, but has property in s jurisdiction, this allows to sue in its courts, and still obtain relief) p69

- Domicile in state is sufficient to bring an absent w/in the reach of the states jurisdiction for purposes of personal judgment - even using substituted service 1. Historical Development of Min. Contacts Test Pennoyer v. Neff (1877) later overruled a. Issue: whether OR state court had jurisdiction over an action to regain payment for a debt, when debtor was not a resident of the state, and was not currently in the state, but held property within the state b. Holding: The Supreme Court held that the OR court was acting outside its jurisdiction in ruling on a personal debt case, where the direct subject matter of the case was not the land within the state c. Rationale: Because the action was in personam, rather than in rem (against a person, rather than against the property) it needs to be served to the person directly; Allowing judgments in personam, obtained ex parte against noresidents and absent parties, just upon publication (rather than personal service) would allow great opportunity for fraud Allowing state to exert power beyond its boundaries constitutes an illegitimate assumption of power d. Notes: Though OR has no jurisdiction over the personal dispute, did have jurisdiction over Neffs land had he actually owned it. However, suit was brought before he actually obtained ownership of the land, and the judgment can not be made valid afterward. Also Full Faith and Credit Clause: if judgment was entered against Neff while in OR, but then he moved to CA would be enforceable there too. (SEE HYPOs in NOTES!) Hess v. Pawloski (1927) a. Issue: whether a state can serve a non-resident notice via registered mail, and through the implied appointment of a registrar within the state, for an incident occurring on that states highways when the non-resident was in the state b. Holding: The state has power to regulate the use of its highways by residents and nonresidents, and the state may declare that use of highway by nonresident is the equivalent of the appointment of registrar as agent on whom process may be served. c. Rationale: The implied consent is limited to proceedings growing out of accidents on the highway It is required that he actually receive and receipt for notice of the service - There is no hostile discrimination against nonresidents d. Notes: could state then say that merely entering its boundaries constituted consent to be sued? Court doesnt stretch this far. The consent is not implied under all circumstances. Consent here is ok b/c it relates directly to action being taken by nonresident. 2. Notes on Applying jurisdiction to corporations (historically): a. Consent Theory: foreign corporation could transact business in a state only with that states consent o corporation would appoint agent to receive process within state as condition for doing business there. o Also granted implied consent

Comment [L.R.2]: Sovereignty theory- heart of this case.

Comment [L.R.3]: What justifies the state action? Motor vehicles are dangerous state protecting public health

b. Presence Theory: theory that foreign corporation is amenable to process, if

it is doing business w/in the state in such a manner as to warrant the inference that it is present there - court would lose its authority over a corporation once it stopped doing business in the state International Shoe Co. v. Washington (1945) S. Ct. of U.S. a. Issue: whether the activities of the salesmen employed by International Shoe, who solicited orders within the state of Washington, constituted doing business in that state, for the purpose of unemployment contributions; and whether the salesmen could also be seen as agents for the purpose of serving court papers b. Holding: the sales activities were systematic and continuous, and the presence of the salesmen within the state constituted a presence by which the corporation could be found to be in the jurisdiction of the state of WA, per the legislation established there. c. Rationale: Corporation was benefited by the laws of WA as it did business there, and therefore should also have the laws applied to it Activity in state was not irregular or casual but continuous and systematic d. NOTES: Criteria put forth by court used in later cases to help establish jurisdiction: - fairness and reasonableness on the application of the law to the company evaluated on 4 considerations: o quantity of activity o relatedness of that activity to the underlying claim o fair play (more intangible considerations than just counting the amount of activityp782nd full paragraph o benefits and protections enjoyed while in the state 3. Modern Elaborations of the Min. Contacts Test (long-arm statutes) Long-arm statutes: provide personal jurisdiction over nonresidents who cannot be found predicated on s general activity in the state, or commission of any one of a series of enumerated acts w/in the jurisdiction pushes states jurisdiction to limits set by Supreme Courts due process decisions in International Shoe, etc. Gray v. American Radiator & Std Sanitary Corp (1961) S. Ct IL a. Issue: whether 16 of the Civil Practice Act can be interpreted to reach a company who committed a tortuous act outside the state border, but whose affect (injury) was caused within the state b. Holding: the court held that the negligence in manufacturing the valve cannot be separated from the resulting injury, and that therefore, the tort was committed in IL, and under 16, the could therefore be served. In addition, the fact that this injury was the s only contact with the state does not preclude it from being served. If the nature of the transaction is sufficient, continuous activity within the state is not necessary. c. Rationale Due Process justification: Cites International Shoe: modern doctrine on jurisdiction is 2 prong: 1) whether co. has certain minimum contacts with the state; 2) whether there has been reasonable method of notification

Comment [L.R.4]: These are the two major criteria. With neither of these, you have no suit. With only one or the other it depends. See book 77-78.

Comment [L.R.5]: Nickname for service and process statute that extends state jurisdiction to people outside the borders. When/who/why?

Comment [L.R.6]: If court is interpreting this form the stance of what the legislators intended we know that the legislators would want the interpretation to best serve their constituents thus it MUST be read in a way to protect them. (look at NY case for evidence) strange interpretation of words to accomplish legislatures goals.

Re: middleman it is rare for mfg. to come into direct contact with consumer in other statesuse of such defective product in ordinary course of commerce is therefore sufficient contact with state to justify rqmt. to defend within it dont need continuous contacts w/ modern transportation & communication, not as inconvenient for company to defend in home state of consumer Feathers v. McLucas: NY court disagreed with IL, stating that where the effect of the tortuous act is committed is not the same as the place of the commission and therefore jurisdiction should be where the act was committed s cause of action usually needs to be related to or arising from the business transacted within the state. If the company happens to do business in the state, but that has nothing to do with the s injury, may not get jurisdiction for suit. Jim Fox Enterprises inc v Air France. Texas limited its reach below permitted level. World-Wide Volkswagen Corp v. Woodson (1980) U.S. Supreme Ct. a. Issue: whether state may exercise in personam jurisdiction over a nonresident auto retailer and distributor (located in NY), when the only evidence of a physical connection with OK was an automobile sold by the retailer, that was in an accident in OK b. Holding: Court held that the chance that an automobile sold in NY might pass through OK, where no other commercial activity is sought by the company in that state, does not meet the minimum contacts necessary for OK to claim in personum jurisdiction over that business entity. c. Rationale: The two petitioners did not receive any benefits from the laws of OK (no sales business there, no potential customers there) Foreseeability that automobile sold by them May pass through OK is not enough to establish personal jurisdictionit has to be foreseeable to petitioner that he may be hauled into a specific states courts by his regular activity (would take out insurance there if it knew) d. Notes: - Purposefulness emphasized in opinion. Issue is not foreseeability. - There must not only be foreseeability, but a purposeful availing of the benefits in the state. - Court is IDing 2 distinct steps in the analysis: 1. existence of contacts 2. fairness

NOTES:

Comment [L.R.7]: Two arguments here: 1. not inconvenient at all, really. 2. even if it is, better to put that cost on the corporation than the injured party. In general, jurisdiction can be more permissive since it doesnt take that long to travel anymore.

4. Specific Jurisdiction continued (applying/limiting World-wide VW) Insurance Corp of Ireland v. Compagnie des Bauxites de Guinee: personal jurisdiction requirement imposed by due process clause is one that recognizes and protects and individual liberty interest World-wide Volkswagen Corp was restriction on state sovereignty to protect personal liberty more than promote federalism Keeton v. Hustler Magazine: distribution of magazines, even only few thousand, in NH is enough to allow NH personal jurisdiction over the company who published the magazine. Activity was regular not isolated or random.

Comment [L.R.8]: Does this disagree with Gray? IF the opposite were true, would it be that horrible? Difference turns on ability to control whether you will or will not be sued in that area. Companies in distribution stream could decide not to sell there. But if someone else decides to take a product you made somewhere unforeseeable, thats outside your control. Difference is also in whether took affirmative action in that jursidction. Audi co. for example, took affirmative action to sell in OK by having dealers there they could not contest jurisdiction. (see notes below)

Comment [L.R.9]: Using 2 step analysis (contacts / fairness) how does court reach their decision? 1. quantity of magazines was enough in number and purposefulness; and 2) it was not a great inconvenience / hardship to litigate there

court did also not allow the question of the SoL of NH to interfere with the question of jurisdiction - court also said it is not a question of her contacts in NH, it is a question of Hustlers contacts General Rule: unrelated contacts, if continuous and substantial, may support general jurisdiction, but even a single contact may support jurisdiction when the cause of action arises out of the contact Kulko v. Superior Court: Supreme Court reversed CA courts assertion of jurisdiction over a divorcee dad, after Mom moved to CA with the kids. Marriage and divorce had taken place in NY, and Dad still lived there. Sup. Ct said that just b/c the effects of his action were felt in CA, if they did not cause them harm, and were not wrongful, there was no reason for CA to assert jurisdiction. Burger King v. Rudzewicz a. Issue: Whether Rs contractual relationship with company in FLA, even though no direct sales or physical contacts existed there, allowed FLA to assert personal jurisdiction over him. b. Holding: Rs established and continual relationship w/ the Miami company, along w/ contractual notice that FLA laws governed, gave him sufficient notice that he would be under that jurisdiction. c. Notes: Note that court is deliberately using two-prong approach: 1) Contacts; 2) Fairness - significance of choice of law provision shows that he purposefully availed himself to the benefits and protections of FLA law. - Court is also focuses not on which jurisdiction would be better question is whether it would be fundamentally unfair for FL to exert jurisdiction - Court discusses lack of proof (in record) that it would be unfair for Mr. Rudzewicz or a huge burden to litigate in Fla Asahi Metal Industry Co. v Superior Ct (1987) U.S. Supreme Ct. a. Issue: whether simply putting product into an international stream of commerce allows any state in which product is found to assert personal jurisdiction over the manufacturer b. Holding: court held that allowing CA to assert personal jurisdiction over Asahi would be unreasonable and unfair, despite the fact its goods were found in CA, and might foreseeably have been so c. Rationale: Placement of product into stream of commerce, w/o more, is not an act of purposefully directed toward the forum state additional act (like advertising or marketing, distributing) necessary Assuming this is a repudiation of Gray, why would it win? No right answer unresolved in the court. There is authority in both directions, as to how a component supplier should be treated unreasonable burden on defendant (part IIB of the decision) not clear that CA law should govern question of whether a Japanese corporation should indemnify a Taiwanese corporation on basis of sale made in Taiwan 5. General Jurisdiction and Long-arm Laws Perkins v. Benguet Consolidated Mining

Comment [L.R.10]: Court says there may be an argument that New Hampshire shouldnt be able to award damages for reputation damage everywhere (since SoL expired everywhere else) but at least she should be able to get damages for her reputation damage there.

Comment [L.R.11]: You have to put forth facts to substantiate that its going to be unfair

Comment [L.R.12]: In Contrast, Justice Brennan says (p127) that as long as company knows their product is in CA, they should be able to be sued there. Comment [L.R.13]: was already out of the picture; and concern over whether cultural aspect of Japanese co. defending in CA would also be unfair. If had claimed against Asahi directly, CA might have had greater interest. (note again if zurcher had still been involved, court probably would have had the jurisdiction stay in CA. his removal may have made the difference (Supreme Ct. of CA made its decision BEFORE he settled out )

a. Issue: whether non-resident of Ohio could sue Phillipine company whose president maintained office in Clermont County, Ohio, kept files there, correspondence, etc. b. Holding: Supreme court held that it would not violate federal due process, considering the sufficiently substantial business done out of OH by the company, for OH to take or decline jurisdiction. Fisher Governor Co. v. Superior Court: CA supreme court quashed procedures when served , an Iowa corp, by delivering papers to CA mfr. Agentmore contacts are required for the assumption of such extensive jurisdiction than sales and sales promotion within the state by independent nonexclusive sales representatives. Ratcliff v. Cooper Laboratories: South Carolina could not assert personal jurisdiction over drug manufacturers incorporated in Delaware, even though drugs were distributed theremainly b/c allegedly defective drugs were both manufactured and consumed outside the forum, and cause of action was unrelated to s activities in forum. Helicopteros. v Hall (1984) U.S. Sup. Ct. a. Issue: whether the purchase of helicopters from Texas; training of employees in Texas and negotiation of one contract in Texas, are sufficient contacts to give Texas in personum jurisdiction over an international, nonresident company b. Holding: Purchase transactions and training of personnel in Texas (in connection with those equipment purchases) are not significant enough contacts to meet the minimum requirements for in personam jurisdiction there. c. Rationale: Contract negotiation was a one-time deal, and does not meet requirements of consistent, systematic, etc. Rosenberg is precedent for decision that purchases, even if made at regular intervals, are not enough for in personam jurisdiction Training of personnel was package deal with equipment purchases, and should not be separated. Cresswell v Walt Disney Productions: Disney advertised in PA, sent reps there; sold products and broadcast the Disney channel thereCourt held that was enough to meet substantial and continuous contacts for to sue in PA even though she was injured at Disney World in FLA 6. In rem jurisdiction and other single-factor tests Tyler v. Judges of the Court of Registration (1900) U.S. Supreme Ct. Issue: whether the registration act, which required newspaper

Comment [L.R.14]: Court agrees that in general jurisdiction, a single unrelated contact within a state, if the suit that arose elsewhere is not enough. (in Gray single contact pertains directly to the event out of which the suit arose specific jurisdiction)

publishing, sign posting and a letter sent to adjoining land owners, violated the due process claims of people with adverse claims on the land
Holding: The Supreme Court held that the act was not unconstitutional Rationale:

The court has jurisdiction over the land, and can proceed without serving claimants thereto

Proceeding is about the subject of land, against any number of people; had it been just against a certain person, would be in personam(?)

Harris v. Balk (1905) U.S. Supreme Court Issue: whether a state can assert jurisdiction over a party who owes another party a debt, if the debtor is temporarily in the state, even though the debt was incurred outside of the state Holding: The Supreme court held that any obligation of debt accompanies him through all state borders, and any state could enforce payment of the debt Rationale: Balk was served with notice too, and had opportunity to defend thats why this is okay. If he was not notified, Marylands court action would have been problematic. Shaffer v. Heitner (1977) U. S. Supreme Court Issue: whether s ownership of stock of a company incorporated in Delaware was sufficient to give Delaware in rem jurisdiction. Whether standard of fairness and justice set forth in International Shoe should be held to govern actions in rem, as well as in personam. Holding: The Sup. Ct held that Delaware could not exert jurisdiction over the non-resident owners of Delaware stocks, despite the fact that they were officers of a company incorporated in Delaware. For a state to exert in rem jurisdiction over a case, it has to meet the same minimum contact and fairness tests set out in International Shoe Rationale: While appellants have property in DE, the property is unrelated to the subject of litigation; nor is the underlying cause of action related to the property B/C jurisdiction in rem (jurisdiction over a thing) is really jurisdiction over a persons interest in a thing therefore, in order to exercise a jurisdiction in rem, the basis of the jurisdiction argument must justify exercising jurisdiction over the interests of persons in that thing Notes: In class hypothetical: - if signed contract in MO regarding land in VT, and there was a disputewould suit be heard in VT? o Using In Rem jurisdiction, would the case still need to meet International Shoe standards? Or would property be enough? o Could argue that by buying property in state, purposely availed himself to benefits of laws of VT What benefits? Trespass laws; he could sue under laws of VT if someone adversely affected his property - So the real change in this case is now - cannot say b/c property is there, automatically = jurisdiction. NOW court has to consider International Shoe standards minimum contacts; fairness/inconvenience o And VTs argument to an argument from that it is inconvenient is that state has substantial interest in adjudicating property w/in its borders. Burnham v. Superior Court (1990) Supreme Court of U.S. Issue: whether the Due Process Clause of the Fourteenth Amendment denies CA courts jurisdiction over a nonresident, who was personally served with

Comment [L.R.15]: Court is not advocating a 2-step analysis, b/c this case is pre-VW. So analysis includes both contacts, and whether its fair and reasonable. Before Shaffer, you didnt have to consider these things. All you had to say was stock is there so to speak, and you had jurisdiction

Comment [L.R.16]: Does this meen in rem jurisdiction is defunct? That they have aggregated in rem jurisdiction? The court is trying to reserve in rem jurisdiction for cases where issue pertains directly to the property in the state.

process while temporarily in that state, in a suit unrelated to his activities in the state (guy was in state on business, served w/ divorce papers) Holding: - no majority holding. majority to decide case only. CA service did not violate Due Process Rationale: Scalia history, majority says that personal service is enough for jurisdiction Brennan: all cases should comport w/ Intl. Shoe test. fair and reasonable Consent to Jurisdiction: Carnival Cruise Lines, v Shute: Supreme Court held that consent to have case heard in pre-decided forum guides jurisdiction decision- can override minimum contacts argument to have case moved even when one party is a consumer, and not of equal bargaining power. Congress reacted following year w/ a statute not allowing this type of contract; year later- reversed themselves (Oceans Act) so cruise ships can still use contracts like this. (See note on p 182 exceptions to enforcement of these types of clauses)

7. Personal jurisdiction in Federal Court

DeJames v. Magnificence Carriers (1980) U.S. District Ct, District of NJ Issue: whether a business contact with the US in general, is sufficient to give a federal court jurisdiction in the forum state in which it resides Holding: nationwide contacts of an international company, outside of the forum state, are not sufficient to provide a federal court within that state jurisdiction over the company if the forum states long-arm statute would not have encompassed those contacts Rationale: Federal rule of civil procedure 4K(1)(A): federal court can only reach as far as the state court in which it sits Majority of courts have rejected the national contacts approach in absence of statutory authority (either within state or by federal statute) 8. Challenging personal jurisdiction (see FRCP 12) a. Raising Jurisdiction Issue Directly: Special appearance: common law procedure, where a presented challenge to courts exercise of personal jurisdiction, w/o submitting to courts jurisdiction for any other purpose Designate as special appearance Limit to only raising jurisdictional defense Any other arguments re: merits of case would make it a general appearance and a submission to courts jurisdiction (waiver of jurisdictional defects) o In federal court. (see Rule 12b you can combine them, and youre not waiving objection to jurisdiction by combining) o 12g consolidate all defenses in one motion including jurisdiction 12h you have to plead jurisdiction defense in objection motion or in your pleading Data Disc, Inc v. Systems Technology Associates (1977)

Court can limit pre-trial proceedings, affecting burden of proof for If court only receives affidavits and discovery materials, s proof is limited to demonstrate facts which support a finding of jurisdiction in order to avoid motion to dismiss If pleadings and other materials raise issues of credibility w/regard to fact court can decide to take evidence, and then must est. jurisdiction by preponderance of evidence If jurisdictional facts are intertwined with merits, court could decide to determine jurisdiction at trial in such a case then, only needs to est. prima facie jurisdictional case before trial and then would need to prove by preponderance AT trial b. Collateral Attack on Personal Jurisdiction If challenges courts exercise of personal jurisdiction and loses, cannot challenge again later at time of enforcement

Baldwin v. Iowa State Traveling Mens Assn (1931)

Holding: Once company voluntarily appeared to contest jurisdiction, it submitted itself to be governed by the decision of the courtthose who have contested an issue shall be bound by the result of the contest Facts: company had made special appearance to appeal jurisdiction. Didnt argue merits. Lost on jurisdictional argument and judgment was entered against it. Then tried to argue that it shouldnt be enforced. Notes: what if had just not shown up at all; would he be able to contest judgment later? Yes. This makes sense b/c itd be circular to argue that someone has to show up in jurisdiction to oppose that jurisdiction. he defeats his own argument that its inconvenient, etc. Orange Theatre: restates that Rule 12 eliminates necessity of special appearances for federal courts. B. Notice and Service of Process (Requirement of reasonable notice) RULE 4

Mullane v. Central Hanover Bank & Trust Co. (1950) U.S. Sup. Court
Issue: whether notification by publication, by a trustee of common trust, to unnamed beneficiaries, was sufficient notice of a case involving their interests Holding: the court held that notification by publication was not sufficient for beneficiaries who could be identified, but was sufficient for those who could not. And notification requires reasonable effort to notify interested parties. Rationale: Interest of state must be balanced against due process interests of those outside the state Fundamental requirement of due process is notice to interested parties that affords them opportunity to present their objections Notice must: Reasonably convey rqd information Afford a reasonable time for those interested to make appearance Method of notice has to be reasonably certain to inform those affected (Notice reasonably certain to reach most of those interested in objecting is likely to safeguard the interests of all) -justifies the courts argument for reasonable measures of notification rather than exhaustive measures The beneficiaries are themselves paying for the cost of running the trust. In that context, the courts decision to economize is not protecting business any more than protecting the trust beneficiaries.

Comment [L.R.17]: How does this protect the individuals due process rights, if he/she may not be individually served? b/c individual interest does not stand alone but is identical w/ the others in his class. This fortifies their argument/conclusion.

Considering this is the courts decision then wrong? Is first class postage even too expensive? What if it was sent bulk mail, instead of first class? Not forwarded, but cheaper. Notes: What is benchmark court uses to decide how much is enough? means used must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. Use whats reasonably certain to work, and if nothings reasonably certain to work, than use a method thats at least as likely to bring notice as others. Dusenbery v. United States (2002) U.S. Supreme Court Issue: whether governments notification procedure, which had letter sent by certified mail to prison, which was signed for by mail clerks, (alongside a letter sent to his mothers house)ensured sufficient notification to meet prisoners due process rights, despite lack of proof that inmate ever received letter. Holding: Supreme Court held that the attempted notification was adequate Rationale: just b/c new procedures exist which improve upon reliability of notice, does not mean that old procedures were definitely flawed. Dissent: no proof that inmate ever got letter. Procedure is too lax Maryland State Firemens Association v. Chaves (1996) Issue: whether delivery of a service of process by mail, without response waiving personal service, is sufficient under the FCRP Rule 4. Holding: The court held that under rule 4(d), even if addressee physically receives the paper process, unless they consent to waiver, the has to move forward with personal service of process. majority rule: it states that even if has actual notice of a complaint, rules still need to be followed. Notes: Is this inconsistent with Hellenic and/or Rowe? You could look to Rule 1, and justify some resolution in terms of meeting the just, speedy, etc aspects. Rule 61 disregard error which does not effect substantial rights? Argument not very successful in courts. *** Formal procedures need to be followed to get the case into court this argument is followed much more often. *** Audio Enterprises v. B&W Loudspeakers: court rejected Federal Express as a substitute for first class mail for delivery of service Rovinski v. Rowe: moved to dismiss on ground that he was a resident of MI. After action was dismissed, commenced a diversity action against in federal court. Service of process sent to MI address, and claimed that he lived in MN for last 2 years. Court held that the service of process was valid, rule should be liberally construed when uncertainty of its applicability to varying situations would b increased by strict construction. First Nat. Bank & Trust Co. of Tulsa v. Ingerton (1953) couple moved around, wherever their horses were racing, but stored furniture in Raton, NM. Process was

Comment [L.R.18]: Consider people who have multiple residences. Are all viable options for service? For federal, might be okay. Statedifferent story.

served on their daughter at a place they rented for one month in Denver, CO, but court quashed service on ground usual place of abode was Raton Insurance Co. of North America v. S/S Hellenic Challenger (1980) - U.S. Marshal delivered summons and complaint w/ claims adjuster who was not expressly authorized by to accept process. Only managers were expressly authorized, manager was out sick. - He lost the complaint, and company was unaware of lawsuit until its bank account was attached by - Court denied s motion to set aside the judgment on the basis of improper service of process b/c o Claims adjuster had handled and rcd claims before therefore knew what to do with them, etc o Adjuster sat right outside door of manager o He was well-integrated into the organization, and it was reasonable for Marshal to deliver to him. - Courts taking broad view of phrase general agent under Rule 4(h)(1). - Irony is that agent (who court thought was responsible enough to handle the claim) lost it. Is the court being plaintiff oriented?

Wyman v. Newhouse (1937) U.S. Court of Appeals, Second Circuit Issue: whether service of process (and default judgment entered afterwards) could be upheld when the situation proceeding service of process was procured fraudulently Holding: Court held that since the service was procured by fraud, it was invalid Rule: in some situations, fraud negates an otherwise proper service of process (Harry Grossmans antics exception) C. Federal Subject-Matter Jurisdiction 1. Federal-question jurisdiction see 28 USC 1331, 1337, 1442
not all federal question cases need to go before federal courts where validity of state action may be at issue, avoids friction to go to State courts, which can ultimately be reviewed by U.S. Sup. Court RULE: 1331 only applies if the s claim requires proof of federal law. Statute does not confer jurisdiction on the federal courts over cases that involve federal law unless fed. issue is necessary to prove s claim. Louisville & Nashville R. Co. v Mottley (1908) Sup Ct. p280 Facts: s sued railroad to honor free travel for life contract. not federal claim b/c it was contract, even though defenses were federa. Holding: The court held that the suggestion by the claimant that the will allege a defense that the claimant can invalidate using the Constitution, does not make the claimants matter a federal question, for the purposes of jurisdiction. Rationale: Open doors for too many cases to go to federal courts based on speculation of plaintiffs regarding defendants defense If you limit it to when is alleging a federal issue, you will be confident that a federal issue will emerge.

Comment [L.R.19]: Policy rule

Notes: The Mottley rule is not Constitutionally driven; it is a statutory limitation in 28 1331. Same words (arising under) but different interpretation. Constitutional power of review ( Art 3, s. 2) would include this case. (1)Well Pleaded complaint rule: court, in deciding whether the case arises under federal law for purposes of s. 1331, 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. (2) if federal law creates the substantive right seeks to enforce, AND authorizes suit to enforce right, all is good. (Holmes test) (3)Shoshone Mining: Federal statute only authorized right to sue, but the law being enforced was a local property law. No federal court. Skelly Oil Co v. Phillips Petroleum Co. (1950) Procedural: suit brought under the Declaratory Judgment Act for a declaration that certain contracts had not been terminated. Court denied jurisdiction Holding: court held that federal court could not hear suits for declaratory relief just because it was anticipated that the defense would be based on federal law Franchise Tax Board v. Const. Laborers Vacation Trust (1983) p283 Plaintiffs claim: sued the trust in state court alleging that trust had failed to comply w/ three tax levies under CA law Defendants Claim: regulated under federal Act ERISA, and did not have to comply w/state regulations. Sought to remove to federal court Holding: Supreme Court held that the district court lacked subject-matter jurisdiction. well-pleaded complaint rule from motleyfederal question did not appear in tax boards complaint. (4) Smith: The twist: even though it was a state created cause of action, it was necessary for court to resolve federal issue in order to answer s state law question so it was OK for federal courts. P286 Moore: state statute (cause of action is state-created) but negligence defined by failure to comply with federal law. Court holds: NOT a federal question no federal jurisdiction p287 Two opinions above conflict. Levin: court keeping options open/flexible regarding whether it wants to take jurisdiction Since court hasnt decided it definitively, argue policy either way Merrell Dow Pharm v. Thompson p290 sup. Ct. Facts: s sued b/c Merrell did not warn of risks of Bendectin, as rqd by FDCA. state cause of action: negligence., but s asserted needed to prove the cause of action by showing violation of federal statute FDCA. Holding: Federal law created a substantive right, but did not expressly authorize suit to enforce that right. Congress did not intend to create federal right to sue for violating statute. RULE: statute that creates a federal substantive right, but is held not to create a private right to sue to enforce it, will not support arising-under jurisdiction under 1331.

Comment [L.R.20]: Why? Help to keep down the federal case load

Comment [L.R.21]: Insert shoshone

2. Diversity jurisdiction a. 5 Problems result from existence of diversity jurisdiction: 1. congestion 2. Erie Rule: application of state law to substantive issues in diversity cases (wasteful and inappropriate) 3. judicial and legislative authority should be coextensive 4. diverting litigation to federal courts may impede development of state law 5. diminishes incentives for state court reform b. Exceptions to diversity: 1. probate matters 2. domestic relations Mas v Perry 5th cir. p265 Facts: french and and american woman from Mississippi were married

graduate students in LA. Landlord was spying on them, so they sued in Federal court under diversity of citizenship
Holding/Rule: Court held that where there is no intent to treat a present address as a permanent domicile, previously maintained domicile represents the citizenship of the person. - complete diversity is necessary, to both French husband & American wife Kramer v. Caribbean Mills - s wanted to have claim heard in federal court , so assigned their claim to Texas attorney for $1 to get diversity jurisdiction. Court held that they could not manufacture federal jurisdiction. 1359 says you cannot get jurisdiction through assignment or improper or collusive action. HYPO: if NY was their (panama companys) principal place of business, under 1332 (c)(1) theyd be citizens of both Panama and NY . p 268 corporate citizenship test: 1. nerve center test: locus of corporate decision-making authority constitutes corporations principal place of business for diversity purposes 2. corporate activities or operating assets test. greater weight attached to location of production or service activities 3. total acdtivity test. hybrid of other two tests. Considers all circumstances to discern principal place of business. 3. Jurisdictional Amount a. 28 USC 1332: diversity action must meet minimum $75,000 claim) b. Tongkook America v Shipton Sportswear Co (1994) Facts: T sued S, thought matter was worth $100k+, but in pre-trial discovery came out to be $33k Holding/Rules: The court held that s good faith belief, before the trial, that amount would be sufficient, cannot be controlling when there is a legal certainty that the cannot recover the jurisdictional amountand even if amount comes out at trial, case must be dismissed. Note: making the argument that it would be more efficient just to let the case stand b/c of time that was already invested, will fail in a subject matter jurisdiction issue. Problems w/ allowing jurisdiction just based on good faith could be abused. goal is an objective test.

even though amount might not be known up front, its cut and dry. c. Snyder v. Harris (1969) Supreme Ct. (appdx) Facts: sued on behalf of gas customers. his claim was only $7.81, but

total claim of whole class would have been higher than jurisdictional amt.
Rule: The court held that claims in a class action suit could not be aggregated to meet the minimum amount required under statute for a matter in controversy, and that a s single claim would need to be over the min to qualify for fed. Jurisdiction in a diversity case. Notes: Suits involving state law could be tried in state courts (see hypos in notes) d. McCarty v. Amoco Pipeline Co. (1979) p276 Issue: how to determine value of declaratory or injunctive relief for a diversity case seeking federal jurisdiction Three different Approaches: 1. adopting rule that only value to the may be used to determine jurisdictional amount 2. amount in controversy from standpoint of whichever party was seeking to invoke federal jurisdiction. Problem anomalous results (if gets case dismissed for not meeting $, but could get the case removed to federal court if amount was larger from his point of view) 3. either viewpoint rule: amount in controversy may be determined by the pecuniary result to either party which the judgment would directly produce 4. Federal and Non-federal Claims in Combination Aka Subject Matter Jurisdiction of Federal Courts Supplemental Claims and Parties see 28 USC 1367 o Pendent jurisdiction: used when , appends claim lacking an independent basis for federal subject-matter jurisdiction, to a claim possessing such basis o Ancillary jurisdiction: when either a or a injects a claim lacking in independent basis for jurisdiction by way of a counterclaim or crossclaim or 3rd party complaint a. United Mine Workers of America v. Gibbs (1966) p298 Holding: A federal court can try a state claim when that claim is combined with a federal claim, which would, on its own merits, be substantial enough to obtain federal jurisdiction; and which is directly related to the state cause of action. (fact that federal claim is defeated has no bearing on courts ability to rule on the state claim). Rationale: Federal claim must have substance sufficient to confer subject matter jurisdiction on the court (and) The state and federal claims must derive from a common nucleus of operative fact. comprises but one constitutional case. Court makes argument that word case in article 3 embraces all claims that arise out of same set of operative facts from which federal claim arises Notes: considering comment 1, why wasnt this case dismissed to the state courts after the federal claim was dismissed? Judicial economy jury had already returned verdict.

Comment [L.R.22]: Seen as not a huge issue, since cases could be heard in state court b/c its a state issue restrictive attitude is compatible with congressional policy (min. amount keeps going up)

Comment [L.R.23]: At courts discretion judicial economy, convenience and fairness to litigants considered; also, if state issue is substantially prominent the state claims may be dismissed and left for resolution by state (p301)

Comment [L.R.24]: All one set of events, and two different legal theories are being employed.

- leading case on these issues. b. Owen Equipment & Erection Co. v. Kroger (1978) supp. 16 Facts: Kroger sued for wrongful death against OPPD, alleging negligence in construction and maintenance of the power lines. OPPPD then filed a 3rd party complaint pursuant to FRCP 14a, against Owen (petitioner) alleging that crane was owned and operated by them and their negligence was proximate cause of accident. OPPD won summary judgment, meanwhile Kroger brought claim directly against Owen. No diversity between Kroger and owen Holding: The court held that since there was no independent basis of federal jurisdiction over Krogers claim against Owen, rule of strict diversity prohibit federal jurisdiction in this case. Rationale: Question of whether the federal and nonfederal claims arise from a common nucleus of operative fact is not only question - must also examine specific statute that confers jurisdiction over the federal claim to determine congressional intent concerning nonfederal claim Diversity must be complete diversity Recognizing ancillary jurisdiction over s claim against 3rd party would allow to circumvent complete-diversity requirement c. 28 USC 1367 a codification of Gibbs (power to exert jurisdiction given) c district court may decline(discretion over when to exercise it) b sets out restrictions on supplemental jurisdiction (Kroger) - note that b says . Tougher attitude towards . If had just added him, court would be more accommodating, b/c it was that chose federal court in the first place. 5. Removal a. 28 U.S.C. 1441: rules under which can remove a civil suit to a federal district court (b) where they have original jurisdiction, or if no one resides in state where action is brought (c) when separate and independent claim or cause of action under 1331 is joined with otherwise non-movable claims, entire case can be removed to district court (d) suit against foreign state trial w/o jury (e) 1369 stuff; (e)(2) court can remand to State court for damages, unless more convenient to keep it b. Bright v. Bechtel Petroleum, Inc. (1986) 9th Circuit Supp 22 Facts: sued employer for breach of employment contract ( paying less than contract) in CA Employer removed case to federal district court on ground that had artfully pleaded what was actually challenge to employers compliance w/ fed tax law then decided only to argue the question of state withholding Rule: can have complaint removed to federal court if s claim did not expressly state a federal claim, but it can be clearly seen that his claim is actually a federal

Comment [L.R.25]: Note these were state tort claims. She could still pursue her case in state court.

Comment [L.R.26]: Statutory rule supersedes pendent jurisdiction argument.

Comment [L.R.27]: can second guess s choice of courts

claim; and if federal claim is dropped, the court may then hear pendant claim against a state law that was originally joined with that claim if it arises out of common nucleus of operative fact. c. HYPO: suppose that Mr. Bright alleged that withholding federal tax is contract violation and in violation of Christian principles. Same with state. AND Bechtel has not paid for an on the job injuryremovable to federal court? A: 1441 c suggests that it would be able to remove all of the claims. However, court could dismiss state claim to state courts at any time, if it wanted to. Wright: 1441(c), if read literally, means there will be some cases where a federal court will have jurisdiction of a nonfederal claim, though diversity is absent, and though the claim bears no relation to any federal claim in the cases. (c) is for cases that are separate and independent; and (b) is for cases that are not separate and independentseems to expand the scope of federal jurisdiction 6. Attacks (Challenging) subject-matter jurisdiction (federal court) In federal courts, lack of subject-matter jurisdiction may be asserted at any time by any interested party, in answer to claim, suggestion to court before judgment or on appeal. Parties may not create jurisdiction of a federal court by agreement or by consent a. Capron v. Van Noorden (1804) Issue: Whether can appeal decision of a court based on that court not having jurisdiction, even if he was the one that chose that court Holding: The supreme court upheld the s appeal on the error of jurisdiction, and reversed the decision of the court Rationale: subject matter jurisdiction such high priority, demands adherence, even at expense of dismissing a case thats already been heard. (perhaps influenced by time period, when country was still avidly trying to distinguish federal from state jurisdiction) Note: rule 12 h(1) defense of lack of jurisdiction over the person is waived when person shows up. Does this not apply here? Rule 12 (h)(3) discusses subject matter jurisdiction. b. Notes Cases 1. Ruhrgas AG v. Marathon Oil: Supreme Court holding that both subject matter and personal jurisdiction are required by Constitution, and a federal court could decide personal jurisdiction first if it can avoid deciding on a complex question of state law. 2. Di Frischia v. NY Central: initially objected to jurisdiction of court, then dropped objection, and waited until statute of limitations had run in state, and brought it up again. Court held that they could not do this. 3. United States v. United Mine Workers: Supreme court held that an order of a court, even if the court lacks jurisdiction to issue (injunctions), must be followed until the order is set aside by another court on appeal - unless there is no opportunity for appellate review

Comment [L.R.28]: Almost any case is either factually overlapping, or separate and independent

Comment [L.R.29]: There were not sufficient allegations to prove that there WAS jurisdiction

4. Willy v Coastal Corp: court can also impose sanctions even if it is later found not to have jurisdiction c. Collateral Attack on a Judgment for Lack of Subject-Matter Jurisdiction - Collateral attack: attacking the procedural/process elements of a case in a separate judicial decision - Direct attack: attacking a holding in that case. P333 Judgment rendered by a court that lacks jurisdiction over the subject matter is void and a nullity Restatement (second) of Judgments: judgment is protected against collateral attack (regardless of whether subject-matter jurisdiction was litigated) unless there are no interests of reliance that must be protected and: o The subject matter was plainly an abuse of authority by the court o Allowing judgment to stand would infringe on authority of another agency of government o Court rendering judgment lacked capability to make determination of its own jurisdiction procedural fairness o Can also use collateral attack on default judgments 1. Chicot County Drainage Dist. v. Baxter (1940) Supreme Court refused to allow collateral attack by parties who did not appear at original action, Held courts have authority to determine whether or not they have jurisdiction. Their determinations are open to direct review, but may not be assailed collaterally. Most cases do not do a balancing test. A court dismisses case for lack of subject matter jurisdiction whenever, it appears that theres a lack of it, in all but the most EXTREME exceptions. FIRM RULE 2. Collateral attacks allowed in Kalb v. Feurerstein (1940) state court could not maintain foreclosure proceedings while petitions were still in process in Bankruptcy court. D. Venue and Forum Non Conveniens 28 U.S.C. 1391 1. Bates v. C&S Adjusters, Inc (1992) p346 Facts: accumulated debt while living in Western District of PA Creditor had principal place of business in that district, and referred account to which transacts no regular business in NY moved to NY, and when sent letter of collections, post office forwarded it to him in NY Holding: Court held that even if an activity was not deliberately done within the district, if thats where it occurred, under 28 USC 1391, venue is proper. Rationale: Receipt of notice was substantial part of events giving rise to s claims If collection agency didnt want to appear anywhere outside their district, should have put do not forward on the letter. NOTES: Discussion of Leroy purpose of venue provision is to protect the defendant. Congress amended the statute disapproving Leroys admonition against multiple venues. Another reason that the defendants venue defense should not have won? Rule 12(h)(1) if you answer the claim and do not protest the venue, you waive your right to do so. 2. Applying 1391 to Cresswell, Helicopteros and Burger King a. Cresswell 28 USC 1391 look at section (a) (section c only amplifies a, according to Levin) go through each element of a). For 2, the substantial part of events or omissions. For 3, since jurisdiction was found, that wouldnt work. For 1, anywhere where resides,

Comment [L.R.30]: Research this. Confusing.

Comment [L.R.31]: EPA hearing divorce proceeding, for ex.

venue is proper. (c) defines corporate residence, as to be anywhere where it is subject to personal jurisdiction, so that doesnt work either. Conclusion: no defense of improper venue for Walt Disney World

b. Helicopteros: - section (d) alien may be sued in any district. If this were the case, and they could not object to venue, what about the rest of the defendants? (a)(1) says an action can only be brought in a district where any defendant resides, if ALL defendants reside in the same state. So what does this mean in relation to Helicoopteros? (a)(2) doesnt seem to apply here crash out of country. Finally (a)(3) a judicial district in which any defendant is subject to personal jurisdiction suggests that since that they were, this would apply. (or, this could pull in Helicopteros) c. Burger King: Franchise in MI, corporation in FLA. We know that there is jurisdiction in FLA against these guys, but (3) says, you can only bring it there if there is no district in which the action may otherwise be brought. The other 2 dont apply. Substantial part of action took place in MI, not FL. And (1) FLA is not where they reside. This is an example of a case where venue would not be proper anywhere, according to statute. 3. Hoffman v. Blaski (1960) Facts: patent suit venue dispute between IL and TX Issue: whether district court can transfer a civil action under 1404 (a) on the motion of the , to a district where did not have a right to bring it. (How do you define right?) Holding: a defendant cannot move under 1404 (a) to a district where the did not have the right to bring it. Notes: Interpret where it might have been brought to = where the original claim could have been brought. Since could not have brought suit in IL, order to send it to IL was invalid. Why couldnt they have brought it in IL? The s wouldnt have objected if that had happened court is reading the words might have been brought as where they could have PROPERLY brought the suit in accordance w/ jurisdiction and venue ruleswhere the had a right to bring it. While it would have worked (in hindsight) if had brought the suit in IL, there was no right to bring it there. Using Venue rules of 1391, would (a) or (b) apply? (b) - b/c patent infringement is federal claim. s dont reside in IL, events occurred in TX What if TX company was selling products in Chicago? It might change jurisdiction, but probably wouldnt impact venue. 4. Forum non conveniens = Latin for "inconvenient forum."
If a party makes an adequate showing of inconvenience, the principle of forum non conveniens allows a judge to decline to hear, or to transfer, a case even though the court is an appropriate court for the case. a. Gulf Oil Corp v. Gilbert (1947) p359 - Private Interest factors to be considered by a court when deciding whether to award forum non conveniens request: 1. relative ease of access to sources of proof 2. availability of compulsory process for attendance of unwilling

Comment [L.R.32]: Narrow interpretation of 1404. equates where it could have been brought w/ where had right to bring it.

3. cost of obtaining attendance of willing witnesses 4. possibility o view of premises if appropriate 5. all other practical problems that make trial of a case easy, expeditious and inexpensive. may not purposefully oppress the by choosing expensive, inconvenient forum Public Interest Factors: 1. jury duty should not be imposed on communities that have no relation to litigation 2. if many people involved, trial should be held where most are 3. local interest in resolving local controversies 4. appropriateness in trying diversity case in forum that can handle the law in question, rather than having a court wrestle with conflicts of laws and possibly foreign laws. b. Piper Aircraft Co. v Reyno

Facts:
Plane mfg by American co. crashed in Scotland; all UK passengers, UK survivors. Suit filed in CA and UK Issue: whether s may defeat a motion to dismiss on ground of forum non conveniens, by showing that the substantive law that would be applied in the alternative forum is less favorable to the s than that of the present forum. Holding: While consideration of an unfavorable change of law for a is one factor for a court to use in deciding on a forum non conveniens request, it should not be given conclusive or substantial weight in the inquiry. Rationale: - though there is a strong presumption in favor of the s choice of forum, this assumption is much less reasonable when the is foreign. Notes: why does it matter if its an American ? b/c doctrines whole purpose is convenience foreign s argument is more tenuous. Levin maybe convenience isnt the argument of the court. Another reason Americans should be able to use courts rather than foreigners taxes. GULF OIL: unless balance is strongly in favor of the defendant, the s choice of forum should rarely be disturbed. Caveat on p 365 (if remedy by alternative forum is so clearly inadequate) Jews suing in Germany c. Islamic Republic of Iran v. Pahlavi : court upheld district courts dismissal of Irans case vs their Shah. courts were not required to entertain litigation that had no connection with the state; burden on court too high; foreign affairs concerns. - Iran argued that there was no other forum, but that was the fault of the country itself. - Court accepted case to the extent that shah had assets in NY but to take on the responsibility of sorting out world wide affairs of two parties was improper. Helicopteros possibly would be good candidate for dismissal under forum non conveniens, had there been personal jurisdiction. -

why were seeing the discussion of international cases in forum non convenienschange of venue is much more liberal for domestic cases. It is used at state level, though. Courts of MO could not transfer case to ME, but could dismiss if it felt case was fortuitously brought in this state.

E. DO Problem in supplement p357-361

III. THE ERIE DOCTRINE!!!!! (28 USC 2071, 2072) A. Federal v. State Law in Diversity Cases 1. Swift v. Tyson (1842) (overruled by Erie) Facts: action to get a note paid, which had allegedly been induced by real estate fraud Rule: The court held that the federal court could only apply statutory laws of the state, and could not follow the court decisions of NY (common contract law). If there was no statute, federal court could choose general law of U.S. that it preferred. 2. Erie v. Tompkins (1938) p371 Facts: dudes arm was severed as he walked along railroad track in PA Rule: The Supreme court overturned Swift, and held that the court decisions of state (state common law) could be used in federal courts deciding cases in that state, and federal law declaring what law a court would use was unconstitutional. - No Federal General Common Law Rationale: 1. more recent research of the Judiciary Act, contradicted courts original interpretation. Suggests purpose of the section was to make certain that, in all matters except those in which some federal law is controlling, federal courts exercising jurisdiction in diversity cases would apply, the law of the state, unwritten as well as written. 2. when doctrine of Swift was actually applied, it created uncertainties fed cts expanded scope to discard many laws of states beyond the commercial ones people abused the system to avoid their own state law 3. Congress has no power to declare substantive rules of common law applicable in a state, whether they be local or general in their natureCourts interpretation of Congress law was unconstitutional 3. Hinderlider: court held that whether the water of an interstate stream must be apportioned between the two states is a question of federal common law (Erie court said there was no federal GENERAL common law) the difference here is in the word general it would intrude upon federalist principles to suggest a vast federal common law which could cover all state areas as well - some federal common law is okay, though. 4. In Class Hypo 2/17/05 if MO ct requires $10 filing fee, in a diversity case, would that rule control in fed. court? Note that in Erie, the concurring opinion looks forward and says, the law between procedural and substantive law is hazy, but no one doubts federal power over procedure. 5. Guaranty Trust Co. v. York (1945) p381 state procedure w/ substantive effect HOLDING: A state law such as a statute of limitations, which may gravely affect s ability to recover, must be followed in a federal court for a diversity case. Rationale: If a law might substantially impact the outcome of the litigation, just b/c it appears procedural does not mean it shouldnt be followed by federal courts in diversity case if the federal courts dont follow that rule, then what the state is trying to achieve is undercut. Dont want federal court to subvert what state is trying to accomplish. 6. Byrd v. Blue Ridge Rural Electric Co-op (1958) Issue: whether a federal court could utilize a jury to determine the factual issues of a case, despite a state court practice of not utilizing juries for workmens comp issues

Comment [L.R.33]: People who could establish diversity could create another option to avoid state laws they didnt like. That manipulation was not goal. This operation had diversity actually discriminating against in-staters. When goal of rule was to remove discrimination from and increase uniformity in, cases tried in state against out-of-staters. Comment [L.R.34]: 10th amendment reserves some powers to state. Creating a federal common law would allow feds to completely overlap all of state law.

Holding: The court held that federal courts are not required to conform with state rules if they disrupt the federal system of allocating functions between judge and jury. State laws cannot alter the essential function of the federal court b/c that function is not a local matter character of federal court is jury decision for disputed fact question, and however federal court should decide to proceed (judge or jury) if York policy was taken to the utmost, that would mean federal courts could not determine anything about the way they would proceed. (here also, using jury wouldnt affect outcome of case.) reasons why court wont follow state rule: (balancing test) 1) state didnt rely on substantive interest as a basis for its rule 2) federal courts have interest of their own in maintaining a procedure that defines their character. 3) outcome not effected 7. Hanna v Plumer p 392 Holding: S. Ct upheld Rule 4(d)(1) regulating service of process in diversity actions - importance of state rule is relevant, but only in context of asking whether application of the rule would make so impt. Difference to character or result of litigation such that failure to enforce it would unfairly discriminate against citizens of the forum state. - the Test Must be whether a Rule Really regulates procedure (cites Sibbach v. Wilson) Note: this is only an issue where Congress has passed a statute creating law for diversity actions. Enabling Act rules here. If there is no FRCP, just judge-made rule, the Rules of Decision act applies in determining which rule to use. 8. Walker v. Armco Steel Corp. p402 Issue: whether state law or Rule 3 of FRCP should be followed in diversity action, to determine when action commenced for purposes of SoL Holding: Court held that state SoL would apply Rule: where a Federal Rule is clearly applicable, test is whether the Rule is w/in the scope of the rules Enabling Act, 28 USC 2072, and whether it was constitutional Rule 3 does not affect state statutes of limitations 9. Burlington Northern v. woods p407 Restates and applies Hanna test: 1. first step is to determine whether the scope of the Federal Rule is sufficiently broad to cause a drect collision with the state law 2. the rule must then be applied if it represents a valid exercise of Congress rulemaking authority (Constitution and Rules Enabling Act) . (Federal rule allowed discretion, but AL did not). (this is the Flipside of Walker which used narrow reading- court broadens reading of Rule 38 to avoid using state law.) 10. Stewart Organization, Inc. v. Ricoh Corp (1988) Issue: whether a federal court sitting in diversity should apply state or federal law in adjudicating a motion to transfer a case to a venue provided in a contractual forumselection clause. Holding: the court held that federal law governs parties venue dispute in diversity actions therefore district court can consider a number of factors when deciding the change of venue request, and does not need to follow AL law exclusively. (AL vs. NY venue clause) Rationale:

Comment [L.R.35]: Assumes direct collision between federal rule and state law

Comment [L.R.36]: Research

1. When federal law sought to be applied is a statute, first question is whether the statute is sufficiently broad to control the issue before the court 2. If so, court determines whether the statute was constitutional in this case, 1404 was valid. Congress set up court, so it has power to create rules the court uses. 3. If no federal statute or rule covers dispute, district court then looks at judgemade law. If by applying judge-made law, it would either serve to encourage forum-shopping and disserve equitable administration of laws court should use state law. When court has to make selection between two sets of instructions on venueCongress are supreme Hanna congress has power to make the act in question b/c it has power to make a federal court system, thus should have powers to make rules for it. NOTE: AL substantive reason for passing such a law to protect its citizens from contracts of adhesion. The fact that the court is applying 1404 anyway is another instance where the policy of Erie (that case should come out same way in both state and federal courts) has some qualifications wont let state law affect basic ways in which fed courts operate. Outcome determination is not a talisman.

11. Gasperini v. Center for Humanities, Inc. (1996) Supreme court vacated the judgment of the ct of appeals, and remanded case to district court so that the trial judge could revisit his own ruling and test the jurys verdict against NY CPLR 5501(c) Guaranty test: ensure outcome is same as if it were tried in state court; discourage forum shopping and avoidance of inequitable administration of laws. That test and Erie suggest NY law is substantive, and not applying it could yield award substantially larger than in state court Courts response: second court did err in using NY law as standard for federal appellate review (should have been trial court who applied it first). 7th amendment doesnt say that court cannot review trial courts denial of a motion to set aside a jurys verdict as excessiveappellate court review for abuse of discretion is reconcilable w/ 7th amendment. - on its face, its a procedural law, but beneath the surface is a motivation by legislature to limit verdicts - substantive - If court did not adopt this control, could encourage forum shopping

Comment [L.R.37]: So there was not a federal statute that would govern this decision, so it came down to a decision between the state law, or the federal case law rule of shock the conscience

B. Ascertaining State Law 1. Klaxon Co. v. Stentor Electric (1941) Supreme Ct. held that courts must apply the conflicts-of-laws rules of the states in which they sit. Why: promote uniform application of substantive law in a state Lean towards local policies Federal courts should ascertain what the state law is, not what it ought to be 2. Allstate Ins. Co. v. Hague: state could apply its substantive law in choice of law rule, so long as it had significant contacts with parties and the transaction 3. Van Dusen v. Barrack: (1964) Change of venue under 1404a generally should be, w/ respect to state law, but a change of courtrooms Court should apply law of state where action was filed, even if venue changes 4. Mason v. American Emery Wheel Works (1957)

Issue: Whether an outdated holding in state law, if it had not been overruled, but recent dicta tended to show that the court was moving away from it as law, should be applied by a federal court in a diversity case Holding: the court held that the federal court should apply the dicta, if it was more representative of the majority of jurisdictions at the time Note: federal court had to try to predict what state would do if case had gone to it. Prevent forum shopping. Poss. that state would have overturned old law; didnt want to disadvantage . Why did court use Miss laws? Apply Klaxon decision. RI decided to apply Miss. Law b/c it was the place of injury (followed RI conflict-of-law rule). Is this right? Should federal court follow rule if RI says if filed here, must apply our laws only? Following Klaxon, maybe. But Allstate v. Hague suggests that the state should have some minimum contacts. 5. Notes Cases: - McKenna v. Ortho Pharmaceutical: citizen OH sued Ortho company in PA court; all significant events occurred in OH, cause of action arose in OH, and substantive law of OH governed action. Court held that : OHs statute of limitations would also apply - Why? Federal courts are to use prediction of how the states highest court would decide the case. Look to state precedents or analogous cases - Van Dusen v. Barrack: (1964) law applicable in transferor forum follows the transfer (note that this was a request for transfer by ) - Ferens v. John Deere Co: Supreme court held that the transferee forum had to apply the law of the transferor court, regardless of who initiated the transfer. (here had initiated the suit in Miss to get longer statute of limitations, and then transferred it to PA!) fair? IV. PLEADING Pleading rules served 4 functions: 1. providing notice of a claim or defense 2. IDing baseless claims 3. Setting each partys view of the facts 4. narrowing the issues A. The Complaint (and the Motion to Dismiss) - Rqmt of a short and plaint statement of claim used to deter baseless claims - Rules 11, 12 and 56 also serve to screen baseless claims - Federal rules have shifted establishment of the facts from pleading stage to discovery stage 1. Dioguardi v. Durning (1944) p510 Issue: whether a s complaint, though written in barely decipherable, broken English, could be used to establish a claim upon which relief could be granted Holding: because it could be discerned what in general the was claiming, the court found that he had stated a claim upon which further proceedings could be taken 2. Conley v Gibson test: claim should not be dismissed unless it appears beyond doubt that the can prove no set of facts in support of his claim which would entitle him to relief. - All the rules require is a short and plain statement of the claim that will give the fair notice of what the s claim is and the grounds upon which it rests. 3. Following forms 9 and 11 is sufficient under amended rule 84.

4. Leatherman v. Tarrant county Narcotics.. Unanimous supreme court held that federal court could not apply a more stringent pleading standard in civil rights cases arising under 42 USC 1983. Was in response to lawyers complaining that cases were being brought under broad amendments 5. Private Securities Litigation Reform Act of 1995 (overruled veto by Clinton) created heightened pleading standard for securities fraud cases didnt resolve disagreement regarding state of mind that must be shown in pleading facts. Three approaches 1. 9th circuit: can allege mental state w/o providing any facts to support it 2. 2nd circuit: requires either (1)facts showing evidence of recklessness or intentional conduct or (2) facts showing that had both motive and opportunity to commit fraud 3. Other courts have held that the Act eliminated recklessness and requires to allege facts showing intentional behavior 6. Responding to the Complaints TIME: Rule 12a - s get 20 days + extensions (rule 6a), to answer complaint MOTION to DISMISS - origin from demurrer in common law, modified to allow to proceed on merits if demurrer was overruled and to amend complaint if demurrer was sustained - incorporated into code pleadingcomplaint could be dismissed for: o failure to state facts sufficient to constitute cause of action o absence of subject-matter jurisdiction o deficiencies in form of pleading - Federal counterpart to common law demurrer is Rule 12(b)(6) American Nurses Association v. Illinois (1986) Issue: whether, if a s complaint contains allegations that may be found to be legitimate, alongside some which do not state a claim under the given law, should the court allow the liberal reading of the claims that *may* be valid, depending on interpretation? Holding: (1) The court held that a complaint that alleges intentional sex discrimination, but then lists facts to illustrate discrimination(not required) and one of those facts is actually lawful, does not necessarily require dismissal. The complaint should be heard on its remaining merits. (2) a complaint does not fail to state a claim merely because it does not set forth a complete and convincing picture of the alleged wrongdoing. Rationale: not required to include facts. If he includes fact show he is not entitled to relief, complaint should be dismissed. Here, just one example disagreed w/ complaint not all. If is unclear, should move for more definite statement, not dismissal Posner pushes for liberal reading of complaint in light most favorable to 7. Resolving mixed questions of fact and law when deciding Rule 12(b)(6) Motion Hartford Accident v. Merrill Lynch s complaint was dismissed b/ c it did not show causal connection between alleged negligent acts and the loss sustained by . Dopico v. Goldschmidt: cant dismiss b/c damages sought are unlikely to be awarded.

Ct of Appeals reversed district courts dismissal based decision on finding that s could not obtain the massive relief they sought. Ct of appeals said dismissal would only be right if s were not entitled to relief under law. 8. Using Rule 12(f) and 12(c) to challenge substantive sufficiency of pleadings: Motion to Strike: mechanism for challenging substantive sufficiency of defense in an answer o motion to strike if scandalous only prevails if material is obviously false and unrelated to subject matter of the action o disfavored and not granted unless their presence will prejudice the adverse party Motion of judgment on pleadings: attacks substantive sufficiency of opposing partys pleading after all pleadings have been completed.

B. The Answer Denials: Rule 8d - any averment that does not specifically respond to is considered admitted. To avoid this, s often add all-inclusive paragraph denying everything unless otherwise stated ** but, if general denial is not used properly, court can deem to have admitted s specific averments 1. Zielinski v. Phili Piers, Inc. p556 Procedural: alleged that he was injured by a fork lift operated by employee of defendant Defendant responded in a manner that indicated the employee was his During pre-trial conference (after statute of limitations had expired) learned that had sold its business to another company Holding: The court held that under the circumstances (that SoL had expired) the could not be allowed to deny agency, after not supplying specific enough answer to s complaint, b/c it would deprive of his right of action Rationale: compliance with FRCP 8(b) requires to file more specific answer than general denial. If had been more specific, would have been warned that he was the wrong have to allow this so a cannot prevent a from taking action by misleading him past statute of limitations expiration date NOTES: complaint had alleged ownership and negligence in one paragraph. answered with a general denial of whole paragraph. court holds that if doesnt provide a specific enough answer, can be held liable for all claims s are given a lot of room to be sloppy in complaints. Why be so tough on ? In general, double standard might be that for s, justice is possibly served by allowing them opportunity to get recovery. In case of , if rule 8b is

Comment [L.R.38]: This means that judge will assert to jury that forklift driver was employee of PPI

not enforced, could be barred from recovering at all. So in the end leniency serves . Rules themselves disfavor general denials.

C. Amendments Rule 15(a) a party may amend its pleading any time before a response has been served, or w/in 20 days of the service of the original pleading, if no response is required - after that, need consent - during trial, parties can amend pleadings w/ courts permission, to conform to issues raised by unexpected evidence - supplemental pleadings to cover events that occur after original - 15(c) amendments relate back to original pleadings. If SoL expired between original and amendment, party may still be able to raise the claim 1. Moore v. Moore (1978) p567 allowing post-trial amendment to pleading to conform pleading to evidence (produced at trial) Issue: whether court abused discretion in allowing post-trial amendments to pleading by the considering evidence of issues were tried during the case Holding: The court held that for all of the issues except other maintenance, the appellant received notice of the issue by allowing evidence to be submitted during trial, and not contesting it. Rationale: (Rule 15b allows for pleadings to be amended if to do so does not affect the result of the trial and if evidence is not objected to during trial (implied consent). - child support, custody obvious and inherent in suit at hand NOTE: litigant may object to keep evidence out, but this will induce the other side to request leave to amendand possibly will bring in even more issues. But if litigant does not object, could be seen as implied consent tot try the issue. - have to have notice through evidence, or its a due process concern 2. Hayes v. Richfield Oil Corp: variance between pleading and proof will not be deemed material unless it actually misled the adverse party to his prejudice (if youre objecting could show that you are on notice so then youll have to refute it.) 3. Beeck v. Aquaslide N Dive Corp (1977) p571 - amends answer Issue: whether could amend answer (during trial) to deny manufacturing a product it had previously affirmed, if there was no evidence of bad faith Holding: The court held that b/c there was no apparent bad faith motive on part of the defendant, it would be an unfair prejudice to the not to allow that question of fact to be deliberated in trial Rationale: - Burden is on party opposing the amendment to show the prejudice Allowance or denial of leave to amend lies within discretion of TRIAL court, and is reviewable only for an abuse of discretion

4. Worthington v. Wilson (1992) FRCP 15; changing names on complaint Procedural H: - 2 years later, 2/25/91, filed complaint in circuit court against 3 unknown police officers (and village of Peoria heights) claiming that he was deprived of constitutional rights in violation of the CRA of 1964 - 6/27/91, amended complaint to name 2 officers who arrested him but did not include claim against Village of Peoria heights Holding: 1) can amend complaint on issue relating back to original complaint, if new will receive notice 120 days after original complaint 2) FRCP 15(c) only allows to replace names in case of a mistake, but not a lack of information. 3) In a federal question case, unless a federal rule has not been set out for a specific topic, federal procedural rules will apply (instead of state). Look up RELATE BACK requirements in pleading amendments. 5. Allocating Burden of Pleading Rule 8(c) 19 aff. defenses that must be raised specifically (in pleading) - also generally have to raise affirmative defenses that do not flow logically from the s complaint provides notice Ingraham v. United States (1987) govt. not allowed to amend answer () after judgment entered in order to plead defense of damage cap Holding: the court held that a may not amend pleadings post-trial to include an affirmative defense under Rule 8(c) of FRCP, b/c the failure to raise it timely constitutes a waiver of that defense. Considered cap proposed by TX statute to be an affirmative defense Taylor v. United States (1987) CA allowed post-trial amendment to cap damages per statute - 9th Circuit reversed lower courts decision over objections that govt had waived the protection by failing to raise the issue before judgment Holding: Court held that since section 3333.2 of the CA code is a limitation of liability, not an affirmative defense. Rationale: - Rule 8(d) states that averments to the amount of damages which does not deny in his answer are not deemed admitted. Note: govt. filing was more timely here than Ingraham w/in rules.
D. Sanctions 1. Hadges v. Yonkers Racing Corp. (1995) Holding: court abused its discretion in imposing sanctions on Hadges and his attorney Rationale: YRC did not follow correct procedure in requesting sanctions, thus Hadges was denied safe harbor period of 21 days Attorney, Kunstler, also did not get safe harbor Also, his acceptance of clients affidavits as truthful was reasonable, b/c there was evidentiary support for the facts as presented

Comment [L.R.39]: Note that this is case law. Not codified in FRCP. Is there an argument against this position? Were relying on state law for other aspects SoL, etc. so seems like it could go either way. Rule 15(c)(1) says relation back is permitted by the law that provides the statute of limitations applicable to the action. BRIGHT LINE

Comment [L.R.40]: Revised rule 11 requires reasonable inquiry made into factual contentions that they have evidentiary support Comment [L.R.41]: Why does court even look into this, after already having established that attorney wasnt given safe harbor? b/c if court decided to impose sanctions itself, safe harbor isnt there so sanctions need to be defeated on all accounts if the court itself chose to impose sanctions.

Notes: Rule 11 counsels should not have blind faith in their clients testimony; reasonable inquiry is required; atty has affirmative duty of investigation For actual (not attorney) should only sanction if what he did was tantamount to contempt of court V. JOINDER A. Joinder of Claims by Plaintiff Harris v. Avery (1869) Supreme Ct. of Kansas p597. joinder not allowed by common law, but permitted under statute Procedural History: Avery petitioned 2 causes of action false imprisonment and slander alleging both arose out of the same transaction Harris demurred on ground that the causes of action were improperly joined Holding: The court held that while under common law, two separate causes of action could not be united, they could under the KS code Notes: Federal Rule 18 removes obstacles to joinder rather broad. But under rule 42, judge can sever the issues into different trials. This is a check on use of Rule 18. - If he didnt sue for slander first, and won on his other claim; the court could say res judicata and not allow the second claim for slander on the same set of facts. Related claims need to be joined in the same suit. B. Res Judicata / Collateral Estoppel Justification for Joinder: Binding effect of prior decisions: res judicata and collateral estoppel: 4 principles of former adjudication: 1. party gets one chance to litigate a claim 2. party gets one chance to litigate a factual or legal issue 3. a party is entitled to at least one chance to litigate before being precluded 4. preclusion may be waived unless it is claimed at an early state of the litigation Claim preclusion: judgment, once rendered, is the full measure of relief to be given between same parties on the same claim or cause of action - 3 elements of claim preclusion: Judgment must be final Parties in subsequent action must be identical to those in the first Claim in second suit must involve matters properly considered included in the first action - judgment rendered upon the merits constitutes an absolute bar to a subsequent action on the same merits between same parties - Issue preclusion (collateral estoppel): issues addressed in one suit can not be relitigated in another suit between same parties, which might be related Rush v. City of Maple Heights (1958) S. Ct. of Ohio p.1225 Issue: whether should be allowed to split cause of action and sue for property damage separate from personal injury if both arose from same incident/claim Holding: the court held that a may not split the claims that arise from same incident, evidence, etc. Notes: Reasons FOR splitting personal v. property injuries: insurance complicates

matters. Insurance could pay her for property and then sue in her name. If she then

went to sue for personal injury insurance suit under her name would preclude her from doing so. (VASU)
Book Notes p 1231: - present trend is to see claim in factual terms and make it coterminous w/ the transaction, regardless of the number of substantive theories, or forms of relief flowing from those theories, avail. to ; regardless of primary rights that may be invaded or variations in evidence needed to support theories. Transaction is basis of litigative unit which may not be split. C. Counterclaims (defense preclusion) 1. Mitchell v. Federal Intermediate Credit Bank p1239 Facts: Mitchell sold potatoes for two notes totaling $9k; potatoes sold for $18k, but he never got any money for it. In previous action, bank had sought payment, and had pleaded same facts in answer, but had not counterclaimed or asked for relief. Issue: Was s new claim for money merged in the earlier judgment. Holding/ Rule: could not use the same set of facts as a claim of defense in one suit, and then for a new claim in a separate suit. Rule: cannot use the same defense first as a shield, and then as a sword. Note: compulsory-counterclaim rule 13(a): generally, compulsory counterclaims that are not raised may not be raised in subsequent litigation in federal courts. You must state, as a counterclaim, any claim you have arising out of the claim from the opposing party. (goes further than Mitchell) Note: Linderman case allowed 2 suits; but Mitchell case is majority (common) view usually upheld or court efficiency What if, in Mitchell after completion of first case, Mitchell then sued bank for $18,000 claiming embezzlement. Would court rule the same way? Kirven, was allowed to pursue claim that he had withdrawn as a third defense, b/c the claim wasnt actually litigated. So if Mitchell hadnt litigated the issue of embezzlement, would he be permitted? Probably not OConnor v. Varney: cant use same argument first as a shield, then as a sword. In Kirven, he didnt use the defense as a shield thats why its different. 2. Great Lakes v. Herbert Cooper p606 (See also 28 USC 1367) Rules: a federal court has ancillary jurisdiction of the subject matter of a counterclaim if it arises out of the transaction or occurrence that is the subject matter of an opposing partys claim of which the court has jurisdiction. (such a claim is compulsory) Rule 13(a) does not extend the jurisdiction of federal courts to entertain counterclaims beyond jurisdiction of U.S. Courts Same test determines whether counterclaim is compulsory as well as jurisdiction o Logical relationship test: counterclaim is logically related to opposing partys claim where separate trials on each of their respective claims would involve a substantial duplication of effortwhere multiple claims involve many same factual or legal issues fairness and judicial economy require counterclaimant to maintain cause of action (otherwise, might be barred later under res judicata) Rationale:
Comment [L.R.43]: Add comment on gibbs? 288? Comment [L.R.42]: Get internet outline and fill in blanks on Mitchell

If court has jurisdiction over the original matter, if should have jurisdiction over other claims that arise out of the same transaction. Rule 13(a) doesnt say anything about jurisdiction Bringing of unjustified lawsuits violates the antitrust laws. How do you decide if its unjustified? By looking at the lawsuits merits. The issues overlap directly (look at page 608). So same issues have to be looked at for both Coopers counterclaim, and GLs counter to that counter.

3. Book Notes: 4 possible tests have been suggested for determining a transaction or occurrence for federal rule 13(a): p609 Are issues of fact and law raised by claim and counterclaim largely the same? Would res judicata bar a subsequent suit on s claim absent compulsory counterclaim rule? Will substantially same evidence support or refute s claim as well as s counterclaim? Is there logical relation between claim and counterclaim 4. There are situations where 2 distinct claims do not arise out of the same transaction: Zeltzer v. Carte Blanche Corp - sues credit card corp. about truth in lending; Credit Card co. sues for payments due. -what do you consider to determine this? One is issue of federal law; one is issue of state law But is there any overlap? Could efficiencies be gained by trying both at once? Biases? If every time a consumer brought suit under truth in lending act, the credit company could counterclaim for the amount due would that defeat congress aim to get people to sue credit card corps in general. Dont want to make it easy for credit cards. HYPO: what if GL filed securities claim against Cooper also? would it be a compulsory counterclaim? No. could they bring it in the same suit? Under 13(b) any claim may be brought against an opposing party even if it does not arise out of the transaction The issue then becomes jurisdiction, when youre looking at PERMISSIVE counterclaim rather than compulsory counterclaim In this situation if it was a federal securities act in question, then court would have the jurisdiction necessary. HYPO: what if GL asserts a personal injury claim against Cooper? itd be a state cause of action arising under different transaction so since there is no jurisdiction on it as a permissive counterclaim, it could not be brought. D. Cross-Claims - Levin: same room for debate under cross claim as counterclaim 1. LASA v. Alexander (1969) Procedural History: 1. LASA sued: a. Alexander b. Marble Intl c. Southern Builders d. City of Memphis

Comment [L.R.44]: Purpose of truth in lending act is to get consumers to sue when credit card companies are bad

Comment [L.R.45]: Look up additional counterclaim notes.

2. Alexander files counterclaim against a. LASA b. Cross-claim against Southern builders for $ due on contract c. Third party complaints against the architect d. Sued Southern for actual and punitive damages for wrongful termination and injury to reputation 3. Southern builders filed answer and counterclaim against LASA 4. Southern sued Alexander back as well or breach of contract Issue: Whether the rights of all parties should be adjudicated in once action whether they arise out of the same transaction RULEs:

even though its very complex litigation might as well put it all in the hands of one judge to decide how to handle the case, split it if necessary - better to gain any efficiencies you can, from practical standpoint Dissent: - one set of disputes is around marble contract - other set of disputes is regarding the workplace site
E. IMPLEADER - Rule 14 1. Jeub v. B/G Foods, Inc. (1942) p650 Procedural History: Jeub sued B/G foods on grounds that they were served contaminated ham, and became sick obtained ex parte order making Swift and Co third-party Third-party complaint said ham was canned, and had been purchased a day before it was served therefore Swift and co was negligent/careless B/G sued Swift to hold them liable for any judgments against B/G 3rd Party (Swift) made motion to vacate the order based on fact that Jeub did not amend her complaint to state any cause of action against Swift (and B/G, as of yet, had suffered no loss) Issue: whether 3rd party could be brought into a lawsuit by defendant, before liability is found against . Holding: The court held that CRP 14 allowed B/G to bring Swift in as a 3rd party , so that all matters could be tried at one trial HYPO: if J was citizen of MO; B/G was citizen of IL and Swift was citizen of IL could B/G still do impleader to get Swift in suit? Yes court could exercise supplemental jurisdiction under 28 USC 1367 2. Miskell v. W.T. Cown (1950): court would not allow to strike the bringing in of a 3rd party just b/c he might not be available to testify. if, at the time of trial, the 3rd party is not required to answer, the Court may order a separate trial between plaintiff and defendant under Rule 42 (b) and, under Rule 54(b) enter a separate judgment. 3. Goodhart v. United States Lines Co. (1960) Court denied a motion to implead an employee in a negligence suit against the employer. Reasons: o Employer was trying to get a lower jury verdict by making it seem like the employee would have to pay

Comment [L.R.46]: Look at additional hypos in impleader notes

Comment [L.R.47]: This would be a lawful impleader court just used heavy discretion.

Employer could have been threatening employee in order to get a favorable testimony (Rule: court can use discretion to insure that impleader is not abused by ) 14(a) - needs leave of the court to add impleader after 10 days of serving original answer o 4. Revere Copper & Brass, Inc. (1970) Revere sued Aetna on surety bond alleging that Fuller, builder, had breached warranties and been negligent, and had failed to complete work w/in contract time Aetna impleaded Fuller under Rule 14(a) for the $2.4M Fuller asserted counterclaim against Revere seeking $2.3M on breach of warranties and other claims Revere moved to dismiss Fullers Claim on ground that there was no diversity of citizenship between Revere and fuller District Court held that claim was w/in its ancillary jurisdiction Holding: 5th circuit affirmed, held that since , Fullers, claim against fell w/in the core of aggregate facts upon which the original claim rested, was thus w/in the courts ancillary jurisdiction. RULE: even though there must be an independent ground of jurisdiction to support s claim against 3rd party , same requirement does not exist for 3rd party against o can choose forum not involuntarily brought o Since could not initially join a nondiverse , should not be allowed to do so indirectly

5. 28 U.S.C. 1367(b): when a federal courts subject matter jurisdiction is based solely on diversity, section (b) withholds supplemental jurisdiction from s who bring claims against parties joined pursuant to Rule 14. (codifies the ruling in Owens Equipment and Kroger) OE & Kroger: woman couldnt amend suit to include co-defendant w/whom she had no diversity. 6. Guaranteed Systems Inc v. American Natl Can Co. (1994) Supp. P31 Procedural History: Guaranteed filed a state court action alleging that Natl. Can Natl. Can removed action to federal court Natl Can also filed counterclaim alleging that Guaranteed had been negligent Guaranteed answered and filed 3rd party action against HydroVac claiming indemnity and contribution for any amt determined to be owed national Can Issue: whether in a suit that was removed to federal court by on diversity, may state a 3rd party claim against a 3rd party , with which will not be diverse under federal courts supplemental jurisdiction Holding: 28 USC 1367 and Owens/Kroger prevented it from hearing the s 3rd party claim against a non-diverse 3rd party , even if was only answering a counterclaim, and the suit was only removed to federal court for diversity by . Rationale: Even though rationale (policy) behind statute was to prevent from abusing system by using impleader to get around the non-diverse party rule of diversity, and that is not applicable in this case still have to follow rule NOTES: 2 basic questions arise in any joinder situation: Whether federal rules allow for joinder to occur and

Whether jurisdiction exists? F. INTERPLEADER 28 USC 1335, 1397, 2361 and Federal Rules 4(k)(1)(C), 22 G. NECESSARY AND INDISPENSABLE PARTIES (Rule 19) 1. Bank of CA Nat. Assn v. Superior Court (1940) p633 Facts: Decedent died and left $250K to # of people. $60k total divided amongst people out of state rest to one org. Niece sued that org. to enforce contract that said she was owner of entire estate Issue: Whether a may sue one party, whose interest in will comprises 75%, without involving all other legatees whose interests total 25%? Holding: The court held that since a judgment could be had against just in this case, w/o affecting the rights of other legatees, they were not, therefore, indispensable. Rationale: If decision were to bind all parties then they would be necessary or indispensable but here the decision will not affect them Court can determine any controversy between parties before it when it can be done w/o prejudice, and if controversy can be determined w/o presence of others If interests of other parties are separable they are not indispensable Class notes: Necessary party should be made party to action b/c they have an interest. Their interests may be separated from the issue at hand w/ out prejudice. Indispensable party MUST be present in order for court to proceed w/ case. If indispensable party isnt there, must dismiss the case. Rule 19a: whether person should be joined if feasible. If not feasible, then whether case can proceed w/o that person. Note terms necessary and indispensable are used to indicate a legal conclusion. Not labeled first, then using that label, find the conclusion. Court decides, and the uses terms to indicate results of its decision. 2. Shields v. Barrow (1854) p636 Rule: If an absent party who is not subject to the jurisdiction of the court or whose joinder would destroy the pre-existing diversity of citizenship is found to be indispensable, the entire action has to be dismissed. If absentee is merely necessary, court can use discretion. 3. Warner v. Pacific Tel &Tel. Co (1953) Facts: Warners previous wife was listed in phone book as Mrs. Caryl Warner next to new wife as Mrs. Caryl Warner. New wife sued phone company. Phone company demurred, claiming that old Mrs. Caryl Warner had to be there she was an indispensable party. How should court decide? - Include 1st Mrs. Warner Rationale supporting Warner decision: better to decide all in once, so telephone company doesnt have later liabilities to the other Mrs. Warner. Consistency; final resolution. See rule 19. 4. Haas v. Jeff. Natl. Bank of Miami Beach (1971) X p 33 Facts: Haas and Glueck bought stock from Bank, but only in Gluecks name 1963. In 1967 Haas sought to have certificates in his name for . Glueck had tried to get back to do so.Bank refused Gluecks request. said he had sold the certificates for his debt.

Comment [L.R.48]: Note if she had sued ESTATE would have involved everyone. But here she was just suing the distributor of the estate.

Comment [L.R.49]: Two reasons: 1. so company wont be caught in the middle. 2. b/c its bad for 1st Mrs. Warner - too easy to have phone co. decide to remove her. Real parties at interest here are the two Mrs. Warners

PH: district court entered order directing Haas to amend his complaint to join Glueck as a party. Then denied his motion to dismiss Gleuck as a party, and granted Banks motion to dismiss amended complaint on jurisdictional ground of incomplete diversity Holding: court may require inclusion of indispensable party in suit, and then dismiss for lack of jurisdiction if it does not have jurisdiction over that party (lack of diversity). Rule: failure of court to acquire jurisdiction over indispensable parties deprives court of jurisdiction to whole matter Rule: 4 factors to consider in deciding whether party is indispensable: 1. to what extent judgment rendered in persons absence might be prejudicial to him or other parties 2. extent to which the shaping of relief might avoid or lessen prejudice to absent or existing parties 3. whether a judgment rendered in that persons absence will be adequate 4. whether will have avenue for relief if dismissal is affirmed. Note: Rule 19 just tells court whether another suit MUST be added before it can move forward w/ case. - the courts ruling is a 19(b) determination. Why? The alternative, of having Haas sue Glueck in state first, is good. Once one wins, can sue bank. Bank will not be doubly jeopardized. (some scholars disagree) H. INTERVENTION 1. Smuck v. Hobson (1969) p 683 Facts: class action suit against DC school board won. Bd chose not to appeal. One Bd member, former superintendent appealed. Former Super and parents intervened in appeal. Holding: 1. Superintendent lost his interest relating to the transaction when he left his position, so no intervention warranted 2. Board member, w/o board, has no interest either. 3. Parents had interest in protecting children, and since no appeal was made on their behalf, their interests are not otherwise adequately represented. Intervention upheld. Rationale: TEST 1. FRCP 24 (a)(2) says that 1st rqmt is an interest in the controversy 2. If interest: if applicant is not joined that he may be impeded in protecting his interest 3. that his interest is not adequately represented by others. Note: doesnt mean just any member of general public w/ interest could intervene. They could bring own lawsuit. Book NOTES: Typical Grounds for assertion of inadequacy of representation to intervene as of right: 1) applicants interest are not represented at all. 2) applicant and the atty who supposedly represents his interest are antagonistic. 3) collusion between the rep. And adverse parties. 2. Natl. Resrouces Def. Council. V. NY Dept of Env. Convservation. P687 Facts: Am. Petroleum Inst. was denied motion to intervene. Holding: just because party has a different motive for litigation from existing party does not give him an interest not adequately represented if other party will do

thorough job litigating his side. Just b/c outside party wants to assert other contentions not asserted by existing (b/c existing doesnt think theyll win) doesnt give them right to intervene. 3. Atlantis Devel. Corp. v. U.S. p689 Facts: W. Anderson discovered reefs in pacific and gave notice of his claim to them in papers. The rights to the island were acquired by Atlantis, who then told U.S. govt. about it. U.S. govt. sued but on its own behalf, so Atlantis sought to intervene. Holding: Court held that since Atlantis had direct interest that was not represented in suit, and which would be adversely affected w/o participation it could intervene. Rationale: If Atlantis didnt participate, and decision was for govt. any subsequent suits by them would be unsuccessful b/c of stare decisis. So its rights would be affected, even though judgment w/o its participation doesnt directly effect it. Notes: even though the judgment wouldnt be binding on them directly - if they were not a party, a judgment here would est. a precedent that could be followed later, therefore impairing them later. - consider that Atlantis would not be able to sue U.S. directly b/c of sovereign immunity. - when rule rewritten, loosened criteria to when party may by practical matter be bound not formally bound Hypo: if 3rd party had interest in reef 30 mi. south, could he intervene? Not under 24(a) b/c not same transaction. But might be able to do it under 24(b) under courts discretion. VI. CLASS ACTIONS FRCP 23 A. Introduction Rule 23 is given liberal (rather than restrictive construction) Classes must meet all 4 rqmts of (a) and fall into 1 category of (b) Certification is at discretion of the district court District court can certify subclasses as case progresses, if needed Generally, mass tort accident litigation is inappropriate for class actions o Choice of law problems, strong interests of survivors to control prosecution of separate claims, complicated, inefficient, expensive o But, general prejudice against class actions for mass disasters and tort cases has declined, recently. B. Class Certification 1. 4 Pre-requisites in Rule 23 (a): a. numerosity (making joinder of each member impossible) b. commonality (of questions of law and fact) c. typicality (defenses and claims of representatives typical of class) d. adequacy of representation (representative parties will fairly/adequately protect class interests) 2. Marisol Case: Facts: Named s brought suit on behalf of all children in child-welfare system of NY NOTES: What do you need to have a class action suit: Satisfy all of 23(a) and at least one category of 23(b)

Evaluating case against criteria: 1. class is so numerous that joinder of all is impracticable. (here, have 100k meet that criterian) 2. question of law or fact common to the class. (court finds the common ? of law is whether each child has a legal entitlement to the services which he is being deprived.) Levin: what do the s really want? - they want to bring a lawsuit where all of the failures are the system are tried, and in which all are sorted out. Is this too broad? Note that on remand, the appellate court did say the court needed to break them into sub-classes - could have been extending the class action rule too far 3. Causey v. Pan Am (1975) p46 Facts: suing Pan Am in VA fed. court both parents died in crash, wants to be certified as class action Holding: not allowed to use class action to represent all passengers when only 17 are Americans, 2 from same jurisdiction, and suit was a mass accident claim. (w/ $ damages as goal) Rationale/Rules: 4 rqmts of Rule 23(a) Rqmts of Rule 23(b)(1) A and B: A. separate actions would lead to inconsistent or varying adjudications B. adjudications w/ respect to members of class would be dispositive of interests of members not parties to the adjudications or impair/impede interests Notes: - proposed as a 23(b)(3) act (b)(2) is injunctive relief so would not apply here to a suit for damages - rejects B(1)(a) certification b/c there is no risk of varying standards to members of the class. may compensate some and not others not risk of diff. Stds. Overlaps B(2) in talking about structural relief, as opposed to damages relief. Damages is the pivotal thing here. Also consider conflict of law issue (class not more efficient) C. DUE PROCESS (in class action) 1. Hansberry v. Lee (1940) p718 Facts: neighbors sought to enjoin sale of land to black man based on rest. Covenant; previous suit had held covenant effective, but was not party to suit. IL court said 1st suit was class suit and binding on all members of class Holding/Rule: Parties who were not given notice of suit, and whose interests were not represented by class cannot be bound by judgment. Cant, after suit, be called class suit w/ no mention in pleadings Rationale: - denied them due process (notice) - denied them adequate representation - cited Pennoyer v. Neff : Pennoyer v. Neff: general matter, cant bind someone who was not properly brought into case exception for class action where representative reps. Absent party. Exception to exception: members of class are not bound if they were not adequately represented.

- could not be bound here, b/c she opposed the covenant. Since Burke represents the racist homeowners, his position doesnt represent hers. 2. Gonazles v. Cassidy (1973) p 721 (when may adequacy of representation be judged? Facts: in TX had license taken w/o hearing on liability after accident. Sued as class action. Got retroactive relief, but rest of class only got proactive relief. Outcome: Failed collateral attack, for inadequately representing class. 2 part test: 1. did trial court in first suit correctly determine that rep. would adequately rep. class? 2. after trial does it appear that class rep. adequately protected interest of class? ** appeal necessary to examine adequate representation.** Notes: adequacy of representation will be examined more than once: 1st by court certifying the first action; and 2nd by court asked to evaluate binding effect of first action. Given safeguards written into rule to protect absent members, support court goes through the procedures to ensure rep. is adequatewould it be okay for class member to later say they disagreed w/ court, and were not bound? - Gonzales says you CAN attack it later. - Precedent for indicating there ought to be some way of challenging outcome for lack of adequate representation in class action. 3. Martin v. Wilks (1969) p1307 Facts: White firefighters brought suit against city alleging that they were being denied promotions in favor of Blacks (after Blacks won judgment setting goals for hiring/promoting blacks) Opposition argument: whites should have intervened in suit since they didnt they should be bound. Holding: The white firefighters were entitled to their suit Rules: - a party seeking a judgment binding on another cannot obligate that person to intervene, he must be joined - voluntary consent decree for one group (though affecting other group) cannot settle that other groups claims NOTES: Congress later acted to prohibit challenges to employment consent decrees by individuals who had actual notice and reasonable op. to intervene OR whose interests were adequately represented. is this consistent w/ constitution? CRA, in effect, makes it compulsory to join - since section 108 of CRA only comes into effect after person has had actual notice and reasonable opp. to interveneis that in itself due process? D. CLASS ACTION PRACTICE 1. Eisen v. Carlisle & Jacquelin (1974) Facts: Class action on behalf of odd lot shareholders got court approval not to personally notify all class members, rather just posted ads, and notified select group. Holding: Regardless of expense, all members of a class that can be identified through reasonable effort, must be given individual notice. (also, petitioner must bear this cost.) Notes: If you know the addresses, constitutionally, must you individually notify each person? Under Mullane, P197 rights of class are shared and most likely to

Comment [L.R.50]: Note rule 23(a)4 requires court to find that parties will be adequately represented before it certifies the class at all.

Comment [L.R.51]: Even though youre aware of suit, shouldnt be burdened to intervene Comment [L.R.52]: Everything else not under employment consent decree umbrella still controlled by Mzrtin v. wilks

Comment [L.R.53]: Whatever practicable might mean, the clause following it in Rule 23(2) requires notification of people who can be IDd

be identical w/in class, so if youre sending notices to enough people so that someone who is getting it is likely to have same interest as your own, youll likely pull in representation of diverse interests of class. POINT: Mullane can be read both ways must notify those who are identified and maybe not if its not reasonable. 2. Wetzel v. Liberty Mutual Insurance Co p725 (consideration of Rule 23(b)(2 &3) Facts: W and R sued Liberty mutual for discrimination against women. District court certified it as Rule 23(b)(2) class including all present and future female tech employees in s claim department, regardless territory/location of office After claim was filed, changed practice so injunctive relief was no longer necessary. NOTES: procedural protections of (b)(3) class opting out and notice are necessary b/c a b(3) class is heterogeneous. They are not necessary for a homogenous (b)(2) class. THUS In a class action discrimination suit brought for injunctive relief under FRCP (b)(2), the notice requirements of 23(b)(3) need not always be met Very nature of a (b)(2) class is homogenous ness w/o conflicting interests between members of class; any members would be bound either by the collateral estoppel or the stare decisis effect of suit brought by an individual , thus as long as representation is adequate, there is no unfairness in giving res judicata effect to judgment against all members of the class, even if they have not rcd notice. E. MASS TORT CLASS ACTIONS 1. Amchem Products f. Windsor p 760 Facts: existing asbestos claims were all ordered to a single district for consolidated proceedings. Attys for s and s formed separate steering committees and began settlement negotiations (included efforts to resolve future as well as pending cases). Lawyers tried to represent interests of future claimants, though unknown. Outcome/rules: Class decertified - even if Rule 23(a)s commonality rqmt may be satisfied by shared experience, the predominance criterion (23b3)is far more demanding: individuals who are only exposed will have different medical injuries/health circumstances than those already diagnosed. - mass accident cases are likely to present significant questions, not only of damages, but of liability and defenses of liability,affecting individuals in different ways caution must be used when individual stakes are high and disparities among class members are great. o 23(b)(3) - questions of law or fact common to the members of the class predominate over any question affecting only individual members Dissent: deference to the district court who was closest to the facts. F. JURISDICTIONAL COMPLICATIONS Class Action based upon diversity raises 2 issues: 1) who needs to be diverse in order for it to meet 1332 requirements Diversity of citizenship is based on named parties only. Sup. Tribe of Ben-Hur 2) how is jurisdictional-amount rqmt calculated. Snyder: could not aggregate amount of each s claim in class action in order to meet minimum jurisdictional amount. Aggregation only permitted where: Single seeks to aggregate addtl claims against single

Cases where 2 or more s unite to enforce single title or right common undivided interest Zahn: Each in a Rule 23(b)(3) class action must satisfy the jurisdictional amt. rqmt. (not enough if the named parties meet rqmt.) Question that applies to all rule 23 class actions, right? 1. Abbot Laboratories 5th cir. held that it had diversity jurisdiction over named s even though their individual claims were less than rqmt, attributing attys fees to class representatives under LA statute. 2. Leonhardt v. Western Sugar Co. sup 63 Facts: beet farmer wanted to sue on behalf of all beet farmers that contracted w/ W. S., due to beet weighing practice Holding: court denied s amendment for punitive damages to bring one up to $75k claim, b/c even that one claim wouldnt allow the rest of class action to meet diversity rqmts (no one else had claim > or = to $75K) argument: 28 USC 1367 overruled Zahn by allowing supplemental jurisdiction over other class members if one met $75K rqmt. Cts Answer: before court can extend supplemental jurisdiction, original action has

Comment [L.R.54]: It was looking to state law which allowed attys fees to be attributed to named parties.

to meet jurisdictional rqmts and therefore supplemental claims of s cannot be heard unless each of them meets jurisdictional rqmts
3. Phillips Petrol Co. v. Shutts 85 p738

Facts: Shutts and other royalty owners sued on behalf of 33,000 royalty owners for interest from Phillips. Sent appropriate notice, some opted out final was 28,100 member class, in all 50 states. Suit was in KS, court applied KS law, even though 99% of leases in question had no connection to KS Holding: the Intl Shoe rule really applies more to s not having to be dragged into a forum where they dont have sufficient contacts. - Argument is that b/c they have a representative there, and b/c they were notified thats sufficient protection, even though those s have no contacts w/ KS : everyone should have had to opt in. Notes: Shutt court limits its position to class actions seeking money judgments;
does not apply to those seeking equitable relief. Only classes, not . VII. DISCOVERY A. General Scope of Discovery 1. Book Notes: FRCP 26-37 govern basic discovery - majority of states have adopted them 3 Major Purposes of Discovery: 1. preservation of relevant info that might not be avail. at trial 2. ascertain and isolate issues between parties that actually are in controversy 3. find out what testimony and other evidence is avail on each of the disputed factual issues 2. Blank v. Sullivan & Cromwell Facts: woman suing under Title VII claim for employment discrimination requested information on interrogatories about women offered opps. to be partners vs. men, for 10 years of firm history. Trial Ct. had said didnt have to respond, b/c info didnt pertain directly to s suit (she was probably denied assoc. position)

Comment [L.R.55]: Court said that the activities taken in this case met due process. (at least these met due process rqmts)

Holding: since the evidence that might be obtained from the answer of the interrogatories re: partners might show a similar pattern of discrimination towards associates (s suit) interrogatories should be answered. Rules: 1) Inquiry is whether info requested is so unrelated to s claim that it cannot be said to be relevant w/in the expansive meaning of the term in Rule 26. 2) party is entitled to discovery, not only of matl which is relevant to trial, but also of info which appears reasonably calculated to lead to the discovery of admissible evidence. Notes: Discovery rules contemplate a balancing process, whereby court can trade off other values (privacy of individuals who may be revealed through discovery). See 26(c) Discovery system does impose significant burdens, which can be elicited easily. 26(b)(1) lenient standards. So judge must exercise discretion to prevent abuse. 3. Marrese v. Am. Academy of Ortho Surgeons. p802 Facts: s sued, claiming that their refusal of membership in Academy was violation of antitrust law. demanded documents related to denials of applications between 1970 and 1980. Academy refused court order and appealed. Holding: Ct. Appeals held that Academy didnt need to furnish documents b/c judge could have managed discovery in way to protect their confidentiality interests. Rationale: - Under R. 26 could have had the names edited from the documents to protect privacy - under Rule 26, judge could have changed sequence of discovery to do nonsensitive discovery first. (may be no need to get to sensitive issues) Dissent: b/c the academy treated the trial judge orders w/ contempt, contempt should be recognized. Academy had indicated that it wouldnt have furnished docs even w/ modifications majority suggests. Notes: To apply a test of relevancy one needs to think about the info sought, and the relation to the s claim. The standard of review for this case is abuse of discretion but court shows that this can be used as a tool, if it feels strongly that judge was in error. B. Specific Discovery Devices 1. Depositions Federal Rule of Procedure 30 a. Haviland v. Montgomery Ward p72 Facts: H sued M over trademark. 2 years before trial, M had served notice to take deposition of 80 year old chairman in France. 18 mos later, H responded that he was too ill to do it. Holding: Court ordered deposition to occur; said s could fly out to France to do it at a comfortable place for Chairman at s expense (1st class) or chairman could fly to NY. Rule: s should not be restricted if deposition is reasonably calculated to lead to the discovery of admissible evidence touching upon the defense. - has selected the forum to enforce its rights and must expect that its officers will be subjected to its process

Comment [L.R.56]: Also could have viewed the documents in camera in its chambers

Modified rule that depositions taken in that district to accommodate health of old guy. Notes: - why not interrogatory? - Cant do follow up questions - Cant intimidate/be forceful to get truthetc. - Modern courts are more creative use phone or video conference b. Editors notes on Depositions: - fed. deposition procedure is designed to function w/o court intervention - atty schedules deposition by serving notice to opposing atty. If includes demand for documents and other evidence, Rule 34 applies - if deponent is not a party, notice of deposition is not sufficient to compel his/her appearance. - Non-party is not subject to any sanction if he is not subpoened and doesnt appear. - Basically use subpoena to guarantee cooperation - FRCP 30(b)(6) allows atty to notice the deposition of a corporation, who has to then provide knowledgeable person - Objections used to preserve right to object to use @ trial - Atty must object if ground for objection could be corrected at time of deposition - ** Oral Deposition: most impt. discovery device b/c it is only device that permits exam and cross-exam of live witness where there is no opp. to reflect and shape info given. 2. Interrogatories a. Leumi Fin. v. Hartford (insurance) Facts: sued insurer for bonds to cover conduct of asst. VP. Proc: asked insurer to define dishonest act and fraudulent act in interrogatory; objected saying legal opinions were sought. Rules/Holding: - Factual conclusions are proper objects of interrogation if info will lead to relevant evidence - Legal opinion tends to be intertwined w/ opinion/conclusion seeking info. O.K. to ask if it assists in efficiency - Balance test to see if value of opinion-seeking interrogatories outweigh possibility that interrogated party may be prejudiced by answer: 1. nature of case 2. amount of discovery to be completed 3. proximity of issue to be narrowed to central issues in case Holding: here, would be too prejudiced by answering the questions, and didnt show that they were w/in scope of permissible interrogation- no evidence of how it helps case. 2. Production of Things a. Belcher v. Basset Furniture: p828: Court withheld permission to s experts to inspect a factory to determine whether blacks had been relegated to less attractive jobs, b/c itd be too disruptive, vs. too slight benefits. b. Sellon v. Smith p828-829

Comment [L.R.57]: Why shouldnt this mean that the should be able to ask the question if idea is to find out other sides position? Well b/c in this case, would have to answer a ? thats a central issue of the case. But isnt that the point?

GM attorney unreasonably interpreted s request for documents very narrowly to avoid giving up incriminating info. Court compelled GM to give all documents c. Kozlowksi v. Sears 1976 p830 Court rejected Sears argument that compliance w/ request for complaints (files) would be too costly/time consuming, b/c they filed in different manner. Note: 1980 Rule 34(b) amended to permit parties to turn over files in order they are kept. d. Hart v. Wolff p831 Facts: and started company to open bowling alley. Sold to Metro Mortgage, but Hart was president of Metro. Wolf stopped being VP. Hart sued for defamation, and Wolff asked for records of Bowling alley. Hart said records were no longer in his possession or control. Holding: court found he had enough of a connection w/company managing bowling alley to use influence to get records. Notes: o Why does court read rule 34 liberally in this case, rather than restrictively? Rules are to be read to facilitate the resolution of disputes (according to rule 1). o Outcome- dismissal of case might be disproportionate to offense. Perhaps he should have just been forced to try to get documents. Dissent: doesnt believe court should be able to substitute influence for possession, custody or control in FCRP 34 3. Physical and Mental Examinations FRCP 35 Schlagenhauf v. Holder p835 Facts: greyhound bus was driven into a tractor trailer Proc: injured passengers sued greyhound, schlagenhauf, and the owner and driver of the trailer Greyhound cross-claimed against contract carriers for damage to the bus Contact carriers filed answer and asserting that schlagenhaufs negligence caused the bus damages Contract carriers then petitioned to have schlagenhauf submit to multiple mental and physical examinations. argument: (aside from it didnt apply to ) was that his condition was not in controversy and good cause was not shown for the examination. Need more than just that it was relevant. Holding: - Rule 35 requires affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each exam. P838 Judge is to use discretion when finding good cause here appears as if discretion was blatantly not used. Probably incentive for vacating judgment 4. Requests for Admissions FRCP 36, 37(c)(2) a. McSparran v. Hanigan supplement seeks to establish that he is only a statutory employer so he can limit the damages he needs to pay to workers to workers comp. Facts: admitted, pretrial, that was a statutory employer. At trial, there was a verdict for the . Jury did not believe the admission.

Comment [L.R.58]: If he couldnt get it through Hart, could wolff get info otherwise? Yes could subpoena info from Metro, but would be hassle. Could be on s dime; might have to travel if metro is > 100 mi from court.

Comment [L.R.59]: Levin. Wasnt good cause shown here?

Issue: if admission of evidence said one thing, but jury said opposite, what should court do. Holding: admission removes the issue from controversy, Rationale: purpose of rule 36 is not discovery of information but the elimination at trial of need to prove factual matters which adversary cannot fairly contest Note: rule 33 interrogatories are given in good faith. Can be changed later. Not the case here - Rule 37: Sanctions if party fails to admit something that should have been admitted, other party can charge back that party for the cost of proving something that shouldnt have had to be proved. (insert editors notes? 843-845?) 5. Mandatory Disclosure - Rule 26(a) - initial step in discovery is mandatory disclosure of certain info; also, automatic disclosure of certain other matters later in trial. Comas v. United Telephone Company of KS p813 Facts: contended that D should produce personnel files and an internal file on his EEOC charges during initial 26(a) disclosures. Said they voluntarily agreed to produce relevant materials as an alternative to formal discovery. concedes that the parties agreed to furnish copies of non-privileged documents and to produce a redacted copy of personnel files Notes: Rule 26(a) amendment: removed voluntary aspect of producing evidence against partys case. Opting out is no longer permitted. Scope of rule, though, now only applies to producing information that supports your claim or defense. - rule 26 (a)(1) does not require production of documents; those can be obtained later by other party through Rule 34 or informal requests. 6. Work Product 26(b)(3) Hickman v. Taylor p849 Facts: tug sank while trying to tow car flow across river; owners hired lawyer to defend against possible suit. Petitioner tried to get copies of all investigatory inquiries of witnesses, taken by lawyer Issue: to what extent may a party inquire into oral and written statements of witnesses, or other info, secured by an adverse partys counsel in course of preparation for litigation after claim has arisen. Holding: Rule 33 does not make provision for the production of opposing partys work product. Rule: Though deposition-discovery rules are to be given broad/liberal reading, limitations exist. Rule 26(b) limits inquiry here it touches upon irrelevant, or encroaches upon recognized domains of privilege. - no rule of discovery may be used to compel furnishing of atty work product. - rule 30(b) gives trial judge requisite discretion to make judgment as to whether discovery should be allowed as to written statements secured from witnesses (but here, opposing side only wanted it to improve his case) READ and ADD NOTES pages 857-861 7. Sanctions FRCP 37 Cine Forty-second Street Theatre Corp. v. Allied Artists Pictures Corp (insert notes here) VIII. ADJUDICATION WITHOUT TRIAL

A. Lundeen v. Cordner: p913 Facts: Cordner had previous wife and kids; kids were original beneficiaries on life insurance; remarried before death and had attempted to change beneficiaries by executing forms (though company never recorded his change). Issue: whether motion for summary judgment can be granted if evidence upon which basis that there is no question of material fact, relies upon affidavit of one witness. Legal Test Court Applies: Rule 56(c) no genuine issue of material fact, and therefore entitlement to judgment as a matter of law Rules: - affidavits from only persons in position to be aware of a factual situation can serve as basis for summary judgment - where there is no indication that the affiant was biased, dishonest, mistaken or unaware or unsure of facts, the cases declaring that cross-examination is necessary have no application ( didnt produce any) - party opposed to summary judgment based upon affidavits must assume some initiative in showing that a factual issue actually exists - court also notes that even if case were put to jury, it believes the jury verdict would need to be set aside, thus might as well achieve same results in advance. Hypo: if it was basically s word against s affidavit w/ no evidence on either side, credibility question might be best sent to jury. * there is an overlap between 12b and 56 Dyer v. MacDougall p919 - summary judgment affirmed b/c could present no witnesses to refute signed affidavits of witnesses against him (even though he would have attacked their credibility) Cross v. United States p920 Facts: romance language professor, wife and dog went to Europe; after 21 days of trip, he split off to go to Paris to visit churchs, schools, cafes, etc supposedly to enhance his learning to teach. After few weeks, met up with her and returned home. - prof had other professors submit affidavits which indicated desirability of foreign travel for teachers. - Moved for summary judgment Holding: no summary judgment so government could test credibility of witnesses and professor in front of jury govt did not submit any evidence does this case reconcile w/ other case? witnesses here are not objective/unbiased. Did his showing satisfy the rule any less than Ms. Corden? Rule 56 (e) says adverse party must set forth specific facts showing that there is a genuine issue for trial. BUT you can argue Prof. Cross motion wasnt sufficient in first place, b/c in that case, the second part of rule 56 would not come into play. (first part says when a motion for summary judgment is made and supported o if this case were to go to trial, would it necessarily result in a directed verdict? No jury could find, under cross examination that vacation wasnt all about work. So in that case, he didnt meet requirements of Rule 56(c) in demonstrating absence of dispute of fact, so no summary judgment.

1. The initial question, when looking at a motion for summary judgment, is whether Rule 56 (c) has been satisfied. 2. If it has been, then burden shifts to other party to show that there is an issue that should go to trial. In different scenario, govt might also submit motion for summary judgment, for judgment as a question of law (tax law being guiding in this instance). If there are enough facts to do so, judge might decide case. Adickes v. S.H. Kress &Co. (1970) Facts: white teacher went to restaurant w/ 6 black students. Waitress took childrens orders but refused service to teacher b/c she was white in company of blacks. Police then arrested Adickes for vagrancy Procedure: teacher sued for civil rights violation and conspiracy between restaurant and police - her opponents motion for summary judgment was denied b/c of circumstantial evidence/questions she raised, which opponents evidence did not dispute. Failure to show police was not in store before refusal. 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. Celotex v. Catrett p925 - supreme court articulated precise std for determining existence of genuine issue of material fact Petitioner Argument: argued that plaintiff failed to produce evidence that showed Celotex was proximate cause of injuries no witnesses who could testify about decedents exposure to Celos asbestos. Documents produced were inadmissible hearsay Respondent: - produced documents Rule: Rule 56(c) requires summary judgment if party fails to est. existence of an element essential to that partys case, on which that party will bear the burden of proof at trial - moving party does not need to show materials negating opponents claim - moving party MAY meet its burden by showing that there is an Absence of Evidence to support the nonmoving partys case. Why is this case different from Cross? - all govt had to do to resist Cross motion is show that he didnt have enough conclusive evidence. - Here, even though didnt have evidence, didnt either, and since she has burden of proof, court can grant summary judgment. NOTE/Rule: If party seeking summary judgment has burden of proof, needs to have conclusive evidence. If party seeking does not have burden of proof, does not need to have the evidence. - On remand, court denied summary judgment - said case should at least go to trial for judge to consider admissibility of her circumstantial evidence, against s opposition Coulas v. Smith p947 (rules 55b and 60b) Facts: plaintiff and cross-claimant obtained judgment for money owed by when did not show up at rescheduled trial. Coulas claimed he did not know of rescheduled trial, and therefore did not have notice, and therefore default judgment was void.

Holding: Judgment was not default b/c had the opportunity to plead his case (he answered complaint and filed a counterclaim). And court assumes that clerk did provide notice, and even if he didnt, presumably, when Coulas showed up on earlier date, he would have found out correct date of trial. Notes: -problem here is that 55(b)(2) requires notice so that court can know why person didnt show up. Perhaps there was an emergency, etc. -Levin: court confuses matter by saying this is not a default judgment. It is. - however is also hindered by waiting 2 years, when law said he only had 6 mos. Even under FRCP 60 (b) he only has 1 year to respond. -60(b) relief granted sparingly courts not wanting to upset finality of judgments (re-read 950-951) Hughes? IX. THE TRIAL STAGE!!! A. Trial by Jury 1. Beacon Theatres, Inc. V. Westover p959 Facts: Beacon had threatened to sue. Fox sought declaratory judgment by court that it was not violating Sherman Antitrust Act and an injunction preventing Beacon from instituting any action under the antitrust laws until suit was over. Then Beacon counterclaimed against Fox asserting that Fox had conspired w/ distributors to monopolize first run movies, asked for damages. Notes: - jury trial preserved in 7th Amend for suits at common law over certain dollar value - Levin: 1791- claim for damages would get jury trial (under common law). But in 1791, the Sherman Antitrust Act didnt exist. However, since unfair competition claims might have been handled in common law courts back then, would allow claim to be heard today. THUS Beacons claim, if a separate stand alone suit, would have right to Jury. Rule: Equity suits do not get jury trial. However, equity suits, in which legal counterclaim is alleged, may have a jury trial. Judge will need to decide which claim to hear first, but right to jury trial should not be denied if at all possible. 42(b). Levin: If Foxs injunctive relief claim was only claim in case, would there be right to jury? No equitable relief. Levin: if only the declaratory judgment, jury? No such judgment in 1791. but Fox is only seeking to preemptively call the outcome of the potential suit from Beacon. Rule 57 says that if declaratory judgment is only being used to preempt a suit that would be entitled to jury trial the declaratory judgment suit would have jury trial. the approach articulated by the court is heavily based on history, contemplation of what would have happened historically if case were adjudicated at that time.\ up until this case, court would first hear the case of law that was decided by judge only, and slate jury trial for third. Then, res judicata would eliminate jury trial b/c thered be no issue left to try. This case said that procedure was impermissible. Court also makes point of expressing that equity and law courts were combined in 1938, affording courts greater range of remedies now, therefore what would have been considered an inadequate remedy by courts in the past, may not be seen as such now.

End result: court is not disposed to allowing a judge to schedule equity claim before law claim. Hypo: if govt had brought injunctive suit against Fox first, could Beacon then sue for damages, requesting a jury trial? No they would be collaterally estopped from doing so from having jury trial. 2. Dairy Queen v. Wood: p966 Facts: Dairy Queen in PA defaulted on trademark agreement w/ wood. Wood sued for injunction to restrain petitioner from future use of trademark. An accounting to determine the exact amount of $ owed and a judgment for that amount and 3) an injunction pending an accounting to prevent petitioner from collecting any money from Dairy Queen stores Notes: - DQ sought equity decision b/c of complicated issue - court focuses on evolution of system; Law Courts now able to handle complicated judgment that wasnt available in 1791. under FRCP 53(b) court can appoint expert masters to help jury take on complicated issues. Rule: regardless of whether legal issues are incidental to equity issues (less of a focus) they must be submitted to a jury. 3. Ross v. Bernhard p968 Facts: corporate derivative suit against directors and brokers. Jury trial upheld Holding: legal issue in corporate claim necessitates jury trial not forfeited b/c stockholders right to sue is equitable. RULE: test for categorizing cases as legal or equitable (jury or not) was captured in Ross footnote: 1. pre-merger custom for issue 2. remedy sought 3. practical abilities and limitations or juries Notes: - previously, derivative suits could only be awarded equitable relief; after merger, no longer limited to just equitable relief. --Here, court says that after merger, cause of action could have either. Is that correct interpretation of 7th amendment? - well the other driver of courts decision is underlying breach of agreement claim. Part of the courts argument is that once you get to merits it is a legal claim. If this was just a suit for injunction it would have been an equitable cause of action, and an equitable issue. Here, equitable cause of action, w/ legal issue. 4. Complexity Exception: courts may deny jury trial in complex issues where ordinary jury would not be capable fact-finder. Arguments for: - consistent w/ constitution b/c recognized at common law when written - complex and esoteric cases best entrusted to experienced judge - submitting issues that exceed jurys capacity for rationale decision-making denies litigants due process rights. Ex: class action for damages? Class actions only used to go to equity courts, but b/c of relief sought, may go to jury now if issue isnt too complex. - complexity exception has not been successful doctrine/theory. Courts have not latched on to taking case from jury for complexity reasons.

5. Japanese Electronic p972 - accepted due process argument, above. Too complex for jury - said court should balance 5th and 7th amendment concerns if too complex for jury Dissent: only complex b/c of joinder rules. Judge should split it of into separate trials 6. Teamsters v. Terry p988 Facts: teamsters sued claiming Union had violated duty of fair representation, and sought compensatory damages for lost wages and benies union should have negotiated Holding: court awarded jury trial primarily b/c of relief sought. Though character was similar to trust v trustee a/case, contract breach claim was legal. rules: damages can sometimes be equitable: if they are restitutionary (disgorgement of improper benefits) or incidental/intertwined w/ injunctive relief. - backpay would be equitable but this is different from backpay Brennan concurrence: get rid of part of test that searches for historical analogy Dissent: majority is parsing a legal element out of an equitable claim; just b/c there are damages sought does not make it more analogous to legal action. Preserve historical test. - historical comparison arguments: - trust beneficiary v. trustee ; but also contract claim damages sought as remedy. - because theres both have right to jury trial. o Remedy is more important o And history is inconclusive. Indianhead: if the award is specific performance and damages for delayed performance, its not legal damages but equitable relief. is getting the equivalent of performed contract. 7. Trial by Jury 6 member jury P1015-1017 Williams v. Florida: held that state might constitutionally use 6 member jury in criminal case carried over to federal trials in Duncan v. Louisiana - many federal courts have also used Rule 83 to create 6 member jury for civil cases Colgrove v Battin: mandamus compelling 12 member jury denied. Court found nothing to suggest smaller jury not as reliable. Federal Rule 48 amended in 1991 to permit court to decide the size of jury, but it must be >or =6 and < or = 12 Class notes: - smaller juries convict more often may be quicker to rush to a conclusion. - larger jury may discuss it more fully, less likely to reach quick decision - more divergence on results small juries reach than what large juries reach. - 6th amendment supreme court has held that jury of 6 is okay, but jury of 5 is not for criminal cases. Note that 7th amendment applies only to federal courts, so supreme court decisions regarding size of jury hold on federal courts. State courts can do what they please subject to due process concerns. VA B. Jury Selection

1. Flowers v. Flowers p1020 Court reversed and remanded for new trial due to bias shown to be had by a juror. Held it was abuse of trial courts discretion to allow trial. Rule: to disqualify, it must appear that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality. 2. Edmonson p1022 Supreme Court held that prosecution could not use all preemptory challenges to remove jurors just on race. Rules: can raise challenge to that practice on behalf of excluded jurors equal protection rights - judges involvement and court involvement seen as government action for purposes of 14th amendment 3. J.E.B. v. Alabama p1025 Court rejected use of preemptory challenges solely based on gender. OConnor concurrence said she only did it b/c state was prosecutor. In private action it could be okay. 4. Hidalgo v. Fagen, Inc. Supp. Facts: used challenges to get rid of two Hispanic women from jury. only challenged 2nd. Upon questioning, court found no discrimination. Affirmed Rules: Procedure for examining discrimination in jury selection: 1. party raising Batson challenge est. prima facie case of racial discrimination 2. other party must submit racially neutral explanation 3. party raising challenge must be given opportunity to show pretext 4. trial court decides - party raising Batson challenge carries burden of persuasion. Rule 2: discriminatory intent implies course of action was made because of not merely in spite of its adverse effects on identifiable group. Notes: - preemptory challenges can be used to try to obtain a representative jury - also negative b/c they seem discriminatory but its not preemptory in a sense, if people have to give reason C. Judicial Control over Jury Decision 1. The Province of the Jury a. Markman v. Westview Instruments: p1001 Issue: whether interpretation of patent claim is issue for jury or judge Holding: resolution of ambiguities is matter of law issue for the judge to decide. Rationale: 1. judges used to interpreting written documents 2. can do so better than untrained jurors 3. having judges decide will lead to greater uniformity - if district judges get it wrong, appeal goes to Federal Circuit (40% reversal rate of district courts on patents). They have specialization that general judges dont have. (some argue district judges really have no better handle on it than jury). b. Dobson v. Masonite Corp, p1005 Issue: whether oral agreement for services to clear timber in exchange for wood was enforceable under statute of Frauds

Comment [L.R.60]: Even though defense lawyer is not acting for state, objection is enforced by judge who does work for state. Therefore its a violation to let make discriminatory preemptory challenges. In Edmonson, court changed theories from 6th amendment theory to theory that its the jurors right.

- if it was for services, not enforceable - issue was presented to jury which determined it was for services ruled for ; judge rejected this finding and found it was for sale of timber Outcome: court reversed on appeal deciding the meaning of a contract is a question of fact. Notes: - jury here ruled for the little guy, nevermind rqmt. of statute of frauds. So if you want community values to bear on the question, you would want jury to hear it. But if you want rules advanced, you would probably want a judge to hear it. - here, for Masonite, if they engage in agreements like this often, it would be helpful for them to have precedent to guide going forward. - notes from book imply that theres room for court to determine whether its a judge or jury question as a matter of policy what values they want to promote Levin, In actuality, court handles it like this: 1. court declares what they want to be considered as matter of law when judge gives jurors instruction on law. 2. if judge just gives general guidelines, they will give more latitude to jury. So when court says its an issue of fact its often choosing not to hear the issue for specific purpose. 2. Jury Misconduct a. Special Verdicts vs. General Verdicts o traditional, majority form is general. Two deficiencies: no way to tell how jurors decided specific issues, which can result in unnecessary retrial (only 1 error can make appellate court reverse and retry whole thing, b/c it has no way of knowing if one error contributed to jury decision) no way of knowing whether jury actually focused its attention on every major aspect of the case per instructions, or whether it ignored instructions altogether. o Special verdict could be bad by not allowing juries flexibility to temper law with changing conceptions social justice b. Robb v. John C. Hickey, Inc. p1086 Facts: jury awarded damages, despite finding that he was contributorily negligent. Judge had instructed them that if they did find negligent, he could not be awarded damages. o on appeal, court ordered a new trial. Question: why didnt court take the jurys statement that both were negligent, and then just enter judgment on that finding, altering damages? Rule: a judge may mold an incoherent jury verdict to coincide with the substance of the jurys declaration only if the verdict clearly expresses the intent of the jury. Here, intent was unclear. Couldnt mold. o questioning (interrogatories) of juries may reveal that they are breaking/avoiding the law in making their decision. If you want to allow jury to decide in this manner, ask less questions. c. Hukle v. Kimble - perspectives on fairness change based on whether quotient was a basis for discussion, or just a factor of jury not caring, and just taking whatever result occurred from process.

Comment [L.R.61]: Policy judgment

How would this have come out in Federal court? The matter could not have even been inquired into in Fed. Court b/c evidentiary rule prevents it. d. Sopp v. Smith Facts: motion for new trial made based on affidavits of several jurors stating that during trial they had visited scene of accident. Rule: opinion later adopted as law of CA, which is federal law Mansfield approach. and used in majority of states. Rules do not let affidavit of juror, which would contradict verdict, be introduced Notes: whats wrong w/ juror doing own research? - undermines adversarial process. Grossly improper. Yet, under Mansfield rule, such information should not be put before the court. o justifications given for rule of exclusion p1090: 1. need for stability of verdicts 2. need to protect jurors from fraud and harassment by disappointed litigants 3. desire to prevent prolonged litigation 4. need to prevent verdicts from being set aside b/c of change of attitude later 5. concept of sanctity of jury room Iowa has modified approach:

(a) jurors can testify to overt acts of other jury members 1. Cannot be based on state of mind or feelings of ind. juror 2. affidavit and prob. must be supported
e. Tanner v. U.S. evidence of juror drug/alcohol use in criminal trial was not allowed to be admitted. (supreme court decision) 3. JUDICIAL POWER TO OVERRIDE THE JURY - Stds for Motions for Judgement as matter of law (directed verdict and Judgement NOV) p 1047. - See FRCP 50 - - only difference among motions under Rule 50(a) , 50(b) and 56, is time when they are made a. Denman v. Spain p1048 Facts: two cars collided head-on. Grandma and other driver died. Child sued both estates. Injured have no recollection of accident. Witnesses saw one car speed past, but stay in lane. Rule/Holding: had burden to prove by preponderance of evidence that driver was guilty of negligence, and that the negligence caused collision/injury. Since there was no sound basis for jury to meet that decision, judgment NOV for proper. Notes: If applying conventional rules - judge will overturn jury rule if it finds no reasonable jury should have found as it did. ?- if judge feels theres no way a jury can decide certain way on evidence, why should he let question go to jury in the first place? Why not Directed verdict? - give jury chance to find same way judge feels. Legitimize process.

Comment [L.R.62]: Is the account that the jury believed implausible? No. if thats the case, why not let jury decision stand? Following Kirchner principal. Weight of evidence. Comment [L.R.63]: Why isnt this like Summerce v. Tice hunters case where both were negligent and had to figure it out amongst themselves. Here, its not a given that one of them was negligentc.

- You can avoid the necessity of a retrial if you get the jurys verdict on record. Then if judge says that verdicts unreasonable, it can be appealed, but a new trial isnt needed, b/c jury decision in support of reverse is already on record. - Last reason: judge may not have decided in his own mind, and may prefer not to decide. b. Kircher v. Atchison p1051 Facts: sued for loss of hand train Holding: in victims story vs. , jury did not have to hold against him just b/c he could not relate exactly what events happened. Could still find for . c. Aetna Casualty v Yeatts p1095 Facts: , insurance, denied coverage b/c Yeatts supposedly engaged in criminal abortion. Jury entered verdict in s favor - s testimony vs. evidence Rules: judge has to set aside verdict and grant new trial if he believes verdict is against clear weight of the evidence, or is based upon evidence which is false, or lead to miscarriage of justice. citing Garrison: judge should not direct verdict just b/c he doesnt believe evidence of one side; but he can enter JNOV if evidence against jury is clear, or evidence supporting jury is false granting or refusing a new trial is a matter resting in discretion of trial judge, and is generally not reviewable upon appeal NOTES: If the evidence was not such that judge could have granted motion for JNOV or issued directed verdict, why would he/she be permitted to grant a new trial? Why the lesser std? -some cases say that if it was a reasonable verdict, judge cannot set aside verdict or grant new trial. (Dyer v. Hastings) this position disagrees w/ Aetna position d. Notes cases Dyer v. Hastings 1099 - court does not undertake to judge credibility of evidence, only whether it has semblance of credibility. - when evidence could have jury decide either way it should go to jury. In Re Greens Estate : (CA) if judge concludes that evidence is insufficient to support verdict, he should grant motion NOV, and reviewing court may not set his decision aside unless shows abuse of discretion. P 1100 - note standard for new trial is shaped by courts whose opinions are not published, therefore difficult to ascertain When would it be more appropriate to award a new trial, rather than enter a JNOV, when the judge felt the verdict was clearly unreasonable. o under rule 50, judge can use questionable credibility to award new trial if he decides its just unreasonable o 1 reason: judge might conclude what the jury found was unreasonable, but it doesnt mean the judge knows what the right answer is. (for. Ex: amount of damages could be completely ridiculous, but that doesnt mean the judge knows what the correct amount is.)

Other reason: if party who lost jury verdict did not ask for a directed verdict before ? went to jury, court may not grant JNOV. Instead new trial.

4. Conditional and Partial New Trial a. Fisch v. Manger p1101 - NJ Facts: suffered serious injuries in car accident, cash expenditure of almost $3k; jury only awarded him $3k in damages, nothing for pain/suffering. Judge wrote that he would grant new trial unless agreed to pay $7500. appealed. Rules, etc: Remittitur: judge agrees not to grant New trial if accepts lesser damages. Common practice. Additur: not used everywhere, but NJ court decides to accept practice. (judge agrees not to grant new trial if will pay more than jury damages) Supreme Court had ruled against it in Dimick. NOTES: Why do federal courts allow remittiturs but not additurs? - jury had already approved more than amount given in remittitur so absolute value then paid is definitely approved. Opposite not true in additur. - Other possibility: if court can say liability was established, and now were upping damage amount does that subvert jury process. - Remittitur serves to counteract jury passion/sympathy where damages were not merited under the law b. Powers v. Allstate Insurance. P1105 Rule: practice in most jurisdictions courts allow the option of avoiding new trial by remission of the excess above an amount with the court considers reasonable (used when jury verdict is obviously excessive) Problem w/ Powers view is that court looks more interventionist. Doesnt look like judge is making decision as a matter of law. On other hand either highest or lowest possible requires choice. recall Gasperini case: question was whether fed. court should look to state law for standards for damages. Conclusion was that fed court should, b/c its a state policy. Supreme court has said that it violates 14th amendment (due process) for judge NOT to review damages award. C. RELIEF FROM JUDGMENT 1. Hulson v. Atchison (1960) p1107 (Timeliness of Requests for New Trial) Story: s extension to file motion for JNOV or new trial mistakenly granted by judge; when moved to strike, judge had to deny s motion per Rule 6(b). Rule: 1. trial court may not extend the time for taking any action under rules 50(b), 59(b) and others. 2. Ignorance of rules resulting in agreement for an unauthorized extension of time cannot serve as grounds for relief under Rule 60(b) Notes: Rule 59(d) allows court to order new trial on own initiative, but still 10 day limit Justification for rule 6(b)s refusal to allow extensions for 50, 59? Gives finality to judgment. Extension okay while trial is going on, but when it is supposed to end, dont want to indefinitely prolong it.

Comment [L.R.64]: There is an argument for saying judge has to award highest amount reasonable for that injury = then judge isnt taking on a larger factdetermining role. This ignores position.

60(b) says you can vacate a judgment b/c of mistake or excusable neglect. Motion for 60(b) relief just has to be w/in a year. But see #2 above. 2. Briones v. Riviera Hotel/Casino (Power to set aside judgment on grounds discovered after it was rendered) Story: pro se moved for 60(b) relief on grounds that court didnt tell him that case would be dismissed if he didnt file opposition to motion to dismiss. Trial court denied motion. Appeals court reversed for trial court to determine whether negligence was excusable under the circumstances. Appeals Court noted S. Ct Rules: 4 factors to consider if neglect was excusable in the bankruptcy case: 1. danger of prejudice to other party 2. length of delay and impact 3. reason for delay 4. whether moving party acted in good faith? 60(b)(1) ignorance of rules CAN be excusable neglect. But from Hulson, we learn that there is a reluctance to grant 60(b)(1) relief. Policy: once its over with, circumstances by which you overturn a judgment are limited. Notes: - judges rarely set judgments aside for negligence. Only when a default judgment was entered (no trial) errors of counsel not attributed to client 3. Patrick v. Sedwick p1110 (Newly Discovered Evidence; Fraud) considers application of Rule 60(b)(2) Story: moved for new trial when new treatment for s injuries came out 2 yrs after first trial began. Said less damages needed. Holding: new trial denied. Rules: motion for new trial rqmts: 1. evidence would probably change the result 2. must be discovered since the trial 3. must be of such nature that it couldnt have been discovered before trial 4. must be material 5. must not be merely cumulative or impeaching. ALSO newly discovered must relate to facts that were in existence at time of trial. 4. Swift v. Usamex: court allowed new method of measuring facts that were in existence at time of trial. (facts were in existence just way of measuring them) 5. Smith v. Great Lakes Airlines court didnt allow judgment to be reversed b/c of fraud discovered after trial b/c fraud was intrinsic. Rule has since been amended to include both intrinsic and extrinsic. - Extrinsic fraud: that which prevents litigant from making a claim or defense - Intrinsic fraud: that which the trial itself is designed to discover which witnesses are lying. X. THE BINDING EFFECT OF DECISIONS A. RES JUDICATA (Claim Preclusion) 1. (review Rush motorcycle accident in Cleveland. Sued for property damage, then was precluded from suing for injuries. Barred from second suit on res judicata means b/c it was all one set of facts, one occurrence, one question of law. P 1223)

Comment [L.R.65]: Makes sense not to allow new evidence after final-final judgment has been entered. But if case is just on appeal, only trial is over, should new evidence be allowed? While its pending on appeal, 60(b) policies do not necessarily take affect. Therefore, the Patrick approach, since the case was on appeal, is more restrictive than many courts would follow.

Comment [L.R.66]: Note Rules of Thumb: p1238

2. Federated Dept. Stores v. Moitie p1234 Facts: sued and action was dismissed for failure to state injury; refiled in state court, removed to fed court went to appeal and 9th Cir tried to give an exception to dismissal for res judicata b/c the case on which dismissal rested had been overruled. Supreme Court: no principle of law or equity which sanctions the rejection by a federal court of the principle of res judicata. fundamental rule of justice 3. Jones v. Morris Plan Bank p1235 Facts: purchased car from ; failed to make 2 payments - sued for 2 payments. After paid, supposedly became late on payments and took car. Contract clause said that at any time if was late, whole amt was due. Issue: whether sued for whole amt when he sued for 2 payments. (yes) Rules: 1. if transaction is represented by one single indivisible contract and breach gives rise to one cause of action, cannot be split into distinct actions. 2. Test to determine whether demand is single and entire, or several (more than one cause of action) identity of facts necessary to maintain the action. If same evidence will support both actions, there is but one cause of action. - to determine whether factual group constitutes single action: evaluate whether facts are related in time, space, originconvenient trial unit - if conduct that is subject of first action continues after judgment in first action, claim preclusion doesnt prevent second suit - when purpose of first suit is declaratory, subsequent claims involving same conduct are precluded. Ex. nuisance. Notes: - why would court interpret res judicata to mean this is only one cause of action? The acceleration clause says bank could have sued for all, but that in itself didnt require that bank do so. - court notes that if bank had written contract in usual language that said , if you dont pay, we may, at our option, sue for entire amount due this would not be a problem. But b/c it said that all payments would be due upon late payment, thats why it became one cause of action. - Why else would we want to make this all one transaction? Same evidence for everything, other than the date. Same legal issue. See page 1231 Restatement: regardless of variations in evidence needed to support theories or rights; transaction is the basis of the litigative unit or entity which may not be split. BONDS: p1238 each payment coupon can be separate cause of action if that is the expectation of the business parties - Also if there was no acceleration clause, and debtor had not paid for 6 mos, and company sued for the 6 mos due, there would not be a cause of action to sue for entire amount yet. Later, if debtor still didnt pay, res judicata would not apply. Could still sue. 4. Smith v. Kirkpatrick suppl 96 Facts: sued for money owed on verbal agreement for services. First claim failed statute of frauds. Second dismissed b/c he didnt prove his claims. Court held he was not barred, via res judicata, from a third claim on theory of quantum meruit (unjust enrichment).

Comment [L.R.67]: This is justice for other party. Sometimes it is argued that deserves justice by denying res judicata

Rules: - where a cause of action has been prosecuted to a final adjudication on the merits, same cause of action may not be again litigated - when two causes of action have such a measure of ID that a different judgment in the second would destroy or impair rights or interests in first, 2nd is barred. - issue is rights and interests affected. (here, there were different rights at issue different elements of proof) Smith notes most cases would rule similarly. Partly b/c for sympathetic . Partly b/c of historical origins that if people couldnt win in court of law, then theyd go to court of equity. - its not ridiculous to say he should have brought it all at once. *There has been a historical trend towards defining causes of action broadly by transaction. This case was a 1950s case, but over time, it has become much more possible for people to combine causes of action. This was a narrow reading. 5. Heaney v. Bd. of Trustees Garden vly. Facts: Heaney sued to be re-instated as superintendent. Lost became moot. Later sued for damages from being fired. Court held that his action for damages was not barred b/c trial court did not address issue of damages. Rules: although a litigant May combine a claim for damages w/ a petition for a writ of mandamus, its not mandatory. - court will not necessarily gain efficiencies from combining damages and writ of mandamus may have to split them anyway (b/c mandamus is for immediate relief) Dissent: Jurisdictions are split on this, and it would be more efficient to force combination of claims. Present trend is to see claim in factual terms, and make it coterminous w/ transaction, regardless of number of substantive theories or various forms of relief. Notes: - While you could argue that the case for damages was not ripe at the point where he sued for a writ of mandamus he could have also had a second claim that said, in the alternative award damages, etc. - courts are becoming less tolerant of s exercise of discretion on when to bring claims b/c it would be possible for him to bring damage claim earlier. 6. Bogard v. Cook: Facts: class action was brought on behalf of prisoners of Parchman; Bogard did not opt out, and actually testified. Court awarded injunctive relief. 2 mos after that decision, Bogard was stabbed in the spine, which rendered him a paraplegic. He sued for that injury, and for previous corporal punishment, etc. Courts holding: his individual claim for damages was not barred by participation in class action. Further, his claim for the stabbing was not barred, but he lost on that claim for lack of evidence anyway. Rationale: - notice for class action suit may not have made members aware that they would be precluded from seeking damages 7. Anguiano v. Transcontinental Bus brought claim for damages, and moved for security for costs. didnt object, but never put up the bond. then moved to dismiss and court granted motion.

then commenced another action for identical claim. moved to dismiss under res judicata and court dismissed. Rule: Rule 41(b) involuntary dismissals for s failure to follow rules can be held to be dismissals upon the merits. Why no dismissal for suing in wrong place? Court wants to dismiss on merits. Youre entitled to at least one day in court - if so, then what about Anguiano? - he failed to comply w/ an order of the court - dismissed w/ prejudice = means you cannot sue again Hypo: what if Anguiano just made a mistake? What if it was accident? - he could move to vacate the order of dismissal in the original case If he was unsuccessful in that motion, could he sue again? - rule 41(b) says that except for 3 specified circumstances, dismissal operates as an adjudication upon the merits. - proper procedure is to appeal courts decision and seek decision of higher court that trial court abused discretion. - Russo: can also move the court to vacate its own order (before you appeal) 8. Rinehart v. Locke: - court dismisses Rineharts complaint for failure to state a claim upon which relief may be granted. - Instead of appealing, he instates a new action, w/ amendment. - Court says that under Rule 41- he should have made the amendment in the first suit. Dismisses for res judicata. - there are lots of opportunities to cure defects in first case get it right the first time. - there are lots of opportunities to cure defects in first case get it right the first time. - Is this fair? What if he didnt have chance in first case? - - one idea is that pleading requirements are so lax, that case would hardly be thrown out unless he really didnt have a claim. (or thought his omission wasnt inadvertent) - - ordinary case: you can appeal, if its an abuse of discretion, court will reverse. 9. Semtek Intl. v. Lockheed Martin p1326 Facts: Semtek sued Lockheed in CA court Lockheed removed to Fed Court on diversity action dismissed for exceeding SoL in CA law. Semtek then sued in ME; (to/from fed back to state court); Lockheed moved to dismiss on res judicata. Supreme Court reversed ME saying the claim was not precluded. Rules: 1. traditional rule: expiration of applicable statute of limitations merely bars the remedy and does not extinguish the substantive right, so dismissal on that ground does not have claim-preclusive effect in other jurisdictions w/ longer SoL periods 2. Federal common law governs claim-preclusive effect of a dismissal by a federal court sitting in diversity. Here, they adopted the law that would be applied by state court in state in which ed diversity court sits 3. Judgment on the merits is not necessarily entitled to claim-preclusive effect. Rule 41(b) is just a default rule. Notes: rule in Semtek requires courts to apply the law of the forum state of the prior action to determine the preclusive effect of prior diversity actions.

CLASS Notes: S.Ct interpretation of Rule 41 is just that is precluded from bringing same suit again in same court. - if this somewhat undermines res judicata, why does court read rule 41 so narrowly? - allowing a federal decision to preclude from bringing a suit in a state, where that would not have happened if had sued originally in state would take away a right you would have had in state court. In addition, would violate Rules Enabling Act by abridging or modifying a substantive right. Leaves res judicata to common law. B. COLLATERAL ESTOPPEL (ISSUE PRECLUSION) Justice Harlan in So. Pac RR: general principleis that a right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction, cannot be disputed in a subsequent suit between the same parties or their privies; and even if 2nd suit is for a differentcause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established. 1. Book Notes: - critical difference between claim preclusion and issue preclusion. Under claim preclusion, claim may be merged or barred by partys failure to raise the claim in prior action. Issue preclusion, however, applies only to matters argued and decided in an earlier lawsuit - to trigger issue preclusion, the issue raised in the 2nd suit actually must have been litigated in 1st action, and must have been decided by first court, and determination of that issue must have been necessary to the courts judgment - if 2 suits have same cause of action, issue preclusion = direct estoppel - if 2 suits have different cause of action, issue preclusion = collateral estoppel 2. Cromwell v. County of SAC p1244 Facts: $10k in bonds were issued for court house. Judge delivered bonds to Merserey, who gave him kickback; court house never constructed. became owner of some bonds, sued for payment once. Sued again Holding: court held that just b/c didnt show he had paid for bonds in previous suit did not preclude him from showing evidence in second suit. Rule: recovery itself in an action is only a bar to the future recovery of damages for the same injury; but estoppel precludes parties from contending to the contrary of that point or matter of fact, which having once been distinctly put in issue by them, has been, on such issue joined, solemnly found against them. NOTES: Why doesnt court bar from bringing evidence in second suit if he could have but did not, bring it in first suit? Court says that in the initial claim, a variety of other considerations could affect decision to bring that evidencecould be too small to be worth the effort in first suit.
If he brings the evidence in second suit and wins, couldnt sue afterward with respect to his first set of bonds Claim preclusion would prevent him from bringing another suit on those bonds.

Comment [L.R.68]: He sued for one set of bonds, and lost. Remember that each bond represents a separate cause of action you get to sue for each coupon. (special rule for bonds). But how come there isnt issue preclusion?

3. Russell v. Place p1250

Facts: sued for patent infringement had previously recovered against . Sought injunction from addtl mfr. answered lack of novelty of invention. thinks issue should be collaterally estopped from previous suit. Holding: in order for issue to be precluded, it must appear from record that precise question was raised and determined in former suit. Any uncertainty will lead whole suit to be open for new contention. Here, evidence wasnt conclusive, so issue had to be litigated. How could manage suit better to prevent res judicata next time? - could ask for a special verdict - could ask Judge for amended opinion w/ specific findings - could amend pleadings Suppose sued for patent infringement and defenses were that patent was invalid for want of novelty, has unclean hands, license agreement, SoLif wins on general verdict, would there be estoppel on a subsequent case? - assume jury must have rejected all 5 defenses. 4. Rios v. Davis p1252 (ct of civil appeals of TX 1963) Facts: Rios sued Davis for injuries sustained in car crash. Davis pleaded that Rios was contributorily negligent and res judicata b/c in earlier between Popular against Davis, Davis joined suit against Rios and jury had found that both were negligent and had proximately caused collision. Holding/Rule: Court held that b/c the jurys findings were to determine negligence of Davis, their finding that Rios was negligent was not essential or material to the judgment, and since he had not right or opportunity to appeal from that finding (b/c it wasnt a judgment) he is not estopped from disputing the fact in separate suit. Notes: In first suit, Rios essentially won, b/c the claim against him was defeated. SO, he couldnt have appealed the judgment. So why can he bring this separate claim now? - jury findings might not be exactly right, but Judge might not overturn them if they wouldnt affect his judgment. But here, if the aspect of the finding was unfair to Rios, since he won on the judgment, he had no recourse against that finding unless he brought separate suit. - But isnt Rios negligence an essential finding in the determination that Popular couldnt win its suit? Problem is, only Popular could appeal that decision, and they might not have interest in spending the addtl $ - they didnt appeal, + he wasnt allowed to defend his interests. - Would D get to argue his negligence in the 2nd suit? Or would res judicata rule from 1st? practicality says you cant just start a suit and tell jury D is negligent. 5. Patterson v. Saunders supp. 115 1953 Facts: Patterson sued 3 s for wrongfully cutting and removing timber from land he said he owned; s filed pleas of res judicata, alleging that in separate suit against 2 of them, court had held that had no title to the land. Holding: court, by stating that did not show evidence that he was owner, basically decreed him not to be the owner. Thus, res judicata applies. He could have appealed but did not. Dissent: failure to show enough evidence to support his claim did not invite court to rule on whether he definitely held title.

Comment [L.R.69]: Why didnt Rios have a compulsory counterclaim at that point? Not a federal Court. Texas court.. Rule 13A - would HAVE to bring up counterclaim that arose from same transaction

Comment [L.R.70]: From comment wouldnt even reach question of issue preclusion in modern case, b/c the CLAIM would be precluded under rule 13A.

Notes: Patterson different from Rios b/c judge expressly found that P didnt prove ownership. RULES: Two positions regarding judgments that rely in specific factual findings: - issue preclusion on all findings - issue preclusion on no findings. (see note case on p 117 in supplement) Restatement approach: No initial preclusion on multiple issues but if appellate court finds on both issues, afterwards, preclusion.

Class Notes: Problem is that finding that he didnt own the land may not be reliable b/c it could be shielded from effective appellate review by OTHER finding. Patterson might not appeal if judge was right on that one issue, even if he was wrong on ownership issue.
6. Ralph Wolff & Sons v. N. Zealand p1280 (mutuality in estoppel) Facts: candy factory fire; partners were insured by 12 policies. First case sued for 9 policies damage assessed at $2500. had those insurers pay 145/195 of $2500. 2nd suit sued 2 other insurers for $1k ea. Judgment entered at 1000/19500 of previously determined amount of $2500. Issue: whether s are bound by the judgment of damage amt from the other suit against the 9, in the suit against 2. Holding: court held that b/c the s in this suit were not parties (or in privity) to first suit, they could not use res judicata as defense. Class notes: - Court says to bind the s, s must also have been bound; estoppel had to be mutual. looks for symmetry. (s would have to be held to too high of an insurance award if had to be held to too low of an award) - Mutuality: if stranger couldnt be bound, stranger cannot benefit - from prior suit. (no reason given for rqmt) 7. Bernhard v. Bank of America p1284 (abandoning requirement of mutuality) Facts: new executor of Sather estate tried to sue former executor for $ from estate; court held that decedent had made $ gift. Then new executor tried to sue B of A for paying out $ that decedent hadnt approved to be paid out. Holding: court held that B of A could assert plea of res judicata, even though it was not a party to the original suit. Rules: no compelling reason for requiring that party asserting plea of res judicata must have been a party, or in privity w/ a party to earlier litigation. Test to determine validity of res judicata plea: 1. was issue decided in previous case IDENTICAL to one in question? 2. was there a final judgment on merits in first case? 3. was party against whom plea is asserted a party or in privity w/ a party in prior case? Notes: - dominant position; majority follows this rule - this is defensive collateral estoppel (collateral estoppel of a non-mutual party is used as a shield) **exceptions to mutuality reqmt arise in vicarious liability claims same issues of fact and law)** explanation 1287

Comment [L.R.71]: b/c he may feel that he cant possibly win on that aspect, thus defeating purpose of appeal

8. Parklane Hosiery Co. v. Shore p1291 Facts: private parties tried to sue on same basis as SEC false info in proxy statement. Wanted to use collateral estoppel to keep from relitigating issue that had been resolved against them in first case. Holding: Court held that b/c s rcd full and fair opportunity to litigate their claims, they were collaterally estopped from relitigating the question of fact (again) in the second suit. Rules: - had to have incentive to vigorously in first suit - future suits need to be foreseeable Dissent: - since the first suit wasnt tried in front of a jury, is being denied his 7th amendment rights. Should be able to put question to jury, even if it returns different judgment.