PREMIUM LEGAL RESOURCES
ASK A LAWYER
Contributed by Roger Martin, 2L Student by night at U. of San Diego,
Patent Agent by day at [email protected]
** Sierocinski v. E.I. Du Pont De Nemours & Co., (1939)
2. Facts: P. was injured while crimping a dynamite cap.
3. Procedural Posture: P. made a claim for relief under Rule 8. The
trial court granted the D.'s motion for a more definite statement under
Rule 12(e). The amended complaint stated that the P. was injured by
premature explosion of the dynamite cap caused by the negligent acts of
the D. which included manufacturing and distributing of the cap "in such
a fashion that it was unable to withstand the crimping which D. knew it
would be subjected to." The trial court granted the D.'s ensuing motion
to strike the amended statement as failing to set forth any specific act
of negligence, and dismissed the action. P. appealed to this court.
4. Issue: What are the requirements of a claim?
5. Holding: "A short and plain statement of the claim showing that the
pleader is entitled to relief." Rule 8(a)(2).
6. P.'s Argument: The claim sets for a specific averment of negligent
manufacture and distribution of the cap in such a fashion as to make it
explode when crimped. Such a statement is sufficient to show that the P.
is entitled to relief.
7. D. Argument: It is not put on notice by the complaint as to whether
it must meet a claim of warranty, of misrepresentation, of the sue of
improper ingredients, or of faulty inspection. Thus, it is insufficient
to state a grounds for relief.
8. Majority Reasoning: First, a plaintiff need not plead any evidence.
Any further information as to the specific nature of the negligence
claim would be in the nature of evidence. Second, Form 9 of the appendix
to the rules was meant to indicate the simplicity and brevity of the
statement of the claim necessary, and it merely avers that the D.
negligently drove an automobile against the P.. Lastly, if the D. needs
further information to conduct its defense, then it can use Rule 33
** Conley v. Gibson, (1957)
2. Facts: Black members of the Brotherhood of Railway and Steamship
Clerks brought suit under the Railway Labor Act to compel the union to
represent them without racial discrimination.
3. Procedural Posture: The trial court granted the D.'s motion to
dismiss on the ground that the complaint was defective for failure to
state a claim upon which relief could be granted.
4. Issue: Whether a claim for relief is insufficient if it appears that
the plaintiff can prove facts in support of the claim which would
entitle him to relief, but does not include such facts in the claim.
5. Holding: No. "A complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to
6. P.'s Argument: The claim stated allegations that the union had not
represented the workers without racial discrimination. More specific
facts were not required by the Rules. Thus, the lower court's dismissal
7. D. Argument: The claim lacked specific facts sufficient to state a
claim which entitled the plaintiff to relief. Thus, the dismissal was
8. Majority Reasoning: The Federal Rules do not require the claimant to
detail the facts upon which he bases his claim. They only require a
"short and plain statement of the claim" that will give fair notice to
the D. of the claim and the grounds on which it rests. The Forms in the
rules are an example. Any further facts needed to more narrowly define
the scope of the claim and the possible defenses can be obtained through
pretrial discovery. Rule 8(f) states that all pleadings shall be
"construed as to do substantial justice." Thus, their purpose is to
facilitate a proper decision on the merits, not to become a decisive
trap for the less skilled counsel.
I. Multiple Claims
A. Rule 8(e)(2) allows a party to set forth two or more statements of
a claim in the alternative, either in one or more separate counts or
1. assists a plaintiff who may be genuinely uncertain about what
substantive law will apply, and what he will have to prove.
2. the pleader can take any version of the claim.
B. Definition of a Claim
1. analogous to "cause of action"
2. can be defined either by a single legal theory or a single natural
grouping of events.
a. Rule 18(a) minimizes the distinction by permitting a plaintiff to
join all of his claims either independently or in the alternative.
1. Rule 8(e)(2) allows a party to claim as many separate claims as he
has regardless of consistency.
2. Rule 11 requires that the signature constitute a certification
that there is good ground to support it and that it is not interposed
for improper purpose.
** Mohammed v. Union Carbide Corp., (1985)
2. Facts: P.'s company had done some work for Union Carbide, but then
lost the business to a competitor, Gandol. In 1983, P. sued Gandol for
libel and slander as well as antitrust counts.
3. Procedural Posture: In 1984, Gandol obtained summary judgment as to
the libel and slander counts, and then eventually on the rest of the
counts as well. Gandol then moved for and award of costs and attorney's
fees under Rule 11.
4. Issue: What is the proper standard for determining whether an
attorney has satisfied the requirements of Rule 11?
5. Holding: An attorney is obligated to make a "reasonable inquiry" into
the operative facts and relevant law before signing his name to a
pleading, motion or other paper.
6. P.'s Argument: The P.'s attorney failed to make any inquiry
whatsoever concerning any of the claims contained in his original
complaint asserted against Gandol. Thus, he has violated Rule 11 and
should bear the sanctions.
7. D. Argument: The attorney made a good faith prosecution of the claim.
The court can not make a reliable determination about the state of mind
of the attorney when looking at the pleadings after the fact. The
attorney had a duty to zealously represent his client, and such actions
were thus justified.
8. Majority Reasoning: Unlike the subjective good-faith standard, the
objective standard of "reasonable inquiry" can be measured. Furthermore,
counsel's duty to zealously represent his client does not conflict with
his duty to the fair administration of justice, because he is obligated
to dissuade his client from pursuing frivolous claims, thereby saving
the client money and time. Even though the attorney may think that a
claim is borderline, his has a clear and unambiguous obligation to
counsel the client against bringing meritless claims and to conduct a
reasonable inquiry into the claims. In this case, the attorney made no
inquiries. Thus, he is liable for the cost of Gandol's defense to the
extent that it can be linked to claims which were not investigated.
** Coleman v. Frierson, (1985)
2. Facts: In 1982 Coleman sued the city, the mayor and the police chief
in a 1983 action (deprivation of constitutional rights) when he was
fired for allegedly uncovering corruption in the city government.
3. Procedural Posture: Frierson answered the complaint, denying many of
the allegations. However, they were willfully delinquent during the
discovery phase, leading the trial judge to eventually enter a default
judgment as to liability. The jury determined damages, and the judge
entered judgment on the verdict. Within the proper time, the defense
made several motions to set aside the verdict, including one motion that
asserted 1) res judicata on the grounds that Coleman's claims could have
been raised previously in a lawsuit for unpaid wages which was dismissed
with prejudice; 2) failure to state a claim upon which relief can be
granted; and 3) Coleman was not deprived of due process because he had
no property or liberty interest in his employment and was therefore not
entitled to a pre-termination hearing.
4. Issue: 1) Whether res judicata may be raised as an affirmative
defense to liability after judgment has been entered and the record in
the case established. 2) Whether an affirmative defense of failure to
state a claim upon which relief can be granted can be raised after
disposition of the case on the merits. 3) Whether a challenge to one of
the elements of the cause of action can be made after judgment.
5. Holding: No as to all three issues.
6. Majority Reasoning: 1) The affirmative defense of res judicata is a
defense that asserts facts outside of the complaint. As such, it is
normally pleaded in the defendant's answer to the complaint, or at least
during trial. It may not be raised after judgment and establishment of
the record because that would undermine the policy of certain and final
judgments on the merits. 2) Citing Snead, Rule 12(h)(2) provides that
the 12(b)(6) motion may be made during the pleading stage or at trial.
The rule clearly implies that it may be made at any point up to
judgment, when it them becomes forbidden. Any other construction would
cause delay as well as undermine finality of judgments. 3) To allow
additional challenges to become part of the record is to undermine the
efficiency and finality of judgments. In all of the defenses, the
defense had a year and a half to raise these issues before default
judgment was entered. Default judgment must be treated as an action on
the merits. Thus, absent any showing under Rule 60(b) that there was an
excusable mistake, the judgment must be allowed to stand, otherwise the
orderliness that the Rules promote would be lost. The Rules are liberal
enough already to afford protection for those who need it.
I. Replying to defenses
A. Rule 7(f) indicates that the P. is not permitted to respond to an
affirmative defense unless ordered by the court (normally upon motion by
1. Ques 25: the prohibition on replies to defenses expedites the trial
instead of attempting to try the case on the pleadings.
2. An order to compel the P. to respond to an affirmative defense should
only be granted if it expedites the case.
B. Rule 8(d) provides that since the P. is not permitted to respond
under Rule 7(f), that all unanswered allegations are taken to be denied
1. Ex: P. makes allegations 1, 2, 3, and 4. D., in his answer, denies 1,
and asserts affirmative defenses 5, 6, and 7. Thus, the matters in
dispute are 1 (which was expressly denied), and 5-7 (which were
impliedly denied or avoided under Rule 8(d)).
a. at trial, P. may expressly deny 5-7, or avoid them, or both.
C. Rule 12(f) provides that a motion to strike a defense may raise the
point that the defense is "insufficient" in the same way that the D. can
bring a 12(b)(6) motion.
1. Rule 12(h)(2) preserves P.'s right to bring the 12(f) motion through
A. Compulsory Counterclaims
1. Rule 13(a) requires that the D. include any counterclaims in his
answer that arise out of the same "transaction or occurrence that is the
subject matter of" P.'s claim.
2. Failure to assert the counterclaim in D.'s answer thereafter
precludes the P. from asserting it:
a. in the P.'s pending action; and
1) Rule 13(f) provides that the D. can, by leave of the court, amend his
claim to include a counterclaim if it was first omitted through
b. in an independent action.
1) Ex: P. sues D. who moves under Rule 12(b)(6) and wins. D. never
answers. D. then brings an independent suit on a claim arising out of
the same occurrence. D. loses by res judicata.
B. Permissive Counterclaims
1. Rule 13(b) allows counterclaims that are wholly unrelated to the
subject matter of the P.'s claim to be included in the D.'s answer at
the D.'s option.
a. the court may order a separate trial of any claim or counterclaim
under Rule 42(b) to avoid prejudice or for convenience.
2. "Transaction or occurrence" is elusive, without much case law
C. Ques 30: There is an inconsistency between Rule 18(a) which allows
P.'s to join claims at their option, and Rule 13(a) which requires D.s
to provide all compulsory counterclaims in their answer.
** Williams v. Robinson, (1940)
2. Facts: Robinson's wife filed a suit for maintenance. In his answer,
Robinson filed a counterclaim for divorce, alleging that his wife had
committed adultery with Williams and joining Williams as a co-respondent
for his divorce claim. Williams denied all of the alleged acts of
3. Procedural Posture: Williams brought this action for libel and
slander for the alleged false and malicious charges of adultery that
were raised by Robinson in his counterclaim for divorce. Robinson did
not file an answer, but moved for dismissal on the grounds that Williams
failed to assert his claim in his answer to the counterclaim in the
divorce action under rule 13(a) which relates to compulsory
counterclaims that arise out of the transaction or occurrence that was
the subject matter of the defendant's counterclaim. The lower court
granted the motion to dismiss.
4. Issue: Whether the slander and libel of which the P. complains arose
out of the transaction or occurrence that was the subject matter of the
defendant's counterclaim for divorce in the separate action.
5. Holding: No.
6. Majority Reasoning: The D.'s counterclaim charged the P. with
specific acts of adultery. Thus, to arise out of the same transaction as
the subject matter of the D.'s counterclaim, the libel must have arisen
from the same facts that led to the counterclaim for divorce. A
"transaction" is a completed action. Furthermore, an "occurrence" is a
happening or event, and is more narrow than a transaction. Thus, both of
the claims must have arisen from the same completed action, the same
event. The test of whether the subject matter of opposing claims is the
same is whether the same evidence will support or refute both claims.
Since the divorce claim arises from an alleged fact of adultery, it
cannot be joined with the libel claim, which arises from the fact of the
presentation of the D.'s counterclaim. They are not supported or refuted
by the same evidence. To allow the D.'s motion would be to require P. to
admit that he committed adultery.
I. Responding to a counter-claim
A. P. required to respond under Rule 7(a) and 12(a) in much the same way
as a D. is required to respond to the P.'s original claim.
1. Ques 33: P sues D on contract 1. D counterclaims on contract 2. P
replies, denying breach of contract 2. The action is disposed of. Then P
sues D for breach of contract 2 that occurred before P answered D's
counterclaim in the original suit. D can successfully defend because D's
breach of contract 2 would have been a compulsory counterclaim for P
under Rule 13(a) since it occurred before his answer. If it would have
occurred after his answer, P would not have lost it.
B. Recoveries on counter claims
1. normally the difference between the amount of the two judgments under
II. Amending the Pleadings (Rule 15)
A. Amendments before trial
1. Rule 15(a) allows a party to amend his pleading "once as a matter of
course at any time before a responsive pleading is served."
a. An answer is a "responsive pleading", a motion is not. Thus, if D.
moves under 12(b)(6), P. may still amend his claim as a matter of
b. an amendment a pleading to which no responsive pleading is permitted
is not allowed.
2. After a responsive pleading is served, the party may amend:
a. With leave of the court; or
b. with the written consent of the adverse party.
B. Amendments after trial
1. There is no absolute limit when a pleading may be amended - even
2. Rule 15(b) (first two sentences) treat the pleadings as amended when
the opposing side failed to object to trial evidence which is
unambiguously beyond the pleadings.
3. Rule 15(b) (last two sentences) provide for the case where the
opposing side has successfully objected to trial evidence as going
beyond the pleadings.
** Blair v. Durham, (1943)
2. Facts: Durham was a stenographer working in an office building that
was being remodeled by Blair. Durham was struck in the head by a piece
of lumber that fell from a scaffolding about 10 feet above her head.
3. Procedural Posture: Durham filed an original complaint alleging that
the D.'s agents had negligently handled the lumber, breaching a duty of
care to her, resulting in her injury. A trial began, and a jury was
impaneled, when Durham obtained leave from the court to amend her
complaint to allege that the D.s had breached a duty of care to her by
negligently constructing a scaffolding in an area that they knew was
likely to cause injury to those working below, thus causing her injury.
The jury was set aside, and a continuance granted. Upon retrial, the
jury returned a $6,500 verdict in Durham's favor, and Blair appealed,
claiming that the amendment created a second cause of action, which was
barred by the one-year statute of limitations.
4. Issue: 1) Whether the amendment stated a new cause of action. 2)
Whether the statute of limitations was tolled by the original complaint.
5. Holding: 1) No. "An amendment does not set up a new cause of action
so long as the cause of action alleged grows out of the same transaction
and is basically the same or is identical in the essential elements upon
which the right to sue is based and upon which the defendant's duty to
perform is alleged to have arisen." 2) Yes. Rule 15(c) provides that
whenever the amended pleading arose out of the conduct, transaction or
occurrence set forth or attempted to be set forth in the original
pleadings, the amendment relates back to the date of the original
6. P.'s Argument: The statute of limitations was tolled by the original
complaint under Rule 15(c) because the amendment did not state a new
cause of action.
7. D. Argument: The statute of limitations ran before the amendment was
entered because is stated a new cause of action.
8. Majority Reasoning: A cause of action is the violation of a single
right by a single legal wrong. The right violated here was that the D.
breached a duty of care to the P. to avoid striking her in the head with
a piece of falling lumber. The many different grounds that the
negligence was based upon all resulted in the same breach of duty - the
same injury. The difference in the amendment was only in the mode in
which the D. breached his duty and caused the injury. It is immaterial
"whether [the injury] resulted from the negligence of the users of the
scaffold or from its construction, since in either case it was a
violation of the same obligation."
A. Scope of discovery- Rule 26(b)(1)
1. The "parties may obtain discovery regarding any matter not
privileged, which is relevant to the subject matter involved."
2. "It is not ground for objection that the information sought will be
inadmissible at the trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence."
B. Devices of discovery - usually start and move along by party
initiative, except for special situations, such as physical or mental
examination which must be made by motion.
1. depositions upon oral examination - Rule 30
a. leave of the court is not needed except:
1) when the deponent is in prison
2) when the total number of depositions without leave exceeds 10
3) when that person has been previously deposed.
b. non-parties must be subpoenaed, but parties are required to show up
simply by authority of the notice of deposition.
c. objections are noted, but the deponent still must answer, and the
objection awaits trial.
1) objections can be raised for the first time at trial unless they
could have been overcome at deposition - ex: leading question could have
2) deponent may not answer unless by court order if the answer is
privileged or damaging such that exclusion at trial is not a cure.
2. depositions upon written questions - Rule 31
a. may be directed to non-parties, but probably does not allow questions
which require application of law, only facts.
b. party is on his own when testifying under oath to the questions, but
lawyer can have questions for 30 days prior to testifying.
3. interrogatories to parties - Rule 33
a. may not be used to question non-parties, but 33(c) requires answers
to application of law to fact, perhaps delayed until later in discovery.
b. party can frame answers with help of lawyer.
4. production of documents and things - Rule 34
5. physical and mental examinations - Rule 35
a. only applies to parties, not third-party witnesses.
b. only made on motion, must be for "good cause," and the condition must
be "in controversy."
c. a P. in a negligence action who asserts personal injury places that
injury clearly in controversy and provides the D. with good cause.
6. requests for admission - Rule 36
a. failure to answer or object is admission.
b. can ask for the application of law to fact.
c. party can not fail to admit or deny based on lack of knowledge until
after he makes a reasonable inquiry.
d. insufficient answers or ungrounded objections may result in
admission. See Rule 37(c).
** Umphres v. Shell Oil Co., (1971)
2. Facts: Umphres brought an action against Shell Oil for anti-trust
violations, alleging conspiracy. At the oral deposition of Umphres, the
defense counsel asked Umphres questions about the alleged conspiracy,
and if he had any information to support the claim that there was a
conspiracy. The P.'s counsel instructed him not to answer. The defense
counsel thought that conspiracy was a question of fact, and the P.
counsel thought that the questions required conclusions of law.
3. Procedural Posture: The defendant brought a motion to compel the
plaintiff to answer the questions regarding the conspiracy.
4. Issue: Whether a motion to compel and answer during discovery is
premature until the party making such a request has first explored all
reasonable avenues of agreement as to discovery problems by conference
with the counsel for the opposing side.
5. Holding: Yes. [See Rule 37(a)]
6. Reasoning: The oral interrogatory might ask for conclusions of law
from the P., but since he is not an experienced man in the field and
subject matter, that he should not have to answer them. However, the D.
is certainly entitled to interrogate P. about the facts upon which the
claim of conspiracy was based. But, the D. counsel had not framed the
questions correctly, and had resorted immediately to bringing an action
to compel an answer instead of trying to work out the problems with the
opposing counsel. So, the two lawyers were ordered to discuss the
question in good faith and resolve what facts were to be deposed.
** Brandenberg v. El Al Israel Airlines, (1978)
2. Facts: Brandenberg was a 72 year old woman who flew abroad to visit
her daughter and was carried by British Airways. Brandenberg apparently
was very critical of her service during the flight.
3. Procedural Posture: P. brought a $900,000 negligence action against
D., alleging physical stress and mental injuries, and that because she
was old, the airline had a duty to treat her with particular care, and
they had breached that duty, "abandoning her in her time of need."
During discovery, P. was advised not to answer several questions that
asked her the basis of her claim. D. moved under Rule 37(a) to compel
4. Issue: Whether a P. may properly refuse to answer any question during
deposition which ask for the basis of the P.'s claim.
5. Holding: No.
6. P.'s Argument: The questions call for a legal conclusion, and so she
should not have to answer them since she is a layperson.
7. D. Argument: The questions are properly phrased to discover the basis
for the P.'s claim.
8. Majority Reasoning: The D. is left in the dark by the pleadings and
her refusal to answer these questions as to the factual basis of her
claim of negligence. The D. is entitled to discover the facts underlying
the claim, and so the P. must answer them.
** O'Brien v. Int'. Brotherhood of Elec. Workers, (1977)
2. Facts: O'Brien distributed certain information which was detrimental
to the Union. The local 613 heard the case and fined O'Brien, but later
rescinded the fine when they realized that the jurisdiction to fine
under their constitution rested with the parent IBEW. The parent IBEW
reheard the case and fined O'Brien.
3. Procedural Posture: O'Brien brought this action under 29 USC 411 that
guaranteed his freedom of speech subject to interference with the
union's obligations. In interrogatories, O'Brien asked several questions
designed to discover the defendant's legal theory based on the facts
elicited from the other interrogatories. D. generally objected to the
interrogatories. P. moves to compel answers.
4. Issue: Whether an interrogatory which involves an application of law
to fact is proper.
5. Holding: Yes. [See Rule 33(c)].
6. P.'s Argument: Several of the interrogatories were irrelevant. Others
were outside of their knowledge. Others required conclusions of law.
7. Majority Reasoning: Rule 33(b) [Now (c)] makes it clear that such
discovery is permissible if it requires the application of law to fact.
Since the discovery is almost complete, there is no danger of tying the
defendant to a legal theory before he has had an opportunity to fully
explore the case. However, the interrogatory that asks to bounce the
constitution against the statute to adequacy is purely a question of law
which is not related to the facts, and so crosses the line of Rule 33(c)
into impermissible discovery.
** Hickman v. Taylor, (1947)
2. Facts: A tug sank crossing the Delaware while towing a railroad car.
Five of the crewmen died, and P. represents one of the crewmen suing the
tugboat owner. A public hearing was held before the US Steamboat
Inspectors to investigate the sinking, and the four surviving crew
members were examined. The testimony from this hearing was made
available to all parties. The tugboat owner hired a lawyer, Fortenbaugh
to gather information with an eye towards litigation, and he privately
interviewed the four survivors and took statements from them.
3. Procedural Posture: P. sent an interrogatories to parties to
Fortenbaugh, which asked him to turn over true copies of the survivor's
statements, and to describe any oral discussions with particularity.
Other questions asked for the production of records, reports,
statements, and other memoranda collected by Fortenbaugh concerning any
factual matter surrounding the sinking. Fortenbaugh refused on the
grounds that the information asked for was "privileged matter obtained
in preparation for litigation" and would call for invasion and turning
over of counsel's private thoughts. The District Court held that the
matters were not privileged, and ordered their production. Upon
Fortenbaugh's refusal, they were cited for contempt. The Court of Appeal
reversed, holding that the information sought was "work product of the
lawyer" and hence privileged. The Supreme Court granted cert.
4. Issue: Whether the desire to prepare for examination of witnesses is
sufficient justification to compel discovery of oral and written
statements of witnesses, or other information, secured by an adverse
party's counsel in the course of preparation for litigation?
5. Holding: No. The party desiring discovery of the "work product" of a
lawyer of materials generated in preparation for litigation must show
that he has an adequate need for those materials and that he would be
prejudiced without them.
6. P.'s Argument: The discovery rules are designed to enable parties to
discover true facts and compel their disclosure, thus they should be
read as broadly as possible. The attorney-client privilege is not
involved here because these were statements from third-party fact
witnesses. Thus, they should be discoverable under Rule 26. To hold
otherwise would give a corporate D. a clear advantage in fact gathering,
which facts they could subsequently hide as being undiscoverable.
7. D. Argument: These matters are "privileged" and an indirect attempt
to obtain access to counsel's private files. This request would require
turning over the very thoughts of the counsel.
8. Majority Reasoning: The Federal Rule on discovery serve 1) as a
device to narrow and clarify the issues, and 2) a device for
ascertaining the facts, or locating more information about where the
facts may be relative to the issues. To this end, they are to be
accorded broad and liberal treatment. Mutual knowledge of all the
relevant facts gathered by both parties is essential to proper
litigation. To that end, either party may compel the other to disgorge
whatever facts are in his possession. The matter at issue here does not
fall within the attorney-client privilege, however, there is no reason
to believe that the facts required have not already been disclosed or
are not available to the P. by other means, such as interviewing the
witnesses himself. Rule 26 is not so broad as to compel discovery under
these circumstances. Public policy in the orderly prosecution of legal
claims requires that even the broadest reading of Rule 26 does not
justify inquiry into the files and mental impressions of an attorney. To
allow it would be to deter attorneys from writing down records, and
cause them to engage in sharp practices to avoid disclosure. It is
implicit in the structure of the rule that the burden of showing that an
attorney's privacy should be violated is on the party seeking discovery.
In this case, the need was insufficient to discover either the written
or the oral statements. Furthermore, mistakes in testimony could arise
if the attorney were required to recall from memory the oral statements.
The P. has all of the needed tools to get the facts he needs through
interrogatories and interviews.
I. Supplementation of Responses Rule 26(e)
A. Rule 26(e) imposes a general duty on a party to supplement incomplete
or incorrect responses based on the nature of the discovery tool:
1. 26(e)(1) applies to disclosures, requiring a party to supplement "at
2. 26(e)(2) applies to interrogatories, requests for production, and
requests for admission, requiring a party to "seasonably amend."
B. The duty is avoided if the information has been otherwise made known
to the other party, or is disclosed in writing.
C. Does not apply to deposition testimony according to Legislative
II. Use of depositions in court proceedings - Rule 32
A. Generally depositions are inadmissible under the hearsay rule, except
in special cases delineated in Rule 32(a).
1. Impeachment of a witness.
2. Testimony on behalf of a non-natural person party.
3. dead, missing, ill, imprisoned, recalcitrant witness.
B. Objections are handled as if the person were present and testifying.
** Freed v. Erie Lackawana Ry., (1971)
2. Facts: Freed was the head brakeman on a train. Freed and his friend
were walking through a right-of-way adjacent to a side track in a busy
switching area when Freed was struck by the lead car in a train that was
backing. A train yard rule provided that if the train was operating
outside of the railyard, it was required to post a lookout on the lead
car. If the train was operating inside the railyard, no lookout was
required. There was no lookout on the train that hit Freed.
3. Procedural Posture: Freed brought an action for personal injuries
against the train company. In one of Freed's interrogatories to the
train company, he asked whether the train was being operated in the
railyard at the time of the accident. The train company answered that it
was not [thus there should have been a lookout]. At trial, the train
company produced testimony that the train was actually operating within
the yard limits [thus, there did not need to be a lookout],
contradicting its interrogatory answer. The jury, during deliberation,
asked the judge where the train was during the accident, and the judge
refused to answer, stating that it was a question of fact for the jury
to decide. The jury found for defendant.
4. Issue: "Whether an answer made by the defendant to an interrogatory
is binding on it although contradicted by other evidence adduced by the
5. Holding: No.
6. P.'s Argument: The answer to the interrogatory, when introduced in
evidence, was binding on the defendant, and therefore the court should
have answered the jury's question with the answer given in the
7. Majority Reasoning: The court cited to Victoria Carriers, stating
that the answer to an interrogatory is comparable to answers given in
deposition or testimony, which may be mistaken themselves. Since they
are usually supplied before the completion of discovery, they can
frequently be based on imperfect information. Where there is conflict
between the testimony and the interrogatory, it should be treated the
same as all other testimony conflicts, and evaluated and resolved by the
I. Pretrial Conference
A. Begins with mandatory scheduling order of rule 16(b).
B. Optional one or more pretrial conferences may follow.
C. Primarily intended to promote broad scope case management by judges
early on in the litigation, but individual judges have much discretion
on how much management to give.
D. The result of the pretrial conference is an order in accordance with
rule 16(e), which stipulates the action taken, and in effect supersedes
the pleadings, because it controls the action from there forward. No
contrary evidence will be allowed after the order is granted, unless it
would cause "manifest injustice."
** Identiseal Corp. v. Positive Ident. Systems, (1977)
2. Facts: Identiseal entered into a franchising contract with Positive
ID Systems, based on Positive ID's representations that it was
successful in promoting its products. After spending $15,000 on Positive
ID's products, Identiseal determined that Positive ID had misrepresented
3. Procedural Posture: P. sought relief under a common law theory of
misrepresentation relating to franchising. Jurisdiction was based on
diversity. At the pretrial conference, the judge concluded that "the
pretrial work necessary to efficiently try this action" had not been
done. It ordered that the action be dismissed for want of prosecution,
but stayed the order for 3 months, giving the P. a chance to conduct
specific discovery to revive the action. P. did not conduct the
discovery because he felt that it would only help the D., and rather
would wait until trial to develop the facts. The judge dismissed the
action, and P. appeals.
4. Issue: Whether a trial judge has the authority under Rule 16 to
dismiss an action for want of prosecution if one of the parties decides
that it is in his best interest not to conduct pretrial discovery.
5. Holding: No.
6. P.'s Argument: The court had exceeded its authority under Rule 16 in
ordering the P. to conduct discovery or suffer dismissal of the
7. Majority Reasoning: Discovery Rules 26-37, which cover discovery, do
not give District Court judges the authority to compel a litigant to
engage in discovery in the first place. Under Rule 16, the court has the
authority to direct the parties' attorneys to appear for a pretrial
conference to consider the possibility of conducting discovery that will
avoid unnecessary proof. As stated in O'Malley, this gives the court
wide discretion and power to advance the case. However, it does not give
the court the power to compel discovery, even if it is clear that such
discovery would advance the case. In Edwards, the court noted that a
judge may not dismiss an action based on a party's refusal to follow the
trial judges' wishes at the pretrial conference unless they could be
characterized as a "failure to prosecute." In this case, the attorney
simply disagreed with the court's wishes, but he was still willing to
advance the case and go to trial. Furthermore, the decision is based on
the traditional principle that the parties, rather than the court,
should determine the litigation strategy, because it is the attorney who
is responsible for representing his client's best interests.
** Shuber v. S.S. Kresge, (1972); pg, 96,
2. Facts: Wife-P. was injured when a light fixture fell from the ceiling
of D.'s store, in which wife-P. worked.
3. Procedural Posture: Wife-P. brought a negligence action for personal
injuries, and husband-P. joined a claim for medical expenses and loss of
services. At the pretrial conference, the P.'s attorney submitted a
narrative describing the facts and his theory of liability, that D.
store had negligently installed the light fixture. The narrative stated
that "plaintiff" would testify, but gave no indication that the husband-
P. would testify. [Apparently a pretrial order was issued on this
narrative.] At trial, evidence arose that the light was installed by a
subcontractor of the D.'s landlord, thus establishing no causal link to
D.. After D. moved for a directed verdict on the close of P.'s case, P.
moved for leave to reopen and call the husband-P. to testify that D.
itself had installed the ceiling tiles, thus changing both the facts and
the legal theory. The trial judge denied the motion to reopen and
granted the directed verdict.
4. Issue: Whether a pretrial order binds the parties to what facts and
theories they have presented at the pretrial conference.
5. Holding: Yes.
6. Reasoning: The court has an interest in preserving the efficiency of
actions. If the pretrial order were not to bind the parties, except in
special circumstances, to avoid manifest injustice, then it would serve
no purpose at all. Liberal modification of pretrial orders encourages
careless preparation, which is contrary to the spirit of Rule 16.
I. Motion for judgment on the pleadings (Rule 12(c))
A. Made after the pleadings are closed (summary judgment 12(b)(6) can
come before the pleadings are closed, but they can still be amended.)
1. Asserts that the moving party is entitled to judgment on a particular
2. Can only be used to resolve questions of law, not fact.
a. Ex: if the answer admits the allegations of the complaint, but sets
up two affirmative defenses, the motion will be granted only if both
defenses are legally insufficient (if only one is bad, strike it with a
b. Counter-ex: motion will not be granted if the answer contains a
denial because that affects a matter of fact.
3. Motion by the D. takes on no added strength by virtue of affirmative
defenses in his answer because they are taken as denied anyway under
II. Motion for Summary Judgment (Rule 56)
A. Provides a means for going behind the pleadings to see whether there
really is a genuine issue as to any material fact.
1. Can overcome frivolous or harassing denials or counterclaims in this
way, because even though a motion for judgment on the pleadings may not
be possible because of a frivolous denial, the motion for summary
judgment is still available.
B. Can be filed by either party in any type of case, even before the
pleadings are closed.
C. Ordinarily accompanied by affidavits in support of the contention
that there really is no genuine issue of fact.
1. The opponent may enter counter-affidavits, but may not simply rest on
the denials in his pleadings.
D. Granted only if a reasonable trier of fact could not find for the
opponent on the matter.
1. Ex: statute of limitations has run - no reasonable trier of fact
could find that it has not.
E. Not used to actually resolve a genuine factual dispute that is found
to exist, only to identify whether there are any.
F. May be partial in nature, narrowing the scope of the dispute for
** American Airlines v. Ulen, (1949)
2. Facts: Ulen boarded an airliner belonging to American Airlines to fly
to Mexico City. However, the plane crashed into the top of a mountain,
injuring her severely. Evidence showed the flight plan called for the
plane to fly at 4,000 ft over the mountains, coming within 2 miles of
the mountain that the flight crashed into, which had an elevation of
4,080 feet. There was a regulation that stated that the plane must fly
1,000 ft above the highest elevation that would be within 5 miles of the
3. Procedural Posture: Ulen and her husband filed actions for personal
injury, medical expenses, and loss of services, seeking about $300K in
damages. The Ulens served a set of 55 interrogatories on the Airline,
and the answers indicated that the Airline was negligent. The Ulens then
filed motions for summary judgment based on the pleadings and the
interrogatory answers, and to impanel a jury to determine damages. In
response, the Airline moved to amend its answer to add the additional
defense that the damages were limited by the Warsaw Convention to
$8,291.87. The motions for summary judgment were granted, jury verdicts
for damages were entered, and the Airline appealed.
4. Issue: Whether summary judgment is proper when the pleadings raised
genuine issues of material facts, but when the judge has evidence that a
reasonable jury could not find otherwise.
5. Holding: Yes.
6. P.'s Argument: Appellees were not entitled to summary judgment
because the pleadings, that is the complaint and the answer denying the
allegations, raised genuine issues of material fact that could only be
determined by a trial on the merits. Furthermore, any liability is
limited by the Warsaw Convention, because the airline did not have
malicious intent when it crashed, based on a proper interpretation of
the Warsaw Convention treaty.
7. Majority Reasoning: Although the pleadings viewed alone presented a
dispute of material facts on their face, the judge had the answers to
the interrogatories answered by the Airline, the motion for summary
judgment, and the brief in opposition to the motion for summary judgment
before him when he made the decision. The facts presented conclusively
showed that the Airline planned to, and did, violate the altitude safety
regulation. Thus, duty, breach, and proximate cause had been
established. The only issue left was damages. The Warsaw Convention
provided for limitation of damages only where the Airline was not guilty
of "willful misconduct." The facts here amounted to willful misconduct.
The proper interpretation of the treaty was that it did not excuse
"willful misconduct." There was no evidence to support that any higher
standard must be met.
I. Provisional Remedies - Seizure of Property (Rule 64) Preliminary
Injunctions & Temporary Restraining Orders (Rule 65)
A. Seizure of Property - Obtained to prevent irreparable harm to the P.
in advance of trial, or the possibility that he won't collect after a
1. Attachment - seizure of D.'s property to give P. security that the
judgment he hopes to obtain will be collectible.
2. Garnishment - property held by a third person, but belonging to the
D. is made subject to the P.'s claim.
a. ex: D.'s bank deposit or, to a limited extent, wages.
b. requires proper service on the third party.
c. third party who violates the garnishment order can be forced to pay
out of his own pocket.
B. Injunction - directs D. to do or refrain from doing specific acts.
1. Rule 65(a)(1) requires that no preliminary injunction will be given
2. Rule 65(b) provides for temporary restraining orders when the harm
feared by P. may be done before the court can hear and decide the case.
a. May be done without notice only upon a sufficient showing of need and
inability to serve notice in time.
b. Expires nlt 10 days without good cause or permission of D..
c. Must be followed immediately by an application for a preliminary
d. D. may move for dissolution of the TRO upon 2 days notice to P..
3. Rule 65(c) Both TRO's and preliminary injunctions require the P. to
deposit a security bond for damages to the D. in case P. is wrong.
4. Rule 65(d) the order granting a TRO or preliminary injunction shall
be binding only upon the parties to the action and their agents, or
parties in concert with actual notice of the order.
** American Hospital Supply Corp. v. Hospital Products, Ltd., (1986)
2. Facts: Hospital Products makes a piece of surgical equipment and
sells it through American Hospital Supply. HP and AHS signed a 3 year
exclusive distribution contract which provided for automatic renewal
each year for ten years unless AHS notified HP of its intent to
terminate at least 90 days prior to the end of each year. AHS did not
give notification, and in fact gave indication that they intended to
renew, but on the first day of the following year, HP terminated the
contract and told all of AHS's customers that they were no longer an
authorized HP dealer.
3. Procedural Posture: AHS brought a diversity action for breach of
contract, and moved for a preliminary injunction, requiring HP to notify
all of AHS's customers that it was still an authorized supplier, and to
continue to comply with the terms of the contract. The injunction was
granted after an evidentiary hearing. Shortly thereafter, HP filed for
Chapter 11 bankruptcy reorganization. HP brought this appeal.
4. Issue: What is the proper standard for granting a preliminary
5. Holding: The proper standard is to grant the preliminary injunction
only if P x HP > (1-P) x HD, or in other words, only if the harm to the
plaintiff of denying the injunction outweighs the harm to the defendant
of mistakenly granting the injunction.
6. Majority Reasoning: The district judge, when granting an injunction,
is to choose the course of action that will minimize the cost of being
mistaken. To assist him in this determination, Hand's probability x harm
formula of Carroll Towing can be modified to fit this situation. The
equation is a distillation of the four factor test that has been
commonly used to date. Since the premise of an injunction is that the
remedy available at the end of the trial will not make the plaintiff
whole, the plaintiff's harm must be fairly great to grant an injunction,
all other things being equal. It is for the granting judge to determine
this balance, based on the limited evidence he is given, and based on
his "feel" of the case. The appellate court will not overrule his
decision unless it is found to be an "abuse of discretion." Based on the
evidence here, the judge set forth as adequate a reasoning under Rule
65(d) as can be expected under the circumstances, and the evidence
supports the injunction. Namely, the harm to the defendant caused by his
bankruptcy was partially offset by the $5 million bond that the P.
posted under Rule 65(c), and that it appears that the D. breached, there
being no evidence of anticipatory repudiation by P..
7. Dissent Reasoning: The dissent felt that there was insufficient
evidence showing a likelihood of success on the merits, and that the
balance of harm weighed against P.. Furthermore, he felt that the
mathematical formula provided by the majority was too rigid and would
reduce the discretionary decision of whether to grant an injunction to a
"quantitative straitjacket." The four-factor test was adequate and
proven and lent itself better to the unquantifiable "feel" of the case
than the mathematical formula.
** Colgrove v. Batten, (1973)
2. Facts: A civil action was brought in Montana, which has a local rue
13(d)(1) which provides that a jury for the trial of civil cases shall
consist of six persons plus such alternate jurors as may be impaneled.
The trial judge set the diversity case for trial before a jury of six.
3. Procedural Posture: The petitioner sought mandamus from the Court of
Appeals for the Ninth circuit to direct the trial judge to impanel a 12-
member jury. The Court of Appeals found no merit in the contentions and
sustained the validity of the local rule, and denied the writ of
mandamus. The Supreme Court granted cert.
4. Issue: Whether a panel of six members satisfies the seventh amendment
guarantee that "in suits at common law...the right of trial by jury
shall be preserved."
5. Holding: Yes.
6. P.'s Argument: The local rule 1) violated the seventh amendment
because at the time of the framing of the constitution, juries at common
law were traditionally 12 members in most civil courts, 2) violated 28
U.S.C. 2072 [Rules enabling Act] which provided [until 1988] that the
federal rules of procedure "shall preserve the right to trial by jury at
common law and as declared by the Seventh Amendment", and 3) was
rendered invalid by Fed. Rule 83 because it was "inconsistent with" Rule
48 which provided for juries of less than 12 when stipulated by the
7. Majority Reasoning: In Williams v. Florida, the court sustained the
constitutionality of a Florida statute providing for six-member juries
in certain criminal cases. The same reasoning applies here. The language
of the Seventh Amendment only guarantees that a the right to the jury
shall be preserved, as a substantive right, and not that the
characteristics of the jury, such as size, shall be preserved as a
procedural right. Thus, the federal courts had the power to vary the
characteristics of the jury to adapt it to efficient use in modern
cases. So the real question was whether the jury of 12 is a substantive
right meant to be protected by the constitution. Based on empirical
studies presented in the Williams case, the court concluded that the
size of the jury was not a function of its size, so the 12 member jury
was not a substantive right. What is required for a "jury" is a number
large enough to facilitate group deliberation combined with a likelihood
of obtaining a representative cross-section of the community. Six is
large enough to meet that requirement, but the court expressed no
opinion on whether less would be adequate.
8. Dissent Reasoning: The dissent was concerned that the federal rules
as to trial by jury were gradually eroding any guarantee of the Seventh
Amendment. The framers only knew of juries of 12 when they passed the
amendment, so a jury of six would be a completely different entity,
foreign to them. The majority provided no test or means to determine at
what point a jury is considered to be too small. Thus, there was no
reason to draw the arbitrary line at six, but there was reason to draw
it a 12 since the framer's experience was that 12 members was the right
** Handel v. New York Rapid Transit Corp., (1938)
2. Facts: A police officer was dragged by an elevated train for several
blocks before the train stopped and he fell to the tracks. Two separate
witnesses arrived within a few minutes and found the officer moaning on
the tracks. They would have testified that they heard him say "Help me.
Save me - why did that conductor close the door on me." A medical
examination showed that the officer had several serious injuries, and he
died later in the day.
3. Procedural Posture: The police officer's surviving relative brought
an action for negligence against the train company. The trial court
refused to allow the witnesses testimony on the grounds that it was
incompetent as evidence as being hearsay. There being no other evidence
of negligence, the complaint was dismissed. The plaintiff appealed.
4. Issue: Whether the statements of the injured police officer are
properly excludable as hearsay.
5. Holding: Yes.
6. Majority Reasoning: The statements were not admissible as part of the
res gestae because they were a narrative of a past event, and thus
within the hearsay rule.
7. Dissent Reasoning: The real issue was whether the statement fell
within the "spontaneous exclamation" exception to the hearsay rule.
Thus, two questions must be answered 1) whether the declaration was
"spontaneously expressive of the injured person's observation" of the
occurrence, and 2) whether the utterance was made "within such limit of
time as presumably to preclude fabrication." The nature of the officer's
statement was spontaneous because it was not in response to a question,
and it was posed as a rhetorical question itself. Also, the time that
had elapsed between the accident and the arrival of the witnesses was
not sufficient for a man in such shock and pain to fabricate an
explanation to implicate the railroad company.
I. Submission to the Jury and Return of Verdict (Rules 49, 51, 52)
A. Jury instructions - Rule 51
1. May come before or after closing arguments, or both, at the
discretion of the judge.
2. Allows more flexibility to judge to manage the trial.
3. Party must object to the instruction before the jury retires to
deliberate, but does not have to propose the instruction in order to
object to the lack of giving of an instruction.
B. Special verdicts and interrogatories - Rule 49
1. Can be a special verdict - 49(a)
a. "special written finding upon each issue of fact."
b. parties waive consideration of an issue if it is omitted by the court
and the jury has retired.
2. Can be a general verdict with interrogatories - 49(b)
a. "written interrogatories upon one or more issues of fact the decision
of which is necessary to a verdict."
C. Findings by the Court -Rule 52
1. in a non-jury trial, "the court shall find the facts specially and
state separately its conclusions of law thereon."
II. Motions after Verdict - Rules 50, 59
A. Motion for judgment n.o.v.
1. Rule 50(b) allows a motion for directed verdict at the end of trial
which is deferred or denied to be renewed as a motion for judgment
n.o.v. after an adverse jury finding.
a. must be made within 10 days ("ten day motion")
b. standard is same as motion for directed verdict, i.e. reasonable
c. judge may deny the motion at the end of evidence:
1) to prevent reversal causing a new trial.
2) jury may find for mover anyway, making it moot.
d. if judge is reversed on judgment n.o.v., there is no new trial, only
reinstatement of jury verdict.
B. Motion for a new trial - Rule 59
1. Motion must be made within 10 days, ("ten day motion") or the court
itself can order a new trial on its own initiative after giving the
parties a chance to be heard.
a. judge may reconside
r his actions and thought he made a prejudicial
2. One standard is that judgment is against the "weight of evidence".
a. Differs from judgment n.o.v.:
1). by definition results in a new trial,
2). standard is different than reasonable jury.
3. Another standard is failure to follow jury instructions.
4. Also, newly discovered evidence (civil trial only).
5. Only available for non-harmless errors, meaning ones that affect the
substantial rights of the parties - Rule 61.
6. Usually joined with a motion n.o.v. under Rule 50(b).
a. if the judgment n.o.v. is granted, the judge may also conditionally
grant the rule 59 motion for a new trial, subject to the judgment n.o.v.
being reversed on appeal.
A. Demand for judgment - Rule 54(c)
1. in case of default, the judgment shall not be different in kind, or
exceed the amount asked for.
2. every judgment shall grant relief that the party is "entitled" to,
regardless of what they ask for, and even if they don't ask.
1. Other than attorneys fees - Rule 54(d)(1)
a. granted as a matter of course.
b. "taxed" (tallied) by the clerk under 28 USC 1920
c. may be reviewed or denied by judge by motion made within 5 days.
2. Attorney's fees - Rule 54(d)(2)
a. motion must be made within 14 days to ensure notice to the adverse
party before the time for appeal has expired.
b. does not require an exact accounting of the fees, but only a "fair
c. court may require the moving party to disclose any fee arrangements
that have been made between the parties.
d. the court may grant or deny the motion with or without allowing the
adverse party time to prepare an opposing motion or to conduct
additional discovery as to fees.
e. fee awards are made as a separate judgment under Rule 58.
f. local rules may be promulgated for the efficient resolution of fee
C. Declaratory Relief - Rule 57
1. Under 28 USC 2201, "any court of the United States upon the filing of
an appropriate pleading, may declare the rights and other legal
relations of any interested party seeking such declaration, whether or
not further relief is or could be sought."
2. Under 28 USC 2202, further relief may be granted against the adverse
party whose rights have been determined by a delcaratory judgment, after
reasonable notice and hearing.
3. The existence of another adequate remedy does not preclude a
** American Mach. & Metals, Inc. v. De Bothezat Impeller Co., (1948)
2. Facts: P. entered into a contract with D. to manufacture fans under
D.'s patents and name. For the term of the contract, (which was
indefinite), the P. was to pay royalties based on "net sales." P. had
the right to terminate the contract at any time with six months notice,
however it had not exercised this right yet. The D. threatened that if
the P. terminated the contract, and continued in the same line of
business, that it would sue.
3. Procedural Posture: The P. borught an action under federal statute
for declatory judgment of its post contractual rights, should it decide
to terminate the contract. The District Court granted the D.'s 12(b)
motion to dismiss on the grounds that the P. 1) failed to state a claim
upon which relief can be granted, and 2) that the court lacked
jurisdiction because there was no "actual controversy" as required by
statute, given that the P. had not yet exercised his contractual right
to terminate, and may never do so, which would make the point moot.
4. Issue: Whether there may be an "actual controversy" deserving of
declaratory judgment based on contingent post-contractual rights, the
contingency being in control of the P., namely whether the P. himself
will terminate the contract.
5. Holding: Yes.
6. Majority Reasoning: The difference between an abstract question and
an actual controversy is a question of degree. Where there is an actual
controversy over contingent rights, a delcaratory judgment may
nevertheless be granted, in order to serve as a practical guide for the
future conduct of the parties. Prior case law had granted declaratory
judgment where the contingency was in the power of the D., but there
seemed to be no material reason to distinguish the case where the
contingency is in the power of the P.. If the claim were dismissed, the
P. would have to "act on his own view of his rights" and risk an
otherwise profitable business in order to present an "actual"
controversy. This is exactly the kind of risk that the statute was
enacted to prevent.
** Int'l. Longshoremen's Local 37 v. Boyd, (1954)
2. Facts: Every summer, aliens residing in the northwest go to Alaska to
work in the herring canneries. In 1952, before the 1953 season, a new
federal statute was passed which the INS at Seattle intended to construe
as enabling them to treat these aliens as coming to the country for the
first time. This construction would result in the risk of some being
3. Procedural Posture: The Union brought this action to declare the
rights of the aliens to reenter, and forbid the INS from interpreting
the statute in a way that would allow their possible exclusion. The
District Court entertained the suti, but dismissed it on the merits.
4. Issue: Whether a declaratory judgment may properly be made in a case
that asks for determination of the scope and constitutionality of
legislation in advance of its immediate adverse effect in the context of
a concrete factual case.
5. Holding: No.
6. P.'s Argument: The law would deny the returning aliens their contract
and property rights. There was an actual controversy because the INS has
already stated its intent to interpret the language as such, and the
Union has already stated its intent that it should not be interpreted as
7. D. Argument: The District Court should have dismissed the case for
want of an "actual controversy" because the aliens had not yet even
gone, much less returned, and it was hypothetical that they ever would
8. Majority Reasoning: The Union asked the court to declare the scope of
a statute whose sanctions had not been set in motion against individuals
on whose behalf relief was sought, because an occasion had not yet
arisen. It is only hypothetical that such a contingency would arise.
Thus, without concrete facts, it involves too remote or abstract an
inquiry for the proper exercise of judicial function.
9. Dissent Reasoning: This case is more than abstract hypothetical. The
INS has taken one side and the Union another in a case that would
involve irreparable harm to the aliens if not decided properly. In fact,
the INS has delivered on their promise to exclude the aliens, so it is
not too remote a case.
I. Enforcement of Judgment - Rule 69
A. First step is for P. to identify and discover the D.'s assets.
B. Then P. seeks a writ of execution from the federal court, addressed
to a federal marshal.
1. marshal seizes so much of the D.'s non-exempt property as to satisfy
2. if D. does not pay, marshal sells the property, pays the judgment,
subtracts his own costs, and refunds the difference to D.
C. Local state rules are generally conformed to.
1. some states mandate that the D. attend a post-judgment hearing to
determine his assets, and order him to turn over his assets to pay the
2. if D. does not pay, he may be imprisoned for contempt, not for
indebtedness, but for failure to comply with the order since he was
I. Appellate Review
A. Appeal to the Court of Appeals - Rule 62
1. 28 USC 1291 gives a party the right to appeal erroneous "final
decisions" of a district court.
a. Russel v. Barnes Foundation held that a defendant may not appeal a
Rule 56 summary judgment as to liability before the assessment of
damages, because it is not a "final adjudication of the controversy
b. however, it follows that a plaintiff would be entitled to appeal a
summary judgment against him as to D.'s liability.
c. with multiple parties, a court may enter a final judgment as to part
of case, if it makes "an express determination that there is no just
reason for delay." - Rule 54(b).
2. 28 USC 1292(a)(1) also gives a right of appeal from "interlocutory"
judgments that grant, refuse, modify, or otherwise affect injunctions.
a. uncommonly used, 1292(b) allows appeal of interlocutory orders (other
than injunctions) when they involve "controlling questions of law" to
which there is "substantial ground for difference of opinion" and that
immediate appeal "may materially advance the ultimate termination of the
B. Stay of proceedings to enforce a judgment.
I. Jursidiction and Venue with multiple parties/multiple claims
A. 1332 requires complete diversity - no two opposing parties can be of
the same state. But 1332 does not appear to provide diversity
jurisdiction in some cases involving foreign litigants.
1. Ex: NY and Ohio sue Michigan - YES under 1332(a)(1) ("between
citizens of different states")
2. Ex: NY and Ohio sue France - NO under 1332(a) because 1332(a)(2)
says "citizens of a State [singular] and citizens or subjects of a
3. Ex: NY and France sue Ohio - YES under 1332(a)(3) (between citizens
of different states and in which citizens of a foreign state are
4. Ex: NY and France sue Ohio and France - YES also under 1332(a)(3) -
"additional parties" does not preclude foreign citizens from being P..
5. Ex: NY and France sue France - NO falls between 1332(a)(2) (which
would allow it if France were not also on P. side) and 1332(a)(3)
(which would allow it if there were also a citizen of a different state
on D. side).
B. But the court has the power to realign the parties according to their
ultimate interests (unscramble them) to defeat or create diversity
jurisdiction (similar to federal question jurisdiction).
C. 1441 on removal states that "the defendant or defendants" may remove
1. Ex: CA sues CT Person and CT Corp. in CA state court, CT Person happy
with CA state court; CT Corp. can NOT remove under 1441(A) because "the
defendants" (implying all) must remove.
2. Ex: CA sues CA person and CT Corp. in CA state court; both D.'s can
NOT remove together under 1441(a) because 1441(b) prevents and in-
state D. from removing, and 1441(a) doesn't allow split removal.
D. 1391 on venue requires that "all defendants" must reside in the same
state to bring the action in the D.'s home district.
1. Ex: MN sues VT and NH for a claim arising in MN. Must sue where claim
arose under 1391(a)(2) because D.'s don't reside in same state.
2. Ex: MN sues West NY and So. NY for claim arising in MN. Can sue in
either district or MN under 1392(a)(1) or (2) because D.'s reside in
same state (although different districts).
3. Ex: West NY and So. NY sue VT and NH for claim arising in MN. Must
sue where claim arose under 1391(a)(2) because D.'s don't reside in
4. Ex: West NY and So. NY sue VT and NH for claim arising in Quebec. Can
only sue where there is personal jurisdiction over "the defendants"
(implying both) under 1391(a)(3) because there is no judicial district
where the claim arose (a)(2), and D.'s aren't from same state (a)(2).
** Erie Railroad v. Tomkins, (1938)
2. Facts: Tomkins, a PA citizen, was injured while walking on an
established footpath that runs along railroad tracks. The train that
passed had a door open, which hit Tomkins and injured him. The railroad
is a NY company.
3. Procedural Posture: Tomkins brought an action in the federal court
for So. NY, based on diversity jurisdiction. The trial judge held that
state law was inapplicable in this case under the Swift v. Tyson
doctrine. The case was tried by a jury, which found that the railroad
breached a duty to persons walking alongside the railroad tracks on an
established footpath, and awarded Tomkins $30K. The railroad appealed.
The court of appeals affirmed, and the Supreme Court granted cert.
4. Issue: Whether 34 (now 1652) applies to all state laws not in
conflict with federal law or the constitution. In other words, whether
the Swift doctrine which held that the federal courts had the power to
come to an independent conclusion as to "general law" announced by the
state courts and not codified by state statute should be overruled.
5. Holding: Yes. "Except in matters governed by the Federal Constitution
or by acts of Congress, the law to be applied in any case is the law of
the state. And whether the law of the state shall be declared by its
Legislature in a statute or by its highest court in a decision is not a
matter of federal concern."
6. D. Argument: 34 of the Judiciary Act requires the application of PA
law in this case. The PA law treats Tomkins as a trespasser, and thus
the railroad has no duty to him.
7. P.'s Argument: Since there is not a statute on the subject, under
Swift, the railroad's duty is to be determined independently by the
federal court. Also, the PA law does not treat Tomkins as a trespasser.
8. Majority Reasoning: There was much criticism of the Swift doctrine.
It appeared that the courts had assumed the power to declare law that
would apply to the states even though the constitution reserved much of
that power to the states. This led to persons purposefully becoming
residents of other states just to establish diversity jurisdiction and
get a more favorable substantive law applied. This was particularly true
in Black & White Taxicab where one cab company overcame a local law
prohibiting anti-competion contracts by simply re-incorporating in
another state and executing the contract there. This led to
discrimination against citizens of a state by non-citizens who could
choose the substantive law to be applied, thus preventing equal
protection based on who brought the action. Also, the determination of
what was "general law," and thus what could be independently decided,
was broadening in practice to apply to too many things. The doctrine is
unconstitutional because the federal courts have not been
constitutionally granted the power to declare substantive rules of
common law to be applicommon lawate. The authority of the state to say
what its common law is has been guaranteed by the 10th amendment. Thus,
34 is not declared unconstitutional, but it is interpreted as applying
to all state laws.
9. Concurrence Reasoning: [Reed] felt that the majority reasoning was
correct except insofar as it relied upon the "unconsitutionality"
argument. All that was necessary was to say the the Swift construction
of the 34 was erroneous and reinterpret the words "the laws" to include
the decisions of local state courts. There is confusion as to whether
the majority opinion would preclude the power of Congress to determine
procedural rules as well as substantive general law rules.
I. Burden of Proof in Diversity Actions
A. In Cities Service Oil Co. v. Dunlap, the Supreme Court held that
state law controls the burden of proof as to whether a party was a bona
fide purchaser because it "relates to a substantial right upon which the
[party] may confidently rely."
B. In Palmer v. Hoffman, the court stated that the burden of proof of
establishing contributory negligence is a question of local law which
federal courts in diversity cases must apply, regardless of the rule
8(c) requirement that it be raised as an affirmative defense because
8(c) only applies to pleadings.
** Klaxon Co. v. Stentor Elec. Mfg. Co., (1941)
2. Procedural Posture: P. brought a breach of contract action based on
diversity of citizenship in the Federal District Court in Delaware, and
obtained a verdict of $100K. The District Court applied the state law of
New York, the place that the contract was to be performed, to add pre-
judgment interest to the verdict. The court of appeals affirmed, stating
that the choice of law decision in a conflict of laws case should be
decided by the federal court based on the type of case, and that in
contracts cases, that is the state of performance.
3. Issue: Whether in diversity cases the federal courts must follow
conflict of laws rules prevailing in the state in which they sit.
4. Holding: Yes.
5. Reasoning: The prohibition in Erie against federal courts doing
independent determination of substantive general law extends to the
field of conflict of laws. The conflict of law rules must conform to
those prevailing in the state in which the federal court sits.
Otherwise, the accident of diversity would disturb the equal protection
clause between state courts and federal courts that sit across the
street from each other. This is necessary for uniformity within states.
Uniformity between states is not necessary due to our federal structure.
** Guarantee Trust Co. v. York, (1945)
2. Facts: Breach of trust by Guarantee.
3. Procedural Posture: P. brought action in federal court based on
diversity of citizenship only. D. moved for summary judgment on the
grounds that the state statute of limitations had run. District court
granted summary judgment. Court of Appeals reversed holding that the
statute of limitations did not apply in this federal court case in the
presence of a federal tolling doctrine.
4. Issue: Under what circumstances are the federal courts bound by state
law in a diversity action?
5. Holding: Where it would "significantly affect the result" of a
litigation for a federal court to disregard a state law that would be
controlling in the state court.
6. Majority Reasoning: Erie did not merely overrule Swift with regard to
"substantive" state law. It overruled the judicial process of federal
courts disregarding state law where it would lead to different results
in the state vs. federal court in a diversity action. In these cases,
the federal court is acting as just another state court. Thus, it cannot
afford recovery for a state-given right if the state itself would not
afford recovery. The difference between "substance" and "procedure" is
not the dividing line for when to apply state law. Rather, the question
is whether the state law merely concerns "the manner and the means by
which a right to recover is enforced" or whether it would "substantially
affect the result." Here, the state bars the action. Thus, the federal
court should bar the action for the same reason.
7. Dissent Reasoning: The dissent noted that the state of the forum may
have different laws for disregarding the statute of limitations of the
other state. Thus, whether or not the action will be held to be barred
depends on the law of the forum, not the law of the state of the
8. Notes: In Ragan v. Merchants Transfer, the diversity P. filed the
complaint with the court a month before the state statute of limitations
expired, but did not serve the summons until 2 months after the statute
of limitations had expired. Federal Rule 3 states that the action is
commenced upon filing of the complaint with the court, however the state
law states that the action is commenced upon service of the summons.
Under Guarantee Trust, the Supr. Ct. held that state law applied to bar
the action. In Woods v. Interstate Realty, P. was a corporation in a
diversity action. State law required corporations to file a power of
attorney for service prior to bringing an action. P. failed to do so.
Again, the Supr. Ct. held that state law applied to grant summary
judgment for D.. In Cohen, the P. was a shareholder and state law
entitled the D. corporation to require the P. to post bond in order to
sue. Again, the Supr. Ct. followed state law.
** Bernhardt v. Polygraphic Co. of Am., (1956)
2. Facts: A contract clause between P. and D. called for arbitration of
disputes. The contract was executed in New York and was to be performed
3. Procedural Posture: The P. brought an action for wrongful discharge
in the VT state court. The D. removed to the federal court based on
diversity. The D. applied for a stay pending arbitration. The district
court denied the stay under Vermont law because arbitration agreements
were not enforceable under a 1910 VT law. The court of appeals reversed,
holding that the arbitration matter was not "substantive" under Erie.
4. Issue: Whether a state judicial precedent that would substantially
affect the outcome of a case appears to be old on its face and is
contrary to recent legal developments in other states should be applied
in a federal court in a diversity action in that same state if there is
no apparent movement in the state, either judicially or legislatively,
to change the law.
5. Holding: Yes.
6. Majority Reasoning: If the federal court allows arbitration where the
state court would disallow it, the outcome of the litigation might
depend on the courthouse where the suit was brought. Although this
precedent is old, three is no action in the VT courts or legislature to
change it. The court then ducked the issue and remanded the case (under
Klaxon) to the district court to determine whether the state of VT would
apply VT law or New York law as a matter of conflict of laws.
7. Concurrence Reasoning: In light of all that has happened since this
precendent was issued, there is no reason to assume that the Court of
Appeals could not have found that the state court would have changed the
law. Thus it should have been remanded to the Court of Appeals.
8. Notes: In Factors Etc., Inc. v. Pro Arts, Inc., the Second Circuit
had issued an opinion that, in the absence of controlling Tenn. law, the
court would follow the decision of the federal court sitting in Tenn.
(the 6th Cir.), holding that there is no descendible right of publicity
in Tenn. However, before the judgment was entered, a Tenn. state court
held that the right did exist. However, before rehearing, a differnt
Tenn. state court held that the right did not exist. Thus, the court
found that there was not enough basis to reverse itself. The cutoff for
consideration of state law changes is up until judgment is entered, but
after judgment, change in state law alone is not enough to get relief
I. State Determination of State Law
A. Abstention - the federal court, in deference to state interests,
declines to exercise federal jurisdiction.
1. appropriate where there are difficult questions of state law with
important precedential value.
B. Certification - the state law question is certified by the federal
court of appeals to the local state court for determination.
1. causes some delay and increased expense for the parties
2. imposes a burden on the state court
3. poses a possible threat to federal judical independence and
** Byrd v. Blue Ridge Rural Elec. Coop., (1958)
2. Facts: Byrd was injured while performing construction work as a
contractor of the D..
3. Procedural Posture: P. brought a negligence action. D. raised the
defense of immunity under workmen's compensation because the work done
by P. was of the kind done by his own employees, thus making the P. a
statutory employee and not just a contractor. In South Carolina, the
judge was the decider of whether a contractor was an employee. In the
federal courts, the jury was the normal trier of fact in such a case.
4. Issue: Whether the general federal policy favoring jury decisions of
disputed facts should yield to the state rule of judge determination in
this type of case in the interest of promoting uniformity between the
state and federal court sitting in the same location.
5. Holding: No.
6. Majority Reasoning: Erie held that the federal courts must generally
give deference to state law in diversity cases involving state-created
rights. However, in this instance, the judge only sits as the trier of
fact of the employee determination issue because the statutory scheme in
the state makes it customary and convenient to do so. There is no reason
to believe that the rule was an integral part of the special
relationship created by the statute. It appears to be merely a "form and
mode of enforcing" the immunity. Although there might be an interest in
preventing a different "outcome" in the federal vs. state court on the
same litigation, there are also competing federal interests here.
Particularly, the federal system has an interest in remaining
independent from the state courts. State law can not alter the essential
character or function of a federal court because that function is not in
any sense a local matter. State statutes that would interfere with the
performance of the federal judicial function are not binding under the
Rules of Decision act. Also, there is not the certainty here, as there
was in Guarantee that a different outcome would result.
** Hanna v. Plumer, (1965)
2. Facts: Hanna is a citizen of Ohio. Plumer is the executor of a
citizen of Massachusetts. A car accident between Hanna and Plumer's
decedent occurred in South Carolina.
3. Procedural Posture: Hanna filed suit in the District Court of Mass on
Feb. 6th. Service was filed in accordance with Rule 4(d)(1) [now
4(e)(2)], by leaving a copy of the summons and complaint at the
executor's residence with his wife. The executor's answer alleged that
the action could not be maintained because he was not been served "by
delivery in hand" as required by a Mass. statute concerning service of
executors. The District court granted summary judgment, and the Court of
Appeals affirmed, relying on Ragan and York opinions which required the
use of state law in matters of "substance" and when the choice of law
would be outcome determinative.
4. Issue: Whether Rule 4(d)(1) is applicable rather than the local Mass.
5. Holding: Yes.
6. P.'s Reasoning: Rule 4(d)(1) clearly defines the manner in which
service may be made in diversity actions.
7. D. Reasoning: Erie doctrine, as defined in York demands that federal
courts apply state law whenever application of federal law in its stead
will alter the outcome of the case. In this case, use of Mass. law would
immediately result in victory for the D.. If 4(d)(1) were instead
applied, the litigation would continue, resulting in a possible victory
for P.. Thus, Erie demands that Mass. law be applied.
8. Majority Reasoning: First, even if there were no state law, Rule
4(d)(1) would pass muster under the Rules Enabling Act because it is one
that relates to the "practice and procedure" of the courts, and does not
"abridge, enlarge, or modify the rules of decision by which that court
will adjudicate" the parties' rights. As to York, "outcome
determination" was never intended to be a mechanical test like the
procedure/substance test was. The court must also examine the policies
underlying the Erie rule. Erie sought to reduce forum shopping and to
provide equal protection. Non-substantial, or trivial, variations
between state and federal practice (like this one) are unlikely to
produce forum shopping or unequal protection. It appears that actual
notice was made in this case, which is the policy behind rule 4(d)(1)
and the constitutional aspect of service. Although the outcome is
important in this determination, any Rule would be "outcome-
determinative" if not followed. Also, Erie has never been invoked to
void a federal rule. Any matter which "fall[s] within the uncertain area
between substance and procedure, [and] rationally capable of
classification as either" may be constitutinally regulated under the
Rules as a valid exercise of Congressional power. The Erie doctrine was
not intended to "disembowel" the Rules, which are constitutionally
9. Concurrence Reasoning: [Harlan] felt that Erie should be more broadly
read as a cornerstone of federalism. The proper test should be whether
the rule, whether "substantive" or "procedural", would "substantially
affect those primary decisions respecting human conduct which our
constitutional system leaves to state regulation." The majority's test
may trample on federalism if the rule violates a strong local state
interest. For example, Ragan was wrongly decided because the state
interest was too weak - the defendants would only have had to wait a few
days before knowing whether the action was brought within the statute of
limitations. Thus, federal law should have prevailed. Cohen, on the
other hand, was properly decided because the state interest in
preventing "strike suits" by making the P. put up a bond was very
strong. Here, the state interest is very weak. All that would happen is
that the executor would have to check the local courthouse, or his own
house, before releasing funds from the estate.
** Day & Zimmerman v. Challoner, (1975)
2. Facts: Two soldiers were injured in Cambodia during the Vietnam war
when the howitzer they were using had a round prematurely explode in the
chamber. The victims and the gun's manufacturer were from different
3. Procedural Posture: Diveristy action for wrongful death and personal
injury was brought in Texas federal court, under a strict liability
theory. The jury returned sizable verdicts for the plaintiffs, but
defendant appealed contending that under Klaxon, the federal court
sitting in Texas must use the Texas state choice of law rule (which was
a law of the place of injury), and apply Cambodian law which did not
have strict liability. The court of appeals found for defendant,
claiming that the federal court had an independent power to choose the
law because the federal interest in promoting U.S. law in U.S. courts
outweighed the state interest in uniformity.
4. Issue: Whether the conflict of law rule in Klaxon applies if the
state's rule is law of the place of injury, and the place of injury is
outside the U.S.
5. Holding: Yes.
6. Reasoning: Klaxon applies. The federal court must apply the conflict
of law rule of the state in which it sits in order to avoid the twin
Erie doctrines of forum shopping and discrimination against in-state
defendants. The federal court is not free to modify the holding in
** Walker v. Armco Steel, (1980)
2. Facts: Identical to Ragan. Statute of limitations is tolled by state
law when the actual service on the person is made. Rule 3 states that
the action is commenced when a complaint is filed with the court. The P.
filed the action before the statute of limitations had run, but did not
get actual service in time.
3. Procedural Posture: The lower courts found that the state action
would have been barred, and thus under Ragan, the federal action must be
barred as well.
4. Issue: Whether the holding in Ragan (that the statute of limitations
tolling statute of the state is to be followed in the federal court) is
still good law given the holding in Hanna (that a federal rule must be
followed if it is directly on point).
5. Holding: Yes.
6. Reasoning: Stare decisis. Also, Ragan was interpreted, distinguished,
and left standing in Hanna. In order for the Hanna doctrine
(Hanna/Sibbach) to apply, the federal rule must be directly on point,
and there must be a "direct collision" between the federal rule and the
state law. Here, the scope of Rule 3 is not so broad as to control the
issue of tolling the statute of limitations. It merely states that the
action is commenced. It measures prospective deadlines for filing
papers, not retrospective deadlines for tolling the statute of
limitations. The federal rule and the state law can thus exist side-by-
side with no conflict. Thus, the Erie policies apply. Although there
might be no forum shopping encouraged, there is still discrimination
against in-state defendants. The ALI comments only suggest that the Rule
3 might have the affect of tolling the statute of limitations, not that
it was intended to do so.
** Burlington Northern RR v. Woods, (1987)
2. Facts: Personal injury action. P. won in federal court (after removal
from state court by defendant).
3. Procedural Posture: D. filed for a stay pending appeal, which was
granted. The court of appeals affirmed. The state had a law that put a
10% penalty on awards that were stayed by appeal if the court of appeals
affirmed. Also, federal appellate rule 38 has a discretionary provision
for penalties upon frivolous appeals.
4. Issue: Whether the state law penalty is applicable in federal court
given FRAP 38 and the holding in Hanna and Walker (direct collision).
5. Holding: No.
6. Reasoning: "When fairly construed, the scope of Federal Rule 38 is
sufficiently broad' to cause a direct collision' with the state law
or, implicitly, to control the issue' before the court, thereby leaving
no room for the operation of [the state penalty law]."
** Masino v. Outboard Marine Corp., (1981)
2. Facts: P. was injured by a lawnmower manufactured and sold by D..
3. Procedural Posture: P. brought a diversity action in federal court to
a jury of eight persons (Colgrove v. Battin), who returned a unanimous
verdict for P.. D. sought to have the judge apply the five-sixths rule
of the state (that a simple 5/6 majority was all that was required to
enter judgment on a verdict). The district court refused.
4. Issue: Whether a federal court must apply the state statute providing
that a civil jury may be less than unanimous.
5. Holding: No.
6. Reasoning: The court must perform Byrd balancing of the state
interest vs. the federal interest minus the outcome determinative test
(if it would result in forum shopping or discrimination). The state
interest in non-unanimous juries is to prevent jury deadlock, which
creates overcrowding of the state court system. The state has no
interest in the docket of the federal court. The federal interest in
unanimous juries is not constitutionally required, but has a strong
tradition, including being implicit in Rule 48. Finally, the non-
unanimous verdict would not result in forum shopping or unequal
protection because a unanimous verdict requirement is not likely to
encourage the majority of the jury to change their mind to prevent
7. Notes: Congress rejected the Supreme Court's proposed uniform
privilege rules in favor of letting the states retain control of the
laws of privilege. The Congress reasoned that the federal interest in
privilege was not strong enough to override the state policy, and that
it would lead to forum shopping. In contrast, the Federal Rule of
Evidence 407 on subsequent remedial measures was written to override any
state contrary rules.
** Clearfield Trust v. United States, (1943)
2. Facts: A paycheck from the United States to a federal employee was
intercepted and fraudulently endorsed to J.C. Penney to buy merchandise.
J.C. Penney endorsed the check over to Clearfield Trust, which acted as
the collecting agent, and endorsed the check over for payment,
guaranteeing all prior endorsments (the first of which was fraudulent).
Upon failing to receive his paycheck, the federal employee notified his
proper supervisors. However, the U.S. failed to notify Clearfield Trust
for several months. A state law provided that if there was unreasonable
delay in notification of the defendant, then the plaintiff would be
barred from recovery on the endorsment guarantee.
3. Procedural Posture: The district court held that the state law
applied and dismissed the action. The Court of Appeals reversed.
4. Issue: Whether state law should apply (under Erie) to a case
involving the rights and duties of the United States on its commercial
5. Holding: No.
6. Reasoning: Erie does not apply to this action. The rights and duties
of the United States on commercial paper which it issues are governed by
federal rather than local law. [These rights and duties are based in the
Constitution and in Federal Statutes. Thus, the Rules of Decision Act
(and Erie) does not apply because the state laws can not supersede the
** United States v. Kimball Foods, (1979)
2. Facts: Two competing liens existed on the same piece of property. One
was held by the U.S., the other by a private party. State laws on
competing liens priority would have favored the private lienholders in
3. Procedural Posture: The U.S. brought an action under federal original
jurisdiction under 1345 to recover the property from the private
4. Issue: Whether state law should apply in determining the priority of
competing liens on the same piece of property when one of the liens is
owned by an agency of the federal government pursuant to the exercise of
its federal (constitutionally or statutory-based) power.
5. Holding: Yes.
6. Reasoning: The court followed the reasoning of Clearfield Trust that
the state had no independent power to determine the exercise of
legitimate federal power by federal agencies. The Constitution and acts
of Congress require that state law not infringe on federal power. Thus,
federal common law must control. However, here the federal statute has
not spoken to the issue of priority of liens. Since there is not a need
for uniformity in this area, and since the local businessman plans his
commercial activities based on state law, state law may be followed
until Congress comes up with a better plan. The pre-existing state laws
do not conflict with protection of fcommon lawerests, because Congress
can change the federal common law to preempt the state law if desired.
7. Notes: In Illinois v. City of Miluakee, the Supreme Court stated that
a federal court should apply a federal common law of nuisance, and that
such an action would arise under the "laws" of the U.S. under 1331
(federal question jurisdiction).
I. Permissive Joinder of Parties (Rule 20)
A. must grow out of same transaction or occurrence, AND
B. some common question of law or fact will arise later in the action.
C. defendants may be joined in the alternative (See Form 10).
II. Cumpulsory Joinder of Parties (Rule 19)
A. Must be joined if feasible, if:
1. "complete relief" can not be afforded to the parties; or
a. ex: A sues B for a debt on a note that C is also a holder. If A wins,
B may become bankrupt and A may spend the money before C can bring suit.
2. the person's interest will be practically destroyed, or leave one of
the parties subject to double liability as a result of later suit by the
3. service of process and subject matter jurisdiction will continue
a. venue can be waived by the joining party, or the action may be
dismissed as to him if he objects to venue.
B. if it is not feasible to join, then the action must be dismissed
(indispensable party); or it may continue.
1. court must weight the amount of the damage of going on without the
III. Interpleader (Rule 22)
A. mechanism for a defendant to seek relief against multiple competing
parties each of which claims to be entitled to the identical relief.
(i.e., two parties claiming to be the beneficiary of a life insurance
B. potential defendant brings an action to have the court declare which
one (if any) is entitled to relief.
1. "we'll pay the winner, or neither."
C. Two versions:
1. "rule interpleader" - Rule 22(1);
a. must be used for federal question jurisdiction
b. for diversity actions, ($50,000 or more) service of process is
limited by Rule 4.
2. "statutory interpleader" - Rule 22(2) ( 1335, 1397, 2361)
a. only $500 or more 1135(a)(1), but claimants must be from different
states (but not complete diversity, only necessary that two are from
b. venue is proper in any district in which a claimant resides under
1337 (regardless if all reside in the same state as is the case in
c. process may be served nationwide under Rule 4(k)(1)(C)
IV. Third Party Practice (Rule 14)
A. a defendant may implead another party who he believes should
indemnify his losses against the plaintiff (original defendant, even by
counter-claim, becomes the third party plaintiff, and impleaded party
becomes third party defendant.)
B. must get permission of the court unless implead within 10 days of
C. the third party defendant may assert any defense against the original
plaintiff that the third party plaintiff has, or may bring a related
action, or the plaintiff may take the opportunity to bring a related
action solely against the third-party defendant.
** Bell v. Hood, (1946)
2. Facts: Hood alleges that FBI agents broke into his house, imprisoned
him and conducted an illegal search and siezure of various documents.
3. Procedural Posture: Hood brought suit in a federal district court to
recover monetary damages, alleging federal question jurisdiction under
the 4th and 5th amendments. The damages were sought as the remedy for
the civil rights violation. D. moved to dismiss for failure to state a
cause of action and for summary judgment on the facts. On his own
motion, the district court dismissed for lack of subject matter
jurisdiction. The court of appeals affirmed and denied P. leave to amend
4. Issue: Whether the federal court must assume jurisdiction over a case
in which the complaint is drawn as to seek recovery directly under
federal law, even if the claim fails to state a cause of action.
5. Holding: Yes.
6. P.'s Argument: There is subject matter jurisdiction because the claim
"arises" out of the consitution, namely the 4th and 5th amendment.
Federal statute gives the court original jurisdiction in civil cases
with federal question jurisdiction.
7. D. Argument: The complaint only alleges the common law tort of
trespass which is governed by state law, and does not "arise" out of
federal law. Furthermore, no cause of action is pleaded because there
are no federal laws providing for monetary damages for 4th and 5th
amendment civil rights violations.
8. Majority Reasoning: The complaint plainly seeks recovery under
federal law. It is up to the party to decide what law he will rely upon,
and the P. is clearly basing the suit on civil rights violations. Where
this occurs, the federal court must assume jurisdiction in order to
decide whether the allegations state a cause of action on which the
court can grant relief, as well as to determine issues of fact. Failure
to state a cause of action requires adjudication on the merits, which
requires assumption of jurisdiction. The only exceptions are where the
federal question is immaterial and made solely for the purpose of
obtaining jurisdiction, and where the claim is frivolous. The valid
federal question here is whether monetary damages are proper for
violation of the 4th and 5th amendments.
9. Dissent Reasoning: The rule should be that the cause of action must
arise out of the constitution in order for jurisdiction to be present.
Otherwise, the pleader is the one controlling the establishment of
jurisdiction. Also, once the court has jurisdiction, it would also have
to pass on the question of trespass under state law.
** Hurn v. Oursler, (1933)
2. Facts: Violation of a copyrighted play.
3. Procedural Posture: P. joined three claims in the same complaint: 1)
infringement of copyright of a play (federal question), 2) unfair
competition in unauthorized use of the same play (state law), and 3)
unfair competition through interference with an uncopyrighted version of
the same play (state law). The trial court dismissed the copyright claim
for failure of proof, and the other two claims for lack of jurisdiction.
4. Issue: Whether the federal district court had jurisdiction over an
unfair competition claim arising from state law if it is joined with a
claim arising under a federal copyright law, if the two claims support
the same "cause of action."
5. Holding: Yes.
6. Reasoning: It was error to dismiss (for lack of jurisdiction) the
unfair competition claim with regard to the copyrighted play because
both it and the federal copyright claim supported the same "cause of
action." The claim with regard to the uncopyrighted version of the play
was properly dismissed because it was a separate and distinct cause of
7. Notes: Codified in 1338(b): the state unfair competition claim must
be "related" to a "substantial" federal claim.
** United Mine Workers v. Gibbs, (1966)
2. Facts: Gibbs worked in a mine. He claims that the union interfered
with his contractual relationship with his employer.
3. Procedural Posture: P. claimed damage under a federal statute and
also damage for the same acts under the common law of the state. The
trial court dismissed the federal claim on judgment n.o.v., but allowed
the P.'s verdict on the state claim to stand. The court of appeals
4. Issue: Whether the relationship between the federal claim and the
state claim was close enough to permit "the conclusion that the entire
action before the court comprise[d] but one constitutional case'."
5. Holding: Yes. If a P.'s claims are such that they derive from a
"common nucleous of operative fact", such that he would be expected to
try them in on judicial proceeding [disregarding the federal or state
nature of the claim], then if the federal issue is "substantial", then
the court has the "power" to adjudicate the entire case.
6. Reasoning: The power of pendent jurisdiction is discretional. The
court must consider convenience, and fairness to the litigants. If it
appears from the pleadings that state law dominates, then the case
should be dismissed without prejudice for lack of jurisdiction, so that
it can be brought in the state courts as a matter of deference to the
judicial power of the states. However, if, as in the present case, the
scope of the state claim implicates the doctrine of federal preemption,
i.e. the state and federal claims implicate trigger overlapping state
and federal remedies, pendent jurisdiction should be exercised. That is
not to say that the relationship of the state and federal claims
"creates" pendent jurisdiction, only that it is within the discretion of
the court to consider this factor in exercising pendent jurisdiction.
The judge also has the power to separate the state and the federal
claims under Rule 42(b). The question of power to hear the case is based
on the pleadings. However, the issue of whether pendent jurisdiction has
been properly assumed always remains open [like 12(b)(1)/12(h)(1)]
throughout the litigation.
** Finley v. United States, (1989)
2. Facts: P.'s family died in an airplane crash.
3. Procedural Posture: P. sued the U.S. in federal district court for
negligence, invoking exclusive jurisdiction under the Federal Tort
Claims Act. She tried to join non-federal claims against different
parties, a municipality and a corporation, that were also involved in
the airport's operation. The district court decided to exercise pendant
jurisdiction over the claims to the new parties. The court of appeals
reversed on interlocutory appeal.
4. Issue: Whether the pendent jurisdiction rule in Gibbs extends to
pendent-party jurisdiction; that is, the joining of non-federal claims
against parties who are not named in any claim to which there is
independent original federal jurisdiction.
5. Holding: No.
6. Reasoning: The case here is fundamentally different from Gibbs. The
plaintiff has substantial federal claims against a first defendant, and
state claims against a second defendant. Gibbs only held that the state
claims could be joined against the first defendant. The court will not
assume that the Gibbs doctrine should be applied any further, because
that would be to assume that Congress has granted this broad power in
apparent infringement of the notion that federal courts are courts of
enumerated, limited jurisdiction. To prevent any further confusion, the
court will assume the clear interpretive rule that Congress must
specifically grant jurisdiction in this type of case.
7. Dissent: There is widely recognized desire for jurisdiction in this
case since the facts are the same, and Gibbs should be read more
broadly. The court should thus presume that there is Congressional
intent to favor pendent jurisdiction in a case like this.
** Revere Copper & Brass v. Aetna Casualty & Surety Co., (1970)
2. Facts: Construction of a building was not completed in accordance
with a construction contract. Revere had insured the construction
performance bonds with Aetna. Aetna's principle, Fuller, was the maker
of the performance bonds.
3. Procedural Posture: Revere brought suit against Aetna under diversity
of citizenship, alleging that Aetna's principle, Fuller, had breached
the contracts. Aetna denied the allegations, and impleaded Fuller under
14(a), alleging that Fuller had agreed to indemnify Aetna for all
losses. Fuller admitted the indemnification, but denied breaching the
contract, and brought a counterclaim against Revere for breach of
contract. There was no diversity of citizenship between Revere and
Fuller, and so Revere moved to dismiss Fuller's claim under 12(b)(1).
The district court denied the motion, finding the claim to be within its
ancillary jurisdiction with regard to the original claim, even though it
did not have an independent ground for federal jurisdiction. Revere
brought this interlocutory appeal.
4. Issue: Whether proper ancillary jurisdiction exists in the case where
an impleaded (under rule 14(a)) party seeks to bring a claim, not having
independent federal grounds, against the original plaintiff in a
5. Holding: Yes. Proper ancillary jurisdiction exists if the claim
arises out of the same aggregate of operative facts as the original
claim in two senses 1) that the same aggregate of operative facts serves
as the basis for both claims, or 2) that the aggregate core of facts
upon which the original claim rests activates additional legal rights in
a party that would otherwise remain dormant.
6. Resaoning: It is well established that compulsory counterclaims under
13(a), impleader action under 14(a), and intervention as a matter of
right under 24(a) all bring proper ancillary jurisdiction, because they
all arise out of the same transaction or occurrence the original claim.
13(b) permissive counterclaims must have an independent federal ground,
and do not normally bring ancillary jurisdiction because they don't
arise out of the same transaction or occurrence. Ancillary jurisdiction
is made available to defendants in order to protect their interests
since they have been involuntarily brought into the litigation. Here,
the two claims are the opposite sides of the same coin; they both arise
out of the breach of a contract. Thus, ancillary jurisdiction is proper.
** Owen Equipment & Erection Co. v. Kroeger, (1978)
2. Facts: Kroeger's husband was electrocuted when he passed too near a
steel crane that came too close to a power line.
3. Porcedural Posture: Kroeger's wife (Iowa) brought a wrongful death
negligence action against the construction company, OPPD (Nebraska),
under diversity of citizenship. OPPD impleaded Owen under 14(a),
alleging that they were negligent in operation of the crane. OPPD then
moved for summary judgment, and Kroeger amender her complaint to name
Owen as an additional defendant. OPPD won the summary judgment action.
At trial, it appeared that Owen actually had its primary place of
business in Iowa, not Nebraska, and so there was no longer diversity of
citizenship. The trial court reserved decision on Owen's motion to
dismiss for lack of jurisdiction, and verdict was for the plaintiff.
4. Issue: Whether ancillary jurisdiction is proper with regard to a
plaintiff's claim against an impleaded third-party defendant, when the
two claims in a diversity action arise out of the same transaction or
occurrence, but there is not complete diversity between the plaintiff
and the impleaded third-party defendant.
5. Holding: No.
6. Majority Reasoning: There was no independent federal ground for the
P.'s tort claim against Owen, because of lack of diversity. Although the
two claims arise out of the same transaction, as required by Gibbs, that
is not the end of the inquiry. There also must be an inquiry, under
Aldinger, of whether Congress has approved the exercise of jurisdiction
over the non-federal claim in an action having a particular procedural
posture. It is clear that Congress intended complete diversity in
1332(a) actions. Since P. could not have brought an action naming both
OPPD and Owen as defendants originally, she can not do it by the
accident of ancillary jurisdiction, because that would open the danger
of persons circumventing the requirement by suing only the out-of-state
joint tortfeasor, and waiting for them to implead the in-state joint
tortfeasor. Also, the plaintiff is the one attempting to get ancillary
jurisdiction. There is not a danger of unfairness (as there is with
impleaded defendant's counterclaims) with P.'s because the P. chooses
his own forum. Also, the claim against Owen does not depend at all on
the claim against OPPD.
7. Dissent Reasoning: Congress did not intend to define the jurisdiction
of the federal courts so inflexibly that they are unable to effectively
resolve an entire, logically entwined lawsuit. Here, the complete
diversity requirement should bend to the doctrine of preventing
duplication of lawsuits. The facts were already before court. Thus, for
the sake of efficiency, the court should have resovled the state case as
** Shamrock Oil & Gas Corp. v. Sheets, (1941)
2. Facts: P is from Delaware, D is of Texas. P has a contract claim in
excess of the diversity jurisdictional amount against D. D has an
entirely unrelated contract claim against P, also in excess of the
3. Procedural Posture: P brought the original action in Texas state
court against D. D counterclaimed for his unrelated contract. P then
removed on the basis of diversity. D moved to remand, and the District
Court denied the motion. P won on both the claim and the counterclaim.
The court of appeals reversed and remanded the case to state court.
4. Issue: Whether 1331(a) allows a plaintiff who is defending against
a counterclaim to remove to federal court (i.e. does the word
"defendant" or "defendants" in 1331(a) apply to plaintiffs who are
defending against a counterclaim).
5. Holding: No.
6. Reasoning: It is irrelevant whether the counterclaim was compulsory
or permissive under state law, or even factually related to the main
claim. "Defendant" means what it says. A plaintiff can not remove, even
if he is counterclaimed.
7. Notes: The plaintiff may be able to simply abandon his original
claim, thus becoming a defendant only, and then remove and reassert his
claim as a counterclaim in the federal court.
I. 1441(c) removal of "separate and independent" federal question claim
A. Allows a small opportunity to remove a case not removable under
1441(a) because not within the federal court's original jurisdiction.
1. Ex: P sues D in state court on a federal civil rights claim, and
joins a completely unrelated contract claim. D can remove the whole
2. However, the federal court can remand, at its discretion, "all
matters in which State law predominates" in order to avoid any
B. The federal question must be removable if it were sued upon alone.
1. Ex: P sues D on a FELA action (not removable under 1445), and joins
a completely unrelated state contract claim. D may not remove simply
because the combination literally fits the language of 1441(c).
C. 1441(c) does not avoid the Shamrock rule.
1. Ex: If P sues D in state court on a contract claim, and D
counterclaims on a completely unrelated federal civil rights claim, P
can not remove because 1441(c) is interpreted narrowly as applying only
to claims brought by original plaintiffs against original defendants.
D. 1441(c) operates with pendent jurisdiction to provide for removal of
almost any federal question case.
1. Ex: P sues D on a federal question, and joins a state claim which is
transactionally related - D can remove whole case under 1441(a) (and
court has discretion to remand state claim under 144(c).
2. Ex: P sues D on a federal queston, and joins a state claim which is
"separate and independent" - D can remove whole case under 1441(c) (and
court must remand state claim under 1441(c)).
** Carnegie-Mellon Univ. v. Cohill, (1988); pg. 60 supp.,
2. Facts: Cohill was allegedly wrongfully terminated by the University.
All parties are citizens of PA.
3. Procedural Posture: Cohill brought a federal question claim (under
federal age-discrimination laws) and various other state-based contract
and tort claims all arising out of the same transaction under pendent
jurisdiction. Carnegie removed under 1441(a). 6 mo. later, Cohill was
granted leave to amend his complaint to remove the untenable federal
question claim (leaving only the state claims).
4. Issue: Whether the case should be remanded to state court now that
the federal question (on which subject matter jurisdiction over the
state claim depended by pendent jurisdiction) has been dropped.
5. Holding: Yes.
6. Reasoning: 1441(c) does not give power to remand in this case.
However, the doctrine of pendent jurisdiction itself entails the court's
jurisdiction to decline jurisdiction by dismissing the state case, and
hence implies the power to remand the case.
** Alexander v. Goldome Credit Corp, (1991); pg. 61 supp.,
2. Facts: Alexander took out a second mortgage on his home from Goldome
to perform home improvements. Alexander hired C.J. Construction, through
their agent, Capsuto, to perform the work. The Alexanders were not happy
with the construction work, and so refused to sign the certificate of
completion. Nevertheless, Goldome paid C.J. Construction for the job.
All parties are residents of Alabama, which allows punitive damages for
breach of contract.
3. Procedural Posture: Alexander brought state actions for fraud and
breach of contract against Goldome, C.J. and Capsuto, and a federal
question action under the Truth in Lending Act against Goldome only.
Goldome signed a notice of removal, but the other two defendants did
not. Alexander brought a motion to remand.
4. Issue: Whether 1441(c) allows for remanding of both the state and
the concurrent jurisdiction federal claims (i.e. those which the federal
courts do not have exclusive statutory jurisdiction over) back to the
5. Holding: Yes.
6. Reasoning: First, the case was defectively removed under 1441(a) and
(b) because of procedural defects in the notice of removal, i.e. it was
not signed by all of the defendants. However, the federal court may have
had jurisdiction to hear the case under 1441(c) because 1367 allows for
pendent party jurisdiction, thus Goldome could have been the only signer
on the notice of removal under 1441(c) because it allows for removal of
the entire case by one defendant if there is a "separate and
independent" claim. Here, the state claims are "separate and
independent" because it is possible that the work was done correctly,
but that Goldome still violated the truth in lending act. However,
1441(c) also provides that the federal court may, at its discretion,
"remand all matters in which State law predominates," and "matters"
means whole cases, not just individual claims. This reflects Congress'
intent to reduce the caseload of the federal courts. This is the kind of
case that is properly adjudicated in state court because the federal
claim is relatively insignificant compared to the state claims.
7. Notes: These claims probably should have failed the stringent Finn
test (which requires the claims to be "separate and independent").
** United States v. United Mine Workers, (1947)
2. Facts: At the close of WWII, the coal mines were in control of the
U.S. government, under contract with the Secretary of the Interior. The
mine workers union wanted a new contract, and they gave notice to the
government of their unilateral termination of the existing contract.
3. Procedural Posture: The U.S. brought an action for delcaratory
judgment that the union had no right to unilaterally terminate the
contract, and obtained a temporary restraining order prohibiting the
union from taking any action until the hearing on the preliminary
restraining order. However, the union walked out on strike, and the U.S.
moved to punish for contempt. The union asserted that the court had no
jurisdiction to punish for contempt under the Norris-LaGuardia act,
which applied to civilian employers, but was questionable whether it
applied to the government. The court ruled that the Act did not apply to
the government, and fined the union for contempt.
4. Issue: Whether a disobedience of a TRO is proper grounds for a
finding of contempt if the court issues the TRO while it considers
whether it even has jurisdiction to grant a TRO.
5. Holding: Yes.
6. Reasoning: The District Court has the power to preserve existing
conditions while it determines its own authority to grant injunctive
relief. The injunction is valid, and must be obeyed, until it is found
to be erroneous be a proper judicial proceeding. This is true without
regard to the constitutionality of the Act under which the order is
** Walker v. City of Birmingham, (1967)
2. Facts: MLK Jr. and other ministers applied for a permit to
demonstrate by marching in Birmingham, Alabama. A local city ordninance
required petition to the city commission, consisting of three persons.
There was evidence that the ordinance was enforced in an arbitrary and
discriminatory manner previously. The ministers asked one of the
Commission for a permit, and were denied. They did not take any further
actions. The city obtained an ex parte injunction against the ministers,
prohibiting them from marching. They marched anyway, in direct civil
disobedience of the injunction, claiming that it was unconstitutional.
3. Procedural Posture: The ministers were convicted of contempt, and
they raise this appeal.
4. Issue: Whether an injunction which is granted based on an allegedly
unconstitutional law is valid, even if it is found later that it was
5. Holding: Yes.
6. Reasoning: Howat v. Kansas controls. An injunction, even erroneously
granted, is valid until it is modified or dissolved in a proper
procedding. A person acts at his own risk when he judges the propriety
of an injunction on his own. The ministers could have sought prompt
judicial relief in the two days before the march, but they did not.
Accordingly, the conviction is affirmed.
7. Notes: In Shuttlesworth v. City of Birmingham, the Supreme Court
found that the ordinance that the injunction was based upon was
unconstitutional as written. In United States v. Ryan, however, the
court pointed out that a person who refuses to comply with a subpoena
duces tecum, and is thereafter held in contempt may have his contempt
conviction reversed because the failure of the trial court to quash a
subpoena duces tecum is not appealable. They distinguished Walker by
stating that the claims of those defendants were open to review before
they failed to comply. Likewise, in Maness v. Meyers, the court held
that where irreparable damage would occur if the defendant complied with
the subpoena (violation of 5th amendment), the contempt conviction could
** Pennoyer v. Neff, (1878)
2. Facts: Neff homesteaded a large plot of land in Oregon, and consulted
an attorney, Mitchell, while he was there. He then left for California.
Mitchell filed suit in Oregon claiming that Neff owed him legal fees.
The Oregon court, upon affadavits by Mitchell that Neff was non-
locatable, allowed Mitchell to proceed by running a notice in a local
paper. Judgment by default was entered against Neff. Then Mitchell moved
to collect on the judgment against Neff's land, and he bought it for the
cost of the legal fees. Mitchell then sold the land to Pennoyer.
3. Procedural Posture: When Neff returned from California, he sued
Pennoyer for ejectment. The trial court found for Neff, holding that the
affadavits of service by publication were defective.
4. Issue: Whether a state may properly exercise personal jurisdiction
over an out of state resident who is not available to be personally
served, if the out of state resident has property within the state.
5. Holding: No.
6. Majority Reasoning: Certainly the state has jurisdiction over the
property within its borders. It may therefore properly exercise
jurisdiction over the property in a proceeding in rem. However, here the
property was moved against in order to satisfy a personal judgment
against a non-resident, against whom service was defective because it
did not provide constructive notice and was thus in violation of the
14th amendment due process clause. The power of a state is limited to
within its owdue processThere is great possibility for fraud if proper
due process service is not required. Since the law assumes that real
property is always in the possession of its owner, constructive notice
may be acheived through proper pre-trial seizure of the land in a
proceeding in rem. However, where the object of the action is to
determine the personal rights of an out of state resident in a
proceeding in personam, seizure of the property is not sufficient or
proper to give notice to the person. A judgment rendered on a proceeding
lacking personal jurisdiction is void when rendered, whether the person
owns property in the state or not. It is void even in the state which
grants it and is thus subject to collateral attack, and is not deserving
of "full faith and credit."
7. Notes: However, Closson v. Chase, refused to follow Pennoyer, holding
a Wisconsin state statute valid which expressly provided that a
plaintiff could make service by publication against a non resident who
owned property in the state in order to get jurisdiction over the person
for an action to collect on a promissory note, and then move against the
** Tyler v. Judges of the Court of Registration, (1900)
2. Facts: A parcel of land was freed from cloud of title by recordation
of title after a hearing to establish title. A local statute provides
that in order to perform this recordation, service by means of
publication, mailing to those parties known to have any claim (either
valid or invalid), mailing to all of the adjoining residents, and
posting on the property.
3. Procedural Posture: The Court of Registration held a hearing which
complied with the local statute, and recorded title to the land in a
person. Tyler seeks a writ of prohibition to prevent the court from
recording the title, and to declare the act establishing the court
unconsitutional. According to the petitioner, such an action is not
possible due to violation of due process.
4. Issue: Whether the local statute providing for service in a
proceeding of determination of title to land is constitutional even
though it does not require actual notice by personal service on all
persons who may have an interest in the land, but who are not known.
5. Holding: Yes.
6. Reasoning: Jurisdiction over the real property is established by its
presence in the geographical boundaries of the state. The court has
power over the res of the land. Were this a proceeding in personam, i.e.
one to which the rights of identified persons are to be established, and
only certain persons are to be heard in defense, then actual notice of
the defendants would be constitutionally required under due process.
However, this is a proceeding in rem, against an unknown and
unascertainable body of defendants, the object of which is to bar all
possible defendants. In a proceeding in rem, notice is effected by
seizure of the res, because seizure is notice to the owner due to the
presumption that owners are in possession of their property. Seizure
here has been effected by posting on the property. Another justification
is that of necessity. Since many of the possible defendants may be
unknown, notice by publication is necessary. As to those defendants who
are known, there is no constitutional difference between sending
personal notice by messenger, and sending it in the mail, publishing it
in a newspaper, and recording it in the registry and posting it on the
** Garfein v. McInnis, (1928)
2. Facts: An action for specific performance of an alleged contract to
convey real estate.
3. Procedural Posture: P. served the out-of-state D. in person under a
state "long-arm" statute which provided for personal service of out-of-
state residents who have an interest in in-state property, if the action
had to do with the property. D. moved to set aside service, and the
motion was denied.
4. Issue: Whether, in an action for specific performance of an alleged
contract to convey real estate, a New York plaintiff may serve an out-
of-state defendant to provide notice of the proceeding; that is whether
a judgment in an action for specific performance is only a decree in
personam against the party who had agreed to convey property, or whether
the court in such an action may grant a judgment which will operate upon
the property itself and result in a transfer of title to a successful
5. Holding: Yes.
6. Reasoning: Historically, a court of equity only had the power to
issue "commands" against the conscience of the parties. As such, they
were only actions in personam. However, in this country, the difference
between courts of equity and of law has been virtually destroyed, and in
most places, the court has the power to actually vest an interest in a
person. Here, the state has several statutes that allow the court such
equitable power. Thus, they may provide out of state service to notify
the owner of an interest in a property of a proceeding in rem against
that property. Although the court can not obtain jurisdiction over the
person in such a case, it does have jurisdiction over the res.
** Harris v. Balk, (1905)
2. Facts: Harris (NC) borrowed $180 from Balk (NC). However, Balk (NC)
owed Epstein (MD) $344. When Harris was temporarily in Maryland, Epstein
served on him a proper notice under local statute of a garnishment
proceeding against him for the $180 Harris owed Balk, as partial
satisfaction of the $344 that Balk owed Epstein. The Marlyand court gave
judgment for Epstein, and Harris paid Epstein the $180 that he owed to
3. Procedural Posture: Balk brought an action in North Carolina to
recover the $180 from Harris, claiming that the Maryland judgment was
invalid and not entitled to full faith and credit, because the Maryland
court lacked jurisdiction over the debt, since it was incurred in North
Carolina, and Harris was only temporarily and casually within the
borders of Maryland, and thus did not subject any of Balk's property to
Maryland jurisdiction during his visit.
4. Issue: Whether the Maryland judgment against Harris was valid even
though the debt was incurred out of state, given that Maryland acquired
personal jurisdiction over Harris by proper service in state.
5. Holding: Yes.
6. Reasoning: Attachment of debt is a creature of local law. So if
personal jurisdiction can be had over a visitor to the state, the court
can garnish a debt due from him, provided that the debtor can sue in
that state. Here, Harris was subject to personal jurisdiction in
Maryland, and Balk could have sued in Maryland. The nature of Harris'
stay in the state, and the location of the origination of the debt was
immaterial. Epstein was acting in the place of Balk with respect to
Harris, because money owed to Balk was moreover owed to Epstein. Thus
the judgment is valid.
I. In Rem and Quasi-In Rem Federal Actions
A. 28 USC 1655 authorizes territorial jurisdiction over real or
personal property located within the jurisdiction.
1. Applies only to liens or titles existing prior to suit (not to quasi-
2. Requires publishing if personal service notice can not be made.
3. If the absent D. does not appear, the judgment affects only the
property, but the D. can make a "special appearance" for the purpose of
challenging the court's jurisdiction over the property without
subjecting himself to personal jurisdiction.
B. Rule 4(e)(2) allows original quasi-in rem and in rem jurisdiction in
federal courts to the extent authorized by the state in which the
federal court sits, given, of course, that subject matter jurisdiction
(i.e. diversity or federal question) exists.
C. It is unclear in a quasi-in rem action based solely on diversity
whether the $50,000 jurisdictional requirement refers to the amount of
the underlying claim, or to the value of the seized property, although
there is case law indicating that the underlying claim amount controls.
1. current attitudes toward limiting federal jurisdiction would indicate
that the value of the property should control, in order to prevent
multiple suits for small amounts.
2. However, sometimes the value of the seized property is not known
until it is sold, for example, real property.
** Campbell v. Murdock, (1950)
2. Facts: P. is a contractor who expended labor and materials on D.'s
land. Apparently the work was not paid for, and Campbell put a lien on
the land itself. Campbell was from Penn. Murdock was from South
3. Procedural Posture: P. brought a federal court action with diversity
jurisdiction and jurisdiction under 1655. Murdock appeared specially to
challenge jurisdiction and move to dismiss the action against her
insofar as it asks for personal judgment, and appearing solely for the
purpose of defending her property, asks for a more definite statment.
4. Issue: Whether an out-of-state defendant in an in rem action may make
a special appearance to defend her property, other than challenging
jurisdiction, without subjecting herself to personal jurisdiction.
5. Holding: No.
6. Reasoning: 1655 provides that if an absent defendant does not
appear, the judgment shall only affect the property which is the subject
of the action. This leaves the inference that if the defendant does
appear, the court may try the entire controversy between the parties.
This gives the defendant the option of making no appearance at all, or
to make a general appearance and subject himself to personal
jurisdiction with regard to all of the claims of the action. The
defendant may not appear solely to defend the property without
subjecting himself to personal jurisdiction. Furthermore, in this
action, the personal action is so related to the in rem action, that the
judgment may exceed the value of the land without defeating the in rem
jurisdiction under 1655.
7. Notes: In an action in rem or quasi-in rem, the defendant in federal
court does not have to plead any counterclaims that he might have, even
if he makes a general appearance, but if he chooses to counterclaim,
then the compulsory counterclaim rule comes back into normal operation.
I. Enforcement of Judgments in Other States
A. A state court judgment may be enforced in another state by bringing a
separate action on the judgment in that new state, in order to obtain a
new judgment in that new state.
1. New court must find that the judgment was valid (on collateral
a. court must have competency to render judgment (i.e. subject matter
b. sufficient nexus or basis for exercising authority over the defendant
or the target of the action (i.e. substantive due process).
c. persons to be legally affected must be given an opportunity to be
heard (i.e. notice).
2. If judgment is valid, it is entitled to full faith and credit.
a. laws of the state of judgment are used to determine validity.
b. laws of the state of enforcement are used to enforce the judgment.
3. if the first judgment is from a state court and the second action is
in federal court, 1738 provides that the federal court will give full
faith and credit.
4. if the first judgment is in a federal court and the second action is
in a state ccommon law the supremacy clause requires that the federal
common law doctrine of res judicata is applicable and binding on the
state court to enforce the judgment.
5. If both actions are in the federal courts, federal res judicata binds
the second court.
a. 1963 provides for registration of a federal judgment in all of the
federal courts, without requiring a new action, automatically converting
the judgment into a judgment in the jurisdiction of the registering
B. Fraud and Force - service of process of out-of-state residents is
void if done by fraudulently or forcibly persuading them to enter the
state and be served, however, fraud may be used to serve a defendant who
is otherwise voluntarily in the state.
C. Immunity from Service - a non-resident party has customarily been
immune from service of process while in the state for attendance at
litigation and a reasonable time to go to and from.
** Milliken v. Meyer, (1940)
2. Facts: A suit to recover profits from certain Colorado oil
properties. At all times, Meyer was domiciled in Wyoming.
3. Procedural Posture: Milliken sued Meyer in Wyoming state court. Meyer
received in-hand service of process in Colorado pursuant to a Wyoming
statute. He did not appear, and jugdment was entered against him. Then
Meyer sued Milliken in Colorado state court to enjoin Milliken from
enforcing the judgment there, and to declare the Wyoming judgment
invalid for want of personal jurisdiction (due to lack of basis). The
state supreme court found for Meyer, and Millikin appealed to the
4. Issue: Whether domiciliary status is alone sufficient to establish
proper nexus to establish personal jurisdiction over an absentee
defendant who is served out-of-state.
5. Holding: Yes.
6. Reasoning: Service is adequate so far as due process is concerned if
it is reasonably calculated to give the defendant actual notice of the
proceedings and an opportunity to be heard. The authority of a state
over one of its citizens is not terminated by the mere fact of his
absence from the state. The stae which accords him privileges and
affords protection to him and his property by virtue of his domicile may
also exact reciprocal duties.
7. Notes: A defendant can subject himself to personal jurisdiction by
consent, either before the commencement of the action (perhaps as a
contractual term), or after the commencement of the action (by accepting
or waiving service when he otherwise would not have been subject to
service; or by making a general appearance at the action).
** Hess v. Pawloski, (1927)
2. Facts: Mass. had a statute that made the operation of a motor vehicle
by a non-resident an implied consent to have the Mass. state registrar
of motor vehicles become his agent for the purpose of service of process
in any action arising from any accident involving the non-resident
motorist while in Mass. D. was a non-resident, and got in an accident
while driving in Mass.
3. Procedural Posture: The D. challenged the service of process statute
as a violation of due process.
4. Issue: Whether the Mass. statute that provides for implied agency for
the purpose of service of process on non-resident motorists was a
violation of due process.
5. Holding: No.
6. Reasoning: The state has the police power to regulate the use of its
highways. Automobiles are very dangerous, even when operated carefully,
and the state had the inherent power to regulate the non-motorist's
access to their highways. As such, it has the power to enact such a
statute that makes operation of the motor vehicle an implied consent to
service. It does not discriminate against non-residents, but rather
brings them on the same footing as residents. The statute also requires
service by mail (for notice), and provides for adequate time to be
heard. Thus, the only difference here is the difference between formal
and implied appointment of an in-state agent. This difference is not
substantial enough to be a violation of due process.
** Flexner v. Farson, (1919)
2. Facts: Flexner contracted to buy bonds from Farson, who was a
partnership (not a corporation). The partnership's in-state agent (who
was also named Flexner) handled the sale. The contract was breached. The
partners were domiciled out of state, and were out of state residents. A
local statute provided that service may be made against an out of state
partnership by serving their agent in state.
3. Procedural Posture: Flexner served the partnership's in-state agent
in the county where the contract was made. The defendant defaulted, and
Flexner obtained a judgment, which he sued upon in Illinios to enforce
against Farson, claiming that the contract had the implied consent that
the partnership would be subject to the service of process statute.
Farson defended on the grounds of lack of jurisdiction over the person
(lack of nexus). The state court held the judgment void.
4. Issue: Whether service of process under the Kentucky statute was
5. Holding: No.
6. Reasoning: The implied consent doctrine is only applicable if the
state has the right to exclude the entity altogether, and thus could
establish the service of process obligation as a condition to letting
the entity in to do business. That analogy does not apply here to a
partnership, because the state has no power to exclude the defendant
partnership (under the privileges and immunities clause of Article IV,
section 2). As such, the judgment is void for lack of nexus required for
jurisdiction over the defendant's person.
7. Notes: However, in Doherty v. Goodman, on similar facts, the Supreme
Court held that service was proper, given that service was made on the
in-state agent, and that the selling of securities was an exceptional
business which the state subjects to special regulation. The court
reasoned that this was not a violation of the privileges and immunities
clause because neither Iowa citizens, nor out of state citizens, could
freely engage in the business of selling securities. The statute was
constitutional as long as it provided for reasonable notice (by mailing
or similar). Also, in Adam v. Saenger, the Supreme Court held that a
plaintiff who brings an action against a defendant in a state court
subjects himself to personal jurisdiction of that court with respect to
any counterclaim (whether or not compulsory). The court reasoned that
the plaintiff, in voluntarily demanding relief from the court, may
reasonably be treated as being subject to that court's jursidiction for
all purposes for which justice to the defendant requires his presence.
** Int'l Shoe Co. v. Washington, (1945)
2. Facts: The shoe company is a Delaware corporation, with its principle
place of business in Missiouri. It "employs" several salesmen in the
state of Washington, who solicit orders for shoes, which are in turn
shipped into Washington. The salesman is paid a commission. Washington
had an unemployment compensation statute which required employers doing
business in the state to pay a certain percentage into the fund on a
per-employee basis. The shoe company did not pay this amount, claiming
that the tax was a burden on interstate commerce, and a violation of the
3. Procedural Posture: The state served notice on a salesman who resided
in Washington, and also mailed a copy to the shoe company at their
Missouri address [as required by the statute]. The shoe company appealed
all the way to the Supreme Court, with each lower court finding that
they had sufficient activity in the state to be considered amenable to
4. Issue: Whether the shoe company has sufficient activity in the state
of Washington to render itself amenable to suit there.
5. Holding: Yes.
6. Majority Reasoning: First, the tax is not a burden on interstate
commerce because the states have power under federal statute to make
foreign corporations doing business in the state subject to the
unemployment tax. In order to determine whether a business has
sufficient in-state presence for nexus purposes to satisfy the due
process clause, an "estimate of the inconveniences" which would result
to the corporation from a trial away from its "home" or principle place
of business is relevant. Whether due process is satisfied must depend on
the quality and nature of the activity in relation to the fair and
orderly administration of the laws which it was the purpose of the due
process clause to insure. But to the extent a corporation exercises the
privileges of conducting activities within a state, it enjoys the
protection of the laws of that state, and the right to bring actions in
a court of that state. This gives rise to obligations at least as far as
they arise out of the business conducted in the state. Thus, a procedure
which requires the corporation to respond to a suit brought to enforce
these obligations is not undue. Here, the activity was sufficient
because it extended over a long time and was systematic, resulting in a
large amount of product being shipped into the state.
7. Concurrence Reasoning: [Black] felt that the appeal should have been
dismissed as raising no new issues. The majority's new constitutionality
test required a vague and unprincipled balancing of "reasonableness"
** Perkins v. Benguet Consolidated Mining Co., (1952)
2. Facts: The mining company had a mine in the P.I. which was occupied
by the Japanese during WWII. During this occupation, the president of
the company returned to his home in Ohio to conduct business on behalf
of the company. Perkins' husband was given the stock and dividends of
the company when they were divorced. Perkins is a non-resident of Ohio.
3. Procedural Posture: Perkins brought an in personam action in the Ohio
state courts against the mining company to recover the value of the
stock and dividends the thought were due to her and not her husband.
This cause of action did not arise in Ohio, and does not concern the
business being performed in Ohio. Personal service on the president of
the company was made in Ohio. The lower courts quashed the service of
the mining company, not giving a reason. The court of appeals affirmed,
as did the Supreme Court of Ohio. Perkins argues that the federal due
process compels the state to open its courts to her action.
4. Issue: Whether the 14th amendment due process clause compels a state
court to exercise jurisdiction over a foreign corporation which has
sufficient nexus with the state.
5. Holding: No.
6. Reasoning: In accordance with Int'l Shoe, the amount and kind of
activities which must be carried on by the foreign corporation in the
state of the forum so as to make it reasonable and just to subject the
corporation to the jurisdiction of that state are to be determined in
each case. Here, there is sufficient nexus to permit Ohio to exercise
jurisdiction, where the cause of action arose from activities entirely
distinct from its activities in Ohio. However, it would not violate due
process for Ohio to either take or decline jurisdiction of the
** Gray v. American Radiator & Standard Sanitary Corp., (1961)
2. Facts: P. was injured by an exploding water heater in Illinois. The
water heater was assembled in Penn. by D., and the valve that exploded
was manufactured in Ohio by Titan. The water heater was sold in
Illinois. Titan had no contacts in the state of Illinois except that its
valves were used on water heaters sold to customers there.
3. Procedural Posture: D. cross-claimed against Titan for
indemnification under warranties. Titan moved to dismiss the claim and
the cross-claim for lack of jurisdiction over the person. The trial
court granted the motion, and the P. appeals.
4. Issue: 1. Whether a tortious act was committed in Illinois within the
meaning of the Illinois jurisdictional (long-arm) statute, and 2.
whether the statute, if so constructed, was consistent with due process.
5. Holding: Yes.
6. Reasoning: Although the valve was manufactured out of state, a
"tortious act" plainly refers to conduct that results in an injury, thus
being inseparable from the injury itself. Thus, the place of the wrong
is the last place where an event takes place which is necessary to
render the actor liable. Here, that was the explosion which occurred in
Illinois. Also, since the statute of limitations is measured from the
time of the injury, then it makes sense to fix the place of the tortious
act in the place of the injury. There is legislative history indicating
that the legislature meant to go to the limits of the -->due processcess
clause. With regard to due process, it is a reasonable inference that
Titan's valves are frequently and substantially used in the state of
Illinois. As such, there is sufficient basis for jurisdiction.
7. Notes: In Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc.,
(1965), the New York court of Appeal rejected the view that a "tortious
act" under the New York long-arm statute could include acts committed
outside the state which resulted in injury within the state. However,
the next year, the legislature expressly amended the statute to provide
for such jurisdiction, indicating that they wished to go to the limits
of the due processe process clause. Note that due process still requires that the
cause of action must arise from the conduct, and that the person has
some regular activity in the state.
** Cook Associates v. Lexington United Corp., (1981)
2. Facts: Cook is a headhunting firm that provided a recruiting lead to
Lexington. The applicant declined the offer. There was a statement in
the letter from Cook to Lexington recommending the applicant that Cook
would be paid 20% of the applicant's salary if he was hired within 2
years. The agent at Cook then left and formed her own headhunting
agency, where she recommended the applicant to Lexington for a different
job, and he accepted the offer. Cook is an Illinois corporation.
Lexington is a Delaware corporation not licensed to do business in
Illinois, and with its principle place of business in St. Louis, Mo.
Lexington has attended three trade shows in Illinois, where it solicited
$50,000 of business.
3. Procedural Posture: Cook filed suit in Illinois for the payment of
the headhunting fee. Lexington made a special appearance to object to in
personam jurisdiction, but its motion to quash service was denied. The
court of appeals reversed. Lexington argues that the requirements of the
statute were not satisfied because the action did not arise from "the
transaction of any business" by Lexington in Illinois. Cook argues that
the long-arm statute does not prohibit the acquiring of jurisdiction
according to the "doing-business" doctrine, and that Lexington had
sufficient "minimum contacts" to afford basis under due process.
4. Issue: Whether there was sufficient basis under the Illinois long-arm
statute for in personam jurisdiction over Lexington.
5. Holding: No.
6. Reasoning: The due process clause merely represents the outer limits
of a state's jurisdictional boundaries. However, the state statute is to
be construed more ndue processas not to be dependent on changing
concepts of due process. Here, Lexington did not transact business in
Illinois because no contract was formed when the applicant refused the
offer [really?]. The long-arm statute and the doing business doctrines
are not to be equated with the mere "minimum contacts" standard of due
process. Lexington also did not do sufficient business in Illinois to
satisfy the doing business doctrine.
** Mullane v. Central Hanover Bank & Trust Co., (1950)
2. Facts: New York has a common trust fund law that allows the principle
from several different trusts to be pooled and managed as a unit [like
mutual funds]. The Bank has such a fund, of which the assets are great,
and of which some of the beneficiaries are clearly non-residents of the
state of New York.
3. Procedural Posture: The Bank filed a petition with the court to
"settle" the account of the common trust fund [foreclosing any
beneficiary from bringing an action for negligent management of the
common fund for the period covered by the settlement, i.e. providing
finality]. In compliance with state law, the Bank published notice of
the action in the newspaper. It did not attempt to make any personal
service of any beneficiaries, either local or non-resident. Counsel for
the beneficiaries made a special appearance to object to in personam
jurisdiction, which was denied, and affirmed.
4. Issue: Whether the court had jurisdiction to settle the account even
though many beneficiaries were non-residents who were not personally
5. Holding: Yes.
6. Reasoning: This case has both an in rem nature [in that the rights to
the trust are involved], as well as an in personam nature [in that the
right of the beneficiary to sue is involved]. However, regardless of the
technical nature of the action, the 14th amendment due process
requirements do not depend on the classification of the action being in
rem or in personam. The interest of the state in providing means to
close trusts that exist only under state law is so rooted in custom as
to establish beyond a doubt the right of its courts to determine the
interests of all claimants, resident or non-resident, provided its
procedure accords full opportunity to appear and be heard.
** Hanson v. Denckla, (1958)
2. Facts: Mrs. Donner purported to create a trust in Delaware naming
Wilmington Trust Co., a Delaware corporation, as trustee. Mrs. Donner
reserved a life estate in the corpus of the trust, and the power to
appoint the remainder either by will or by inter vivos instrument. Mrs.
Donner then executed a will which had a residuary clause, and also
appointed the remainder to her grandchildren, Donner Hanson and Joseph
Winsor who were the children of her executrix daughter, Mrs. Hanson.
3. Procedural Posture: At Mrs. Donner's death, her other daughters Mrs.
Denckla and Mrs. Stewart, both Florida residents, brought a declaratory
action in Florida to determine who was entitled to the trust. Both
Donner Hanson and Joseph Winsor were personally served, and the Trust
Co. was notified by regular mail and by publication in a local
newspaper. The trust co. did not make an appearance, and the Florida
court found that the trust was invalid, and so the corpus of the trust
passed by the will to Mrs. Denckla and Mrs. Stewart. Meanwhile, Mrs.
Hanson was bringing a declaratory action in Delaware. All of the non-
resident defendants (who were the same as in the other action) were
notified by registered mail. After the Florida decree, Mrs. Stewart
unsuccessfully urged res judicata The Delaware court refused to give the
Florida judgment full faith and credit, and instead came to the opposite
conclusion that the trust funds passed pursuant to the appointment.
Both state supreme courts affirmed their respective lower court rulings.
4. Issue: 1. Whether the Florida court erred in holding that it had
jurisdiction over the non resident defendants, and 2. Whether the
Delaware court erred in refusing full faith and credit to the Florida
5. Holding: 1. Yes. 2. No.
6. Majority Reasoning: The Florida court did not have jursidiction by
way of in rem jurisdiction because of two reasons: 1. the property (the
trust) was not located in the state of Florida, and 2. the will,
although drafted in Florida and probated there, was an instrument under
which the property only might pass, not under which it was sure to pass.
In fact, that was the very issue. Also, the decedent's domicle was not
sufficient basis for in rem jurisdiction because the locus of a trust is
not necessarily the locus of the trustor. In regards to in personam
jurisdiction, the Trust Co. did not have sufficient "minimal contacts"
within Florida to sustain jursidiction. No business was conducted there,
and no assets were there. The unilateral execution of assignment of the
trust by the decedent may have been sufficient to establish a choice of
law rule, but not sufficient to establish personal jurisdiction. It is
the validity of the trust itself and not of the appointment that is in
issue. The Turst co. never purposefully availed itself of the privilege
of conducting activities within the state of Florida, thus invoking the
protection of its laws, and thus does not have an obligation to submit
itself to personal jurisdiction there. Since the Florida law requires
personal jurisdiction over the trust company to adjudicate the dispute,
and it does not have it, the Florida judgment must be reversed.
7. Dissent Reasoning: The appointment was made in Florida. The litigants
lived in Florida. Thus, the Florida court has a sufficient interest and
the power to determine whether the appointment was effectual.
** Shaffer v. Heitner, (1977)
2. Facts: Hietner is a stockholder of Greyhound Lines, and Shaffer is an
officer of Greyhound who has a large amount of stock. Apparently,
Greyhound lost an anti-trust suit and were held liable for a large
criminal contempt judgment. Greyhound is a Delaware corporation with its
principle place of business in Arizona. None of its officers are
residents of Delaware. Delaware has a statute that provides that stock
of Delaware corporations is located in Delaware. Delaware also has a
quasi-in rem jurisdictional statute that allows a plaintiff to attach
in-state property in order to compel a general appearance by the
3. Procedural Posture: Heitner brought a stockholder derivative suit in
Delaware state court, and seized a large amount of stock of Greyhound
belonging to the defendant officers. All of the D. officers were served
by certified mail. D.s made a special appearance to quash service and
free their assets, but the trial court denied. The Delaware state
supreme court affirmed jursidiction, holding that the "minimum contacts"
requirement of Int'l Shoe did not apply because they were exercising
quasi in-rem jurisdiction and not in personam jurisdiction.
4. Issue: Whether the standard of fairness and substantial justice set
forth in Int'l Shoe should be held to govern quasi in rem actions as
well as in personam actions.
5. P. Argument: The "minimum contacts" requirement of Int'l Shoe did not
apply because they were exercising quasi in-rem jurisdiction and not in
personam jurisdiction. Even if it does, the D.'s positions as officers
in a Delaware corporation provide sufficient minimum contacts with
Delaware to give in personam jurisdiction. The state's interest in
supervision of its corporations is strong.
6. D. Argument: The Delaware sequestration statute as applied in this
case violates due process because it permits the state courts to
exercise jurisdiction despite the absence of sufficient contacts between
the defendants, the litigation and the state of Delaware.
7. Holding: Yes.
8. Majority Reasoning: Pennoyer's territorial boundary test, which
provided for quasi in rem jurisdiction solely due to the presence of
property in the state (because it only "indirectly" affected the rights
of the person), is outmoded. It also leads to arguments over whether the
action is one in personam or quasi in rem. Since an in rem or quasi in
rem action is really just a proceeding against the rights of a person,
and therefore against the person himself, it should also be subject to
the Int'l Shoe minimum contacts standard. Of course, the presence of
property in the state may bear on the existence of minimum contacts,
especially where the underlying claim arises from the existence of the
property. Thus, many in rem actions and quasi in rem type 1 actions
would not be affected by requiring minimum contacts. However, for quasi
in rem type 2 actions, such as that in Harris v. Balk, the presence of
property alone would not support jurisdiction absent other ties to the
state. This does not allow a defendant to avoid payment of his
obligations by moving his property out of state, because the P. could
still obtain a judgment in another state and it would be valid in the
state where D.'s property lies under the Full Faith and Credit clause.
Lastly, these officers do not have minimum contacts with Delaware
because they have never been there and only own property there because
of the statute. They can not be said to have implied consent to submit
to in personam jurisdiction. The state does not acquire jursidiction
over a non-resident just because it is the center of gravity of the
litigation. Any interests that Delaware has in controlling its
corporations are only of concern for choice of law, not for
determination of in personam jurisdiction.
9. Concurrence Reasoning: [Stevens] One who purchases stock shares on
the open market can hardly be expected to know that he has thereby
become subject to suit in a forum remote from his residence and
unrelated to the transaction. However, there are in rem actions that
probably should not be affected by this judgment, such as those
involving real estate.
10. Dissent Reasoning: [Brennan] As a general rule, a state forum should
have the jurisdiction to adjudicate a shareholder derivative action
centering on the officers of that corporation. The strong interests of
the state should be considered when determining jurisdiction because of
the practical consideration of the strong relationship between choice of
law and jurisdiction. Furthermore, since jurisdiction can rest on out-
of-state actions that have an in-state effect (i.e. Gray v. Amer.
Radiator), the officers of a corporation should be subject to
jurisdiction in the incorporating state when they damage the corporation
by breaching fiduciary duties. Also, the officers have "invok[ed] the
benefit and protection of [Delaware's] laws."
11. Notes: 1. After the decision, the Delaware legislature passed a
statute providing that a non-resident's acceptance of a directorship in
a Delaware corporation would be deemed consent to the appointment of an
in-state agent for service of process for shareholder derivative actions
[the fiction of consent], provided registered mail notice is also given.
2. In Atkinson v. Superior Ct., the employees of various entertainment
industry companies brought an action to declare the collective
bargaining agreement made by their union, AFofM, as void. The agreement
provided that periodically, certain royalty payments should be made to a
New York trustee, instead of to them. They sued in CA state court to get
a preliminary injuction to prevent the payments to the trustee. All of
the parties were in CA, except the trustee, who was served in New York,
but made no appearance. The CA supreme court held that the court had
jurisdiction to adjudicate the trustee's right to receive payments under
the collective bargaining agreement. 3. In Kulko v. Superior Ct., the
supreme court held that a CA state court did not have jurisdiction over
a divorced father in New York for a child support action, even though
his wife and children were in CA, because it was not "reasonable" and
"fair" to require him to defend in CA, even though CA had a strong
interest in protecting the wife and children.
** Rush v. Savchuck, (1980)
2. Facts: Rush was the driver of a car that Savchuk was a passenger in.
Rush crashed the car in Indiana while both Rush and Savchuck were
Indiana residents. However, Indiana had a guest statute that prevented
Savchuck from suing Rush. Rush had an insurance policy with State Farm
obligating them to defend and indemnify Rush. Savchuck moved to
Minnesota where they had no guest statute, and where State Farm was
actively doing business.
3. Procedural Posture: Savchuck brought a quasi in-rem action against
Rush by garnishing the insurance policy's obligation to defend and
indemnify, under a Minnesota statute based on the Seider v. Roth theory.
Rush moved to dismiss for lack of terretorial jurisdiction. The trial
court denied the motion and the state supreme court affirmed the
existence of quasi in rem jurisdiction.
4. Issue: Whether there is sufficient nexus between Rush and the forum
state of Minnesota to get quasi in rem jurisdiction over Rush.
5. Holding: No.
6. Reasoning: This action is not really quasi in rem. In any event, a
constitutional test applies under Shaffer. Here, Rush does not have any
contacts with the state of Minnesota. Thus, it is unfair and
unreasonable to require him to defend his interests of reputation and
insurability in Minnesota.
** World-Wide Volkswagen Corp. v. Woodson, (1980)
2. Facts: P.'s purchased an Audi in New York from a local retailer. P.'s
were badly injured when the car exploded upon being hit from the rear
during a trip through Oklahoma. The local retailer and his distributor
do no business in Oklahoma. Their only connection with Oklahoma was that
they sold the car to the plaintiffs who had an accident there.
3. Procedural Posture: P.'s brought a products liability action against
all members of the manufacture and distribution chain of the car under
an Oklahoma Long Arm statute which provides for in personam jurisdiction
over a non-resident if they cause tortious injury in the state "by act
or omission outside this state" and if he "derives substantial revenue
from goods used or consumed" in the state. The defendants made a special
appearance to object to jurisdiction, but their motion was denied. The
P.'s argument was that it was foreseeable that the car would be driven
in Oklahoma (because it is mobile), and that the defendant derived
substantial revenu from cars driven in Oklahoma.
4. Issue: Whether sufficient basis exists to subject the defendants to
in personam jurisdiction in Oklahoma consistent with due process.
5. Holding: No.
6. Majority Reasoning: The minimum contacts rule of due process serves
two functions, it prevents unfair burdening of the defendant, and it
ensures that the states do not reach out beyond their authority. It must
be reasonable to subject the defendant to in personam jurisdiction in
the forum court. The burden on the defendant, the state's interests, the
plaintiff's interests, and the shared federal interest of the other
states are all relevant factors. Although the expansion of personal
jurisdiction has progressed, it has not gone so far as to apply to a
person who has no contacts with the state. Here, the defendants have
absolutely no contacts whatsoever. Mere foreseeability of injury in the
forum state is insufficient because that would in effect make every
seller amenable to suit wherever the chattel traveled, by unilater
activity, resulting in extreme unpredictability. That is not to say that
a manufacturer who delivers products into the stream of commerce with
the expectation that they will be consumed in the forum state is immune,
but that is not the case here. There was no reason to believe that the
defendants sought to receive any protection under the Oklahoma laws, or
any revenue from sales of cars used in Oklahoma.
7. Dissent Reasoning: [Brennan] The court reads Int'l Shoe too narrowly.
The state's interest is relevant, and is strong here. Also, the
inconvenience to the defendant is very small given the modern world.
Int'l Shoe should be read to allow consideration of other interests when
the unfairness (i.e. inconvenience) to the defendant is small. All of
the witnesses, the plaintiff and the underlying accident are in
Oklahoma. There can be no violation of due process if the defendant
suffers no inconvenience in defending an action that arose in the forum
state. The requirement should merely be that there are minimum contacts
between the parties, the transaction, and the forum state. There is
presently too much focus on the rights of the defendant.
** Burger King Corp. v. Rudzewicz, (1985)
2. Facts: Rudy, a Michigan citizen, negotiated a franchise agreement
with Burger King, a Florida corporation with its principle place of
business in Florida. The contract provided that Rudy would pay certain
fees, and that Florida law would apply in construing the contract. Rudy
subsequently defaulted on the contract.
3. Procedural Posture: Burger King brought a diversity action in
Florida, and served Rudy in Michigan by invoking, under Rule 4(e), a
Florida long-arm statute that provides for in personam jurisdiction for
claims arising from breach of contract in Fla. by failure to perform
acts contracted to be performed in Fla. Rudy sought unsuccessfully to
dismiss for lack of jurisdiction, and lost the suit. The court of
4. Issue: Whether there were sufficient minimum contacts for in personam
jurisdiction in Florida.
5. Holding: Yes.
6. Reasoning: The due process clause is primarily a protection of an
individual's liberty interest in not being subjected to binding
judgments in a forum to which he has no meaningful contacts. It provides
predictability and foreseeability of where the defendant will render
himself liable to suit. It does not represent a restriction on judicial
power as a matter of federalism or sovereignty [power test]. Thus, if
the claim arises out of the in-state activity, it is presumptively
reasonable for a state to reach out past its territory to exert specific
jurisdiction over a person who purposefully establishes contacts with
in-state citizens, and avails himself of the privilege of conducting
activities in that state, because the state has a manifest interest' in
providing convenient remedies for its citizens. Additionally, once it
has been established that there are minimum contacts, the court may also
consider other factors to determined whether the exercise of personal
jurisdiction would comport with fair play and substantial justice',
such as the interests of the state, the plaintiff, and the judicial
system. These considerations sometimes serve to establish jurisdiction
upon a lesser showing of minimum contacts. In this case, Rudy clearly
made purposeful contacts with the state of Florida and agreed to be
subject to Florida law concerning the contract. Thus it is not
unreasonable that he be subject to personal jurisdiction in Florida.
** Asahi Metal Industry Co. v. Superior Court, (1987)
2. Facts: A motorcyclist was injured when his back tire exploded.
3. Procedural Posture: The motorcyclist sued the Taiwanese manufacturer
of the tire, who impleaded the Japanese manufacturer of the valve stem.
The main claim settled, and Asahi objected to personal jurisdiction,
having no other contacts with California other than the Taiwanese tire
manufacturer had sold many tires which included their valve stem in
California. The California state supreme court upheld jurisdiction under
the California long arm statute and due process.
4. Issue: Whether the California state court may exercise personal
jurisdiction over the foreign corporation under these facts.
5. Holding: No.
6. Reasoning: Power over the defendant might exist because he put his
goods into the stream of commerce, knowing that they were sold in
California, and with the purpose that they be sold in California.
However, it would be unreasonable to subject the defendant to in
personam jurisdiction in California considering the severe burden to the
defendant, and the weak plaintiff and state interests in adjudicating in
California, since this was only a spinoff indemnification action from
the main suit which had already settled.
** Burnham v. Superior Court, (1990); pg. 71 Supp.,
2. Facts: Burnham and his wife separated in New Jersey, and she took the
kids to California. Burnham continued to reside in New Jersey, but made
a few visits to California for business, and to visit his children.
During one of those visits, he was served with divorce papers by his
3. Procedural Posture: Burnham made a special appearance to quash
service on the grounds of lack of personal jurisdiction due to
insufficient "minimum contacts." The California court held that physical
presence in the state combined with personal service was a sufficient
basis for jurisdiction, regardless of the level of contacts Burnham had
with the state.
4. Issue: Whether the "minimum contacts" requirement of Int'l Shoe
precludes a state from acquiring in personam jurisdiction over a non-
resident defendant who is personally served while transiently physically
present within the state.
5. Holding: No.
6. Majority Reasoning: [Scalia] Int'l Shoe merely served to cast aside
the fictions of consent and presence of a non-present non-resident,
holding that due process does not necessarily require the states to
adhere to the unbending terretorial limits on jurisdiction as set forth
in Pennoyer. "Minimum contacts" may take the place of physical presence.
However, it is illogical to assume that now physical presence is not
sufficient. It is traditional due process