What is Procedure?

3 Aims of Civil Procedure:

1. Disclose the real dispute in a minimum amount of time and with the least expense- avoid wasting time on questions the parties agree upon.

2. Confine the parties to the real dispute. 3. Give neither side a forensic advantage in persuading the court.

Some fundamental Relationships:

Federal Courts: §1330-1369- Lay out limited Jurisdiction of Federal Courts. §1291-92 set out the jurisdiction for the Courts of Appeals. §1254 sets out Supreme Court writ of certiorari system.

Federal Courts in relation to State Courts: §1257 The Supreme Court may grant certiorari to a case coming from the

highest court of a state if is relates to a US statute, a statute of a state that conflicts with the constitution, or a constitutional right.

§1441-53 Concern the removal of cases from state courts to federal courts.

There are also federal courts created by Congress under their Article I powers. Decisions from these courts can be appealed to Article III courts.

Sibbach v. Wilson & Co. (1941)Federal Rule of Civ. Pro. 35, allowing a federal court to order the physical examination of a party and Rule 37, allowing for the arrest of a party in violation of a rule, regulate procedure and thus are within the power of the Supreme Court to promulgate.

The Rules Enabling Act (REA) created the Federal Rules of Civil Procedure. “Said rules shall neither abridge, enlarge, nor modify the substantive rights

of any litigant. Special note to preserve 7th amendment right to trial by jury. Basically, the Supreme Court, under the REA, can enact procedural rules as

long as they don’t infringe on legal rights. Roberts, writing for the majority writes that all rules dealing with procedure

are valid even if they conflict with substantive rights, the exception is right to jury trial.

Dissent: Rule 35 is an intrusion into a historic immunity of privacy of person. Contempt- disregard or disobediance of public authority, such as a court

order. “Contemors ‘carry the keys of their prison in their own pockets’” In the federal system, the first level of appeal is a matter of right, not judicial

discretion. Most common way to SCOTUS Writ of Certiorari- a petition for a writ of

certiorari will be granted only for compelling reasons.

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Quick Legal History behind REA

Courts of Law and Equityo Conflict over jurisdictiono Eventually decide that equity will issue remedy only when law courts

are inadequate. Admiralty

o Questions on maritime commerceo Problems in navigable waterso Lawyers here called proctors & complaint here called libel

Federal Ruleso Revolution of 1938 unites law and equityo Went with the jury trial precedent established by the courts of law o 1966- same thing for Admiralty they had done for Equity, though

admiralty is especially complicated. Preceding the Federal Rules there were 2 pleading systems

o Common Law pleadingo Code Pleading (1st used in New York)

The Writ System

In the old writ system, the complicated pleadings were supposed to narrow the issue down to the essential legal question.

a. You got your writb. You filed your declarationc. Defendant had a choice to file

i. A Dilatory Pleaii. A Demurrer

1. General Demurrer2. Question of Law

iii. A Plea in Bar1. Confessor and Avoidance- replication2. Traverse- deny 1 question of fact- Question of Fact

d. Traverse or Demurreri. Case is joined & pleadings are closed

e. Replication- Plaintiff can file a rejoinder- Question of Law to be heard by judge in Westminster

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Pleadings I- The Complaint

Rule 3. A plaintiff commences an action by filing a complaint with the court.

Rule 8(a)- A claim shall contain (2) a short and plain statement of the claim showing that the pleader is entitled to relief.

Rule 8(d)(2)- A party may set out 2 or more statements of a claim or defense alternatively or hypothetically.

Rule 9- Pleading Special Matters (b) Fraud or Mistake; Conditions of the Mind- in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Conditions of a persons mind may be alleged generally.

Rule 11- Presenting a pleading constitutes a certification that there is good grounds to support it and that it is not interposed for improper purposes.

From 11- Form for the Complaint of Negligence.

Sierocinski v. E.I. Du Pont De Nemours & Co. (1939)A claim may not be dismissed where negligence is alleged, even though the plaintiff has failed to allege the specific negligent act.

was injured when dynamite exploded while crimping. He sued alleging Πnegligence.

∆ motioned for a more definite statement under Rule 12(e). After amendment, Trial Court dismissed plaintiff’s claim entirely. Court of Appeals reverses. “A plaintiff need not plead evidence.” If the defendant needs further information to prepare its defense, it can

obtain it by interrogatories (Rule 33). The issue will get sorted out in discovery.

The harder you make it to get from pleading to discovery, the more you limit access to the law. Contrast this case with Iqbal (2009). In that case, the judges used Twombly to hold that now, in order for a plaintiff’s complaint to be heard, the complaint needs a high level of plausibility. And it needs this plausibility before discovery. What’s more, the court doesn’t limit it’s rule to specific cases against high-ranking government officials, but holds out a sweeping rule that all pleadings must now be plausible.

Conley v. Gibson (1957)-

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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 relief. This is the high-water mark of the liberal view on pleading. African-Americans suing unions for not representing them. You don’t have to allege the law here, only the facts.

Kirksey v. R.J. Reynolds Tobacco Co (1999)What plaintiff is required to do at the initial pleading stage is assert a colorable claim that has some factual support. To require more would be inconsistent with the ‘notice pleading’

philosophy of the civil rules. Remember- Rule 8(a)(2) is about the formal aspects of a pleading, not its

substance. The rule does not address a complaint’s legal merit. in Π Kirksey was faulted for refusing to respond to the ∆’s motion to

dismiss, not inadequacy of complaint.

Murphy v. Cuomo (1996)- Police and Pepperspray conspiracy. As no reasonable jury could find that the defendant was involved in the

situation, ∆’s motion for summary judgment was granted. Because ’s counsel had πfailed to make a reasonable inquiry into the legal viability of the complaint and because counsel knew when he signed the complaint that it had no basis in fact for it’s allegations, counsel was subject to Rule 11 sanctions.

Chambers v. NASCO, Inc. A federal court sitting in diversity has the inherent power to impose a sanction of attorney’s fees for bad-faith conduct.

Only pleadings are finable under Rule 11. Chambers. Court retains inherent power to impose a fine, even though it is not

broad and imperial, they may use the power to fine in certain circumstances. Inherent powers must be exercised with restraint and discretion.

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Pleadings II- Defenses and Objections

Rules 8(b) and (d), 12

Rule 7(a)

Coleman v. Frierson- Coleman, an undercover investigator, was fired in a cover-up attempt. Named city as ∆. City was intentionally delinquent with discovery so the judge imposed a default judgment concerning liability. ∆ appealed. Holding: A default judgment is the equivalent of a trial on the merits, and evidence supporting affirmative defenses following the entry of a default is irrelevant.

Rule 12(e)

Drewett v. Aetna Casualty & Surety Co. – ’s request relief for their attorney’s fees. π ∆ motions to strike under Rule 12(f). Holding: A motion to strike a demand for attorney’s fees may not be granted under Rule 12(f) but it may be granted under Rule 12(b)(6) for failure to state a claim.

12(f) is for an insufficient defense 12(f) is also for immaterial or scandalous allegations

Rule 15(a)

Rule 8(c)- Nineteen Affirmative Defenses (list not exhaustive)

1) Plaintiff Complaint2) Defendant has two options

a. Motion under 12(b)i. Subject Matter Jurisdiction

ii. Personal Jurisdictioniii. Improper Venueiv. Insufficient Processv. Insufficient Service of Process

vi. Failure to state a claim upon which relief can be grantedb. Answer

i. Admit A,B,C but also D

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1. Plaintiff thinks D is bogus. Files 2 motions in one Motion to strike under 12 (F) and 12 (C) Motion for Judgment on the Pleadings because ∆ actually admitted to everything. The question- is there anything left to try? In this case, NO, the ∆ admitted everything.

c. 12(h)- when some defenses are waived and preserved.d. 12(b) (2), (3), (4), (5)- if you don’t claim these defenses right away,

you waive them entirely. We’ll call them COLD.e. 12 (b) (1) Subject Matter Jurisdiction- you never waive your right to

move for lack of subject matter jurisdiction. We’ll call this HOT. f. Let’s suppose instead on answering, you make a motion. You move

under 12 (B)(2)- personal jurisdiction- the motion gets denied. Cold Defenses are Gone forever. If you are going to make a motion under 12 (B), you must make all your cold suit motions at the same time (2, 3, 4, 5). No more 12 (B) motions are allowed and you must answer. You may make other motions. You may raise HOT (SMJ) in your answer, and motion for judgment on the pleadings for medium 12 (b) (6)(7).

Pleadings III- Counterclaims, Replies

Rule 13-counterclaim. Rule 13(c) talks about setoff and recoupment.

Recoupment- Compulsive counterclaim

Setoff- Permissive Counterclaim for debt.

Rule 42(b)

Williams v. Robinson- A cross-defendant must assert, at the time that he answers all claims against the cross-complaint that arise out of the same transaction that was the subject matter of the cross-complaint, and his failure to then assert those claims bars him forever from doing so.

Rule 18(a)

Rules 7(a) and 12(a)

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Azada v. Carson- If the statute of limitations has not run on the set-off or counterclaim at the time the action is filed, it will not be barred, even though the statute may have run by the time the couterclaim or set-off is raised.

28 USC §2415

Gunder v. New York Times Co. – In a libel case, moved to strike all ∆’s affirmative πdefenses as irrelevant. The court looked at the answer & the original complaint. Holding: The complaint must state a valid cause of action before a motion to strike will be granted. The sufficiency of all pleadings is tested by the motion.

A bad answer is good enough for a bad complaint.

Watertown Milk Producers v. Van Camp Packing- A demurrer cannot be granted after the ∆ has already answered (he has filled in the gaps for ). π

Pleadings IV- Amendments, relating of pleadings to proof

Rule 15- Amended and Supplemental Pleadings

Beeck v. Aquaslide N Dive Corp- A motion to amend the pleadings should be granted unless the opposing party can show prejudice.

Blair v. Durham- An amendment which arises out of the same transaction as the original complaint, will not be barred by the statute of limitations.

Relating Back Rule 15 (c)

Variance of pleading and evidence.

Manning v. Loew- Where the evidence at trial does not comport with the essential elements of the plaintiff’s declaration, there is a variance and a directed verdict may be proper.

Spangler v. Pugh- The half-cent difference on pleading and check.

Wasik v. Borg (& Ford) (1970) - was rear-ended by ∆. ∆π  impleades Ford under Rule 14. Where a judgment is rendered solely against the cross-complaint of a party, it will be liable directly to the plaintiff if it had knowledge of its possible liability and it know it would be held directly liable.

Rule 15(b)(2)- If both sides consent to litigating the issues, the issue must be treated in all respects as raised in the pleadings.

Rule 14(a)(3)- can file a direct claim against impleaded ∆ as long as it concerns πthe original transaction and occurrence.

Robbins v. Jordan (1950)- This is a medical malpractice case dealing with the expert witness rule. Granting leave to amend in this case would have been prejudicial to ∆ doctor so the trial court did not give leave to amend. Court of πappeals said, “The proper procedure would have been [to allow the to amend and]π

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to grant the ∆ a continuance in order to meet the new evidence.” The court should freely grant amendments to the pleadings so as to conform them to proof adduced at trial where the other party will not be unduly prejudiced or surprised.

Amendments cannot be granted at a time it would be prejudicial to the other party.

A continuation may be granted.

Cox v. Fremont County Public Building Authority (1969)- A final pre-trial order fixed the issues. The court says it’s one thing to amend the issues in the pleadings all the way up to the trial, but once it’s set into a pretrial order it cannot be amended further. The value of efficiency here outweighs the value of fairness.

A pre-trial order can fix the pleadings.

Burlington Transp. Co v. Josephson- Special damages must be specifically pleaded in order to recover for them.

The distinction between special and general damages and the necessity of pleading special damages is well settled.

Special damages are the natural but not necessary consequences of ∆’s action.

Rule 9(g)- Pleading Special Damages

Niedland v. United States- Man hit by a post office vehicle is injured. Man turns out to be ballet instructor who must hire a substitute to fill-in for him. Holding: Hiring a substitute is a special damage; to recover for this special damages it should have been pleaded.

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Pleadings V- Signing and Certification

Verification of Pleadings- Rule 11(a), 23.1, 27(a), 65(b)

Surowitz v. Hilton Hotels Corp.- The party verifying a complaint as required by Rule 23.1 is not required to verify the complaint on the basis of her own personal knowledge if she has been advised by a competent individual that the allegations of the complaint are true.

Certification of Pleadings

Heimbaugh v. City & County of San Francisco- Federal courts may dismiss actions which are entirely unwarranted by existing law or a good faith argument for modification or extension of existing law.

fined $50.Π

Nitchze v. Williams- Prisoner’s pro se motion. 12(b)(6) is not a measure of frivolousness in the judge’s opinion. §1915, also dismissal for failure to state claim is similar to Rule 12(b)(6) but gives courts the power to screen prisoners complaints against the government.

Denton v. Hernandez- Prisoners complaint that he was abused in prison. A court may dismiss a claim that is clearly baseless as factually frivolous- fanciful, fantastic, and delusional. Courts cannot dismiss improbable allegations without any factual development.

§1915(d)- courts decisions should be reviewed only for abuse of discretion, not de novo.

Chambers v. NASCO, Inc. – A federal court sitting in diversity has the inherent power to impose a sanction of attorney’s fees for bad-faith conduct. Only pleading are covered by Rule 11, which means the court has to rely on other means of sanctioning.

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Rule 37- Sanction by Contempt.

A LOOK AT A SUIT FROM START TO FINISH PLEADING

Iqbal line – has narrowed what you can plead 12(b)(6), 12(c) partial, 12(e), 12(f) – narrow the pleadings even more during

or after pleading PRETRIAL

Discovery Old: ReSmipa regarding the subject matter in pending action –pre 2000 amendments New: ReCad claims and defenses – NARROWS

Pretrial conferences: Judges have become more involved in case management Rule 16(a) – another way to narrow

Summary judgment Rule 56 – narrow, technically all or nothing 56(e)(1) – can pick and choose

Final Pretrial conference Rule 16(e) – give final pretrial order Motion in-limine – exclude evidence – part of final PTO

TRIAL Motion for JMOL at the end of π’s case

Has not proven something essential to the case Now called JMOL (Rule 50(a)) Reasonable jury would not have enough evidence to decide You haven’t proven what you said you would

Motion for JMOL at end of all evidence – at end of ∆’s case Partial judgment can narrow the issue even more

Must make this motion to be able to renew it under 50(b) You haven’t proven what you said you would

POST TRIAL 28 days to ask for a new trial

Rule 50(b) – JMOL – renewal of motionYou need to have made the motion before the jury ever gets it Rule 59-New Trial

AMENDMENTS Zone I- Pleadings Stage

Amendment (once) as a matter of course Rule 15(a)(1)

Zone II- Discovery Rule 15(a)(2) – freely given as justice so requires

Zone III - Trial15(b) – Amendments during and after trial Relation back – 15(c)

Amendment relates back to the original filing date of the complaint Affects the statute of limitations

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Can cure possible prejudice by allowing a continuance – 15(b)(2) Easier to think of it as “don’t want you to lose your whole case because you had a bad theory at the beginning”

Pretrial (I)—disclosure and discovery; pretrial conference

For Discovery, the 1938 Rules changed everything. They make the development of cases more rational by preventing trial by surprise. The 1938 rules also gave private people investigative power into corporations.

In the 1980s, a concern grew that people were abusing the rules of discovery and the rules were amended to become more complication and stringent.

Rule 26(b)(1)- Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claims or defenses.

Rule 26(f) Pretrial Conference- then 3 layers of Automatic Discovery. Initial Disclosure within 14 days Expert Testimony 90 days before trial A party must disclose and file witnesses 30 days before trial

Rule 26 used to say ReSMIPA (subject matter in the pending action). This was seen as a fairly broad sphere of discovery that goes well beyond the pleadings.

Not Allowed: “Privileged”- attorney/client, husband/wife, preit/patient “Work Product” (26(b)(3))- information gathered in preparation

for a potential lawsuit. o An exception here is ‘Experts’ (26(b)(4)) who are usually

prepped by attorneys in preparation for trial, so they count as work product. If witnesses, you must disclose them. If advisors, they are priviledged.

Allowed: Used to have- RCTODAE- Reasonably calculated to lead to the

admission of discoverable evidence. BUT NOW it has been cut down to ReC&D- Relevant to Claims and

Defenses.

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You can ask the court to allow you to obtain ReSMIPA, but the court usually doesn’t like granting those orders.

Automatic Disclosure 26(a): Information you would like yourself if you were the other side. Supplemental disclosures- if you figure out later that you need it.

Limitations- By order, the court may alter the limits in these rules (26(b)(2)). Rule 29 allows you to stipulate to anything that can change some

of the rules. Rule 30(a)(1)- Interrogatories may have a maximum of 30

subparts. Time

Static Time- Respond with your information and knowledge at the time. Dynamic Time- According to Rule 26(e), you have an obligation to

supplement when you find our something that contradicts or overrules what you said before.

Pre-Trial Conference- Rule 26(f) Connected to Rule 16(b) about scheduling. You have a duty within a certain time frame to come up with a discovery

plan- they want you to play nice. You can be sanctioned for this breach.

Rules for DiscoveryRule 30- Deposition on Oral Examination

Party Non-Party (Rule 45)

o Serve a subpoena on themo Can apply for a protective order

Corporation Party and Non-Party- Rule 30(b)(6)o They must choose a person to sendo Generally they send someone with very little knowledge.

Rule 31- Deposition on Written Examination Not often used Cheap Party Non-Party (Rule 45)

o Serve a subpoena on themo Can apply for a protective order

Corporation Party and Non-PartyRemaining Rules are only for PartiesRule 33- Interrogatories

No more than 25 unless you get leave for more than that Must be a question of fact Can ask about the question of law to a fact- mixed question of law and

fact Cannot ask about a legal conclusion They are not binding- you can contradict your own interrogatory.

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Rule 34- Production of Documents and ThingsRule 35- Physical/Mental ExaminationsRule 36-Requests for Admission

You are bound by the answer you give Unless you can show the court a good reason that you were mistaken.

Rule 37- Sanctions for Failure to disclose or allow discovery.

Umphres v. Shell Oil Co. (1971)- Rule 37(a) Motion to compel plaintiff to answer questions about his allegation. How do you think Shell Oil was involved in a conspiracy? A mixed question of law and fact is ok.

Brandenberg v. el al Israel Airplanes (1978)- Questions of fact relating to the legal theory of the case are ok. Under 37(a), old lady plaintiff is required to tell British airways what facts led her to bring this claim against them.

O’Brien v. International Brotherhood of Electrical Workers- Rule 33(b) only excludes those issues which are unrelated to the facts of the case.

Schlagenhauf v. Holder-

Shapiro Article: Some Problems of Discovery in an Adversary System .

Freed v. Erie Lackawanna Railway- Answers to interrogatories are not absolutely binding upon a responding party at trial.

Rule 16- Pre-trial conferences

District Courts have many conferences Court cannot compel you to do discovery- Identiseal You are now required to do disclosure

Identiseal Corps v. Positive Identification Systems- A dismissal based on a party’s refusal to follow the trial judge’s wishes expressed at the pre-trial conference can be upheld only if that refusal could be characterized as a failure to prosecute.

Court cannot order discovery

Shuber v. SS Kresge- You cannot add more witness after your case has already been heard. You have one shot to make your case.

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Pretrial (II)—judgment on pleadings; summary judgment

Rule 12(c)- Motion for Judgment on the Pleadings

Rule 56- Motion for Summary Judgment

American Airlines v. Ulen- Summary judgment should be granted when no genuine issue as to any material fact of the case exists.

In Ulen, the moved for SJ because the had lots of strong facts and the π πdefendant had no real response, no evidence.

Celotex Corp v. Catrett- Summary Judgment must be entered against a party who fails to sufficiently establish the existence of an essential element of to this case and on which he bears the burden of proof at trial.

Celotex ∆ had no affirmative evidence Celotex only needed to show there is no evidence in the record Powerful tool for defendant- don’t need to deny or disprove fact, only say

there is no evidence of the fact.

Frito-Lay, Inc. v. Willoughby- the obligations of the burden of proof cannot be met by mere allegations or denials, but instead require a showing by affirmative evidence.

Put-up or shut-up example of what happens when you don’t put up.

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2 views on Summary Judgment: Friedenthal (SJ makes justice more efficient), Stempel (SJ is not always a short-cut and is often used by powerful defendants to undermine ’s cases). π

Partial Summary Judgment Adjudication- Rule 56(a), interpreted narrowly.

Pretrial (III)—provisional remedies; settlement

Rule 64- Seizing a person or property (Attachment, Garnishment)

Rule 65- Injunctions and Restraining Orders

American Hospital Supply Corp. v. Hospital Products Limited- The grant of a preliminary injunction is proper if the harm done to the plaintiff if the injunction is denied, multiplied by the probability that that plaintiff wins, exceeds the harm done to the defendant if the injunction is granted, multiplied by the probability that the defendant wins.

This is like a modified BPL analysis. Helps judge decide if he should grant the pre-judgment attachment

Country Floors, Inc v. A Partnership Composed of C. Gepner and G. Ford

Marc Galanter The Emergence of the Judge as a Mediator in Civil Cases

Carrie Menkel-Meadow For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference.

Kothe v. Smith- A court may not sanction a party for refusing to settle.

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Jeffrey Parness Improving Judicial Settlement Conferences

Wayne Brazil Effective Lawyering in Judicially Hosted Settlement Conferences

Trial (I)—the jury

Rule 38- Right to Trial by Jury

Rule 39- Trial by Jury or by the Court

Rule 47- Selecting Juries

Rule 48- Jury must be unanimous but may be as small as 6

6th Amendment- In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed…

7th Amendment- In Suits at common law, where the value in controversy shall exceed twenty dollars, (1) the right to trial by jury shall be preserved, and (2) no fact tried by a jury shall be otherwise reexamined in any court of the united states, than according to the rules of the common law.

In Colgrove, we see a dispute between a strict interpretation of the meaning of jury and more substantive approach. The majority here looks at the substance of the

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jury. The more conservative minority in Cosgrove, finds a more rule-like definition that appeals to simplicity and tradition more than the substance of the jury. They want to limit judicial discretion here and establish a 12-person jury as the rule. The dissent in Colgrove is Majority in Dimmick.

Colgrove v. Battin- A six-man jury in civil cases satisfies the 7th Amendment. Like Russian Nesting Dolls. 5 Layers of law weigh on this issue of jury trials in MT.

1. sued because ∆ violated Duty of Due Care in Tort Law Π2. Local Rules in MT said that juries could be made of only 6 people.3. FRCP 83 said that you can have less than 12 person jury if you stipulate to it.

But did not stipulate to it. π4. REA §20725. 7th Amendment- Federal Rules allow Local Rules permitting 6 person juries.

Hand & Vidmar Jury Selection

Saks & Haste Social Psychology in Court

Claremont & Eisenberg Trial by Jury or Judge: Transcending Empiricism

Summers et. al Law: It’s Nature, Functions & Limits

Factors to Consider in Deciding Jury Size A representative cross-section (12) Group Discussion Remember facts of trial accurately Truth-Finding through Multiple Perspectives (12) Canceling Biases Resist Undue Influence of strong and opinionated people Reach a decision (6) Reaching a fair and just decision Cost effective (6)

Cases concerning Juries:

Williams v. Florida (1970) US Supreme Court sustained 6-member jury in certain criminal cases.

Ballew v. Georgia (1978)- Even with unanimity requirement a 5 person jury is too little, unconstitutional.

Apodaca v. Oregon (1972)- 12 person jury only needed 9 to render a verdict. Court finds this constitutional.

Burch v. Louisiana (1979)- In criminal case, 5 of 6 is unconstitutional. Springville v. Thomas (1897)- 12 person federal jury not unanimous,

unconstitutional. This is why Rule 48 today must be unanimous.

Additure and Remittitur

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Remittitur has to do with the size of damages and is most salient in tort cases where the jury may come back with either a small or large number.

If Jury comes back with too much for ∆, ∆ can move for new trial and claim excessiveness of damages.

Remititur is a conditional grant for new trial in which the judge thinks damages were excessive. Before sending the case back to a new trial, the judge first gives plaintiff the option to take a more reasonable amount.

If Jury comes back with too little for , can motion for new trial. π π Additure is a conditional grant for a new trial in which the judge

thinks the reward is too small. Before sending the case back to new trial, the judge tells ∆ he will deny the motion for new trial if ∆ will agree to the more reasonable amount.

Remittitur is much more common in the federal courts. The important question here is whether the court has power to do

this. 7th Amendment clause II says you can’t re-examine a jury verdict. But isn’t that exactly what the judge is doing here?

Dimick v. Schiedt (1935) This contrasts with Colgrave where the majority and minority decisions have switched places. Here, the court looked directly to the methods of courts in 1791 to find a clear rule. Courts in 1791 regularly employed remittitur to shave money off the jury awards. They did not use additur to increase awards. In this case examining the 7th Amendment Clause II, we do not need to look to the purpose of the clause, only the practice of early courts. Holding: Although the damages awarded by the jury may be inadequate, the court has no power to increase them even if the defendant agrees to such an increase.

Trial (II)—order and method of proof; burden of proof

Rule 50(a)(1)- Other side must be fully heard on the issue and the court finds that a reasonable jury would not have a legally insufficient evidentiary basis to find for the party on that issue.Rule 50(a)(2)- JMOL can be made at any time before the case is submitted to a jury. Rule 50(b)- renewed motion for JMOL can only be renewed after the jury verdict if the motion was made before the jury verdict. Rule 52(c)- Judgment on Partial Findings- This is for nonjury casesRule 59(1)(a)- A new trial may be granted after a jury trial, “for any reason which a new trial has heretofore been granted in an action at law in federal court.” Common reasons:

Judge believes error was made Wrong jury instruction Jury didn’t follow instructions (compromised verdict, clear on the

face) Newly discovered evidence- within 28 days Verdict is against the weight of the evidence

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Policy Questions: How much do we trust juries? We can’t save all that much time or money with JMOL. Is efficiency a reason

to grant JMOL?

Rule- What does the court look at to decide the motions?Rule 12(b)(6)- ComplaintRule 12(c)- All the PleadingsRule 56- All the Pleadings, Discovery, AffidavitsRule 50-

Slocum v. New York Life Insurance Co (1913) US- Old Case- The most that can be done after a verdict is a new trial, JNOV not permitted because the re-examination clause of the 7th Amendment prohibits reexamining jury verdicts.

Baltimore & Carolina Line v. Redman (1935) US- Court finds way around Slocum. In 1791 judges in nisi prius could RESERVE questions of law for judges in Westminster. The court found that if a motion for directed verdict was made and denied after the close of evidence, the judge was effectively ‘reserving’ the motion. If the jury came back with an unreasonable verdict, the judge could revive the motion for directed verdict and grant a motion n.o.v.

The legal fictions in Baltimore v. Redman show how far courts will go to preserve constitutionality and originalism. While amendments have cut the word ‘reserved’ out of Rule 50(b) altogether, you still must make the JMOL motion before the case is submitted to the jury.

Montgomery Ward & Co v. Duncan (1940) US- A motion for a new trial may be either joined with a motion for a judgment nov or made in the alternative, and the trial court’s granting of the jnov does not automatically dismiss the motion for new trial in the event the case is remanded on appeal.

How does the law say we can prove a fact? Direct Evidence (Ex. Eye witness) Circumstantial Evidence (Ex. Relevant, Permissive Inference- must be both

relevant and permisive)

For JMOL:

If party with burden of proof had no evidence, JMOL should be granted. If a little evidence exists, but not enough evidence to support a rational jury

conclusion, JMOL should still be granted. If party with burden of proof has overwhelming proof and no rational jury

could disagree, JMOL should be granted.

What do we look at when deciding a JMOL motion?

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Continuum Courts that trust judges more than juries look at all the evidence both

positive and negative to the non-moving party. Courts in the middle look at (EXAM)

o Evidence favorable to the non-moving party &o Uncontroverted, unimpeached evidence unfavorable to non-moving

party Courts that trust juries more than judges look at only evidence favorable to

non-moving party.

Pennsylvania Railroad v. Chamberlain (1933)- Widow must prove that the nineπ cars crashed into her husband and that the crash was negligent. 3 witnesses offered direct evidence there was no crash. 1 witness for provided circumstantial πevidence, but it was an uncontradicted fact that ’s witness had no way of seeing theπ accident. For a permissive inference, the inference must be more probable than not.

Holding: Where evidence is so insubstantial that if the verdict is rendered for one of the parties, the other would be entitled to a new trial, it is up to the judge to direct a verdict according to the court’s view of all the evidence. (HARD on ). π

Alabama has a scintilla rule- even if has only a tiny, tiny bit of evidence, JMOL will πbe denied.

Lavender v. Kurn (1946)- Only when there is a complete absence of probative facts to support the conclusion (only when it’s absolutely impossible for a rational jury to draw such a conclusion) can a jury verdict be reversed. (SOFT on )π

Wilkerson v. McCarthy (1949 FELA Case) US- Majority: In deciding whether there is sufficient evidence to submit a question to the jury or to grant the directed verdict (JMOL) the court needs to look at only the evidence and the reasonable inferences which support the non-moving party. Concurring: the court must look at all the evidence in the light most favorable to the non-moving party. (SOFT on )π

Trial (III)—motions at the close of the evidence; submission to jury; verdict; motions after verdict; new trial

United States Constitution Article III

Motions at the Close of All Evidence

Rule 50(a)- JMOL- a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.

Rule 50(b)- renewed motion for JMOL. Must be renewed no later than 28 days after the entry of judgment.

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Rule 50(c)- Granting the Renewed Motion and Conditional Ruling on New trial.

Rule 50(e)- Denying the JMOL; Reversal on Appeal. When examining a denial of JMOL, the appellate court has three options (1) order a new trial, (2) direct the trial court to determine whether a new trial should be granted, or (3) directly enter judgment. The appealee, probably the party who prevailed in the trail court, may request a new trial if the appeals court reverses.

Rule 59(1)(1)- A new trial motion may be granted for any reason that a new trial has been granted before in a federal court.

Rule 60(b)- Grounds for relief From Judgment Rule 60(c)- A 60(b) motion for relief from final judgment must be made

within a reasonable time/no more than one year after the entry of judgment.

O’Connor v. Pennsylvania Railroad (1963) 2nd Circuit. – The must prove the ice πhas been there for awhile, said the ice was dirty, gray, and ragged. ∆ said there was a huge weather storm that day and only a negligible amount of snowfall for the entire previous week. But negligible snowfall does not absolutely refute . πHowever, it does overwhelm the ’s testimony so as to render ’s inference π πunreasonable. Holding: A directed verdict may be granted where the physical facts are such that a reasonable jury could not find for a specific party.

Chesapeake & Ohio Railway v. Martin (1931) US- ∆ has to prove that this suit was not brought in a reasonable amount of time, so this ∆ brings in an expert. There is no counter-evidence at all. Court says ∆ has too much uncontradicted evidence for a reasonable jury to rule for . π Holding: A jury is not entirely at liberty when passing on the credibility of a witness to completely disregard his testimony when it is not open to doubt from any reasonable point of view.

Submission to Jury and Return of a Verdict

Rule 49

Rule 51

Rule 52

Motions After Verdict

Rule 50

Rule 59

Rule 41- Right to voluntary dismissal

Steinberg v. McKay- successfully sought bill of peace to enjoin ∆ from instituting πrepeated groundless actions for false arrest.

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Cooter v. Gell & Hartman- the district court could impose a Rule 11 sanction on πand lawyers for inadequate pre-filing inquiry even after court granted ’s request πfor voluntarily dismissal.

Revising Improper verdicts after all renditions

Pedrick v. Peoria & Eastern Railroad (1967) - “In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

Simblest v. Maynard (1970) 2nd Circuit. In evaluating a motion for jnov the court may consider only the evidence which is favorable to the nonmoving party and such unfavorable evidence that is against him as is uncontroverted and unimpeached.

Reeves v. Sanderson Plumbing Products, Inc. (2000) US “In entertaining a motion for JMOL, the court should review all of the evidence in the record… [and] must draw all reasonable inferences in favor of the non-moving party… that is, the court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached.”

need only make a prima facie case showing discrimination, then burden of Πproof shifts.

Service Auto Supply Co v. Harte & Co. (1976) 1st Circuit. – In order for the to πprevail here, as the party with the burden of proof, they must meet a very high standard. Courts should be very careful when granting these motions, especially because when such a motion comes at the close of all evidence, the court is only saving a few hours of the jury’s time.

Interplay of New Trial Motion with Rule 50

Marsh v. Illinois (1949) 5th Circuit- A court may, in its discretion, set aside a jury verdict and grant a new trial is it strongly disapproves of the verdict.

Neely v. Martin K. Eby Construction Co (1967) US- The Court of Appeals- consistent with the 7th Amendment, 28 USC §2106, and with the Federal rules- has power to order final judgment.

Cone v. West VA Pulp and Paper

Opportunity to be heard (procedural due process)

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Mullane v. Central Hanover Bank & Trust Co. (1950) US Notice must be reasonably calculated to apprise interested parties of the pendency of the action and afforded them an opportunity to present objections.

Mennonite Board of Missions v. Adams (1983) US Notice must be given to a mortgagee because such a mortgagee clearly has a legally protected interest in the property. A mortgagee is entitled to notice reasonably calculated to apprise him of pending a tax sale.

Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition.

PROCEDURAL DUE PROCESS

In order to satisfy this constitutional prerequisite for civil adjudication, fair notice of the pendency for the lawsuit must go to any person whose interests are so affected or to his representatives, unless waived. Fair notice must be suitably formal in tenor and informative in content.

SERVICE OF PROCESS

The trend is away from an overly strict approach, with courts now tending to ignore service irregularities where there was actual notice of suitable tenor and content.

Dobkin v. Chapman (1968) New York- In these three cases, defendants did not receive notice when they were mailed notice at their last known address, notice was published, and their insurance companies were notified. Holding: When defendants don’t receive notice because of their own actions, service can still be upheld.

PRE-JUDGMENT SEIZURES OF PROPERTY FOR SECURITY & NOTICE

Sniadach v. Family Finance Corp (1969) US- A Wisconsin procedure violates the 14th Amendment by failure to provide notice and opportunity to be heard before wage garnishment.

Fuentes v. Shevin (1972) US- FL procedure violated 14th Amendment by failure to provide notice and opportunity to be heard before deprivation of a possessory interest in property.

Mitchell v. WT Grant CO (1974) US- In a case dealing with a vendors lein where a judge grants the pre-seizure attachment, it may be constitutional to seize property without notice.

North Georgia Finishing Inc v. Di-Chem, Inc (1975) US- In Garnishment of a corporate bank account, the court held it was just like other forms of property and before it could be garnished or frozen, the ∆ was entitled to procedural due process.

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Spielman-Fond v Hanson (1974) US- The filing of a mechanics lein did not amount to the taking of a significant property interest.

Connecticut v. Doehr (1991) US- Prejudgment attachment of real estate without affording prior notice or the opportunity for a prior hearing to the individual whose property is subject to attachment does not satisfy procedural due process requirements.

SCOPE OF SNIADACH’S PROGENY

In the context of pre-judgment seizures of property for security, the general requirement that fair notice and opportunity to be heard must be given before the government unduly impairs a person’s property interest.

Weighs on seizures for assertion of In Rem and Quasi in Rem jurisdiction Impacts seizures of property to enforce judgments.

DH Overmyer Co v. Frick Co (1972) US- A cognovits clause in a note does not violate per se the 14th Amendment’s due process clause.

Customized Litigation

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Federalism (I)—introduction to selection of proper forum

3 Factors must be met to establish proper jurisdiction:1. Subject Matter Jurisdiction- Rule 12(b)(1)2. Personal Jurisdiction- Rule 12(b)(2)3. Venue- Rule 12(b)(3)- 28 USC §1391-1413

Subject Matter Jurisdiction is non-waivable. Because personal jurisdiction and venue are about fairness to the defendant, they can be waived. The federal courts must always be on guard against subject matter problems because it relates to big questions about the relationship between the federal government and the states.

Article III §2- Federal Judicial Power shall extend to nine enumerated ‘cases’ and ‘controversies’.

1. Arising under the constitution and laws of the US2. Ambassadors, Public Officials, Consuls3. Admiralty and Maritime4. US is a party5. Controversies between 2 or more states6. States and citizens of another state (Chisholm v. Georgia led to the 11th

Amendment which qualifies this clause). 7. Citizens of different states. 8. Citizens v. other states over land grants.9. States and citizens v. foreign states, citizens, or subjects.

Even though §1331 looks like clause 1 above and §1332(a)(1) looks like clause 7, they have been interpreted very differently.

§1331- Arising under

Louisville & Nashville Railroad Co v. Mottley (1908) US- Alleging an anticipated constitutional defense in the complaint does not give a federal court jurisdiction if there is no diversity of citizenship between the litigants. From this case we have the Well-Pleaded complaint rule: Arising-under jurisdiction depends on whether canπ base a complain on federal law not on whether a federal law may be raised as a defense later. The federal law must arise in the well-pleaded complaint.

§1257- Certiorari- SCOTUS only has power to review if there is a federal question involved.

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Diversity of Citizenship

28 USC §1332 (a)

1. Citizens of different states2. Citizens of a state and citizens of foreign state3. Citizens of diff. states w. citizens of foreign states as additional parties. 4. A foreign state as and citizens of a state or different states. π

(permanent resident alien shall be treated as a citizen of state of domicile).No jurisdiction between 2 foreign citizens (unless it arises under federal alien tort law).

Under Strawbridge v. Curtis it was established that in order for diversity to exist, there had to be absolute diversity of citizenship between the parties. Multiple ’s πcan be from the same state as long as the ∆(s) are from another state.

§1335 establishes minimum diversity in cases >$500. In Tashire SCOTUS upheld this section.

Baker v. Keck (1936) Illinois- Citizenship of a state is established by evidence of an intent to establish permanent or indefinite domicile in that state and may be proved despite evidence that residence was established partially in order to assert diversity of citizenship.

Citizenship is established by domicile: physical presence with the intent to remain indefinitely.

Citizenship remains in the place of last residence until established elsewhere.

Domicile of Students- An unemancipated minor normally has the same domicile as the parents, but the student who is emancipated or who is not a minor may acquire a domicile of choice.

Domicile of Wives- today, a wife, particularly when she lives apart from her husband, may acquire a separate domicile of choice.

Citizenship of Corporations-By statute since 1958, a corporation is deemd to be a citizen of any state in which it has been incorporated and of the state in which it has it’s PPB. 28 USC §1332(c)(1).

Kelly v. United States Steel Corp. (1960) 3rd Circuit- In defining PPB, offered the π‘nerve center’ test, while the court adopted ‘place of activity’ test- the ‘day-to-day corporate activity and management test’. Important factors:

Where the board sits Where is general counsel Corporate headquarter

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Operations committee Daily functions of business Where the majority of the employees are Where is the tangible property Total productive capacity

Citizenship of unincorporated associations- courts treat these organizations as groups of individuals, and so deem them citizens of each and every state and country of which one of its members is a citizen.

District Court Jurisdiction

The default understanding of federal jurisdiction is that it is concurrent with state jurisdiction, though federal courts do have exclusive jurisdiction over bankruptcy, patents, copyrights, and admiralty and maritime.

Removal Provision- 28 USC §1441- ∆ may remove when could have brought suit πin federal court originally.

Review of State Court Actions by the Supreme Court- 28 USC §1257

Venue Requirement as Limitation- 28 USC §1391

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Federalism (II)—federal subject matter jurisdiction; federal questions; supplemental jurisdiction

Collateral attack

Bell v. Hood (1948) US- In this case had both a federal and state law claim. Court πgranted ∆’s 12(b)(6) motion on the federal law claim and dismissed the state issue for. Holding: Where a complaint is drawn seeking recovery under federal law or the Constitution, the court must first assume jurisdiction to decide is the allegations state a cause of action for which relief may be granted (and determine the issues of fact later).

Supplemental Jurisdiction 28 USC §1367 unites pendant and ancillary jurisdiction.

Pendent Jurisdiction

Hurn v. Oursler (1933) US- looses federal claim and wins state claim. The πquestion was did the federal district court have jurisdiction. Holding: Pendant jurisdiction exists because the state and federal claims arise from the same cause of action.

United Mine Workers v. Gibbs (1966) US- This is the most important pendant jurisdiction question. Court here says that the state and federal law claims must arise from a common nucleus of operative fact. Pendant jurisdiction is a matter of court discretion, not a plaintiff’s right. (But courts consider judicial economy and so if the two claims are of the type that would normally be tried together, the court will likely grant pendant jurisdiction).

28 USC §1367 tries to codify Gibbs. §1367(a) overrules Finley.

Executive Software North America Inc v. United States District Court (1994) 9th Circuit- Gibbs left a open a lot of reasons to dismiss state claims, but §1367 tightened that up. A court cannot dismiss simply because its docket is full.

Ancillary Jurisdiction

Revere Copper & Brass Inc v. Aetna Casualty & Surety (1970) 5th Circuit- (MD) v. ∆π 1(NY). Under Rule 14(a), ∆1 impleades ∆2

∆2 counterclaims against and π π moves to dismiss claim for lack of diversity. Court denies motion, finding ∆2’s claim to be within its ancillary jurisdiction.

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Holding: A counterclaim that arises from the same aggregate of operative facts is properly covered by the ancillary jurisdiction doctrine.

Owen Equipment & Erection Co v. Kroger (1978) US- Here filed action for πnegligence against ∆1 who then impleaded ∆2 under Rule 14(a). When ∆1 was granted a summary judgment, diversity was destroyed between and ∆π 2. Holding: In an action in which federal jurisdiction is based on diversity, a plaintiff may not assert a claim against a third-party defendant when there is no independent basis for federal jurisdiction over that claim.

Neither convenience nor judicial economy can extend ancillary jurisdiction to cover this case.

Ortiz v. U.S. Government (1979) 1st Circuit- Plaintiffs from P.R. sue US under Federal Tort Claims Act, 28 USC § 1346(b), a claim with exclusive federal jurisdiction. The US then impleades a Puerto Rican hospital. attempts to assert a Πnonfederal claim under Rule 14(a). Court holds that pendant jurisdiction could be excercised over such a claim.

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Federalism (IV)—early development of Erie doctrine, the Hanna doctrine; complex Erie problems

Courts follow state statutes on which laws to apply Many states apply law of the place of injury States deciding which state’s law to apply- horizontal choice of law Most states follow their own procedural law, regardless of the place of injury.

Constitutional Constraints on State Courts Art. 4 §1 FF&C Constitutional constraints on states ability to ignore other states laws. 28 USC §1738- Must give judgments from other states the same respect that

state would give it.

28 USC §1652- the laws of several states shall be regarded as rules of decision in civil actions in the courts of the United States.

Swift v. Tyson (1842)- Justice Story wants to preserve the use of federal common law so he read §1652 to apply to statutory law only, not state common law.

Black & White Taxi v. Brown & Yellow Taxi (1928)- Federal court disregards KY anti-monopoly law and uses federal common law to decide.

Erie v. Tompkins (1938)- Although the 1789 Rules of Decision Act left federal courts unfettered to apply their own rules of procedure in common law actions brought in federal court, state law governs substantive issues. State law includes not only statutory law but case law as well.

This is a vertical choice of law situation. Brandies says Story’s view of §1652 was too narrow and that ‘Laws’ should

be read broadly to include statutes & common law. Federal courts should be puppets of state law.

Cities Services Oil Co v. Dunlap (1939)- Burden of proof is a substantive law so you should apply the state law concerning burden of proof.

Palmer v. Hoffman (1943)- Court reads 8(c) as related to pleadings, not procedure. Therefore the state law applies. Court reads 8(c) so as to avoid conflict.

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Klaxon v. Stentor (1941)- The forum states choice of law rules are substantive and not procedural, so they should be followed.

Guaranty Trust Co v. York (1945)- In all cases where a federal court is excercising diversity jurisdiction, the outcome of the case should be substantially the same, so far as legal rules determine outcomes, as it would be if tried in state court. Here is where we see the Outcome determination test first applied. As long as the state rule doesn’t conflict with state law, use it.

Ragan v. Merchants Transfer & Warehouse (1949)- The courts avoid conflict here by reading ‘commenced’ in Rule 3 as something different than the ‘commenced in the Kansas statute of limitation. Using the outcome determination test and a special interpretation of state and federal law, the court arrives at a state law conclusion.

Woods v. Interstate Realty (1949)- About suing foreign corporations. Court again reads around federal law and state law and looks at the outcome determination test to arrive at a state law conclusion.

Cohen v. Ben Indust. Loan Corp (1949)-

Bernhardt v. Polygraphic Co (1956)- About Arbitration clauses that might conflict with 9 USC §3- again, state law wins.

Byrd v. Blue Ridge (1958)- The Erie doctrine requires that federal courts in diversity cases must respect the defintion of rights and obligations created by state courts, but state laws cannot alter the essential characteristics and functions of the federal courts, and the jury function is such an essential function (provided for in the 7th Amendment).

Balance state and federal policies There can be countervailing federal policies

Hanna v. Plumber (1965)- The Erie doctrine mandates that federal courts are to apply state substantive law and federal procedural law, but, where matters fall roughly between the two and are rationally capable of classification as either, the Constitution grants the federal court system the power to regulate their practice and pleading procedure.

Rule 4(d)(1) Looks to conflict- is the federal rule constitutional & established by congress?

If so, then it wins over state law!

Szantay v. Beech Aircraft (1965) 4th Circuit

Day v. Zimmerman (1975)- US Army soldiers are injured by poorly manufactured shell in Cambodia. Texas choice of law rules indicate you should use the law of the place of injury. State law in this case is a substantive law, just like in Klaxon. You must follow it.

Walker v. Armco (1980)- Statute of Limitations- follow state law.

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Burlington Northern Railroad v. Woods (1987)- State law on sanction for frivolous appeals does not win in comparison to Rule 38.

Gasparini (1996)- A federal trial court can apply state law governing the excessiveness or inadequacy of compensation awards without running afoul of the 7th Amendment’s prohibition of the reexamination of a fact tried by a jury so long as the state standard is applied by the federal trial court judge and the appellate control of the trial court ruling is limited to review for abuse of discretion.

Reexamination clause- has never allowed federal appellate courts to substitute judgments for jury determinations. Federal courts cannot do what NY state law authorizes them to do.

If case is in federal district court, we will follow state law, but not in the appellate court.

Dissent- but isn’t this telling us to do exactly what Rule 59(a)(1)(A) tell us not to do?

Federalism (VI)- federal common law

Clearfield Trust Co v. United States (1943)- The rules or Erie do not apply to this situation concerning the rights and duties of the united States on commercial paper which it issues. Those rights and duties are governed by federal common law, not state law.

28 USC §1345- US as Plaintiff.

United States v. Kimbell Foods, Inc. (1979)- Federal law governs questions involving the rights of the United States arising under nation-wide federal policies, but where state laws are nondiscriminatory and won’t affect federal interests too much, the court will allow them.

Illinois v. City of Milwaukee (1972)- 4 cities polluting lake were sued by the state of Illinois. Court granted Illinois injunctive relief bases upon federal common law of nuisance. Before the case reached the Supreme Court, Congress enacted the Federal Water Pollution Control Act making reliance on the federal common law unnecessary.

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Territorial authority to adjudicate (I)—the framework established by Pennoyer v. Neff

1. Competence is like subject matter jurisdictiona. You can’t file a tort claim in family courtb. Art. III and § 28

2. Nexusa. A subtle transformation over timeb. Substantive due processc. In Penoyer v. Neff- the actual events took place before 14th Amendment

was ratified. But that doesn’t matter because Pennoyer treats cases as if the amendment had applied.

d. 14th Amendment in substantive D.P. sensee. This question gets to sovereignty and then gradually attenuates until

in the modern era we get to fairness to defendants. f. Purpose in 1848- purpose of ‘nexus’ is about sovereignty, but it will

change in modern era.g. Traditional ways of establishing personal jurisdiction:

i. Presence at the time of serviceii. Consent

iii. Domicileiv. Acts within the state

h. Now- We have a Ouija Board of Nexusi. Defendant’s Interest in Fairness (Strongest Interest)

ii. State’s Interest in adjudicating matter (sovereignty)iii. Sister States Interests

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iv. Plaintiff’s Interests in Fairness (Smallest Interest here bc πbrings claim wherever she wants)

3. Noticea. Not clearly separated from nexus until J. Holmes makes the

distinction.b. Notice is about interest of def in receiving procedural due process.

4. 14th Amendment- Applies to STATESa. To the extent it imposes a restraint on states, the states are not

required to go to the maximum extent of the 14th amendment. b. Some states extend jurisdiction to the maximum.c. Some states restrain their jurisdiction- statute in state requiring

personal service. i. Anything besides personal service can be called substitute

service. 5. 5th Amendment

a. Applies to Federal Courts

Pennoyer v. Neff (1878)- Where the object of the action is to determine the personal rights and obligations of the parties, service by publication against nonresidents is ineffective to confer jurisdiction on the court.

Closson v. Chase (1914)- The basis of jurisdiction is the presence of land within the sovreign territory.

Territorial authority to adjudicate (II)—jurisdiction over things (traditional view)

Territorial authority to adjudicate (III)—modern theory based on presence, domicile, consent or acts committed

Tyler v. Judges of the Court of Registration (1900)- A statute may give good title, good against the world, without notice or a judicial proceeding with jurisdiction secured by power over the property rather than the holder of the right of ownership.

Clearly separates nexus from notice The presence of land is sufficient to give jurisdiction The state’s interest in sound title Pure In Rem

Garfein v. McInnis (1928)- Whenever a plaintiff seeks a determination of rights in particular real or personal property located within the forum state, service outside of the state on a nonresident defendant is sufficient to give the forum state jurisdiction binding upon the nonresident.

Limited In Rem

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Harris v. Balk (1905)- A debtors obligation to pay debt accompanies him wherever he goes and the question of jurisdiction is not dependant on either the situs of the debt or the nature of the debtors stay in a state.

Quasi In Rem

CME Media Enterprises B.V. v. Zelezny (2001)- For in rem cases you cannot do discovery beyond the property you are already aware of, the court has no jurisdiction over unidentifiable property.

28 USC §1655- extended jurisdiction to in rem actions and some quasi in rem actions.

Rule 4(n)(2)

Campbell v. Murdock (1950)- had done substantial work on ∆’s property and ∆ πhad never paid him. ∆ brought this suit based on In Rem jurisdiction but requested monetary damages, not the property. Holding: A personal judgment under 28 USC §1655 may be rendered if the personal judgment is closely related to the in rem proceeding.

Usually §1655 In Rem actions can only affect the property which is the subject of the action.

Because the ∆ showed up for a special appearance, the court reasoned that a personal judgment was not inappropriate.

Cheshire Nat’l Bank v. Jaynes (1916)- When the contract claim is unrelated to the personal property, ∆ can make a limited appearance with no threat of opening himself to personal jurisdiction.

Darrah v. Watson (1873)- A court can acquire jurisdiction over a person, even if that person is in the state only for a few hours. Such a judgment is entitled to Full Faith and Credit.

28 USC §1738- FF&C

Grace v. MacArthur (1959)- Flying over Arkansas. State sovereignty extends from the center of the earth to the edges of the universe. That’s why airplane service works.

Wyman v. Newhouse (1937)- You can’t trick people into the state. In this case, ∆ was lured into FL by ’s trickery. In such a situation, NY, as the enforcing state, mustπ give the FL judgment FF&C if FL had competence, nexus, and notice. NY had to look at FL’s law concerning service. Because the FL law said fraud invalidated presense, NY had to side with ∆.

Immunity from Service of Process- a nonresident witness, counsel, or party is immune when present in state only for the purposes of litigation.

Domicile as Basis for Jurisdiction-

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Milliken v. Meyer (1940)- Domicile in the state is grounds for personal jurisdiction.

Territorial authority to adjudicate (III)—modern theory based on presence, domicile, consent or acts committed

Hess v. Pawloski (1927)- Implied consent- if you drive down the road, you are taken to have appointed an agent, even if you never signed anything.

Flexner v. Farson (1919) NOT MODERN LAW

Doherty & Co. v. Goodman (1935) NOT MODERN LAW

Dubin v. City of Philaldephia (1938)- Cause of Action arises from ∆’s acts within the state. Personal Jurisdiction was granted on the theory that an owner is responsible for his property.

Adam v. Saenger (1938) By making use of the court system, you must take the bitter with the sweet. If voluntarily files suit in a given state, is subjecting π πherself to in personam jurisdiction there.

Texas Trap- any appearance will subject you to the general jurisdiction of the court.

Hess v. Pawloski (1927)

Riverside & Dan Rivers Cotton Mills v. Menefee (1915)- should have gone to ∆’s πcorporate home to sue.

Territorial authority to adjudicate (IV)—jurisdiction over corporations (International Shoe and its progeny); modern statutes

International Shoe (1945)- For a state to subject a nonresident defendant to in personam jurisdiction, due process requires that he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

Guidance for Panel 2

Mullane (1950)- A state may determine the rights of nonresident beneficiaries in the settlement of trust accounts if procedural due process protections are afforded.

Perkins (1952) – Whenever a foreign corporation carries on ‘continuous and systematic’ corporate activities within a state, that state may subject such a corporation to the jurisdiction of its courts in personam on any transitory cause of

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action, even if such cause of action does not arise within its borders and was not related to the business activities of the corporation within its borders.

Defines Panel 1 for Corporations Continuous and systematic

McGee (1957)- Due process requires only that in order to subject a nonresident defendant to the personal jurisdiction of the forum, he have certain minimum contacts with that forum and that maintenance of the suit does not offend traditional notions of fair play and substantial justice.

A single contract that is solicited can be enough to subject yourself to jurisdiction

Long-Arm StatutesNelson v. Miller(1957)- Illinois long-arm statute is intended to go to the very limit of the 14th Amendment.

Gray v. American Radiator (1961)- The Illinois Long Arm Statute gives that state jurisdiction over tortuous acts committed in Illinois. ∆1 makes a valve in OH, ∆2 assembles a boiler in PA, and the boiler explodes and injures in IL. Because the court defines a πtortuous act as something that causes injury, the fact that was injured in IL gives that stateπ long-arm Jurisdiction over the two ∆s.

Longines v. Barnes (1965)- NY long-arm statute did not intend to go to the limit of the 14th Amendment like the statute in Gray did.

Cook v. Lexington (1981)- Defendant company is incorporated in Missouri, where its PPB is located. A representative shows up at a trade show in Chicago and is served by . Illinois πcourt says IL can’t reach out and grab this defendant.

Full, Faith, and CreditHanson v. Denkla (1958)- A state court need not give FF&C to another state court’s decision if the other state was without jurisdiction over a nonresident defendant.

DE corporation was not reaching out to purposefully avail itself of FL law, therefore FL had no jurisdiction.

Atkinson v. Superior Court- Service on a NY trustee for a CA case. Being a trustee is sufficient for establishing .

Applying Minimum Contacts to In Rem and Quasi In Rem actions.

Shaffer v Hietner (1977)- Jurisdiction cannot be founded on property within the state unless there are sufficient contacts within the meaning of the test developed in International Shoe.

Kulko (1978)- Woman sues former husband for child support in a California court. SCOTUS holds that California’s exercise of jurisdiction violated due process because the defendant had lacked minimum contacts with the state.

Personal jurisdiction requires a sufficient connection between the defendant and the forum state.

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Minimum Contacts apply to people.

Rush (1980)- Two kids in car accident. According to Indiana’s guest statute, the passenger could not sue in that state. passenger moves to Minnesota and sues Πthere. Holding: Rush lacked minimum contacts with this state and the marginal reasonableness of ’s choice was not enough to establish jurisdiction in Minnesota. π

World-Wide VW (1980)- A state court may exercise personal jurisdiction over a nonresident defendant only so long as there exists sufficient minimum contacts between him and the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantive justice.

This applies even if it might be reasonably foreseeable that a car would drive into another state and cause injury there because a dealer would still not foresee that he would be hauled into court there.

Foreseeabilty here is so strange.

Burger King (1985)- The constitutional touchstone remains whether the defendant purposefully established minimum contacts with the forum state. In this case, the owner of a Burger King Franchise, while never going to FL, reached out to negotiate with the FL business and agreed to be regulated by the FL business. Those purposeful contacts were sufficient.

Asahi (1987)- While Personal Jurisdiction here might pass all constitutional tests, it is so unreasonable that it should not be exercised.

Burnham (1990)- Split so badly there is no precedential force. Three days is enough to satisfy minimum contacts, resense is enough without applying a reasonableness test.

Helicopteras (1984)- The level of activity required to produce general jurisdiction, which would allow suit on any claim whatsoever, is VERY high. Here, Helicopteras did not have contacts with Texan substantial enough to subject it to general jurisdiction.

Territorial authority to adjudicate (VI)—still more complexity; actions in federal courts

De James v. Magnificence Carriers (1980)- A defendant’s national contacts cannot be aggregated to provide the sole basis for a federal courts exercise of personal jurisdiction in the absence of statutory authority for service of process.

Congress has enacted 28 USC §2361 and Rule 4(k)(1) to help extend jurisdiction.

They have not extended jurisdiction here!

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Omni Capital International v. Rudolf Wolff & Co (1987) In order to sue, ∆s must be amenable to service of summons. Absent consent, you need statutory authority. Despite federally created claims and one of the defendants substantial contacts with the U.S., you cannot serve summons on one of these foreign defendants.

Court refused to set up a gap-filling method here.

Territorial authority to adjudicate (VII)—international litigation

Kadic v. Karadzic (1995)- Immunity form service of process for a UN invitee does not extend beyond the express terms of the Agreement between the UN and the USA Regarding the Headquarters of the UN.

Territorial authority to adjudicate (VIII)—venue; forum non conveniens

Livingston v. Jefferson (1811)- Actions for trespass to land (while in personam in nature) are still considered by most courts as local and not transitory and hence maintainable only at the situs of the land.

Casey v. Adams (1880)- Local actions are in rem and should be prosecuted where the thing in question is located.

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Ellenwood v. Marietta Chair Co (1895)- The entire cause of action was local (trespass), it should be brought in the state where the trespass occurred.

Stone v. United States (1897)- The court held that the action could be maintained outside of Idaho because the issue was conversion, not trespass.

Gulf Oil Corp v. Gilbert (1947) US- Case about burning down a warehouse in VA was brought in NY district court. ∆ moved for dismissal under the doctrine of forum non conveniens. Court dismissed, holding that in cases such as this forum would be inappropriate.

Courts have discretion here Factors include convenience of witnesses, gathering evidence, other pratical

problems.

§1404 (a)- Transfer of Good Venue

Hoffman v. Blaski (1960)

Van Dusen v. Barrack (1964)- When may properly find venue in 2 states, it is freeπ to choose the state with the more favorable law. ∆ may transfer venue, but is still πentitled to the substantive legal advantages of the original forum.

Ferens v. John Deere Co (1990)- Brilliant maneuvering here. splits cause of Πaction to reap the benefit of another states statute of limitations. Plaintiff then moves for transfer of venue to reunite the two claims. Holding: The transferor law applies regardless of who moves to transfer under §1404(a).

§1406(a) Transfer Provision- Cure for Bad Venue

Martin v. Stokes (1980) 6th Circuit- On state law questions, transferor law applies after a §1404(a) transfer, but transferee law applies after a §1406(a) transfer.

Piper Aircraft Co v. Reyno (1981)- Dismissal may not be barred solely because of the possibility of an unfavorable change in law.

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