简明美国民事诉讼法教程
Chapter 1
INTRODUCTION
I. CIVIL PROCEDURE GENERALLY
A. A road map: Here is a "road map" for analyzing a Civil
Procedure problem:
1. Personal jurisdiction: First, make sure that the
court has or "personal jurisdiction""jurisdiction
You must check to make sure that: over the parties."
(1) D had minimum contacts with the forum state
(whether the court is a state or federal court); and
(2) D received such notice and opportunity to be
as to satisfy the constitutional requirement heard
of due process. [7 - 85]
2. Venue: Then, check whether venue was correct. In
federal court suits, the venue requirement describes
what judicial district the case may be heard in.
Essentially, the case must be heard either: (1) in
any district where the defendant resides (with
special rules for multi-defendant cases; or (2) in
substantial part of the any district in which a
giving rise to the claim occurred. See 28 events
U.S.C. ?391. [86 - 97]
3. Subject matter jurisdiction: If the case is a federal case, you must then ask whether the court has subject matter jurisdiction. Essentially, this means that one of the following two things must be true: [100 - 146]
a. Diversity: Either the case is between
citizens of different states (with "complete
diversity" required, so that no plaintiff is
a citizen of the same state as any defendant)
and at least $75,000 is at stake; or
b. Federal question: The case raises a "federal
Essentially, this means that question."
plaintiff’s right to recover stems from the
U.S. Constitution, a federal treaty, or an act
of Congress. (There is no minimum amount
required to be at stake in federal question
cases.)
4. Pleading: Next, you must examine whether the pleadings are proper. [149 - 179]
5. Discovery: Next, you may have a complex of issues relating to pre-trial . [181 - 231] discovery
6. Ascertaining applicable law: Now, figure out
should be used in the case. what jurisdiction’s law
The most important problem of this type is: In a diversity case, may the federal court apply its own concepts of "federal common law", or must the court apply the law of the state where the federal court sits? If the state has a substantive law (whether
a statute or a judge-made principle) that is on point, the federal court sitting in diversity must apply
. This is the "rule" of Erie v. Tompkins. that law
(Example: In a diversity case concerning negligence, the federal court must normally apply the negligence law of the state where the court sits.) [234 - 256] 7. Trial procedure: Next, you may face a series of issues relating to trial procedure. [260 - 302]
8. Multi-party and multi-claim litigation: If there is more than one claim in the case, or more than the basic two parties (a single plaintiff and a single defendant), you will face a whole host of issues
multi-party or multi-claim nature of related to the
the litigation. You must be prepared to deal with the various methods of bringing multiple parties and multiple claims into a case. In federal courts: [305 - 376]
a. Counterclaim: D may make a claim against P,
by use of the counterclaim. See FRCP 13. Check
whether the counterclaim is "permissive" or
"compulsory." (Also, remember that third
parties, who are neither the original
plaintiff nor the original defendant, may make
a counterclaim.) [309]
b. Joinder of claims: Once a party has made a
claim against some other party, she may then
make any other claim she wishes against that
party. This is "joinder of claims." See Rule
18(a). [315]
c. Joinder of parties: Multiple parties may join their actions together. Check to see whether either "permissive joinder" or
"compulsory joinder" is applicable. Also, remember that each of these two types of joinder can apply to either multiple
or multiple defendants. See FRCP 19 plaintiffs
and 20. [316]
d. Class actions: Check whether a class action
is available as a device to handle the claims of many similarly-situated plaintiffs, or claims against many similarly-situated defendants. See FRCP 23. Look for the
possibility of a class action wherever there are 25 or more similarly-situated plaintiffs or similarly-situated defendants. [330] e. Intervention: A person who is not initially part of a lawsuit may be able to enter the suit on his own initiative, under the doctrine of intervention. See FRCP 24. Check whether the
intervention is "of right" or "permissive." [356]
f. Interpleader: Where a party owes something to two or more other persons, but isn’t sure which, that party may want to use the device
to prevent being made to pay of interpleader
the same claim twice. After checking whether interpleader might be desirable, decide whether the stakeholder should use "statutory
interpleader" or "Rule interpleader." See 28
U.S.C. ?335 (statutory interpleader) and FRCP
22 (Rule interpleader). [360]
g. Third-party practice (impleader): Anytime D has a potential claim against some third
who is not already in the lawsuit, by person
which that third person will be liable to D for some or all of P’s recovery against D, D should be able to the third person. ( "implead"Example:
Employee, while working for Employer, hits Victim with a company car. Victim sues Employer in diversity, under the doctrine of respondeat
superior
. Under traditional concepts of
indemnity, Employer will be able to recover from Employee for any amount that Employer is forced to pay Victim. Therefore, Employer should "implead" Employee as a "third party defendant" to the Victim-Employer action.) See FRCP 14(a). Once a third-party defendant is brought into the case, consider what other claims might now be available (e.g., a counterclaim by the third-party defendant against the third-party plaintiff, a cross-claim against some other third-party defendant, a counterclaim against the original plaintiff, etc.). [368]
h. Cross-claims: Check to see whether any party has made, or should make, a claim against a
. This is a . See FRCP 13(g). co-partycross-claim
[374]
i. Jurisdiction: For any of these multi-party or multi-claim devices, check to see whether the requirements of personal jurisdiction and
subject matter jurisdiction have been
satisfied. To do this, you will need to know
whether the doctrine of "supplemental"
jurisdiction applies to the particular device
in question. If it does not, the new claim, or
the new party, will typically have to
independently meet the requirements of federal
subject matter jurisdiction. (Example: P, from
Massachusetts, sues D, from Connecticut, in
diversity. X, from Massachusetts, wants to
intervene in the case on the side of D. Because
supplemental jurisdiction does not apply to
intervention, X must independently satisfy the
requirement of diversity, which he cannot do
because he is a citizen of the same state as
P. Therefore, X cannot intervene.)
9. Former adjudication: Lastly, check whether the results in some prior litigation are binding in the
current suit. Distinguish between situations in which the judgment in the prior suit is binding on an entire cause of action in the present suit (under the doctrines of merger and bar), and the situation
finding of fact is binding on the current where a
suit, even though the judgment itself is not binding
(the "collateral estoppel" situation).
a. Non-mutual collateral estoppel: Where a
"stranger" to the first action (one not a party
to that first action) now seeks to take
advantage of a finding of fact in that first
suit, consider whether this "non-mutual"
collateral estoppel should be allowed. [392]
b. Full Faith and Credit: Lastly, if the two
suits have taken place in different
, consider to what extent the jurisdictions
principles of Full Faith and Credit limit the
second court’s freedom to ignore what
happened in the first suit. [410]
Chapter 2
JURISDICTION OVER THE PARTIES
I. GENERAL PRINCIPLES
A. Two kinds of jurisdiction: Before a court can decide
parties as well a case, it must have jurisdiction over the
as over the subject matter. [7]
1. Subject matter jurisdiction: Subject matter
jurisdiction refers to the court’s power to decide the of case before it. (kindExamples of subject
(1) Does the federal matter jurisdiction issues:
court for the District of New Jersey have the power to decide cases in which the two parties are citizens of different states? (2) Does the Binghamton Municipal Court have the power to decide cases involving more than $1,000?)
2. Jurisdiction over the parties: Jurisdiction over the parties refers to whether the court has
jurisdiction to decide a case between the particular
, or concerning the property, before it. parties
(Examples of issues concerning jurisdiction over the
(1) Does Court X have jurisdiction over D, parties:
who is a citizen of State X, but who is temporarily out of the state? (2) Does Court Y have jurisdiction
over property in State Y where the action is one by
P to register title to the land in his name?) B. Jurisdiction over the parties: There are two distinct requirements which must be met before a court has jurisdiction over the parties: [8]
1. Substantive due process: The court must have
to act, either upon given property, or on a power
given person so as to subject her to personal
liability. The Constitution’s Fourteenth Amendment
Due Process Clause imposes this requirement of power
to act, as a matter of "substantive due process."
2. Procedural due process: Also, the court must have
given the defendant adequate notice of the action
against him, and an opportunity to be heard. These,
taken together, are requirements of procedural due
, also imposed by the Fourteenth process
Amendment’s Due Process Clause.
C. Three kinds of jurisdiction over the parties: There are three different kinds of jurisdiction which a court
must may exercise over the parties – one of these three
for the case to go forward. [8] be present
1. In personam: In personam jurisdiction, or
jurisdiction over the defendant’s "person," gives the court power to issue a judgment against her
. Thus of the person’s may be personallyallassets
seized to satisfy the judgment, and the judgment can be sued upon in other states as well. [8] 2. In rem: jurisdiction, or jurisdiction over In rem
a thing, gives the court power to adjudicate a claim made about a piece of property or about a status.
(Examples: An action to quiet title to real estate, or an action to pronounce a marriage dissolved.) [8] 3. Quasi in rem jurisdiction: In quasi in rem
jurisdiction, the action is begun by seizing property owned by (attachment), or a debt owed to
(garnishment) the defendant, within the forum state. The thing seized is a pretext for the court to decide the case without having jurisdiction over the defendant’s person. Any judgment affects only the
property seized, and the judgment cannot be sued upon in any other court. [8]
4. Minimum contacts requirement: If jurisdiction in
or , the court the case is in personamquasi in rem
may not exercise that jurisdiction unless D has
with the state in which the court "minimum contacts"
sits. In brief, the requirement of minimum contacts means that D has to have taken actions that were
purposefully directed towards the forum state.
(Examples of the required action: D sold goods in the
state, or incorporated in the state, or visited the state, or bought property in the state, etc.) Without such minimum contacts, exercise of jurisdiction would violate D’s Fourteenth Amendment federal
constitutional right to due process. [8]
a. Unreasonable exercise: Even if D has the
requisite "minimum contacts" with the forum
state, the court will not exercise
jurisdiction if considerations of "fair play
and substantial justice" would require making
D defend in the forum state so unreasonable as
to constitute a due process violation. But in
most cases, if D has the required minimum
contacts with the forum state, it will not be
unreasonable for the case to be tried there. D. Long-arm statute: Most states have "long-arm
. A long-arm statute is a statute which permits "statutes
the court of a state to obtain jurisdiction over persons
not physically present within the state at the time of
. (Example: A long-arm might allow jurisdiction service
over an out-of-stater who has committed a tort in the state.) [9]
1. Substitute service: Long-arms typically provide
for "substitute" means of service, since in-state
personal service is not possible. (Example: A
long-arm statute might allow the plaintiff to cause
the defendant to be served out of state by registered
mail.)
II. JURISDICTION OVER INDIVIDUALS
A. Different categories: In most states, there are a number of different criteria which will enable the court
to take personal jurisdiction over an individual. Some of
the most common (each of which will be considered in detail
below) are: [9]
within the forum state; 1. Presence
2. Domicile or residence within the forum state;
3. Consent to be sued within the forum state;
4. Driving a car within the forum state;
5. Committing a within the state (or, tortious act
perhaps, committing an out-of-state act with
in-state tortious consequences);
6. Ownership of property in the forum state;
7. Conducting business in the forum state;
8. Being married in, or living while married in, the
forum state.
Note: Regardless of the criteria used by the state
and its long-arm for establishing personal
jurisdiction over the individual, due process
requires that the individual have minimum contacts
with the forum state before personal jurisdiction
may be exercised over her. The meaning of "minimum
contacts" is discussed further below in the
treatment of jurisdiction over corporations. B. Presence: Jurisdiction may be exercised over an individual by virtue of his presence within the forum
. That is, even if the individual is an out-of-state state
resident who comes into the forum state only briefly, personal jurisdiction over him may be gotten as long as service was made on him while he was in the forum state. [10]
Example: D and his wife, P, separate while residing in New Jersey. P moves to California with their children. D visits California on business, and stops briefly to visit the children. While D is visiting, P serves him with process in a California suit for divorce. D never visits the state again.
Held, California can constitutionally assert personal jurisdiction over D based on his presence in the state at the time of service, even though that presence was brief,
and even though D had virtually no other contacts with the
Burnham v. Superior Court]. state. [
C. Domicile: Jurisdiction may be exercised over a person who is within the forum state, even if the person domiciled
is temporarily absent from the state. A person is considered to be domiciled in the place where he has his current dwelling place, if he also has the intention to
in that place for an indefinite period. [11 - 13] remain
D. Residence: Some states allow jurisdiction to be exercised on the basis of D’s residence in the forum
, even though he is absent from the state. A person state
may have several residences simultaneously. (The Supreme Court has not yet passed on the due process validity of jurisdiction based solely on residence, so this remains presumptively a valid method of gaining jurisdiction.) [13]
E. Consent: Jurisdiction over a party can be exercised by virtue of her consent, even if she has no contacts
whatsoever with the forum state. [14]
Example: P, who does not reside in Ohio or have any other contacts with Ohio, brings suit against D in Ohio. By filing the suit in Ohio, P will be deemed to have consented to Ohio’s jurisdiction. D may then counterclaim against P. Even if P dismisses his own suit, his consent to the action will be binding, and the Ohio courts will have personal jurisdiction over him on the counterclaim. F. Non-resident motorist: Most states have statutes allowing the courts to exercise jurisdiction over non-resident motorists who have been involved in
accidents in the state. [15]
Example: P is a resident of the forum state. D, not a resident of the forum state, is driving his car in the forum state, and has a collision with P’s car. Even if D has no other contacts with the state, a non-resident motorist statute will probably be in force in the state, and will probably give the forum state’s courts jurisdiction over a tort suit by P against D.
1. Service on state official: Most of the
non-resident motorist statutes provide for in-state
service of process on a designated state official
(e.g., the Director of Motor Vehicles) and for
registered mail service on the out-of-state
defendant himself. [16]
G. In-state tortiousness: Many states have statutes allowing their courts jurisdiction over persons committing . [16] tortious acts within the state
Example: D, an out-of-stater, gets into a fight with P at a bar in P’s home state. P wants to bring a civil battery claim against D in the state. If, as is likely, the state has a long-arm provision governing tortious acts within the state, P will be able to get personal jurisdiction over D in the battery action.
1. Out-of-state acts with in-state consequences:
Some "in-state tortious acts" long-arm clauses have
been interpreted to include acts done outside the
which produce tortious consequences within state
. In a products liability situation, a the state
vendor who sells products that he knows will be used
in the state may constitutionally be required to
defend in the state, if the product causes injury in
the state. [Gray v. American Radiator Corp.] [16]
H. Owners of in-state property: Many states exercise
owners of in-state property in causes jurisdiction over
of action arising from that property. [18]
I. Conducting business: States often exercise jurisdiction over non-residents who conduct businesses
within the state. Since states may regulate an individual’s business conduct in the state, they may constitutionally exercise jurisdiction relating to that doing of business. [19]
J. Domestic relations cases: Courts sometimes try to take personal jurisdiction over a non-resident party to a domestic relations case. However, the requirement of
"minimum contacts" applies here (as in every personal jurisdiction situation), and that requirement may bar the state from taking jurisdiction. [26]
Example: A father resides in New York, and permits his minor daughter to go to California to live there with her mother. Held, the father does not have sufficient minimum contacts with California to allow the mother to bring an in personam suit in California against him for increased child support. [Kulko v. Superior Court]
III. JURISDICTION OVER CORPORATIONS
action may be brought A. Domestic corporations: Any
against a domestic corporation, i.e., one which is
incorporated in the forum state. [21]
B. Foreign corporations generally: A state is much more limited in its ability to exercise jurisdiction over a
corporation (i.e., a corporation not incorporated foreign
in the forum state). [22 - 27]
1. Minimum contacts: The forum state may exercise
personal jurisdiction over the corporation only if
the corporation has "minimum contacts" with the
forum state "such that the maintenance of the suit
does not offend ‘traditional notions of fair play
and substantial justice.’" [International Shoe Co.
] [22 - 23] v. Washington
2. Dealings with residents of forum state: Usually,
a corporation will be found to have the requisite
"minimum contacts" with the forum state only if the
corporation has somehow voluntarily sought to do
business
in, or with the residents of, the forum state. [23 - 27]
Example 1 (minimum contacts found): D has no activities in Washington except for the activities of its salesmen, who live in the state and work from their homes. All orders are sent by the salesmen to the home office, and approved at the home office. The salesmen earn a total of $31,000 per year in commissions.
Held, the company has minimum contacts with Washington. [International Shoe Co.]
Example 2 (minimum contacts found): D is a Texas insurance company. It does not solicit business in California. However, it takes over, from a previous insurance company, a policy written on the life of X, a California resident. D sends X a new policy; X sends premiums from his California home to D’s out-of-state office. X dies; P (the beneficiary under the policy) is a California resident. P sues D in California for payment under the policy.
Held, D has minimum contacts with California, and can thus be sued in personam there in a suit by P for
payment on the policy. [McGee v. International Life
] Ins. Co.
Example 3 (minimum contacts not found): D is a Delaware bank, which acts as trustee of a certain trust. S, the settlor of the trust, is a Pennsylvania resident at the time she sets up the trust. Years later, she moves to Florida. Later, her two children, also Florida residents, want to sue D in Florida for a judgment that they are entitled to the remaining trust assets. D has no other contacts with Florida. Held, D does not have minimum contacts with Florida, and therefore, cannot be sued in personam there.
[Hanson v. Denckla]
Note: The key idea is that D will be found to have minimum contacts with the state only if D has purposely availed itself of the chance to do business in the forum state. Thus in McGee (Example 2 above),
the insurance company offered a policy to someone who it knew was a resident of the forum state. In Hanson
(Example 3 above), by contrast, the trustee never
voluntarily initiated business transactions with a
resident of the forum state or otherwise voluntarily
did business in the state – it was only S’s
unilateral decision to move to the forum state that
established any kind of connection with that state,
so minimum contacts did not exist.
C. Use of agents: Sometimes an out-of-state company does not itself conduct activities within the forum state, but
agent in the state. Even though uses another company as its
all business within the state is done by the agent, the principal (the foreign corporation) can be sued there, if the agent does a significant amount of business on the foreign company’s behalf. [27]
D. Operation of an Internet Website that reaches in-staters: A hot question today is whether the operation of an Internet Website that’s hosted outside the forum
state, but that’s accessed by some in-staters,
constitutes minimum contacts with the state. The main issue is, did the Website operator intended to "target"
residents
of the forum state? If yes, there are probably
minimum contacts; if no, there probably aren’t. [27 - 29]
1. Passive site that just posts information: So if an out-of-state local business just passively posts
on the Web, and doesn’t especially want to info
reach in-staters or conduct transactions with them, this probably doesn’t amount to minimum contacts, even if some in-staters happen to access the site. Example: D operates a local jazz cafe in a small town in Kansas. He puts up a Website with a schedule of upcoming events, and uses a trademark belonging to P on the site. P, based in New York, sues D in N.Y. federal court for trademark infringement. Even though a few New Yorkers may have accessed D’s site, this won’t be enough to constitute minimum contacts
with N.Y., because D wasn’t trying to attract business from N.Y. [Cf. Cybersell, Inc. v. Cybersell,
] Inc.
2. Conducting transactions with in-staters: But if D runs an "e-commerce" site that actively tries to
from the site, and some get in-staters to buy stuff
will be enough to constitute do, that probably
minimum contacts with the state, at least where the
suit relates to the in-staters’ transactions. (And
if the Web-based transactions with in-staters are
"systematic and continuous," as discussed in the
next paragraph, then these contacts will even be
enough for jurisdiction in the state on claims not
relating to the in-state activities.) [32]
E. Claims unrelated to in-state activities: The above discusses generally assumes that the claim relates to D’s in-state activities. Where the cause of action does not
arise from the company’s in-state activities, greater
between D and the forum state are required. The contacts
in-state activities in this situation must be "systematic
." [29 - 31] and continuous
Example: D is a South American corporation that supplies helicopter transportation in South America for oil companies. D has no contacts with Texas except: (1) one negotiation there with a client, (2) the purchase by D of 80% of its helicopter fleet from a Texas supplier, (3) the sending of pilots and maintenance people to Texas for
training, and (4) the receipt out-of-state of two checks written in Texas by the client. D is sued in Texas by the Ps (Texas residents) when they are killed in South America while being transported by D.
Held, the Ps cannot sue D in Texas. Because the Ps’ claims did not arise out of D’s in-Texas activities, those Texas
contacts had to be "systematic and continuous" in order to be sufficient for jurisdiction. The contacts here were too sparse for that. [Helicopteros Nacionales de Colombia
] v. Hall
F. Products liability: The requirement of "minimum contacts" with the forum state has special bite in products liability cases. [32 - 37]
1. Effort to market in forum state: The mere fact
that a product manufactured or sold by D outside of
the forum state finds its way into the forum state
and causes injury there is not enough to subject D
to personal jurisdiction there. Instead, D can be
sued in the forum state only if it made some effort
, either directly or to market in the forum state
indirectly. [33]
Example: The Ps are injured in Oklahoma in an accident involving an allegedly defective car. They had purchased the car in New York while they were New York residents. The Ps sue in Oklahoma. D1 is the distributor of the car, who distributed only on the East Coast. D2 is the dealer, whose showroom was in New York. Neither D1 nor D2 sold cars in Oklahoma or did any business there.
Held, neither D may be sued in Oklahoma. Neither D had made efforts to "serve directly or indirectly" the Oklahoma market. Any connection between the Ds’
product and Oklahoma was merely an isolated occurrence, completely due to the unilateral activity of the Ps. [World-Wide Volkswagen v.
] Woodson
2. Knowledge of in-state sales enough: But if the out-of-state manufacturer makes or sells a product that it will be eventually sold in the forum knows
state, this fact by itself is probably enough to establish minimum contacts. However, if this is the only contact that exists, it may nonetheless be
"unreasonable" to make D defend there, and thus
violate due process. [34 - 37]
Example: P is injured while riding a motorcycle in California. He brings a products liability suit in California against, inter alia, D, the Taiwanese
manufacturer who made the cycle’s rear innertube. D "impleads" X, the Japanese manufacturer of the tube’s valve assembly, claiming that X must pay D
any amount that D has to pay to P. X has no contacts with California, except that X knew that: (1) tires made by D from X’s components were sold in the U.S., and (2) 20% of the U.S. sales were in California. The P-D suit has been settled but the D-X case is to be tried.
Held, X had minimum contacts with California, because it put its goods into a stream of commerce that it knew would lead many of them to California. But despite these minimum contacts, it would be "unreasonable and unfair" – and thus a violation of
due process – for California to hear the case,
because of the burden to X of having to defend in
California, the slenderness of California’s
interest in having the case heard there, and the
foreign relations problems that would be created by
hearing an indemnity suit between two foreign
Asahi Metal Industry Co. v. Superior corporations. [
] Court
G. Unreasonableness: As the case in the above example shows, even where minimum contacts exist, it will be a violation of due process for the court to hear a case against a non-resident defendant where it would be "unreasonable" for the suit to be heard. The more
burdensome it is to the defendant to have to litigate the case in the forum state, and the slimmer the contacts (though "minimum") with the forum state, the more likely this result is to occur. [35]
H. Suits based on contractual relationship: The requisite "minimum contacts" are more likely to be found where one party to a is a resident of the forum state. But contract
the fact that one party to a contract is a resident does not by itself automatically mean that the other party has
"minimum contacts" – the existence of a contract is just
one factor to look at. [37 - 40]
1. Contractual relationship involving the state: Where the contract itself somehow ties the parties’ business activities into the forum state, this will be an important factor tending to show the existence of minimum contacts. For instance, if one party is to make payments to the other, and the latter will be receiving the payments in the forum state, this stream of payments coming into the state is likely to establish minimum contacts and thus to permit suit against the payor.
Example: D runs a fast food restaurant in Michigan under franchise from P, which has its headquarters in Florida. The contract requires D to make royalty payments to P in Florida.
Held, P may sue D in Florida. The fact that the payment stream comes into Florida is an important factor, though not by itself dispositive, in the court’s conclusion that there were minimum contacts with Florida. [Burger King Corp. v. Rudzewicz]
2. Choice-of-law clause: Where there is a contract between the parties to the suit, the fact that the
choice of law clause requiring contract contains a
use of the forum state’s law will also be a factor (though not a dispositive one) tending towards a finding of minimum contacts. (Example: On the facts
of the above example, the franchise contract stated that Florida law would be used. This was a factor helping lead the court to conclude that D had minimum contacts with Florida.) [40]
3. "Reasonable anticipation" of defendant: In suits relating to a contract, as with any other kind of suit, the minimum contacts issue always boils down to this: Could the defendant have reasonably anticipated
The being required to litigate in the forum state?fact that the other party was a resident of the forum state, the fact that a stream of payments went into the forum state, and the fact that the forum state’s law was to be used in the contract, are all non-dispositive, but important, factors tending towards the conclusion that the out-of-stater had minimum contacts with the forum state. [40]
I. Class action plaintiffs: An "absent" plaintiff in a class action that takes place in the forum state may be bound by the decision in the case, even if that plaintiff did not have minimum contacts with the forum state. [Phillips Petroleum Co. v. Shutts] [40 - 42]
J. Libel and slander cases: The First Amendment imposes
certain limits on the substantive libel and slander laws
of the states (e.g., that no "public figure" may recover without a showing of "actual malice"). But this special first amendment protection does not affect the personal
jurisdiction requirements for libel and slander suits –
no more extensive contacts between D and the forum state must be shown in defamation suits than in any other type of case. [] [42] Calder v. Jones
IV. FEDERAL JURISDICTION OVER THE PARTIES
A. General principles: To determine whether a federal
court has personal jurisdiction over the defendant, you must check three things: [45]
1. Territory for service: Whether service took place
within the appropriate territory;
2. Manner of service: Whether the service was
manner; and carried out in the correct
3. Amenability: Whether the defendant was
to the federal suit. "amenable"
B. Territory for service: [46 - 49]
1. General rule: As a general rule, in both diversity actions and federal question cases, service of
may be made only: (1) within the territorial process
; limits of the state in which the District Court sitsor (2) anywhere else permitted by the state law of the state where the District Court sits. FRCP
4(k)(1)(A). [45]
Example (within the territorial limits of state): P sues D in a federal action in the Northern District of Ohio. Whether the suit is based on diversity or federal question, service will be territorially valid if D is served with process anywhere within the state of Ohio, since this is the state where the district court sits. This is true even if service is physically made in the Southern District of Ohio.
Example (out-of-state service based on state law): Under the New Jersey long-arm statute, if a non-resident is involved in a motor vehicle accident inside New Jersey with a New Jersey resident, the New Jersey resident may serve the non-resident outside New Jersey, and the New Jersey courts may then exercise personal jurisdiction. P, a New Jersey resident, and D, a California resident, have an accident in New Jersey. P may sue D in diversity in federal District Court for New Jersey; P may serve D with process in California, because the long-arm of the state where the district court sits (New Jersey) would allow such service. FRCP 4(k)(1)(A).
2. 100-mile bulge: A special 100-mile bulge
provision (FRCP 4(k)(1)(B)) allows for out-of-state
service sometimes, even if local law does not permit it. When the provision applies, it allows service anywhere (even across a state boundary) within a 100-mile radius of the federal courthouse where suit is pending. The bulge provision applies only where out-of-staters will be brought in as additional
to an already pending action. There are two parties
types of parties against whom it can be used: [47 -
48]
a. Third-party defendants: Third-party
(FRCP 14) may be served within the defendants
bulge.
Example: P sues D in a New Jersey federal district court diversity action. D claims that if D is liable to P, X is liable to D as an indemnitor. The suit is pending in Newark, less than 100 miles from New York City. D may serve X in New York City, even if no New Jersey long-arm statute would allow the suit. b. Indispensable parties: So-called
"indispensable parties" – that is, persons
who are needed in the action for just adjudication, and whose joinder will not involve subject matter jurisdiction problems – may also be served if they are within the bulge.
Example: P sues D for copyright infringement
in federal district court for the Eastern
District of Kentucky, located in Lexington. D
files a counterclaim against P. D wants to join
X as a co-defendant to this counterclaim,
arguing that P and X conspired to violate D’s
copyrights. X resides in Cincinnati, Ohio,
located 78 miles from Lexington. If the court
agrees that X is required for just adjudication
of D’s counterclaim, service on X in
Cincinnati is valid, even if the Kentucky
long-arm would not allow service there. 3. Nationwide service of process: In several kinds
of cases, Congress has provided for nationwide
service of process. Suits against federal officials
, and suits based on statutory and agencies
, are examples of nationwide service. interpleader
[47]
4. Foreign defendant not servable in any state: Rule
4(k)(2) allows a federal question suit to be brought
against any person or organization who cannot be sued
any state court (almost always because they are in
a foreigner).
Example: D, a French company, without setting foot in the U.S., solicits business by phone and mail from residents of a large number of states. D does not solicit enough from the residents of any one state to satisfy that state’s long-arm. Therefore, D
could not be sued in any state court for a claim concerning its activities. P, a New York investor, brings a suit based upon the federal securities laws against D in the federal district court for the Southern District of New York. Assuming that D can be said to have had minimum contacts with the United States as a whole, the New York federal court will have personal jurisdiction over D for this federal-question claim, because D is not subject to the jurisdiction of the courts of any state. FRCP
4(k)(2).
5. Gaps possible: A defendant who is not located in the state where the district court sits may not be
served if he does not fall within one of the four
special cases described above (servable pursuant to state long-arm, 100-mile bulge, nationwide service
even or foreign defendant not servable in any state), if he has the constitutionally-required minimum
with the forum. This is true whether the contacts
case is based on diversity or federal question. [49] Example: P, a Connecticut resident, wants to bring a federal diversity suit in Connecticut against D, a New Yorker. The suit involves an accident that occurred in New York. D owns a second home in Connecticut, as well as lots of other real estate there. Assume that this ownership gives him not only minimum contacts but "systematic and continuous" contacts with Connecticut. However, Connecticut has a very narrow long-arm, which would not allow service on D in New York for a Connecticut state action. P will not be able to serve D in New York in his federal action, because none of the special cases is satisfied. This is true even though it would not be a violation of due process for either the Connecticut
courts or the federal court in Connecticut to
exercise personal jurisdiction over D.
C. Manner of service: Once you determine that the party to be served lies within the territory described above, you must determine if the service was carried out in the correct . manner
1. Individual: Service on an (Rule 4(e)) individual
may be made in any of several ways:
a. Personal: By serving him personally;
b. Substitute: By handing the summons and
complaint to a person of "suitable age and
residing at D’s residence; discretion"
c. Agent: By serving an agent appointed or
designated by law to receive process. (Example:
Many states designate the Director of Motor
Vehicles as the agent to receive process in
suits involving car accidents);
d. Local state law: By serving D in the manner
provided by either: (1) the law of the state
where the district court sits
, if that state
has such a provision, or (2) the law of the
state where the person is being served.
(Example: P brings an action against D, a
resident of California, in New Jersey federal
court, and wishes to serve him by certified
mail. Service will be possible if either the
courts of New Jersey or California allow
certified-mail service.)
2. Corporation: Service on a corporation may be made
by leaving the papers with an officer, a managing
or general agent, or any other agent authorized by appointment or by law to receive process for the corporation. FRCP 4(h)(1).
a. Local state law: As with individuals,
service on a corporation may also be made in
the manner provided by the local law of (i) the
state where the or (ii) the action is pending
state where the service is made. FRCP 4(h)(1),
first sentence.
3. Waiver of service: Rule 4(d) allows plaintiff to
mail, in effect serve the summons and complaint by
provided that the defendant cooperates. P mails to
D a "request for waiver of service"; if D agrees,
no actual in-person service is needed.
a. Incentives: D is free to refuse to grant the
waiver, in which case P must serve the summons
by the in-person methods described above. But,
if D refuses the waiver, the court will impose
the costs subsequently incurred by P in
effecting service on D unless "good cause" is
shown for D’s refusal. (FRCP 4(d)(2), last
sentence.)
D. Amenability to suit: If D was served in an appropriate territory, and in an appropriate manner, you still have to determine whether D is closely-enough linked to the state where the federal district court sits to make him
in that court. [52 - 54] "amenable to suit"
1. Federal question: In federal question cases, most
courts hold that D is amenable to suit in their court
if jurisdiction could constitutionally be exercised
state courts of the state where the over him in the
federal court is sitting, even if the state court itself would not (because of a limited long-arm) have jurisdiction. [52]
Example: P sues D for copyright infringement. The suit is brought in the Northern District of Ohio. D’s only contact with Ohio is that he sold 100 copies of the allegedly infringing book in Ohio. The state courts of Ohio, although they could constitutionally take personal jurisdiction over D in a similar state-created claim – libel, for instance – would
not do so because the Ohio long-arm is very limited and would not cover any action growing out of these facts. However, the federal district court will hear the federal question copyright claim against D, because P has minimum contacts with the state where the federal court sits.
a. Foreign defendants: In general, if the
defendant is a foreign corporation or resident,
most federal courts will exercise jurisdiction
over the defendant only if that defendant has
minimum contacts with the state where the federal court sits, not merely minimum contacts with the United States as a whole. (Again, as with an out-of-state but not foreign defendant, the federal court will hear the federal question claim even though the state courts might not exercise jurisdiction over the defendant due to a limited state long-arm.)
i. Narrow exception: If a foreign
any state, defendant could not be sued in
he may be sued on a federal-question claim
in any federal judicial district,
assuming that he has minimum contacts
with the U.S. as a whole. (FRCP 4(k)(2).)
But assuming that the foreign defendant
could be sued in at least some state court,
the general rule described in the prior
paragraph (D must have minimum contacts
with the state where the federal court
sits, not just with the U.S. as a whole)
continues to apply.
diversity cases, the federal courts 2. Diversity: In
exercise only the jurisdiction that is allowed by the
. So if statutory law of the state in which they sit
the state statutory law does not go to the limits of
due process, the federal court will follow suit. [54]
V. JURISDICTION OVER THINGS
A. Two types of actions: There are two types of actions that relate primarily to rather than to people: "things"
(1) actions; and (2) actions. [57 - in remquasi in rem
68]
1. In rem actions: In rem actions are ones which do
not seek to impose personal liability on anyone, but
instead seek to affect the interests of persons in
a specific thing (or res). (Examples: Probate court
actions; admiralty actions concerning title to a
ship; actions to quiet title to real estate or to
foreclose a lien upon it; actions for divorce.)
a. No personal liability: In all of these types
of in rem actions, no judgment imposing
personal liability on anyone results – all
that happens is that the status of a thing is
Example: In a quiet title action, adjudicated. (
a determination is reached that A, rather than
B, is the owner of Blackacre).
2. Quasi in rem actions: Quasi in rem actions are
actions that would have been if in personam
jurisdiction over D’s person had been attainable.
Instead, property or intangibles are seized not as the object of the litigation, but merely as a means
against D. of satisfying a possible judgment
B. In rem jurisdiction: [58 - 59]
1. Specific performance of land sale contract: One important type of in rem action is an action for
specific performance of a contract to convey land.
Even if the defendant is out of state and has no connection with the forum state other than having entered into a contract to convey in-state land, the forum state may hear the action. D does not have to have minimum contacts with the forum state for the action to proceed – it is enough that the contract
involved in-state land, and that D has received reasonable notice. [58]
Shaffer: The landmark case of Shaffer 2. Effect of
, discussed below, has almost no effect on v. Heitner
in rem suits. Shaffer holds that there must be
minimum contacts before a action may quasi in rem
proceed; but no minimum contacts are needed for the court to adjudicate the status of property or some other thing located in the state, even though it affects the rights of an out-of-state defendant. [59]
C. Quasi in rem jurisdiction: [59 - 67]
1. Definition: As noted, a quasi in rem action is
one that would have been in personam if jurisdiction
over D’s person had been attainable. Instead, property or intangibles are seized not as the object
of the litigation, but merely as a means of satisfying a possible judgment against D. [59] Example: P wants to sue D on a contract claim in California state court. The contract has no
connection with California, nor does D himself have sufficient contacts with California to allow that state to exercise personal jurisdiction over him. D does, however, own a bank account in California. Putting aside constitutional due process problems, P could attach that bank account as a basis of
quasi in rem action on the jurisdiction, and bring a
contract claim. If P wins, he will be able to collect only the value of the bank account, and D will not be personally liable for the remainder if the damages exceed the value of the account.
2. No res judicata value: Quasi in rem judgments have
no res judicata value. (Example: If P wins against
D in a action in Connecticut, he cannot quasi in rem
in a later suit against D in California claim that the matter has been decided for all time. Instead, he must go through another trial on the merits if he wishes to subject D to further liability.) [60]
a. Possible exception: Some courts hold that
if D makes a limited appearance (an appearance
that does not confer personal jurisdiction
over him) and fully litigates certain issues,
he will not be allowed to re-litigate those
issues in a subsequent trial. But other courts
hold that even here, the first suit will not
prevent D from re-litigating the same issues
later on.
Shaffer): Quasi 3. Requirement of minimum contacts (
jurisdiction over D cannot be exercised unless in rem
D had such "minimum contacts" with the forum state
that in personam jurisdiction could be exercised
. This is the holding of the landmark case over him
of Shaffer v. Heitner. [63 - 67]
Example: P brings a shareholder’s derivative suit in Delaware on behalf of XYZ Corp. against 28 of XYZ’s non-resident directors and officers. None of the activities complained of took place in Delaware, nor did any D have any other contact with Delaware. P takes advantage of a Delaware statute providing that any stock in a Delaware corporation is deemed to be present in Delaware, allowing that stock to be attached to provide quasi in rem jurisdiction
against its owner. Thus P is able to tie up each D’s
XYZ stockholdings even though there is no other connection with Delaware.
, this use of jurisdiction violates Heldquasi in rem
constitutional due process. No D may be subjected to
jurisdiction unless he has minimum quasi in rem
contacts with the forum state. Here, neither the Ds’ actions nor the fact that those actions related to a Delaware corporation were sufficient to create minimum contacts, so the exercise of jurisdiction was improper. [Shaffer v. Heitner]
4. Jurisdiction based on debt, insurance or other obligation: Shaffer basically abolishes the utility
of quasi in rem jurisdiction – since quasi in rem
is only used where there is no personal jurisdiction, and since the same minimum contacts needed for quasi
will suffice for personal jurisdiction, quasi in rem
will rarely be advantageous. (The one in rem
exception is where minimum contacts are present, but the state long-arm for personal jurisdiction is too narrow to reach the defendant, yet a state attachment
statute applies.) One big practical effect is that attachment of a third party’s debt to the defendant,
or attachment of an insurance company’s obligation
, are largely wiped out as to defend and pay a claim
bases for jurisdiction. [61 - 62]
Example 1: Harris, of North Carolina, owes $180 to Balk, of North Carolina. Epstein, of Maryland, has a claim against Balk for $300. While Harris is visiting in Maryland, Epstein attaches Harris’ debt to Balk by serving Harris with process in a Maryland suit. Under pre-Shaffer law, this established quasi
jurisdiction over the $180 debt, on the theory in rem
that the debt goes wherever the debtor goes. If Epstein won, he could require Harris to pay the $180 to him rather than to Balk. [Harris v. Balk] [61]
But after Shaffer, the fact that Balk’s debtor
happened to be in North Carolina and available for personal service was irrelevant. Since Balk himself did not minimum contacts with Maryland, and thus could not be sued there personally, Shaffer means
quasi in rem suit based on Harris’ debt to that a
him may also not be heard in Maryland.
Example 2: Same facts as above, except assume that instead of Harris’ being sued, Insurance Co., which had an obligation to defend Balk and pay judgments issued against Balk, was served in Maryland. Pre-Shaffer, this would have been enough for quasi
jurisdiction over Balk. [61] in rem
But because of , the fact that Insurer had Shaffer
minimum contacts with Maryland would be irrelevant – an insurance company’s obligation to defend the debtor in the forum state and to pay claims arising out of suits in the forum state is not enough to subject the insured to a quasi in rem suit in the
forum state.
D. Limited appearance: [66]
1. Definition: Some states allow a "limited
." Under a limited appearance, D appears appearance
in an in rem or quasi in rem suit, contests the case
on its merits, but is subjected to liability only to
the extent of the property attached or debt garnished by the court.
a. Distinguished from special appearance:
Distinguish limited appearances from special
appearances – in the latter, a defendant
against whom personal jurisdiction is asserted
is allowed to argue the invalidity of that
jurisdiction without having this argument, or
his presence in the court, itself constitute
a submission to the court’s jurisdiction.
2. Federal limited appearances: Federal courts
state in which they usually follow the rule of the
in determining whether to allow a are sitting
limited appearance.
E. Federal quasi in rem jurisdiction: [67 - 68]
1. General rule: Quasi in rem jurisdiction is
allowed in a federal court if: (1) the law of the
such state in which the federal court sits permitsquasi in rem jurisdiction, and (2) P cannot obtain personal jurisdiction over D in the state through
Examples of reasonable efforts. Rule 4(n). (
: D is a fugitive, or the conditions satisfying (2)
local long-arm is too weak to reach D even though he
has minimum contacts with the state where the
district court sits.)
2. Amount in controversy: In a federal quasi in rem
case, courts are split as to whether it is the value
of the attached property, or the amount claimed,
which should control for the $75,000 amount in
controversy requirement.
VI. NOTICE AND OPPORTUNITY TO BE HEARD
A. Notice generally: Even if the court has authority to judge the dispute between the parties or over the property before it (covered in the above sections), the court may not proceed unless D received adequate notice of the case
against him. [69 - 78]
1. Reasonableness test: In order for D to have
received adequate notice, it is not necessary that
he actually have learned of the suit. Rather, the
procedures used to alert him must have been
reasonably likely to inform him, even if they
actually failed to do so. [70]
Example: P’s process server leaves the summons and complaint at D’s house, with D’s wife. D’s wife throws it in the garbage, and D never learns of it. D has received adequate notice, so the court can exercise jurisdiction over him. Conversely, if P’s process server had left the papers on the sidewalk outside the house, and D had happened to pick them up, this would not be adequate notice to D – the
procedures used were not reasonably likely to give D notice, and they are not saved by the fact that D in fact learned of the suit.
2. Substitute service: Personal service – handing
the papers to D himself – will always suffice as
adequate notice. But all states, and the federal system, also allow "substitute service" in most
instances. Substitute service means "some form of service other than directly handing the papers to the defendant." [71]
a. Leave at dwelling: The most common substitute service provision allows the
dwelling process papers to be left at D’s
within the state, if D is not at home. These provisions usually require the papers to be left with an adult who is reasonably likely to give them to D. (Example: FRCP 4(e)(2) allows
the papers to be left with a person of "suitable age and discretion residing in the dwelling place in question.")
b. Mail: Some states, and the federal system, allow service to be made by ordinary first
. However, usually this method is class mail
allowable only if D returns an acknowledgement or waiver form to P’s lawyer. If D does not return the form, some other method of service must then be used. See FRCP 4(e)(1).
3. Service on out-of-staters: Where D is not present
in the forum state, he must somehow be served out of
. Remember that in a state court suit, this can state
only be done if the state has a long-arm statute
covering the type of case and defendant in question. Once the long-arm covers the situation, the out-of-state defendant must still be given some sort of notice. [72]
a. Mail notice: Many states provide for notice
on the by registered or certified mail
out-of-state defendant.
b. Public official: Sometimes, service may be
made by serving a , plus giving state official
notice by mail to D. (Example: Many
non-resident motorist statutes allow P to
serve the state Director of Motor Vehicles with
a matching mailing to the out-of-state
defendant.)
c. Newspaper publication: If D’s identity or
residence are unknown, some states allow
service by newspaper publication. But this may
only be used where D truly cannot be found by
reasonable effort.
4. Corporations: Several means are commonly allowed
corporations. [73] for giving notice of suit to
a. Corporate officer: Many states require that a corporation, if it wishes to be incorporated in the state or to do business in the state, must to receive designate a corporate official
process for suits against the company. Service on this designated official is, of course, deemed to be adequate notice.
b. Federal Rule: The Federal Rules, and the rules of many states, are more liberal, in that they allow service on any person associated with the corporation who is of sufficiently high placement. Thus FRCP 4(h)(1) provides
that service on a corporation may be made by giving the papers to "an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process."
B. Constitutional due process: Just as the Fourteenth
Amendment’s Due Process Clause prohibits jurisdiction
over a defendant who lacks minimum contacts with the forum
International Shoe), so that clause prohibits the state (
exercise of jurisdiction over a defendant who has not been given "reasonable notice" of the suit. [Mullane v. Central
] [74] Hanover Bank
1. Mail notice to all the identifiable parties: For
instance, if a party’s name and address are
"reasonably ascertainable," publication notice will
not be sufficient, and instead notice by mail (or
other means equally likely to ensure actual notice)
must be used. [Mennonite Board of Missions v. Adams]
[74]
2. Actual receipt doesn’t count: Remember that what
matters is the appropriateness of the notice
prescribed by statute and employed, not whether D
actually got the notice. [74]
C. Opportunity to be heard: D must not only be notified of the suit against him, but must also be given an opportunity to be heard. That is, before his property may be taken, he must be given a chance to defend against the claim. This "opportunity to be heard" must be given to D
not only when his property will be taken forever, but even
significant interference with his before there is any
property rights.
1. Pre-judgment remedy: Opportunity-to-be-heard questions arise most frequently in the context of
, which protect plaintiff pre-judgment remedies
against the defendant’s hiding or squandering his assets during litigation. Two common forms of pre-judgment remedies are the attachment of D’s
bank account and the placing of a lis pendens against
her real estate.
2. Three-part test: The court will weigh three
against each other to determine whether due factors
process was violated when D’s property was interfered with through a pre-judgment remedy: [76 - 78]
a. First, the degree of harm to D’s interest
from the pre-judgment remedy;
b. Second, the risk that the deprivation of
D’s property right will be erroneous
(especially if the state could have used additional procedural safeguards against this but did not); and
c. Third, the strength of the interest of the party (typically P) seeking the prejudgment
remedy. [][77] Connecticut v. Doehr
Example: A state statute allows P to get a prejudgment attachment of D’s real estate without D’s having a hearing first, so long as P "verifies by oath" that there is probable cause to sustain his claim. Factor 1 above (the strength of D’s interest) works against allowing attachment, since an attachment clouds D’s title and affects his credit rating. Factor 2 (risk of erroneous deprivation) also supports not allowing the attachment, since the judge can’t accurately determine the likely outcome of the litigation based solely on P’s one-sided conclusory statements in the oath. Factor 3 (strength of P’s interest) also works against the attachment, since P is not
required to show D is dissipating his assets.
Consequently, the grant of a prejudgment
attachment of D’s property violates his due
Connecticut v. Doehr] process rights. [
VII. DEFENSES TO CLAIMS OF JURISDICTION
A. Special appearance: In a , D "special appearance"
appears in the action with the express purpose of making a jurisdictional objection. By making a special appearance, D has to the exercise of not consented
jurisdiction. [80]
1. Appeal: Most courts allow a defendant who has
unsuccessfully made a special appearance to then
defend on the merits, without losing his right to
appeal the jurisdictional issue. [80]
2. Federal substitute for special appearance: The
federal courts (and the many state courts with rules
patterned after the Federal Rules) have abolished
the special appearance. Instead, D makes a motion
to dismiss for lack of jurisdiction over the parties;
making this motion does not subject D to the
jurisdiction that he is protesting. FRCP 12(b)(2).
[80]
a. Waiver: The right to make a motion to dismiss
in for lack of personal jurisdiction is waived
the federal system if: (1) D makes a motion
raising any of the defenses listed in Rule 12,
and the personal jurisdiction defense is not
included; or (2) D neither makes a Rule 12
motion nor raises the defense in his answer.
B. Collateral attack: [82]
1. General enforcement of judgments: A judgment entered in one jurisdiction may generally be enforced in another. That is, if State 1 enters a judgment against D, D’s property in State 2 (or wages owed him in State 2) may be seized to satisfy the earlier State 1 judgment. [81]
2. Collateral attack on default judgment: If D defaults in an action in State 1, she may
collaterally attack the default judgment when it is sued upon in State 2. Most commonly, D collaterally
attacks the earlier judgment on the grounds that State 1 did not have personal jurisdiction over her, or did not have valid subject matter jurisdiction. [82 - 83]
Example: D has no contacts with Iowa. P, an Iowa resident, sues D in Iowa court. D never appears in the action, and a default judgment is entered against him for $100,000. P then brings a suit in D’s home
state of New Jersey to enforce the earlier Iowa judgment. D will be permitted to collaterally attack the Iowa judgment, by arguing that Iowa lacked personal jurisdiction over him. The New Jersey court will undoubtedly agree with D that, because D did not have minimum contacts with Iowa, Iowa could not constitutionally take jurisdiction over him. Therefore, the New Jersey court will decline to enforce the Iowa judgment.
3. Waiver by D: A defendant who appeared in the
without objecting to jurisdiction, original action
or one who unsuccessfully litigated the
jurisdictional issue in the first action, may not
collaterally attack the judgment. (Instead, a
defendant who unsuccessfully litigates jurisdiction
in the first action must appeal to the first state’s
system, rather than later making a collateral
attack.) [82]
C. Defense of fraud or duress: A court may
constitutionally exercise jurisdiction over a defendant found within the forum state, even if D’s presence was
fraud or duress on the part of the plaintiff. the result of
But the court may exercise its discretion not to exercise
jurisdiction. (Example: P entices D into the jurisdiction with a false love letter and a false statement that she is leaving the country forever and wants to see D once more. When D arrives at the airport in the forum state, P serves him with papers. Held, the forum state will decline to
exercise its jurisdiction because of P’s fraud. [Wyman
]) [83] v. Newhouse
D. Immunity: Most jurisdictions give to non-residents of the forum state an immunity from service of process while
they are in state to attend a trial. This is true whether
the person is a witness, a party, or an attorney. Most
states also grant the immunity for related proceedings such as depositions. [84 - 85]
1. Federal suits: Out-of-state parties, witnesses,
and attorneys also generally receive immunity from
federal court suits (whether diversity or federal
question). [85]
VIII. VENUE
A. Definition: "Venue" refers to the place within a
in which a given action is to be sovereign jurisdiction
brought. It matters only if jurisdiction over the parties has been established. (Example: State X is found to have
jurisdiction over the person of B, in a suit against him by A. Venue determines in which county or district of State
X the case should be tried.) [86]
B. State action: In state trials, venue is determined by statute. The states are free to set up virtually any venue rules they wish, without worrying about the federal constitution. [87]
1. Basis for: Most commonly, venue is authorized
based on the county or city where the defendant
resides
. Many states also allow venue based on where the cause of action arose, where the defendant does business, etc. [87]
2. Under the doctrine of Forum non conveniens: forum
, the state may use its discretion not non conveniens
to hear the case in a county where there is statutory venue. Sometimes, this involves shifting the case to a different place within the state. At other times, it involves the state not having the case take place in-state at all. Usually, it is the defendant who moves to have the case dismissed or transferred for forum non conveniens. [88 - 90]
a. Factors: Three factors that state courts
often consider in deciding whether to dismiss
for forum non conveniens are: (1) whether the
plaintiff is a state resident (if so, he has
a stronger claim to be able to have his case
heard in his home state); (2) whether the
witnesses and sources of proof are more
available in a different state or county; and
(3) whether the forum’s own state laws will
govern the action (transfer is more likely if
a different state’s law controls).
C. Venue in federal actions: In federal actions, the venue
question is, "Which federal district court shall try the
Venue is controlled by 28 U.S.C. ?391. [90 - 97] action?"
1. Still need personal jurisdiction: When you consider a venue problem, remember that venue is not
for personal jurisdiction: the fact a substitute
that venue lies in a particular judicial district does not automatically mean that suit can be brought there. Suit can be brought only in a district that satisfies both the venue requirements and the
personal jurisdiction requirements as to all defendants. [91]
2. Three methods: There are three basic ways by which there might be venue in a particular judicial district: (1) if any defendant resides in that
district, and all defendants reside in the state
containing that district; (2) if a "substantial part
... giving rise to the claim occurred, of the events
or a substantial part of property that is the subject
of the action is situated," in the district; and (3)
"reachable" in the if at least one defendant is
district, and no other district qualifies. Each of these is considered below, as sections 3, 4 and 5.
[91]
3. "Defendant’s residence" venue: For both
diversity and federal question cases, venue lies in any district where any defendant resides, so long
as, if there is more than one defendant, all the
reside in the state containing that defendants
district. [92]
Example: P, from Massachusetts, brings a diversity suit against D1, from the Southern District of New York, and D2, from the Eastern District of New York. Venue will lie in either the Southern District of New York or the Eastern District of New York – each of
these is home to at least one defendant, and each of these two districts is in a state that is home to all the defendants. But if D2 had been a resident of the District of Connecticut instead of any New York
district, there would not be any "defendant’s residence" venue anywhere.
4. "Place of events or property" venue: For both diversity and federal question cases, venue lies in any district "in which a substantial part of the
or omissions giving rise to the claim events
occurred, or a substantial part of property that is
the subject of the action is situated...." This is
"place of events" venue. [92]
a. Multiple districts: There can be multiple
districts qualifying for "place of events"
venue, as long as each district was the locus
for a "substantial part" of the events relating
to the claim. (Example: P, from Massachusetts,
sues D, a car dealer from Connecticut. P
alleges that D sold P a car in Connecticut, that
P drove the car to Massachusetts, and that a
defect in the car caused P to be injured in
Massachusetts. Probably venue in either the
District of Massachusetts or the District of
Connecticut would be allowed under the "place
of events" provision, since probably both the
selling of the defective car and the incurring
of the accident were a "substantial part" of
the events.)
5. "Escape hatch" provision: Finally, for both diversity and federal question cases, there is an "escape hatch," by which venue may be founded in a district with which some or all defendants have close ties, if there is no district in which the action
. This escape hatch is used may otherwise be brought
mainly for cases in which nearly all the events
. [93 - 95] occurred abroad
a. Diversity: In a case founded solely on
diversity, the escape hatch gives venue in any
judicial district "in which any defendant is
subject to personal jurisdiction at the time
the action is commenced, if there is no
district in which the action may otherwise be
brought." ?391(a)(3).
Example: P, from Massachusetts, brings a
diversity suit against D1, who resides in the
Southern District of New York, and D2, who lives in the District of Connecticut. P’s suit
is brought in the Southern District of New York. The suit relates solely to matters which occurred in Mexico.
The escape hatch applies – even though there
is no "defendant’s residence" venue or "place of events" venue in S.D.N.Y., the escape hatch works because at least one defendant (D1) is subject to personal jurisdiction in S.D.N.Y. by virtue of his residence there. The escape hatch works only because there’s no other
where the suit could have been brought district
– there’s no "defendants’ residence" venue since there’s no single state in which all defendants reside, and there’s no "place of events" venue since everything happened in Mexico. (Also, remember that there still has to be personal jurisdiction over each
defendant. So D2 will have to have minimum contacts with New York, and be reachable under the New York long-arm.)
b. Federal question cases: In federal question
cases, the escape hatch provision gives venue
any in any judicial district "in which
may be found, if there is no district defendant
in which the action may otherwise be
brought." ?391(b)(3). (Probably a defendant is
"found" in a district if he can be subject to
personal jurisdiction in that district, i.e.,
he has minimum contacts with that district. So
there’s probably no real difference between
the escape hatch for federal question cases and
the one for diversity cases.)
6. No "plaintiff’s residence" venue: There is no
venue (as there used to be) based on plaintiff’s
. [95] residence
7. Corporation: The residence of a corporation for
venue purposes matters only if the corporation is a defendant. A corporation is deemed to be a resident of any district as to which the corporation would have the "minimum contacts" necessary to support
personal jurisdiction if that district were a
separate state
. Thus a corporation is a resident of at least the district where it has its principal
, any district where it has place of business
substantial operations, and probably any district
in its state of incorporation. But merely because
a corporation does business somewhere in the state, this does not make it a resident of all districts of that state. [95]
Example: XYZ Corp. is incorporated in Delaware, and has its only office in San Francisco. XYZ has no contacts with any part of California other than San Francisco. If XYZ is a defendant, it will reside, for venue purposes, in the district of Delaware and in the Northern District of California. XYZ is not a resident of any other districts in California – thus
"defendant’s residence" venue would not lie against XYZ, for instance, in a suit brought in the Central District of California, located in Los Angeles. 8. Removal: A case removed from state to federal
court passes to "the district court of the U.S. for
where the district and division embracing the place
." 28 U.S.C. ?441(a). [96] such action is pending
9. Federal forum non conveniens: In the federal
system, when a defendant successfully moves for forum non conveniens, the original court transfers
the case to another district, rather than dismissing it. Under 28 U.S.C. ?404(a), "for the convenience of
parties and witnesses...a district court may transfer any civil action to any other district or division where it might have been brought." [96 - 97]
a. Defendant’s motion: Usually, it is the
defendant who moves for forum non conveniens.
When this happens, the case may be transferred
only to a district where P would have had the
right, independent of the wishes of D, to bring
the action. (Example: If suit in a particular
district would not have been possible, as an
initial matter, because one or more of the Ds
could not be personally served there, or
because venue would not have been proper there,
even the consent by all Ds would not authorize the action to be transferred to that district.) b. Choice of law: When federal forum non
is granted, the state law of the conveniens
transferor court is to be applied by the
transferee court. ( P brings a Example:
diversity action against D in Mississippi federal court. That court grants D’s motion to have the case moved to Pennsylvania District Court. If, as is likely, Mississippi federal court would have applied Mississippi state law rather than Pennsylvania state law under Erie
principles, the Pennsylvania federal court must also apply Mississippi state law.) This is true whether the forum non conveniens was
sought by P or by D. [Ferens v. John Deere Co.]
[97]
Chapter 3
SUBJECT MATTER JURISDICTION
I. GENERAL PRINCIPLES
A. Diversity vs. federal question: In the federal courts, there are two basic kinds of controversies over which the federal judiciary has subject matter
citizens of jurisdiction: (1) suits between
(so-called diversity different states
jurisdiction); and (2) suits involving a "federal
." [100] question
1. Other cases: Certain other kinds of cases
specified in the constitution also fall under
the federal judicial power. These are cases
involving ambassadors, cases involving
admiralty, and cases in which the United States
is a party. But except in these very unusual
cases, when you are considering a case that is
brought in the federal courts, you must ask:
Does it fall within the diversity jurisdiction
or federal question jurisdiction? If it does
not fall within either of these, probably it
cannot be heard by the federal courts. B. Amount in controversy: In federal suits based on diversity, an amount in excess of $75,000 must be
"amount in controversy" in dispute. This is the
requirement. In federal question cases, there is no amount in controversy requirement. [101]
C. Burden: The party seeking to invoke the
of a federal court must make an jurisdiction
that the case is within the affirmative showing
court’s subject matter jurisdiction. (Example: If
P wants to invoke diversity jurisdiction, in her pleading she must allege the relevant facts about the citizenship of the parties.) [101]
D. Dismissal at any time: No matter when a deficiency
in the subject matter jurisdiction of a federal court is noticed, the suit must be stopped, and dismissed
for lack of jurisdiction. See FRCP 12(h)(3),
requiring the court to dismiss the action at any time if it appears that the court lacks subject matter jurisdiction. [101 - 102]
Example: A case brought under federal question jurisdiction goes through trial and through one level of appeals, and is then heard by the Supreme Court. The Supreme Court decides that there was no
Held, the entire federal question in the first place.
case must be dismissed for lack of federal subject matter jurisdiction. [Louisville & National RR v.
] Mottley
II. DIVERSITY JURISDICTION
A. Definition: The Constitution gives the federal courts jurisdiction over "controversies ... between
...." This is the the citizens of different states
grant of "diversity jurisdiction." [103 - 110] Example: P, a citizen of California, wants to sue D, a citizen of Oregon, for hitting P with D’s car.
Assuming that P’s damages exceed $75,000, P can bring her negligence suit against D in federal court, because it is between citizens of different states.
1. Date for determining: The existence of
diversity is determined as of the commencement
. If diversity existed between the of the action
parties on that date, it is not defeated
because one of the parties later moved to a
state that is the home state of the opponent. [105]
2. Domicile: What controls for citizenship is
, not residence. A person’s domicile domicile
is where she has her true, fixed and permanent home. ( P has his main home in New York, Example:
but has an expensive second home in Florida. D has her only home in Florida. P can bring a diversity action against D, because P is deemed a citizen only of New York, not Florida, even though P has a "residence" in Florida.) [105]
a. Resident alien: A resident alien (an
alien who lives in the United States
permanently) is deemed a citizen of the
state in which he is domiciled.
b. Presence of foreigner: In a suit
between citizens of different states, the
fact that a foreign citizen (or foreign
country) is a party does not destroy
diversity. (Example: P, a citizen of Ohio,
sues D1, a citizen of Michigan, and D2,
a citizen of Canada. Diversity
jurisdiction exists.) (In situations
solely of foreign where one side consists
citizens or foreign countries,
"alienage" jurisdiction applies. See
below.)
3. Complete diversity: The single most important principle to remember in connection with diversity jurisdiction is that "complete
. That is, it must be the diversity" is required
case that no plaintiff is a citizen of the same
. [103] state as any defendant
Example: P, a citizen of New York, brings a suit against D1, a citizen of New York, and D2, a citizen of New Jersey. We ask, "Is there any plaintiff who is a citizen of the same state as any defendant?" Since the answer is "yes," the requirement of complete diversity is not satisfied, and there is no diversity jurisdiction.
4. Pleading not dispositive: In order to
determine whether diversity exists, the
pleadings do not settle the question of who are
adverse parties. Instead, the court looks
beyond the pleadings, and arranges the parties
according to their real interests in the
litigation. [104]
a. Nominal parties ignored: In
determining the existence of diversity,
nominal or purely formal parties are
ignored. (Example: Where a guardian of an
infant sues, the guardian is deemed to be
a citizen only of the same state as the
infant. See 28 U.S.C. ?332(c)(2).) [104
- 105]
B. Alienage jurisdiction: Related to diversity jurisdiction, but analytically distinct, is
jurisdiction. Alienage jurisdiction "alienage"
exists where there is a suit between citizens of a state, on one side, and foreign states or citizens thereof, on the other. (Example: P, a citizen of
Mexico, sues D, a citizen of Illinois. Even if there is no federal question issue, there will be federal subject matter jurisdiction of the "alienage" variety, assuming that the amount in controversy requirement is satisfied.) [106 - 107]
1. Suit between two foreign citizens: But a
two foreign suit solely between citizens of
does not fall within the alienage countries
jurisdiction. (Example: If P, a citizen of
Canada, sues D, a citizen of Mexico, there is
no alienage jurisdiction.)
C. Diversity involving corporations: For diversity purposes, a corporation is deemed a citizen of any
and of the state where state where it is incorporated
it has its principal place of business. In other
words, for diversity to exist, no adversary of the corporation may be a citizen of the state in which the corporation is incorporated, or of the state in which it has its principal place of business. (Example: XYZ Corp., a corporation which is
incorporated in Delaware, has its principal place of
business in New York. In order for there to be
diversity, no adverse party may be a citizen of
either Delaware or New York.) [107]
1. Principal place of business: Courts have taken two different views about where a corporation’s "principal place of business" is.
a. Home office: Some courts hold that the
corporation’s principal place of
business is ordinarily the state in which
its corporate headquarters, or "home
office," is located. This is sometimes
called the "nerve center" test.
b. Bulk of activity: Other courts hold
that the principal place of business is
the place in which the corporation
carries on its main production or service
. This is sometimes called the activities
"muscle" test. This is the more
commonly-used standard.
D. Devices to create or destroy diversity: The
federal courts will not take jurisdiction of a suit
"improperly or in which any party has been
to obtain jurisdiction. 28 collusively joined"
U.S.C. ?359. [108 - 110]
1. Assignment: This means that a claimant may not assign her claim in order to create
diversity. (Example: Alex and Dennis are both
citizens of Florida. Alex wants to bring a diversity action against Dennis. Alex assigns his claim to Barbara, a Massachusetts citizen, with the understanding that Barbara will remit to Alex 80% of any recovery. The court will not take diversity jurisdiction over the
Barbara-vs.-Dennis action, because Barbara’s presence in the suit was an improper or collusive joinder. []) Kramer v. Caribbean Mills
[108]
2. Devices to defeat removal: A plaintiff suing in state court may sometimes seek to defeat her adversary’s potential right to remove to
federal court
. There is no federal statute
prohibiting "improper or collusive" joinder
for the purpose of defeating jurisdiction.
However, as a matter of judge-made law, courts
will often disregard obvious
removal-defeating tactics (e.g., joinder of a
defendant who has nothing to do with the
underlying dispute, but who is a citizen of the
same state as a plaintiff.) [108 - 110]
a. Low dollar claim: But the state-court
plaintiff is always free to make a claim
for less than the amount in controversy
($75,000), in order to defeat removal,
even if P has really suffered a loss
greater than this amount. (But the
less-than-$75,000 amount must be named
D removes.) before
III. FEDERAL QUESTION JURISDICTION
A. Generally: The Constitution gives the federal courts authority to hear "federal question" cases.
More precisely, under 28 U.S.C. ?331, the federal
courts have jurisdiction over "all civil actions
arising under the Constitution, laws, or treaties
." [112 - 113] of the United States
1. Federal claim: There is no precise definition of a case "arising under" the Constitution or laws of the United States. But in the vast majority of cases, the reason there is a federal question is that federal law is the source of the plaintiff’s claim.
(Examples: A claim of copyright infringement, trademark infringement or patent infringement raises a federal question, because in each of these situations, a federal statute – the
federal copyright statute, trademark statute or patent statute – is the source of the right the plaintiff is asserting.) [112]
a. Interpretation of federal law: It is
enough that P is asserting a not
state-created claim which requires
interpretation of federal law. (Example:
P brings a state-court product liability
suit against D for injuries sustained by taking a drug made by D. P claims that D violated the federal FDA statute by mislabeling the drug, and that this mislabeling automatically constitutes common-law negligence. D wants to remove to federal court, so it claims that the case is within federal question
jurisdiction, because its disposition requires interpretation of a federal
Held, no federal question is statute.
raised, because P’s claim did not "arise under" federal law. [Merrell Dow
]) Pharmaceuticals, Inc. v. Thompson[112]
b. Claim based on the merits: If P’s
claim clearly "arises" under federal law, it qualifies for federal question jurisdiction even if the claim is invalid
. Here, the federal court on the merits
must dismiss for failure to state a claim upon which relief may be granted (FRCP
12(b)(6)), not for lack of subject matter jurisdiction. [113]
c. Anticipation of defense: The federal
to P’s cause question must be integral
of action, as revealed by P’s complaint. It does suffice for federal question not
jurisdiction that P anticipates a defense
based on a federal statute, or even that D’s answer does in fact raise a federal question. Thus the federal question must be part of a "well pleaded complaint." [113]
Example: P claims that D Railroad has breached its agreement to give P free railroad passes. A recently-passed federal statute prohibits the giving of such passes. In P’s complaint, he anticipates the railroad’s federal statutory defense, claiming that the statute violates the Fifth Amendment.
Held, since P’s claim was merely a breach
of contract claim, and the federal
statute was not essential to that claim,
there was no federal question – the fact
that federal law was an integral part of
D’s anticipated defense is irrelevant.
[Louisville & Nashville RR v. Mottley]
IV. AMOUNT IN CONTROVERSY
A. Diversity only: In cases, but in diversitynot
federal question cases, plaintiff must satisfy an "amount in controversy" requirement. In all
diversity cases, the amount in controversy must exceed $75,000. [114]
1. Interest not included: The $75,000 figure
does not include interest or court costs. B. Standard of proof: The party seeking to invoke federal diversity jurisdiction does not have to prove that the amount in controversy exceeds $75,000. All she has to show is that there is some possibility
that that much is in question. [115]
1. "Legal certainty" test: To put it another
way, the claim cannot be dismissed for failing
to meet the $75,000 requirement unless it
legal certainty that the claim is appears to a
really for less than the jurisdictional amount.
[St. Paul Mercury Indemnity Co. v. Red Cab]
2. Eventual recovery irrelevant: The fact that
P eventually recovers far less than the
jurisdictional amount does not by itself
render the verdict subject to reversal and
dismissal on appeal for lack of jurisdiction.
a. Discretion to deny costs: But the
federal court has discretion to deny
to P, and even to impose costs on costs
him, if he recovers less than $75,000. 28
U.S.C. ?332(b).
C. Whose point of view followed: The courts are split as to which party’s point of view is to be
considered in calculating the amount at stake. Most courts hold that the controversy must be worth
plaintiff in order to satisfy the $75,000 to the
jurisdictional amount. [115]
D. Aggregation of claims: In multi-plaintiff or multi-claim litigation, you must understand the rules governing when aggregation of claims is
permissible for meeting the jurisdictional amount: [116 - 118]
1. Aggregation by single plaintiff: If a single
plaintiff has a claim in excess of $75,000, he
may add to it any other claim of his against
, even though these other the same defendant
claims are for less than the jurisdictional
amount. This is done by the doctrine of
supplemental jurisdiction. [116]
a. No claim exceeds $75,000: Even if a
plaintiff does not have any single claim
worth more than $75,000, he may add
together all of his claims against a
single defendant. So long as these claims
against a single defendant total more
than $75,000, the amount in controversy requirement is satisfied.
b. Additional defendants: But a plaintiff who has aggregated his claim against a particular defendant, usually may not
join claims against defendants for other
less than the jurisdictional amount. Example: P has two claims, each for $40,000, against D1. P will be deemed to meet the amount in controversy
requirement as to these claims, because they aggregate more than $75,000. But if P tries to bring D2 into the lawsuit, and has a single claim worth $40,000 against D2, most courts will not allow this claim, because P’s total claims against D2 do not exceed $75,000, and the doctrine of supplemental jurisdiction does not apply.
2. Aggregation by multiple plaintiffs: [116 -
118]
a. At least one plaintiff meets amount: If one plaintiff meets the jurisdictional amount, it’s not completely clear whether the other plaintiffs may join their related claims against that same defendant. The plaintiffs may probably use the doctrine of "supplemental jurisdiction" so as to enable the low-amount plaintiffs to join their claims together with the high-amount plaintiff.
b. No single claim meets the amount: If no single plaintiff has a claim or claims meeting the jurisdictional amount, aggregation by multiple plaintiffs is not
. (Exception: Where two or more allowed
plaintiff unite to enforce a single title or right in which they have a common and undivided interest, aggregation is allowed.)
c. Special restrictions for class
class actions, until recently actions: In
there has been an especially stringent,
and clear, rule: every member of the class
. had to satisfy the jurisdictional amount
This meant that class actions in
diversity cases were rarely possible.
[Zahn v. International Paper Co.] [117]
Some courts, however, have recently ruled
that as long as the named class
representatives each have a claim in
excess of $75,000, the supplemental
jurisdiction doctrine applies, so that
the unnamed members need not meet the
[Free v. Abbott jurisdictional amount.
] [117] Labs.
E. Counterclaims: [118]
1. Suit initially brought in federal court: If P sues in federal court for less than the jurisdictional amount, and D counterclaims for
an amount which (either by itself or added to
P’s claim) exceeds the jurisdictional amount, probably the amount in controversy requirement
not met. is
2. Removal by defendant: If P originally sues in state court for less than $75,000, and D tries to to federal court, amount in remove
controversy problems work out as follows:
a. Plaintiff removal: The may plaintiff
never remove, even if D counterclaims
against him for more than $75,000. (The
removal statute simply does not apply to
plaintiffs, apart from
amount-in-controversy problems.)
b. Defendant removal: If the defendant
counterclaims for more than $75,000, but
plaintiff’s original claim was for less
than $75,000, the result depends on the
type of counterclaim. If D’s
counterclaim was permissive (under state
law), all courts agree that D may not
remove. If D’s claim was compulsory
under state law, courts are split about
whether D may remove.
V. SUPPLEMENTAL JURISDICTION
A. "Supplemental" jurisdiction: Suppose new parties or new claims are sought to be added to a basic controversy that by itself satisfies federal subject-matter jurisdictional requirements. Under
jurisdiction, the the doctrine of "supplemental"
new parties and new claims may not have to independently satisfy subject-matter jurisdiction – they can in effect be "tacked on" to the "core" controversy. See 28 U.S.C. ?367. [120 - 134]
1. Pendent and ancillary doctrines replaced:
Supplemental jurisdiction replaces two older
judge-made doctrines, "pendent" jurisdiction
and "ancillary" jurisdiction.
2. Provision generally: Section 1367(a) says
that "in any civil action of which the district
courts have original jurisdiction, the
district courts shall have supplemental
jurisdiction
over all other claims that are so
to claims in the action within such related
original jurisdiction that they form part of the same case or controversy under Article III
of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties." [124] 3. Federal question cases: Where the original claim comes within the court’s federal
jurisdiction, ?367 basically allows question
the court to hear any closely related state-law
. [124] claims
a. Pendent state claims with no new
parties: Supplemental jurisdiction
clearly applies when a related state
claim involves the same parties as the
federal question claim.
Example: P and D are both citizens of New
York. Both sell orange juice nationally.
P sues D in federal court for violation
of the federal trademark statute, arguing that D’s brand name infringes a mark registered to P. P also asserts that D’s conduct violates a New York State "unfair competition" statute. There is clearly no independent federal subject matter jurisdiction for P’s state law unfair competition claim against D – there is
no diversity, and there is no federal question. But by the doctrine of
supplemental jurisdiction, since the federal claim satisfies subject-matter jurisdictional requirements, P can add the state law claim that is closely related to it.
b. Additional parties to state-law claim: Section 1367 also allows additional
to the state-law claim to be parties
brought into the case. [125]
Example: P’s husband and children are
killed when their small plane hits power
lines near an airfield. P sues D1 (the
U.S.) in federal court, under the Federal
Tort Claims Act, for failing to provide
adequate runway lights. Then, P amends
her complaint to include state-law tort
claims against D2 and D3 (a city and a
private company) who maintain the power
lines. There is no diversity of
citizenship between P and D2 and D3, and
no federal-question claim against them.
But because P’s state-law claim against
D2 and D3 arises from the same chain of
events as P’s federal claim against D1,
P may bring D2 and D3 into the suit under
the supplemental jurisdiction concept,
and the last sentence of ?367(a). [This
Finley v. U.S.] [125] overrules
4. Diversity cases: There is also supplemental jurisdiction in many cases where the "core" claim – the claim as to which there is independent federal subject matter
jurisdiction – is based solely on diversity.
But there are some important exclusions to the
parties’ right to add additional claims and
parties to a diversity claim.
a. Claims covered: Here are the principal diversity-only situations in which supplemental jurisdiction : [129 applies
- 130]
i. Rule 13(a) compulsory
. counterclaims
ii. Rule 13(h) joinder of additional
parties to compulsory
. (Example: P, from counterclaims
New York, brings a diversity suit
against D, from New Jersey. The
claim is for $80,000. D
counterclaims that in the same
episode, D was injured not only by
P but also by Y; D’s injuries total
$1,000. Y is from New Jersey. D may
bring Y in as a Rule 13(h) additional
defendant to D’s compulsory
counterclaim against P, even though D and Y are both from New Jersey, and even though D’s claim does not total $75,000 – supplemental
jurisdiction applies, and obviates the need for D-Y diversity or for D to meet the amount in controversy requirement.)
cross-claims, i.e., iii. Rule 13(g)
claims by one defendant against another. (Example: P, from Ohio,
brings a diversity suit against D1 and D2, both from Kentucky. D1 brings a Rule 13(g) cross-claim against D2 – since it is a
cross-claim, it necessarily relates to the same subject matter as P’s claim. Even though there is no diversity as between D1 and D2, the cross-claim may be heard by the federal court.)
impleader of third-party iv. Rule 14
defendants, for claims by and
, against third-party plaintiffsand claims by third-party
, but not claims by the defendants
original plaintiff against
third-party defendants. (Example: P,
from California, sues D, a retailer from Arizona, claiming that a product D sold P was defective and injured P. The suit is based solely on diversity. D brings a Rule 14 impleader claim against X, the manufacturer of the item, claiming that if D owes P, X must indemnify D. X is a citizen of Arizona. Because D’s suit against X falls within the court’s supplemental jurisdiction, the lack of diversity as between D and X makes no difference.
Supplemental jurisdiction would also cover any claim by X against P.
But any claim by P against X would
not be within the court’s
supplemental jurisdiction, so P and
X must be diverse and the claim must
meet the amount in controversy
requirement.)
b. Claims not covered: Where the core claim is based on diversity, some important types of claims do not get the
benefit of supplemental jurisdiction: [126 - 128]
i. Claims against third-party
defendants: Claims made by a
plaintiff against a third-party
, pursuant to Rule 14(a), defendant
are excluded. (Example: P sues D,
and D brings a third-party claim
against X, asserting that if D is
liable to P, X is liable to D. P and
X are citizens of the same state. P
does not get supplemental
jurisdiction for her claim against X, so the P-vs.-X claim must be
Owen Equipment v. dismissed. [
, codified in ?367(b).] ) Kroger
ii. Compulsory joinder: When a person is joined under Rule 19(a) as
a person to be "joined if feasible" ("compulsory joinder"), neither a
claim against such a person, nor a claim by that person, comes within the supplemental jurisdiction in a diversity-only case.
iii. Rule 20 joinder: When a plaintiff sues multiple defendants in the same action on common law and facts (Rule 20 "permissive
), supplemental joinder"
jurisdiction does not apply. (Example: P is hit by D1’s car, then negligently ministered to by D2. P is from New York, D1 is from
Connecticut, and D2 is from New Jersey. P’s claim against D2 is for $20,000. The federal court cannot hear the P-D2 claim, because it does not meet the amount in controversy and does not fall within
supplemental jurisdiction.) iv. Intervention: Claims by
prospective plaintiffs who try to intervene under Rule 24 do not get
the benefit of supplemental
jurisdiction. This is true whether the intervention is permissive or of right. ( P1 sues D in Example:
diversity. P2, on her own motion, moves for permission to intervene under Rule 24(b), because her claim against D has a question of law or fact in common with P1’s claim. P1
is a citizen of Indiana, P2 of Illinois, and D of Illinois. Because there is no supplemental
jurisdiction over intervention, the
fact that P2 and D are citizens of
the same state means that the court
may not hear P2’s claim. The same
result would occur even if P2’s
claim was so closely related to the
main action that P2 would otherwise
be entitled to "intervention of
right" under Rule 24(a).)
c. Defensive posture required: If you look at the situations where supplemental jurisdiction is allowed in
diversity-only cases, and those where it is not allowed, you will see that basically, additional claims asserted by defendants fall within the court’s
supplemental jurisdiction, but
additional claims (or the addition of new parties) by plaintiffs are generally not
included. So expect supplemental jurisdiction only in cases where the
claimant who is trying to benefit from it
"defensive posture." [125] is in a
5. Discretion to reject exercise: Merely because a claim is within the court’s supplemental jurisdiction, this does not mean that the court hear that claim. Section must
1367(c) gives four reasons for which a court may decline to exercise supplemental
jurisdiction that exists. Most importantly, the court may abstain if it has already dismissed all claims over which it has original jurisdiction. This discretion is especially likely to be used where the case is in its early stages. ( P sues D1 (the U.S.) under Example:
a federal statute, then adds state-law claims against D2 and D3, as to which there is neither diversity nor federal question jurisdiction. Soon after the pleadings are filed, the court dismisses P’s claim against D1 under FRCP
12(b)(6). Probably the court will then
exercise its discretion to decline to hear the supplemental claims against D2 and D3.) [130]
6. No effect on personal jurisdiction: The
application of the supplemental jurisdiction
not eliminate the requirement of doctrine does
jurisdiction over the parties, nor does it
eliminate the requirement of service of
. It speaks solely to the question of process
subject matter jurisdiction. (But often in the
supplemental jurisdiction situation, service
in the 100-mile bulge area will be available.)
[134]
a. Venue: Where supplemental
jurisdiction applies, probably venue
requirements do not have to be satisfied
with respect to the new party. But usually,
venue will not be a problem anyway in
these kinds of situations.
VI. REMOVAL TO THE FEDERAL COURTS
A. Removal generally: Generally, any action brought in state court that the plaintiff could have brought in federal court may be removed by the defendant to
federal district court. [139]
Example: P, from New Jersey, sues D, from New York, in New Jersey state court. The suit is a garden-variety automobile negligence case. The amount at issue is $100,000. D may remove the case to federal district court for the District of New Jersey.
1. Diversity limitation: The most important
single thing to remember about removal
diversity cases, the jurisdiction is this: In
action may be removed only if no defendant is
a citizen of the state in which the action is
. pending
Example: P, from New Jersey, brings a
negligence action against D, from New York, in
the New York state court system. D may not
remove the case to federal court for New York,
because he is a citizen of the state (New York)
in which the action is pending. (But if P’s
suit was for trademark infringement – a kind
of suit that raises a federal question but may
be brought in either state or federal court –
D would be able to remove, because the "not a
citizen of the state where the action is
pending" requirement does not apply in suits
raising a federal question.)
2. Where suit goes: When a case is removed, it
passes to the federal district court for the
district and division embracing the place
where the state cause of action is pending.
Example: If a suit is brought in the branch (
of the California state court system located
in Sacramento, removal would be to the federal
district court in the Eastern District of
California encompassing Sacramento.) [139] B. Diversity and amount in controversy rules applicable: In removal cases, the usual rules governing existence of a federal question or of diversity, and those governing the jurisdictional amount, apply. ( If there is no federal Example:
question, diversity must be "complete.") [139] C. No plaintiff removal: Only a defendant may remove.
A plaintiff defending a counterclaim may not remove.
Example: P brings a suit for product liability (
against D. D counterclaims for libel in an amount of $100,000. P is from Ohio; D is from Indiana. The suit is pending in Michigan state court. Even though P is not a resident of the state where the action is pending, P may not remove, because the right of removal is limited to defendants.) [140]
D. Look only at plaintiff’s complaint: The right
of removal is generally decided from the face of the pleadings. The jurisdictional allegations of plaintiff’s complaint control. [140]
Example: P is badly injured in an automobile accident caused by D’s negligence. P’s medical bills total $80,000, but P sues only for $60,000, for the express purpose of thwarting D’s right to remove. The jurisdictional allegations of P’s complaint control, so that D may not remove even though more than $75,000 is "really" at stake.
E. Removal of multiple claims: Where P asserts against D in state court two claims, one of which
could be removed if sued upon alone, and the other
of which could not, complications arise. [141 - 143] 1. Diversity: If the claim for which there is federal jurisdiction is a claim, the diversity
presence of the second claim (for which there is no original federal jurisdiction) defeats
the defendant’s right of removal entirely –
the whole case must stay in state court. [142] 2. Federal question case: Where the claim for which there is original federal jurisdiction is a federal question claim, and there is
another, "separate and independent," claim for which there is no original federal
jurisdiction, D may remove the whole case. 28
U.S.C. ?441(c). [142]
Example: P and D1 are both citizens of Kentucky. P brings an action in Kentucky state court alleging federal antitrust violations by D1. P adds to that claim a claim against D1 and D2, also from Kentucky, asserting that the two Ds have violated Kentucky state unfair
competition laws. Section 1441(c) will allow
D1 and D2 to remove to federal court, if the
antitrust claim is "separate and independent"
from the state unfair competition claim.
a. Remand: If ?441(c) applies, and the
entire case is removed to federal court,
the federal judge need not hear the entire
matter. The court may instead remand all
matters in which state law predominates.
i. Remand even the federal claim: In
fact, the federal court, after
determining that removal is proper,
may remand all claims – even the
properly-removed federal claim –
if state law predominates in the
whole controversy.
F. Compulsory remand: If the federal judge concludes that the removal did not satisfy the statutory requirements, she must remand the case to the state
court from which it came. (Example: If in a diversity
case it turns out that one or more of the Ds was a
citizen of the state in which the state suit was commenced, the federal judge must send the case back to the state court where it began.) [143] G. Mechanics of removal: [143]
1. Time: D must usually file for removal within
of the time he receives service of the 30 days
state-court complaint.
2. All defendants joined: All defendants
(except purely nominal ones) must join in the
notice of removal. (However, if removal occurs
under ?441(c)’s "separate and independent
federal claim" provision, then only the
defendant(s) to the separate and independent
federal claim needs to sign the notice of
removal.)
Chapter 4
PLEADINGS
I. FEDERAL PLEADING GENERALLY
A. Approach generally: [149 - 157]
1. Two types: In most instances, there are only two types of pleadings in a federal action.
complaint and the answer. The These are the
complaint is the document by which the plaintiff begins the case. The answer is the defendant’s response to the complaint. [149]
a. Reply: In two circumstances, there
will be a third document, called the reply.
The reply is, in effect, an "answer to the
answer." A reply is allowable: (1) if the
answer contains a counterclaim (in which
case a reply is required); and (2) at
plaintiff’s option, if plaintiff
obtains a court order allowing the reply. 2. No verification generally: Pleadings in a federal action normally need not be
"verified," i.e., sworn to by the litigant. However, there are a couple of exceptions, two of which are: (1) the complaint in a stockholders’ derivative action (see FRCP
23.1); and (2) when the complaint is seeking
temporary restraining order (FRCP 65(b)). a
[151]
3. Attorney must sign: The pleader’s lawyer
must the pleadings. This is true for both sign
the complaint and the answer. By signing, the lawyer indicates that to the best of her belief, formed after reasonable inquiry, the pleading is not interposed for any improper purpose
(e.g., harassing or causing unnecessary delays), the claims and defenses are warranted by existing law or a nonfrivolous argument for changing existing law, and (in general) the allegations or denials have evidentiary support. FRCP 11. [152]
a. Sanctions: If Rule 11 is violated (e.g.,
the complaint, as the lawyer knows, is not
well grounded in fact, or supported by any
plausible legal argument), the court must
impose an appropriate sanction on either
the signing lawyer, the client, or both.
The most common sanction is the award of
attorneys’ fees to the other side.
b. Safe harbor: A party against whom a
Rule 11 motion is made has a 21-day "safe
period in which she can harbor"’
withdraw or modify the challenged
pleading and thereby avoid any sanction. 4. Pleading in the alternative: The pleader, whether plaintiff or defendant, may plead "in
." "A party may set forth two the alternative
or more statements of a claim or defense alternately or hypothetically." FRCP 8(e).
(Example: In count 1, P claims that work done for D was done under a valid written contract. In count 2, P claims that if the contract was not valid, P rendered value to D and can recover in quantum meruit for the value. Such
alternative pleading is allowed by Rule 8(e).)
[157]
II. THE COMPLAINT
A. Complaint generally: The complaint is the initial
pleading in a lawsuit, and is filed by the plaintiff.
[157]
1. Commences action: The filing of the complaint is deemed to "commence" the action. The date of filing of the complaint is what counts for statute of limitation purposes in federal question suits (though in diversity suits, "commencement" for
statute-of-limitations purposes depends on how state law defines commencement.) 2. Elements of complaint: There are three essential elements that a complaint must have (FRCP 8(a)): [157]
a. Jurisdiction: A short and plain
statement of the grounds upon which the
court’s jurisdiction depends;
b. Statement of the claim: A short and
plain statement of the claim showing that
the pleader is entitled to relief; and
c. Relief: A demand for judgment for the
relief (e.g., money damages, injunction,
etc.) which the pleader seeks.
B. Specificity: Plaintiff must make a "short and
of the claim showing that she is plain statement"
entitled to relief. The level of factual detail required is not high – gaps in the facts are usually remedied through discovery. Plaintiff needs to state only the facts, not the legal theory she is relying upon. [158]
C. Special matters: Certain "special matters" must
be pleaded with particularity if they are to be
raised at trial. [160]
1. Catalog: The special matters (listed in FRCP
9) include: (1) denial of a party’s legal
capacity to sue or be sued; (2) the
circumstances giving rise to any allegation of
fraud or mistake; (3) any denial of performance
or occurrence of a condition precedent; (4) the
existence of judgments or official documents
on which the pleader plans to rely; (5)
time and place; (6) special material facts of
; and (7) certain aspects of admiralty damages
and maritime jurisdiction. [160]
a. Note: The above matters requiring
special pleading apply to the answer as
well as to the complaint.
2. Effect of failure to plead: The pleader takes the full risk of failure to plead any special matter. ( P brings a diversity Example:
claim for breach of contract against D. P has suffered certain unusual consequential damages, but fails to plead these special damages as required by FRCP 9(g). Even if P
proves these items at trial, P may not recover these damages, unless the court agrees to specially permit this "variance" between proof and pleadings.) [160]
III. MOTIONS AGAINST THE COMPLAINT
A. Defenses against validity of complaint: Either
in the answer, or by separate motion, defendant may
attack the validity of the complaint in a number of respects. Rule 12(b) lists the following such
defenses: [161]
1. Lack of jurisdiction over the subject
matter;
2. Lack of ; jurisdiction over the person
3. Improper venue;
4. Insufficiency of process;
5. Insufficiency of ; service of process
6. Failure to state a claim upon which relief
; and may be granted
7. Failure to join a necessary party under Rule
19.
B. 12(b)(6) motion to dismiss for failure to state a claim: Defense (6) above is especially important: if D believes that P’s complaint does not state a legally sufficient claim, he can make a Rule 12(b)(6)
motion to dismiss for "failure to state a claim upon
which relief can be granted
." The motion asserts
that on the facts as pleaded by P, no recovery is possible under any legal theory. (Example: If P’s
complaint is barred by the statute of limitations, D should move under 12(b)(6) for failure to state a
valid claim.) [161 - 163]
1. Different motion once D files answer: A Rule
12(b)(6) motion to dismiss is generally made
before D files his answer. After D has filed
an answer, and the pleadings are complete, D
can accomplish the same result by making a Rule
12(c) motion for "judgment on the pleadings."
[164]
C. Amendment: If the complaint is dismissed in response to D’s dismissal motion, P will almost always have the opportunity to amend the complaint.
[162]
1. Amendment as of right: If D makes a motion
against the complaint before filing his answer,
and the court grants the dismissal, P may
automatically amend – Rule 15(a) allows
amendment without leave of court any time
before a responsive pleading is served, and
motions made under 12(b) are not deemed to be
responsive pleadings.
2. Amendment by leave of court: If D serves his
answer before making the Rule 12(b) motion, and
is then successful with the motion, P may amend
leave of court (i.e., only by getting
permission). But the court will almost always
grant this permission following a 12(b)
dismissal.
D. Motion for more definite statement: If the complaint is so "vague or ambiguous that [the defendant] cannot reasonably be required to frame a responsive pleading," D may move for a more definite
under Rule 12(e). [164] statement
E. Motion to strike: If P has included "redundant, immaterial, impertinent or scandalous" material in the complaint, D may move to have this material stricken from the pleading. Rule 12(f). [164]
IV. THE ANSWER
A. The answer generally: The defendant’s response
to the plaintiff’s complaint is called an "answer."
In the answer, D states in short and plain terms his defenses to each claim asserted, and admits or denies each count of plaintiff’s complaint. Rule
8(b). [168]
1. Alternative pleading: Defenses, like claims,
may be pleaded in the . ( alternativeExample:
In a breach of contract suit brought by P, D
can in count 1 of his answer state that no
contract ever existed, and in count 2 state
that if such a contract did exist, it was
breached by P, not D.)
B. Signed by defendant’s attorney: The answer must
be signed by the defendant’s lawyer. As with the complaint, the attorney’s signature constitutes a
certificate that the signer has read the pleading, believes it is well founded, and that it is not interposed for delay. Rule 11. [169]
C. Denials: The defendant may make various kinds of
denials of the truth of plaintiff’s allegations.
[168]
1. Where not denied: Averments in a complaint, other than those concerning the amount of damages, are "admitted when not denied...in [an answer]." Rule 8(d).
2. Kinds of denials: There are five kinds of denials in federal practice:
a. General denial: D may make a "general"
denial, by which he denies each and every
allegation in P’s complaint. (But D must
then contest all of P’s allegations, or
face sanctions.)
b. Specific denial: D may make a
"specific" denial, which denies all of
the allegations of a particular paragraph
or count of the complaint.
c. Qualified denial: D may make a
"qualified" denial, i.e., a denial of a
portion of a particular particular
allegation.
d. Denial of knowledge or information
(DKI): D may make a denial of knowledge
(DKI), by which he says or information
that he does not have enough knowledge or
information sufficient to form a belief
as to the truth of P’s complaint (but D
must do this in good faith).
e. Denial based on information and belief:
D may deny "based on information and
." By this, D effectively says, "I belief
don’t know for sure, but I reasonably
believe that P’s allegation is false."
This kind of denial is often used by large
corporate defendants.
D. Affirmative defenses: There are certain defenses which must be explicitly pleaded in the answer, if
D is to raise them at trial. These are so-called "affirmative defenses." [169 - 170]
1. Listing: Rule 8(c) lists 19 specific
affirmative defenses, of which the most
contributory negligence, fraud, important are
res judicata, statute of limitations, and
illegality.
2. General formulation: Also, Rule 8(c)
contains a more general requirement, by which
D must plead affirmatively "any other matter
constituting an avoidance or affirmative
defense." Any defense which relies on facts
particularly within the defendant’s
is likely to be found to be an knowledge
affirmative defense.
E. Counterclaim: In addition to defenses, if D has a claim against P, he may (in all cases) and must (in some cases) plead that claim as a counterclaim. If
the counterclaim is one which D is required to plead,
it is called a counterclaim. If it is one compulsory
which D has the option of pleading or not, it is called a permissive counterclaim. A counterclaim is compulsory if it "arises out of the transaction or
occurrence that is the subject matter of the [plaintiff’s] claim...." Rule 13(a). [170]
V. TIME FOR VARIOUS PLEADINGS
A. Time table: Here is the time table for various pleading steps (see Rule 12(a)): [170]
1. Complaint: Filing of the complaint usually
occurs before it is served. Service must then
normally occur within 120 days. Rule 4(m).
answer must be served within 20 2. Answer: The
after service of the complaint, except days
that
a. Different state rule: If P has served
D out of state, by using the state
long-arm (see Rule 4(k)(1)(A)), the time
to answer allowed under that state rule
(typically longer) controls.
b. Rule 12 motion: If D makes a Rule 12
motion against the complaint and loses,
D has 10 days after the court denies the
motion to answer.
waives c. Waiver of formal service: If D
formal service pursuant to Rule 4(d),
then he gets 60 days to answer running
from the date the request for waiver was
sent by P. Rule 12(a)(1)(B).
3. Reply to counterclaim: If the answer
contains a , P must serve his counterclaimreply
within 20 days after service of the answer.
VI. AMENDMENT OF THE PLEADINGS
A. Liberal policy: The Federal Rules are extremely liberal in allowing amendment of the pleadings. [171]
B. Amendment as of right: A pleading may be amended
(i.e., without leave of once as a matter of right
court) as follows: [171]
1. Complaint: The complaint may be amended once
at any time before the answer is served. (A
motion is not the equivalent of an answer, so
the fact that D has made a motion against the
complaint does not stop P from amending once
as a matter of right.)
2. Answer: The answer may be amended once
within after D has served it. (If the 20 days
answer contains a counterclaim, the answer may
be amended up until the time P has served her
reply.)
C. Amendment by leave of court: If the above requirements for amendment of right are not met, the pleading may be amended only by leave of court, or
by consent of the other side. But leave by the court
to amend "shall be freely given when justice so requires." (Rule 15(a).) Normally, the court will
deny leave to amend only if amendment would cause actual prejudice to the other party. [171]
D. Relation back: When a pleading has been amended, the amendment will relate back to the date of the
original pleading, if the claim or defenses asserted in the amended pleading "arose out of the conduct,
transaction or occurrence set forth or attempted to be set forth in the original pleading." Rule 15(c).
This "relation back" doctrine is mainly useful in meeting statutes of limitations that have run between filing of the original complaint and the amendment. [172 - 174]
Example: On Jan. 1, P files a complaint against D for negligently manufacturing a product that has injured P. The case is brought in diversity in Ohio federal district court. On Feb. 1, the Ohio statute of limitations (which controls in a diversity case) on both negligence and product liability claims arising out of this episode runs. On March 1, P amends to add a count alleging strict products liability. Because the products liability claim arises out of the same conduct or transaction as set forth in the original negligence complaint, the amendment will relate back to Jan. 1, and P will be deemed to have met the statute of limitations for his products liability claim.
1. A single "conduct, transaction or
narrow view occurrence": Courts take a fairly
of when the amendment and the original pleading involve the same "conduct, transaction or occurrence" (the requirement for
relation-back). If what’s amended is simply P’s claim or theory, the court will typically
find that the "same conduct" test is satisfied.
But where the underlying facts needed to
sustain the new pleading are materially
from those alleged in the original different
complaint, the court is likely to find that the "same conduct" standard is not met. [173]
2. When action is deemed "commenced": According to Rule 3, an action is deemed
"commenced" as of the date on which the
. In federal question cases, complaint is filed
it is to this date that the amendment relates back. In diversity cases, by contrast, it is the date that state law regards as the date of commencement which controls. [172]
Example: In a diversity case, assume that state law regards the date on which the complaint is served, not the filing date, as being the commencement. In a diversity action in that state, any relation back will be to the date the complaint was served, not to the filing date.
3. Change of party: Where an amendment to a
changes the party against whom the pleading
claim is asserted, the amendment "relates back" only if three requirements are met: (1) the amendment covers the "same transaction or
as the original pleading (the same occurrence"
rules discussed above); (2) the party to be
brought in by amendment received actual notice
of the action before the end of the 120 days
; and (3) before the following original service
end of that 120-day service period, the new party knew or should have known that "but for a mistake concerning the identity of the proper party, the action would have been brought
." Rule 15(c)(3). [174] against the [new] party
Example: P’s complaint names D1, and is filed
just prior to the expiration of the statute of
limitations. Ten days after the running of the
statute, P discovers that the complaint really
should have named D2. P amends the complaint
to name D2, and serves D2 60 days after the
filing of the original complaint. The
amendment as to D2 relates back to the original,
timely filing, because within 120 days of the
original filing, D2 received notice of the
action and learned that but for P’s mistake
about the proper party, the action would have
been brought against D2 rather than D1.
VII. VARIANCE OF PROOF FROM PLEADINGS
A. Federal practice: The Federal Rules allow
deviation of the proof at trial from the substantial
pleadings, so long as the variance does not seriously prejudice the other side. Rule 15(b). Unless
omission of the issue from the pleading was intentional, and was designed to lead the objecting
party into wasted preparation, the court will almost certainly allow amendment at trial. [175] Example: P brings a diversity action for breach of contract against D. P’s complaint does not allege any special damages. At trial, P shows that P lost considerable business and profits. D objects that special damages were not pleaded. Since D probably cannot show the court that D has wasted preparation, the court will almost certainly allow P to amend his pleadings to allege the special damages. If necessary, the court will give D extra time to develop evidence to rebut P’s newly-claimed special
damages.
Chapter 5
DISCOVERY AND PRETRIAL CONFERENCE
I. GENERAL PRINCIPLES
A. Forms of discovery: Discovery under the Federal Rules includes six main types: [181 - 182]
1. Automatic disclosure;
Depositions, taken from both written and 2.
oral questions;
3. Interrogatories addressed to a party;
4. Requests to inspect documents or property;
5. Requests for admission of facts;
6. Requests for physical or mental
examination.
II. SCOPE OF DISCOVERY
A. Scope generally: Rule 26(b), which applies to all
forms of discovery, provides that the parties "may obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense
" So the two principal requirements for of any party.
discoverability of material are that it is: (1) not
; and (2) relevant to some claim or privileged
defense in the suit. [183 - 184]
B. Relevant but inadmissible: To be discoverable, it is not required that the information necessarily be admissible. For example, inadmissible material
may be relevant, and thus discoverable, if it: (1)
lead to admissible evidence; is likely to serve as a
or (2) relates to the identity and whereabouts of any witness who is thought to have discoverable information. [184]
C. Privilege: Only material which is not privileged
may be discovered. [188]
1. Who may assert: Only the person who could
may resist assert the privilege at trial
discovery on the grounds of privilege.
(Example: P sues D1 and D2 for conversion. At
P’s deposition of D1, P asks D1 questions
relating to the facts. D1 knows the answer and
is willing to respond, but D2’s lawyer objects
on the grounds that the questions may violate
D1’s privilege against self-incrimination.
D2’s objection is without substance, because
only D1 – the person who could assert the
privilege at trial – may assert the privilege
during discovery proceedings.)
2. Determining existence of privilege:
diversity cases, state law of Generally, in
. See Federal Rule of privilege applies
Evidence 501. (Example: P brings a diversity
action against D, asserting that D
intentionally inflicted emotional distress on
him. D seeks to depose P’s psychotherapist,
to determine the extent of P’s anguish. The
suit is brought in Ohio Federal District Court.
The privilege laws of the state of Ohio, not
general federal principles, are looked to to
determine whether patient-psychotherapist
confidences are privileged.)
D. Trial preparation immunity: Certain immunity from discovery is given to the materials prepared
, and to the opinions by counsel for trial purposes
that counsel has consulted in trial of experts
preparation. This immunity is often referred to as "work-product" immunity. [188 - 193]
1. Qualified immunity: "Qualified" immunity is
given to documents prepared "in anticipation
of litigation"
or for trial, by a party or that
party’s representative. [190 - 191]
a. "Representative" defined: A party’s
"representatives" include his , attorney
consultant, insurance company, and anybody working for any of these people (e.g., a private investigator hired by the attorney).
b. Hardship: The privilege is "qualified" rather than "absolute." This means that the other side might be able to get discovery of the materials, but only by showing "substantial need of the
materials in preparation of [the] case" and an inability to obtain the equivalent materials "without undue hardship." Rule
26(b)(3).
Example: A car driven by D runs over P. D’s insurance company interviews X, a non-party witness to the accident. The insurer then prepares a transcript of the
statement. This transcript was prepared
"in anticipation of litigation," so it is
protected by the qualified work-product
immunity. Therefore, P will be able to
obtain discovery of it only if he can show
substantial need, and the inability
without undue hardship to obtain the
substantial equivalent by other means.
Since P could conduct his own interview
of the witness, the court will probably
find that the qualified immunity is not
overcome.
2. Absolute immunity: In addition to the qualified work-product immunity discussed above, there is also "absolute" immunity. Rule
26(b)(3) provides that even where a party has substantial need for materials (in other words, the showing for qualified immunity has been made), the court "shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an
attorney or other representative of a party
concerning the litigation." [191 - 193]
Example: Same facts as above example. Now, D’s
lawyer reads X’s statement, and writes a memo
to the file stating "X appears to be lying for
the following three reasons...." This lawyer
memo, since it reflects the mental impressions
and conclusions of an attorney or other
representative of a party, will receive
absolute immunity, and no showing by P will
entitle him to get the memo.
E. Statements by witnesses: A person who makes a statement to a party or the party’s lawyer may obtain a copy of that statement without any special showing. Rule 26(b)(3). This is true whether the
person making the statement is a party or a non-party. [193 - 194]
Example: In an accident suit, D’s insurance company takes P’s statement about the accident, and transcribes it. D must give P a copy of P’s statement, without any special showing of need by P.
"identity and location F. Names of witnesses: The
of persons having knowledge of any discoverable
(so-called "occurrence witnesses") are matter"
discoverable. Rule 26(b)(1). This means, for
instance, that each party must upon request disclose to the other the identity and whereabouts of any eyewitness to the events of the lawsuit. (Example:
In an accident case, D’s lawyer and investigator locate all eight people who saw the accident. D must on request furnish this list to P.) [194]
1. Some disclosure is automatic: If a person
has discoverable information that a party
plans to use in its case, then that party must
disclose the person’s name and automatically
address (even without a specific request from
the adversary), early on in the litigation. See
Rule 26(a)(1)(A).
G. Discovery concerning experts: [194 - 197]
1. Experts to be called at trial: Where one side
expects to call an expert at trial, the other
side gets extensive discovery:
a. Identity: First, a party must automatically (without a request) give
identifying each the other side a list
expert who will be called at trial. b. Report: Second, the party who intends to call an expert at trial must have the expert prepare and sign a report
containing, among other things: (i) the expert’s opinions, and the basis for
them; (ii) the data considered by the
expert; (iii) any exhibits to be used by
the expert at trial; (iv) the expert’s qualifications; (v) her compensation,
and (vi) the names of all in other cases
which she testified as an expert in the preceding 4 years.
c. Deposition: The expert who will be called at trial must also be made available for deposition by the other
side.
See Rule 26(a)(2)(A); 26(a)(2)(B);
26(b)(4)(C).
2. Experts retained by counsel, but not to be called at trial: Where an expert has been retained by a party, but will not be called at
trial, discovery concerning that expert (her identity, knowledge and opinions) may be discovered only upon a showing of exceptional
making it impractical for the circumstances
party seeking discovery to obtain the information by other means. Rule 26(b)(4)(B).
[196]
3. Unretained experts not to be called at trial: Where an expert is consulted by a party, but
not retained, and not to be called at trial, there is virtually no way the other side can discover the identity or opinions of that expert. [196]
4. Participant experts: A participant expert
– one who actually took part in the transactions or occurrences that are part of
the subject matter of the lawsuit – is treated
ordinary witness. (Example: P’s like an
estate sues to compel D, an insurance company,
to pay off on a policy covering P’s life. D
claims that it was a suicide, based on the
results of an autopsy conducted by X, a
pathologist. P may depose X, even though X is
an expert – because X participated in the
events, he is treated like an ordinary witness
for purposes of discovery.) [197]
a. Expert is a party: Similarly, a party
who is herself an expert (e.g., a doctor
who is a defendant in a malpractice suit)
is treated like an ordinary witness for
discovery purposes, not like an expert. H. Insurance: A party may obtain discovery of the existence and contents of any insurance agreement
under which any insurer will be liable to satisfy any judgment that may result. (Example: P brings an
automobile negligence suit against D in diversity. P may ask D, in an interrogatory, whether D has
insurance, and in what amount by what insurer. P may
do this without any special showing of need.) [198]
I. Mandatory disclosure: Certain types of
and . [198 - 202] disclosure are automaticmandatory
1. Automatic pre-discovery disclosure: Under Rule 26(a)(1), a party must, even without a request from the other side, automatically disclose certain things early in the litigation. The most important are:
a. All witnesses with discoverable
information: First, each party must
disclose the name, address and phone
number of each individual likely to have
discoverable information that the party
plans to use in its case.
Example: P sues D concerning a car
accident in which P and D drove cars that
collided. D plans to call W, who saw the
accident, as a trial witness. Early in the
case, D must automatically disclose W’s
name and address to P, even without a
request from P for this information. (But
if D didn’t plan to call W, perhaps
because W’s story favors P, then D would
not have to disclose W’s name unless P
specifically asked for this type of
information in discovery.)
b. Documents: Second, a party must
furnish a copy, or else a description by
category and location, of all documents
and tangible things in that party’s
possession, that the party plans to use
. in its case
2. Other: Later in the litigation, each party must automatically disclose to the other the details of expert testimony (as discussed above) and witnesses and exhibits to be used at trial.
J. Privilege log: If a party is declining to furnish
documents or information because of a claim of
privilege or work product immunity, the party must
expressly, and must describe the make the claim
nature of the documents or communications. (Thus the party can’t keep silent about the fact that such a claim is being made or about the nature of the documents/communications as to which it is being made). Rule 26(b)(5). [203]
K. Duty to supplement: A party who makes a disclosure during discovery now normally has a duty to supplement that response if the party then learns that the disclosed information is incomplete or incorrect. [202]
1. How it applies: This "duty to supplement"
applies to any automatic pre-discovery
(mainly witness names and disclosure
documents); to any disclosure regarding
experts to be called at trial; and to any
responses to an interrogatory, a request for
production, or request for admission. Rule
26(e)(1); 26(e)(2).
Example: P is suing D regarding a car accident
in which P was injured. Early in the litigation,
P gives D a list of all witnesses to the
accident that P knows of, as required by Rule
26(a)(1)(A). If P later learns of another
person who saw the accident, P must
"supplement" her earlier disclosure by telling
D about the new witness.
III. METHODS OF DISCOVERY
A. Characteristics: The various forms of discovery (depositions, interrogatories, requests to produce, requests for admission and requests for examination) have several common characteristics: [207]
1. Extrajudicial: Each of these methods
(except requests for physical examination)
without intervention of the court. operates
Only where one party refuses to comply with the
other’s discovery request will the court
intervene.
2. Scope: The scope of discovery is the same
for all of these forms: the material sought
must be relevant to the subject matter for the
suit, and unprivileged.
3. Signature required: Every request for
discovery of each of these types, and any
response or objection to discovery, must be
by the lawyer preparing it. Rule 26(g). signed
4. Only parties: Each of these types – except
for depositions – may only be addressed to a
. Depositions (whether upon oral or party
written questions) may be addressed to either
a party or to a non-party who possesses
relevant information.
B. Oral depositions: After the beginning of an action, any party may take the oral testimony of any
person thought to have information within the scope of discovery. This is known as an oral deposition.
Rule 30. [208 - 210]
1. Usable against non-party: Not only parties,
but any non-party with relevant information,
may be deposed.
2. Subpoena: If a non-party is to be deposed, then the discovering party can only force the
subpoena. This deponent to attend by issuing a
subpoena must require the deposition to be held no more than 100 miles from the place where the
deponent resides, is employed, or regularly transacts business in person. Rule
45(c)(3)(A)(ii).
a. No subpoena for party: If a party is
to be deposed, a subpoena is not used.
Instead, non-compliance with the notice
can be followed up by a motion to compel
discovery or to impose sanctions under
Rule 37.
3. Request to produce: The person seeking discovery will often also want documents held by the deponent. If the deponent is a party, the discovering party may attach a Rule 34
request to produce to the notice to the party. But if the deponent is a non-party, the
duces discovering party must use a subpoena
. [213] tecum
4. Limits to ten: Each side is limited to a
total of , unless the adversary ten depositions
agrees to more or the court issues an order
allowing more. Rule 30(a)(2)(A).
5. Method of recording: The party ordering the
deposition can arrange to have it recorded by
stenography (court reporter), by audio tape
, or by video recorder. Rule 30(b)(2). recorder
C. Depositions upon written questions: Any party may take the oral responses to written questions, from
any person (party or non-party) thought to have discoverable information. Rule 31. This is called a
"deposition on written questions." [211]
1. Distant non-party witnesses: Depositions on
written questions are mainly used for deposing
distant non-party witnesses. Such witnesses
cannot be served with interrogatories (since
these are limited to parties), and cannot be
compelled to travel more than 100 miles from
their home or business.
D. Interrogatories to the parties: An interrogatory
is a set of to be written questionsanswered in
by the person to whom they are addressed. writing
Interrogatories may be addressed . only to a party
Rule 33(a). [211]
1. Limit of 25 questions: Each party is limited
to directed to any 25 interrogatory questions
other party, unless the parties stipulate
otherwise or the court orders otherwise. Rule
33(a).
E. Requests for admission: One party may serve upon another party a written request for the admission,
for the purposes of the pending action only, of the
. Rule 36. This is truth of any discoverable matters
a "request for admission." [212 - 213]
1. Coverage: The statements whose genuineness
may be requested include statements or
opinions of fact, the application of law to
fact, and the genuineness of any documents. Example: P, in a breach of contract action, (
may request that D admit that the attached document is a contract signed by both P and D.) [212]
2. Expenses for failure to admit: If a party fails to admit the truth of any matter requested for admission under Rule 36(a), and
the party making the request proves the truth
of the matter at trial, the court may then require the party who refused to admit to pay reasonable expenses sustained by the movant in proving the matter. Rule 37(c). (But no
expenses may be charged in several situations, including where the party who failed to admit had reasonable grounds to think he might prevail on the issue at trial.) [213] 3. Effect at trial: If a party makes an admission under Rule 36, the matter is normally
conclusively established at trial. (However,
the court may grant a motion to withdraw or
amend the admission, if this would help the
action to be presented on its merits, and would
not prejudice the other side.) [213]
F. Request to produce documents or to inspect land: A party may require any other party to produce
. Rule 34. Thus any papers, documents and things
photos or objects relevant to the subject matter of the case may be obtained from any other party, but not from a non-party. (Example: P sues D1 and D2 for
antitrust and price fixing. P believes that the records of both Ds will show that they set prices in concert. P may require D1 and D2 to produce any documents in their control relating to the setting of prices.) [213]
1. Only to parties: A request to produce can
only be addressed to parties. If documents in
the possession of a non-party are desired, a
subpoena must be used. duces tecum
2. Party’s control: A party may be required
to produce only those documents or other
"possession, custody objects which are in her
." Rule 34(a). [214] or control
3. Land: Rule 34 also allows a party to demand
the right to inspect, photograph and survey any
land within the control of another party.
( P sues D, a merchant, for negligence, Example:
because P fell on D’s slippery floor. P may
require D to open the premises so that P may
inspect and photograph them.)
G. Physical and mental examination: When the mental or physical condition of a party is in controversy,
the court may order the party to submit to a physical
by a suitably licensed or or mental examination
certified examiner. Rule 35. [214 - 215]
1. Motion and good cause: Unlike all other
forms of discovery, Rule 35 operates only by
court order. The discovering party must make
a motion upon notice to the party to be examined,
and must show good cause why the examination
is needed. [214]
2. Controversy: The physical or mental
in controversy. condition of the party must be
In other words, it is not enough (as it is for other forms of discovery) that the condition would be somehow relevant. (Example: If P is
suing D for medical malpractice arising out of an operation, P’s condition would obviously be in controversy, and D would be entitled to have a physician conduct a physical examination of P. But if P were suing D for breach of contract, and D had some suspicion that P was fabricating the whole incident, a mental examination of P to find evidence of delusional behavior would probably not be found to be supported by good cause, so the court order granting the exam would probably not be made.) [214]
3. Reports from examiner: The actual medical
produced through a Rule 35 examination report
is discoverable (in contrast to the usual non-discoverability of experts’ reports).
person examined a. Who may receive: A
(typically the opposing party) may request, from the party causing the exam to be made, a copy of the examiner’s written report.
b. Other examinations: Once the examined party asks for and receives this report, then the other party is entitled to reports of any other examinations made at
the request of the examinee for the same condition. (Example: P sues D for
automobile negligence. D causes P to be examined by a doctor retained by D, to measure the extent of P’s injuries. P asks for a copy of the report, and D complies. Now, D is entitled to receive from P copies of any other reports of examinations made of P at P’s request. In other words, by asking D for the report, P is deemed to have waived the
physician-patient privilege as to exams conducted at P’s request.) [215]
IV. ORDERS AND SANCTIONS
A. Two types: Discovery normally proceeds without court intervention. But the court where the action is pending may intercede in two main ways, by issuing orders and by awarding sanctions. The court may order abuse of discovery stopped (a protective order) or may order a recalcitrant party to furnish discovery (order compelling discovery). Sanctions can be awarded for failing to handle discovery properly. B. Abuse of discovery: One party sometimes tries to use discovery to harass her adversary. (Example: P
requests that D reveal trade secrets, or schedules 10 repetitive depositions of D.) The discoveree may fight back in two ways: (1) by simply objecting to
a particular request; or (2) by seeking a Rule 26
protective order. [217 - 219]
1. Objection: A party may object to a discovery
request the same way a question at trial may
be objected to. Typical grounds are that the
matter sought is not within the scope of
relevant to the subject discovery (i.e., not
matter) or that it is privileged. [217]
a. Form of objection: The form depends on
the type of discovery. An objection to an
interrogatory question is written down as
part of the set of answers. Similarly, an
objection to a request to admit is made
in writing. An objection to a deposition
question, by contrast, is raised as an
oral objection by the lawyer representing
the deponent or the party opposing the
deposition. The deposition then
continues, and the objections are later
dealt with en masse by the judge. 2. Protective order: Where more than a few questions are at stake, the party opposing discovery may seek a "protective order." Rule
26(c) allows the judge to make "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense...." [218 - 219]
Example 1: In a simple automobile negligence case brought under diversity, D schedules P for ten different depositions, and asks
substantially the same questions each time. P may seek a protective order in which the judge orders that no further depositions of P may take place at all. The court will probably grant this request.
Example 2: P sues D for patent infringement, alleging that D’s manufacturing methods violate P’s patents. In a deposition of D’s vice president, P asks the details of D’s secret manufacturing processes. D may seek a protective order preventing P from learning these trade secrets, perhaps on the grounds that P does not need to know these secrets in order to pursue his patent case.
a. Prohibition of public disclosure: One
common type of protective order allows
trade secrets or other information to be
discovered, but then bars the public
disclosure
of the information by the
discovering litigant. (Example: On the
facts of the above example, the judge
might allow P to get discovery of D’s
trade secrets, but prevent P from
disclosing that information to any third
party.) [218]
C. Compelling discovery: Conversely, if one party refuses to cooperate in the other’s discovery attempts, the aggrieved party may seek an order
under Rule 37(a). [219 - 220] compelling discovery
1. When available: An order to compel discovery
may be granted if the discoveree fails to: (1)
answer a written or oral deposition question;
(2) answer an interrogatory; (3) produce
documents, or allow an inspection; (4)
designate an officer to answer deposition
questions, if the discoveree is a corporation. D. Sanctions for failing to furnish discovery: The court may order a number of sanctions against
parties who behave unreasonably during discovery.
Principally, these sanctions are used against a
party who fails to cooperate in the other party’s
discovery efforts. [220 - 223]
1. Financial sanctions: If a discovering party seeks an order compelling discovery, and the court grants the order, the court may require
reasonable expenses the discoveree to pay the
the other party incurred in obtaining the order. These may include attorney’s fees for procuring the order. Rule 37(b). [220]
2. Other sanctions: Once one party obtains an order compelling the other to submit to discovery, and the latter persists in her
to grant discovery, then the court may refusal
(in addition to the financial sanctions mentioned above) impose additional sanctions: [221]
a. Facts established: The court may order
that the matters involved in the
discovery be taken to be established.
(Example: In a product liability suit, P
wants discovery of D’s records, to show that D made the product that injured P. If D refuses to cooperate even after the court issues an order compelling discovery, then the court may treat as established D’s having manufactured the
item.)
b. Claims or defenses barred: The court may prevent the disobedient party from making certain claims or defenses, or introducing certain matters in evidence. c. Entry of judgment: The court may also dismiss the action, or enter a default judgment.
d. Contempt: Finally, the court may hold the disobedient party in contempt of
court.
V. USE OF DISCOVERY RESULTS AT TRIAL
A. Use at same trial: The rules for determining
whether the fruits of discovery can be introduced
at trial
vary depending on the type of discovery. [223]
B. Request to produce: The admissibility of
and that were obtained through a documentsreports
Rule 34 request to produce is determined without
to the fact that these items were obtained regard
through discovery. These documents will thus be admissible unless their contents constitute prejudicial, hearsay, or other inadmissible material. [224]
C. Depositions: The admissibility of depositions is
determined through a two-part test. Both parts must be satisfied: [224 - 226]
1. Test 1: First, determine whether the
deposition statement sought to be introduced
would be admissible if the deponent were giving
. If not, the statement is live testimony
automatically inadmissible. (Example:
Deponent says, "X told me that he committed the
murder." If the hearsay rule would prevent
deponent from making this statement live at
trial, it will also prevent the deposition statement from coming in.)
2. Test 2: Second, apply the "four categories"
test. Since the use of a deposition statement rather than live testimony is itself a form of hearsay, the deposition statement must fall within one of the four following categories, which are in effect exceptions to the hearsay rule:
a. Adverse party: The deposition of an
adverse party, or of a director or officer
of an adverse corporate party, may be
admitted for any purpose at all. See Rule
32(a)(2). [224]
b. Impeachment: The deposition of any
witness, party or non-party, may be used
to impeach the witness’ credibility. See
Rule 32(a)(1).
c. Adverse witness’ deposition for
substantive purposes: A party may use a
adverse witness for deposition of an
substantive purposes, if it conflicts
with that witness’ trial testimony. (Example: In a suit by P versus D, W, a witness favorable to D and called by D, states at trial, "The light was red when P drove through it." P may introduce W’s statement in a deposition, "The light was green when P drove through," not just for impeachment but to prove the substantive fact that the light was green.)
d. Other circumstances: The deposition of any person (party or non-party) can be used for any purpose if one of the following conditions, all relating to the witness’ unavailability, exists: (1)
the deponent is ; (2) the deponent is dead
located 100 or more miles from the trial;
(3) the deponent is too ill to testify;
(4) the deponent is not obtainable by
; or (5) there are exceptional subpoena
that make it desirable to circumstances
dispense with the deponent’s live
testimony. See Rule 32(a)(3).
3. Partial offering: If only part of a
deposition is offered into evidence by one party, an adverse party may introduce any other
of the deposition which in ought fairnessparts
to be considered with the part introduced. Rule
32(a)(4). (Example: If one side reads part of an answer, the other side may almost always read the rest of the answer.)
D. Interrogatories: The interrogatory answer of a
party can be used by an adverse party for any purpose.
[226]
1. Not binding: Statements made in interrogatories, like statements made in depositions, are not binding upon the maker –
he may contradict them in court. (Obviously the witness’ credibility will suffer, but the witness is not legally bound to the prior statement.)
Admissions obtained under Rule 36 E. Admissions:
conclusively establish the matter admitted. [226]
F. Physical and mental examinations: The results of
made under Rule 35 physical and mental examinations
are almost always admissible at trial. (Also,
remember that if the examined party requests and obtains a report of the examiner, the examinee is held to waive any privilege associated with the report, such as the doctor/patient privilege.) [226] Note: All of the above discussion of use at trial assumes that the use takes place during the very proceeding that gave rise to the discovery itself. Where the fruits of discovery in Action 1 are sought to be used in Action 2, different, more complicated, rules apply.
VI. PRETRIAL CONFERENCE
A. Generally: Many states, and the federal system, give the judge the authority to conduct a pretrial
. The judge may use such a conference to conference
simplify or formulate the issues for trial, and to
facilitate a settlement. See Rule 16(a) and 16(c).
[230 - 231]
1. Scheduling: The federal judge must issue a
within 120 days after "scheduling order"
filing of the complaint. This order sets a time
limit for filing of motions, completion of
discovery, etc. Rule 16(b). The trial judge may,
but need not, conduct a pretrial conference.
2. Pretrial order: If the judge does hold a
pretrial conference, she then must enter a
pretrial order reciting the actions taken in
the conference (e.g., narrowing the issues to
be litigated, and summarizing the admissions
of fact made by the lawyers).
Chapter 6
ASCERTAINING APPLICABLE LAW
I. NATURE OF PROBLEM
A. Generally: A particular controversy that is litigable in federal court may also, in most
situations, be brought in state court. This chapter is about which law – federal law or state law –
should be applied in cases brought in federal court. [235]
1. Forum shopping: A key concept to keep in
sight is the federal courts’ desire to
discourage "forum shopping." If a particular
case could be brought in either state or
federal court, and the state courts would apply
rules of law different from those that would
be applied by the federal court, the plaintiff
(and in situations where removal is possible,
the defendant) will have an incentive to choose
. To the court more favorable to her case
prevent forum shopping of this sort, the courts
generally apply state law in diversity cases.
[235]
2. Rules of Decision Act: The Rules of Decision
Act (RDA), 28 U.S.C. ?652, based upon the
Supremacy Clause of the Constitution, is the
main statute stating when the federal court
should apply federal law, and when it should
apply state law. [235 - 238]
a. Federal law applied: According to the clear language of the RDA, the federal
Constitution, treaties, and
enacted by constitutional statutes
Congress, always take precedence, where relevant, over all state provisions. (In
fact, this rule applies not only to federal proceedings but also to state court proceedings.)
b. State statutes: The RDA also clearly
provides that in the absence of a federal constitutional or statutory provision on point, the federal courts must follow state constitutions and statutes. [235]
c. Dispute about common law: The interesting question, and one on which the RDA is silent, is what the federal court should do where there is no
controlling constitutional or statutory
provision
, federal or state. In other
words, the key question is, what law should the federal court follow where what is at issue is "common," or
judge-made, law. [235]
Example: P sues D in a diversity action arising out of an automobile accident that took place in Kansas. The Kansas courts apply common-law contributory negligence. Must the federal judge hearing the case apply Kansas’
common-law contributory negligence, or is the court free to make its own determination that comparative
negligence is a sounder principle? The answer, as set forth in Erie v. Tompkins
(discussed below), is that Kansas common law must be followed.
B. Erie v. Tompkins: The most important Supreme
Court case in all of Civil Procedure is Erie Railroad
. That case holds that when the Rules of v. Tompkins
Decision Act says that the federal courts must apply the "law of the several states, except where the Constitution or ... acts of Congress otherwise
common require...," this language applies to state
as well as state statutory law. The net result law
is that in diversity cases, the federal courts must
. apply state judge-made law on any substantive issue[237 - 238]
1. Discrimination against citizens: The
contrary rule that had been followed before
Erie – Swift v. Tyson’s holding that federal
judges could ignore state common law in
diversity cases – allowed non-citizens to
discriminate against citizens of the state
. (Example: P, an where the federal court sat
Ohio resident, sues D, a Kansas resident, in
federal district court for the District of
Kansas. Kansas law would be favorable to D.
Swift v. Tyson, which would allow P to choose
federal or state court in Kansas, whichever was
more favorable to him, would thus allow P to
profit at D’s expense. Erie v. Tompkins, by
forcing the federal court to apply Kansas law, guarantees D, the Kansas citizen, the benefits of his own state’s law.)
: The facts of remain a 2. Facts of ErieErie
good illustration of the case’s principle, that state rather than federal common law is to be followed on substantive matters in diversity cases. P, a Pennsylvania citizen, was injured while walking on the right of way maintained by D, a New York railroad. Under Pennsylvania judge-made law, P would probably have lost his negligence suit, because P was a trespasser, to whom D would be liable only for gross, not ordinary, negligence. P instead sued in New York federal district court, expecting the federal court to follow Swift v.
and make its own "federal common law" Tyson
which P hoped would make the railroad liable to him for ordinary negligence.
a. Holding: But the Supreme Court held
that the federal court must follow state
law on substantive issues, and that
"state law" included judge-made (common)
law as well as state statutes. So
Pennsylvania law on the railroad’s duty
of care was to be followed (though the
Court did not specify why Pennsylvania
rather than New York law was what should
be followed).
ERIE PROBLEMS II.
A. Ascertaining state law: Several problems arise when the federal court tries to determine what is the
"state law," when there is no state statute on point. Obviously if the highest court of the state where the federal court sits has recently spoken on the issue, the problem is easy. But where this is not the case, life gets trickier. The general principle is that the federal court must try to determine how the state’s
highest court would determine the issue if the case
. [239 - 240] arose before it today
1. Intermediate-court decisions: If there is
no holding by the highest state court, the
federal court looking for state law to apply considers intermediate-court decisions. These
intermediate-court decisions will normally be followed, unless there are other reasons to believe that the state’s highest court would not follow them. [239]
2. Where no state court has spoken: If no court in the state has ever considered the issue in question, then the court can look to other sources. One important source is decisions in prior federal diversity cases which have
attempted to predict and apply the law of the same state. Similarly, the federal court may look at the practice of other states, other authorities (e.g., Restatements), etc. But the issue is always: What would the highest state court decide today? [239]
3. State decision obsolete: Where there is an old determination of state law by the highest state court, the federal court hearing the present case is always free to conclude that
the state court would decide the issue
differently if confronted with the present
case. In that situation, the old ruling is not
binding. [240]
4. Change to conform with new state decision:
The federal court (even an appellate court)
new decision of a state’s must give effect to a
highest court, even if the state court decision
was handed down after the federal district
court action was completed. [240]
B. Conflict of laws: The federal court must also apply state law governing conflict of laws. In other
words, the conflict of laws rules of the state where
must be followed. [Klaxon Co. the federal court sits
] [241] v. Stentor Electric Mfg. Co.
Example: The Ps, soldiers, are injured in Cambodia by an explosion of a shell manufactured by D. The Ps sue D in Texas federal court. Texas tort law allows strict liability. The law of Cambodia does not allow strict liability.
Held, Texas conflict-of-laws principles must apply. Since the Texas courts would apply the tort law of the place where the accident occurred – Cambodia –
so must the federal court. Therefore, strict liability will not be applied, and the Ps lose. [Day
] & Zimmermann, Inc. v. Challoner
C. Burden of proof: The federal court must also follow the rules governing the allocation of the
in force in the state where the burden of proof
federal court is sitting. [241]
D. Procedure/substance distinction: Erie v.
says that state common law controls in Tompkins
"substantive" matters. But federal rules and policies control on matters that are essentially "procedural." Here are some guidelines for handling the procedure/substance distinction: [241 - 251]
1. Federal Rules take precedence: Erie is only
applicable where there is no controlling
federal statute. Since the Federal Rules of
Civil Procedure are adopted pursuant to a
congressional statute (the Rules Enabling Act),
the FRCP, when applicable, take precedence
. So if a Federal Rule over state policy
arguably applies to the situation at hand, ask two questions: (1) Does the Rule in fact apply to the issue at hand? and (2) Is the Rule valid under the Rules Enabling Act? If the answer to both questions is "yes," then the Federal Rule takes precedence. [242]
a. Does Rule apply: The mere fact that a
Federal Rule seems to have something to
do with the issue at hand does not mean
that the Rule applies – the Rules are
construed narrowly, to cover just those
situations that Congress intended them to
cover. [244 - 246]
Example: FRCP 3 provides that a civil
action "is commenced by filing a
complaint with the court." P files a
complaint against D with the court on Feb.
1. The statute of limitations on P’s
right of action expires on Feb. 15. On
March 1, P causes D to be served with process. The suit takes place in Kentucky federal district court. Kentucky state law provides that the statute of
limitations is satisfied only by service upon the defendant, not by mere filing with the court.
The federal court for Kentucky must ask, "Does Rule 3 really apply to this
situation?" The Supreme Court has held on
not speak to these facts that Rule 3 does
the issue of when a state statute of limitations is tolled, but is merely designed to give a starting point for the measurement of various time periods in the federal suit. Since neither Rule 3 nor any other Federal Rule is on point, state common law – in this case, Kentucky’s
principle that the date of service is what counts – must be applied in the federal action. [Ragan v. Merchants Transfer;
] Walker v. Armco Steel Corp.
b. Is Rule valid: If you conclude that the Rule applies to the issue at hand, the next question is, "Is the Rule valid?" The Rules Enabling Act provides that to be valid, a Rule must not "abridge, enlarge, [or] modify the substantive rights of any litigant." But as long as the Rule is arguably "procedural," it will be found to satisfy this test. No Federal Rule has ever been found to violate the "no abridgement, enlargement or modification of substantive rights" test of the Rules Enabling Act. [242]
c. Illustration: To see how the two part test works, consider this famous example: [248 - 249]
Example: P sues D in diversity in Massachusetts federal court. D is the executor of an estate. P causes process to be served on D’s wife, by leaving copies of the summons and complaint with
her at D’s dwelling place. Federal Rule
4(d)(1) (now Rule 4(e)(2)) allows service
on a defendant by leaving copies of the summons and complaint at the defendant’s dwelling place with a person of suitable age and discretion, a standard met here. But a Massachusetts statute sets special standards for service on an executor of an estate, which were not complied with here.
Held, first, Rule 4(d)(1) is in harmony with the Enabling Act, since it is basically procedural. Second, the Rule clearly applies to the issue here, since it specifies the allowable method of service in a federal action. Therefore, the Rule takes priority over any contrary state policy or statute, even if applying the Rule might help produce a different outcome than had the state rule been applied. [Hanna v. Plumer]
2. Case not covered by a Federal Rule: If the
not covered by anything in the issue at hand is
FRCP, but is nonetheless arguably
"procedural," the situation is more complicated: [246 - 248]
a. Rejection of "outcome determination":
At one time, the test was whether the
choice between state and federal policy
was "outcome determinative" – if the
choice was at all likely to influence who
won the lawsuit, then the litigants’
substantive rights would be affected by
the choice, and the state policy must be
followed. But the Supreme Court has
rejected outcome-determinativeness as
. [Byrd v. Blue Ridge] [246] the standard
b. Balance state and federal policies:
Today, the federal court the balances
state and federal policies against each
other. Where the state interest in having
its policy followed is fairly weak, and
the federal interest strong, the court is
likely to hold that the federal
procedural policy should be followed
.
Here are some illustrations of how this balancing works out: [246 - 248]
i. Judge/Jury allocation: Where the
question is, "Who decides a certain
factual issue, judge or jury?"
federal policies are to be followed.
(Example: Whether P was an employee
rather than an independent
contractor is to be determined by
following the federal policy of
having factual matters determined
by a jury, not the state policy of
having such an issue decided by the
judge, because the federal policy on
judge-jury allocation is strong,
the state policy is not tightly
bound up with the rights of the
parties, and the choice is not very
Byrd v. outcome determinative. [
]) [246] Blue Ridge
ii. Door-closing statute:
Similarly, state procedural rules limiting in-state suits by
non-residents against foreign corporations – "door-closing"
rules – need not be followed by the federal court; the state interest here is weak, and the federal interest in furnishing a convenient forum for litigants is a strong one. [Szantay v. Beech Aircraft] [247]
iii. Unanimity for jury trials: Federal policy requiring a
unanimous jury verdict will be
applied in diversity suits, at the expense of the state policy allowing a verdict based on a
less-than-unanimous majority. The state’s policy (reducing hung
juries) has little weight here, since the case is not taking place in the state system; the federal policy is strong, supported by tradition; the choice is not heavily outcome-determinative.
iv. Statute of limitations: But a
statute of limitations must state
be followed in a diversity case. Here, the state’s interest is
heavily outcome-determinative, and deeply bound up with the rights of the parties. The federal interest is relatively weak, and there is little to be gained from
district-to-district uniformity. [, an Guaranty Trust Co. v. York
older case that is still valid.] [244]
3. Federal statute (not Rule) on point: Where
there is a federal procedural statute (as
distinct from a Federal Rule) that is directly
on point, it will control over any state law
or policy, even though this may promote forum
shopping. [234]
III. FEDERAL COMMON LAW
A. Federal common law still exists: Even though Erie
makes it clear that there is no federal general
common law, there are still in particular instances
which federal common law is applied. That is, the federal court is occasionally free to disregard state law in deciding the case. [254]
B. Federal question cases: Most importantly, in federal question cases, federal common law, not
. (Example: P sues state common law, usually applies
D, the United States, in federal district court for the Northern District of Texas. This suit raises a federal question, since it involves the U.S. as a party. Even if there is no federal statute on point, and even if it is clear that under Texas law the U.S. would not be negligent, the federal court may and should apply general federal common law principles
in deciding whether the U.S. was negligent and is thus liable.) [254]
C. Diversity cases: Occasionally, federal common law may even be applied where the basis for federal jurisdiction is diversity. For instance, if P’s claim does not raise issues of federal law, but a defense asserted by D does raise federal law, the validity of that defense will be determined under federal common law principles. [255]
D. Federal common law in state courts: Conversely,
states are occasionally required to apply the
federal common law. If concurrent jurisdiction (state and federal) exists concerning a particular claim, and the suit is brought in state court, federal common law applies there if it would apply in federal court. [256]
Example: P brings a state-court action against D, a city, under a federal statute giving a cause of action for deprivation of civil rights. State law requires that P give notice to D within 120 days of injury before suing D if D is a city. Held, the state
court may not impose this state-created procedural rule, since it would abridge federally-granted
Felder v. Casey] rights. [
Chapter 7
TRIAL PROCEDURE
I. BURDEN OF PROOF
A. Two meanings of "burden of proof": There are two kinds of "burden of proof" which a party may have to bear. Assuming that the issue is called A: [261]
1. Burden of production: The party bears the
"burden of production" if the following is true:
unless the party produces some evidence that
A exists, the judge must direct the jury to find
that A does not exist. [261]
2. Burden of persuasion: The party bears the
"burden of persuasion" if the following is true:
at the close of the evidence, if the jury cannot
decide whether A exists or not, the jury must
find that A does not exist. [261]
Example of two burdens: P sues D, arguing that D failed to use reasonable care in driving his car, and therefore hit P, a pedestrian. P bears both the burden of production and the burden of persuasion as to D’s negligence. To meet the burden of production, P will have to come up with at least some evidence that D was careless; if P does not do so, the judge will not let the jury decide the issue of negligence, and will instead direct the jury to find that there was no negligence. If P comes up with some evidence of negligence, and the case goes to the jury, the fact that P also bears the burden of persuasion means that the judge will tell the jury, "In order to find that D was negligent, you must find it more likely than not that D was negligent. If you find exactly a 50-50 chance that D was negligent, you must find non-negligence."
II. PRESUMPTIONS
presumption is a convention that A. Definition: A
when a designated basic fact exists (call the
designated basic fact B), another fact, called the
presumed fact (call it P) must be taken to exist
unless there is rebuttal evidence to show that P does
not exist. [262]
B. Effect of presumption: The existence of a presumption always has an effect on the burden of production, and sometimes has an effect on the burden of persuasion. (In the following discussion, assume that there is a legal presumption that if B, then P.
Assume also that plaintiff is trying to prove P. Also
assume that if there were no presumption, plaintiff would bear the burden of persuasion as to .) [262 P
- 264]
1. Effect on burden of production: The party
against whom the presumption is directed bears
the initial burden of evidence of producing
non-P. If he produces no evidence, he suffers
. [262] a directed verdict
Example: A statute establishes a presumption that when a railroad locomotive causes damage, the railroad was negligent. P proves that D’s locomotive caused damage to him. Neither party puts on any evidence about D’s actual negligence. Assume that if there were no presumption, P would have the burden of production on negligence. By showing damage, P has carried his burden of production; if D does not come up with any rebutting evidence of non-negligence, the judge will direct the jury to find for P on the negligence issue. 2. Burden of persuasion: If the defendant
that a offers enough evidence of non-P
reasonable jury might find non-P, it is clear
that defendant has met his production burden, and that the case will go to the jury. But courts are split as to who bears the burden of persuasion. [262]
a. Federal Rules of Evidence: Most states,
and federal courts in federal-question
cases, follow the approach set out in the Federal Rules of Evidence. Under this
no effect approach, the presumption has
on the burden of persuasion, merely on the burden of production. This approach is sometimes called the "bursting bubble"
approach – once evidence tending to show the non-existence of the presumed fact is
introduced, the presumption bursts like
. See FRE 301 ("A presumption a bubble
imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of non-persuasion...").
Example: Same facts as above example. After P shows evidence of damage by the locomotive, D comes forward with evidence that it was not negligent. This is enough to send the case to the jury. Now, under the FRE "bursting bubble" approach, P
will still bear the burden of persuasion
– unless P convinces the jury that it is
more likely than not that D was negligent,
D will win on the issue of negligence.
This is because the presumption – that
where there is locomotive damage, there
is railroad negligence – has no effect
on the burden of persuasion.
b. State law in diversity cases: But in
diversity cases, the federal courts must
defer to any contrary state rule
concerning the effect of a presumption on
the burden of persuasion. See FRE 302. In
other words, FRE 301, applying the
bursting bubble approach, applies only
where a federal claim or defense is at
issue, or state law is silent.
III. PREPONDERANCE OF THE EVIDENCE
A. "Preponderance" standard generally: The usual standard of proof in civil actions is the "preponderance of the evidence" standard. A
proposition is proved by a preponderance of the
"more evidence if the jury is convinced that it is
that the proposition is true. [264] likely than not"
B. Adversary’s denials: A party who has the burden
of proving a fact by a preponderance of the evidence may not rely solely on the jury’s disbelief of his
. [265] adversary’s denials of that fact
Example: P asserts that D behaved negligently by driving through a red light. P produces no affirmative evidence of this allegation. D takes the stand, and says, "The light was green when I drove through." P does not cross-examine D on this point. There is no other relevant evidence. The court must hold that P could not possibly have satisfied the "preponderance of the evidence" standard as to D’s negligence – the fact that the jury might possibly disbelieve D’s denials of negligence is not enough, and the court must enter a directed verdict for D on this point.
IV. ADJUDICATION WITHOUT TRIAL
A. Voluntary dismissal by plaintiff: A plaintiff in
voluntarily dismiss her complaint federal court may
without prejudice any time before the defendant
serves an answer or moves for summary judgment. The fact that the dismissal is "without prejudice" means that she may bring the suit again. See Rule 41(a)(1).
[267]
1. Only one dismissal: Only the first dismissal
of the claim is without prejudice.
2. After answer or motion: After D has answered
or moved for summary judgment, P may no longer
automatically make a voluntary dismissal.
Instead, P must get the court’s approval. FRCP
41(a)(2).
B. Involuntary dismissal: P’s claim may also be
involuntarily dismissed by court order. [267]
1. Examples: Some of the grounds for which,
under FRCP 41(b), the court may grant an
involuntary dismissal, are: (1) P’s failure
to prosecute; (2) P’s failure to obey court
orders
; (3) lack of jurisdiction or venue; or
(4) P’s failure to join an indispensable
. party
2. Prejudice: Normally an involuntary
dismissal is with prejudice. But some kinds of
dismissals are with prejudice (and thus the not
action may be brought anew): (1) dismissal for
lack of jurisdiction, of both parties and
subject matter, or for insufficient service;
(2) improper venue; and (3) failure to join an
indispensable party under Rule 19.
C. Summary judgment: If one party can show that there is no "genuine issue of material fact" in the lawsuit,
and that she is "entitled to judgment as a matter of law," she can win the case without going to trial. Such a victory without trial is called a "summary
." See FRCP 56. [268 - 270] judgment
1. Court goes behind pleadings: The court will
go "behind the pleadings" in deciding a summary
judgment motion – even if it appears from the
pleadings that the parties are in dispute, the
motion may be granted if the movant can show that the disputed factual issues presented by
illusory. [268] the pleadings are
2. How shown: The movant can show the lack of a genuine issue by a number of means. For example, the movant may produce , or affidavits
use the fruits of discovery (e.g., depositions
and interrogatory answers) to show that there is no genuine issue of material fact. [268]
a. Burden of production: The person
moving for summary judgment bears the
initial burden of production in the
summary judgment motion – that is, the
movant must come up with at least some
affirmative evidence that there is no
genuine issue of material fact. [268] 3. Opposition: The party opposing the summary
judgment usually also submits affidavits, depositions and other materials. [269]
a. Opponent can’t rest on pleadings: If
materials submitted by the movant show that there is no genuine material issue of fact for trial, the non-movant cannot avoid summary judgment merely by repeating his pleadings’ denial of the allegations made by the movant. In other words, the party opposing the motion may not rest on restatements of her own pleadings, and must instead present by affidavits or the fruits of discovery specific facts showing that there is a
genuine issue for trial. Rule 56(e).
[269]
b. Construction most favorable to non-movant: On the other hand, once the opponent of the motion does submit opposing papers, he receives the benefit
. All matters in the motion of the doubt
are construed most favorably to the party
. The fact that the opposing the motion
movant is extremely likely to win at trial
no way, is not enough; only if there is
legally speaking, that the movant can
lose at trial, should the court grant
summary judgment. [270]
4. Partial summary judgment: Summary judgment
may be granted with respect to certain claims
in a lawsuit even when it is not granted with
respect to all claims. This is called partial
. See Rule 54(b). (Example: summary judgment
Where P sues D for breach of contract, the court
might grant P partial summary judgment on the
issue of liability, because there is no genuine
doubt about whether a breach occurred; the
court might then conduct a trial on the
remaining issue of damages.) [270]
V. TRIALS WITHOUT A JURY
A. When tried to court: A case will be tried without a jury if either of the two following conditions exists: [271]
1. No right to a jury trial exists; or
2. All parties have waived the right to a jury
trial.
a. When waived: A party who wants a jury
trial on a particular issue must file a
demand for jury trial to the other parties
within after the service of the 10 days
last pleading directed to that issue.
FRCP 38(b). Otherwise, the party is
deemed to have waived her right to jury
trial.
B. Effect: If there is no jury, the trial judge serves as both the finder of fact and the decider
of law. [271]
C. Evidence rules: The rules of evidence followed by the judge (in federal trials, these are the Federal Rules of Evidence) are officially the same
in non-jury trials as in jury trials. However, in practice, judges tend to relax the rules when there
is no jury present. [272]
D. Findings of fact: If an action is tried without
find the a jury, FRCP 52 requires the trial court to "
specially and [to] state separately its facts
conclusions of law thereon...." So the trial judge must set forth the facts with particularity, and
must in a separate section of her opinion state the law which she believes applies to those facts. [272]
1. Where separate findings required: The
federal judge must make separate findings of
fact and conclusions of law not only in cases
that are fully tried, but also: [272]
a. Where requests for interlocutory
injunctions are made (whether granted or
denied); and
b. Where "judgment on partial findings"
is given pursuant to Rule 52(c).
2. Separate findings not required: The trial
judge is not obligated to make separate
findings of fact and conclusions of law when
disposing of a motion, except a Rule 52(c)
motion for judgment on partial findings. Examples: If the judge denies a motion for (
summary judgment, or grants a 12(b)(6) motion
to dismiss for failure to state a claim, the judge need not make detailed findings of fact.) [272]
3. Judgment on partial findings: The judge can conduct a "mini trial" of just one issue, if
the judge thinks that this will dispose of the case. If the judge then finds against the party bearing the burden of proof on that issue, the judge issues a "judgment on partial findings." See FRCP 52(c). (Example: In an auto accident
case, D pleads the three-year statute of limitations. The judge can conduct a mini trial concerning only the date of the accident; if the date is more than three years before P started the action, the judge can issue a judgment in D’s favor based on the partial finding that the action is time-barred.) [272]
E. Appellate review of findings of fact: Although the appellate court has the full record of the case
not review the evidence for the before it, it does
purpose of making its own determination of what really happened. Appellate review as to factual matters is much more limited: [273 - 274]
1. General "clearly erroneous" standard: The
general standard is that the trial judge’s
findings of fact will be set aside only if they
." FRCP 52(a). (Example: are "clearly erroneous
If the trial judge finds that D behaved
negligently in an auto accident case, the
appellate court will not set aside the verdict
merely because it believes that there was only
a 40% chance that D was negligent. Only if the
trial judge’s findings seem to the appellate
court to be "clearly erroneous," a test not
satisfied here, will the court reverse.) [273]
2. Witnesses’ credibility: Where the findings
of fact relate to trial testimony given by live
witnesses, the appellate court must give "due
regard...to the opportunity of the trial court
credibility of the witnesses." to judge of the
FRCP 52(a). In other words, the appellate court
should be particularly loathe to overturn the
trial judge’s findings of fact regarding such
testimony. [273]
a. Standard: Where the trial judge
believes one of two witnesses who are
telling conflicting stories, as long as
the favored witness’ story is internally
, "facially plausible," and consistent
not contradicted by extrinsic evidence,
the appellate court will not overturn the
findings of fact. [Anderson v. Bessemer
] City
VI. THE JURY
A. Seventh Amendment generally: The Seventh
Amendment to the U.S. Constitution says that "in suits at common law ... the right of trial by jury
...." This Amendment applies to shall be preserved
federal trials, but does not apply to state trials.
[276]
B. Number of jurors: Traditionally, juries have been composed of 12 members. But this is breaking down today. [276]
1. Federal: Even in federal civil cases, the
Seventh Amendment does require a 12-member not
jury. FRCP 48 provides that a jury of at least
members will be seated. six
a. Too few remaining: Normally the
federal court seats more than six jurors,
so that if some have to leave the panel,
there will be at least six at the time of
verdict. If there are fewer than six at
the time of verdict, the court must
declare a mistrial unless both parties
agree to continue.
2. State trials: The number of jurors in state
varies from state to state. trials
C. Unanimity: [276]
federal civil jury 1. Federal: The verdict of a
must be unanimous, unless the parties
stipulate otherwise. FRCP 48.
2. States: Most states allow a
less-than-unanimous civil verdict.
D. Jury selection: The process by which the jury is selected is called the . In most states, "voir dire"
the consists of oral questions by both voir dire
sides’ counsel to the prospective jurors. These questions are designed to discover whether a juror would be biased, or has connections with a party or prospective witness. [277]
1. Dismissal for cause: Any juror who is shown
through the voir dire to be biased or connected
to the case must be dismissed upon motion by
a party (dismissal "for cause"). There is no
limit to the number of for-cause challenges by
either party.
2. Challenges without cause: In addition to the
jurors dismissed for cause, each party may
dismiss a certain number of other prospective
without showing cause for their jurors
dismissal ("peremptory challenges").
a. Federal practice: In federal civil
trials, each party receives three
peremptory challenges.
3. Balanced pool: The Seventh Amendment
requires that the jury, and the pool from which
it is drawn, be roughly representative of the
. overall community
4. Alternates: In most states, the court orders
the selection of up to six alternates after the
"regular" members of the jury have been
selected. But under federal practice,
alternates are no longer used (FRCP 48).
E. Instructions: The judge must instruct the jury
as to the relevant law. (Example: If P sues D for
negligence, the judge must instruct the jury about the "reasonable person" standard, and the requirement of proximate cause.) [277]
1. Objections: A party who wants to raise the
inadequacy of the instructions on appeal must
object to those instructions before the jury
. (Sometimes courts make an exception retires
to this rule for "plain error.")
F. Juror misconduct: A jury verdict may be set aside, and a new trial ordered, for certain types of jury
. (Examples: Talking to a party, misconduct
receiving a bribe, concealing a bias on voir dire.) [278]
1. Traditional impeachment rule: The
traditional rule, still followed in most
states, is that the jury may not impeach its
. That is, the verdict will not be own verdict
set aside because of a juror’s testimony of
his own or another juror’s misconduct – only
evidence from a third party will suffice. [278]
a. Federal Rule: But the Federal Rules of
Evidence have modified this principle
slightly for federal trials. The general
"jury can’t impeach its own verdict"
rule still applies, except that a juror
may testify about whether extraneous
prejudicial information was improperly
brought to the jury’s attention, or
outside influence was whether any
improperly brought to bear upon a juror.
FRE 606(b). (Examples: One juror can
testify that another read a newspaper
article about the case, or was bribed by
one of the parties. But a juror cannot
testify that the jury disregarded the
judge’s instructions.)
2. Post-trial discovery of bias: If, after the trial, it turns out that a juror failed to
information during voir dire that disclose
would have indicated bias, the party may move for a new trial. In federal trials, the movant must show: (1) that the juror failed to answer honestly a material question during the voir dire; and (2) that a correct response would have led to a valid challenge for cause. [McDonough Power Equipment Inc. v. Greenwood]
Example: A party can get a new trial if he (
proves that a juror lied about knowing one of
the parties, but not if the juror honestly gave
a mistaken answer in voir dire because of
confusion about the question.) [278]
VII. DIRECTED VERDICT
A. Defined: In both state and federal trials, either party may move for a . Such a verdict directed verdict
takes the case away from the jury, and determines
. [280] the outcome as a matter of law
1. Federal trials: In federal trials, the
phrase "directed verdict" is no longer used –
instead, a party moves for "judgment as a
matter of law."
2. When made: Motions for directed verdict or
judgment as a matter of law are made when the
opposing party has been fully heard on the
relevant issues. Thus D can move for directed
verdict at the close of P’s case, and either
party may move for directed verdict after both
sides have rested.
B. Standard for granting: Generally, the court will direct a verdict if the evidence is such that reasonable people could not differ as to the result.
[280]
1. Federal standard: In federal trials, the
standard is that the judge may enter judgment
as a matter of law "if during a trial by jury,
a party has been fully heard with respect to
an issue and there is no legally sufficient
for a reasonable jury to have evidentiary basis
found for that party with respect to that
issue." FRCP 50(a)(1).
VIII. SPECIAL VERDICT AND INTERROGATORIES A. Special verdict defined: A "special verdict" is a specific finding of fact, as opposed to a general
verdict (which merely grants victory to one side or the other). (Example: In a contract case, the jury might be asked to render a special verdict as to
whether a valid contract existed between the parties.) [283]
B. General verdict with interrogatories: The judge may, instead of requiring a special verdict, require a general verdict, supported by interrogatories as
to specific findings of fact. See FRCP 49(b). This
"general verdict with interrogatories" approach is more common than the specific verdict approach. [283]
IX. NEW TRIAL
A. Generally: The trial court, in both state and federal courts, usually has wider discretion to grant a new trial motion than to direct a verdict or disregard the jury’s verdict (JNOV). The reason is that the grant of a new trial interferes less with the verdict winner’s right to jury trial. [283]
B. Federal rules for granting: Here is a summary of the rules on grants of new trials in federal civil cases: [283 - 284]
1. Harmless error: A new trial may not be granted except for errors in the trial which are serious enough that they affect the substantial rights of the parties. FRCP 61.
"harmless error" This is the so-called
doctrine. Basically, unless the trial judge believes that the error might have made the
, she cannot grant a case come out differently
new trial motion. [284]
2. Evidence error: One common ground for granting a new trial is that the trial judge erroneously admitted or excluded evidence.
[283]
3. Objection: For most types of error at the trial court level, the party injured by the error must make a timely objection, in order
to preserve the right to cite that error on appeal as a ground for a new trial. ( Example:
If evidence is erroneously admitted or excluded, this cannot serve as grounds for a new trial unless the injured party immediately
objects at the time the evidence is admitted or excluded.) [284]
4. Improper conduct: A new trial may be granted
by a , because of improper conductpartywitness
or lawyer, posing a substantial risk that an unfair verdict will result. Similarly, a new trial may be granted where there is evidence that the jury behaved improperly (e.g., a juror was bribed or was contacted by a party). [284] 5. Verdict against weight of evidence: The trial judge (or the appeals court) may set aside a verdict as "against the weight of the
." Courts vary as to the standard for evidence
doing this. [285]
a. Federal standard: In federal courts,
a verdict must be against the clear weight
of the evidence, be based upon evidence
which is false, or result in a miscarriage
of justice. It is not enough that there
is substantial evidence against the
verdict, or that the trial judge
disagrees with the verdict and would vote otherwise if he were a juror. (But it is still easier to get a federal judge to grant a new trial as against the weight of the evidence than to get the trial judge to direct judgment as a matter of law.)
6. Verdict excessive or inadequate: A new trial
excessive or may be granted where a verdict is
inadequate. [286]
a. Remittitur and additur: Where the
verdict is excessive or inadequate, the judge may grant a conditional new trial
order – the new trial will occur unless the plaintiff agrees to a reduction of the damages to a specified amount (called "remittitur") or the new trial to occur unless the defendant consents to a raising of the damages (called "additur").
Most state courts allow both additur and
remittitur. In federal practice, only
remittitur is allowed. If a party accepts
the remittitur/additur, he may not
thereafter appeal.
7. Partial new trial: The trial judge may grant a partial new trial, i.e., a retrial limited to a particular issue. Most typically, this occurs when the trial judge feels that the jury’s conclusion that D is liable is reasonable, but feels that the damages awarded are inadequate or excessive – the judge can
grant a new trial limited to the issue of damages. [287]
8. Newly-discovered evidence: The trial judge may grant a new trial because of
newly-discovered evidence. The person seeking
the new trial must show that: (1) the evidence was discovered since the end of the trial; (2) the movant was in his "reasonably diligent"
search for the evidence before and during the trial, and could not reasonably have found the evidence before the end of the trial; (3) the
material, and in fact likely to evidence was
produce a different result; and (4) injustice
would otherwise result. [287]
C. Review of orders granting or denying new trial: Both the grant of a new trial by the trial judge, and his denial of a new trial, may be reviewed upon appeal. Where the judge orders a new trial, the party who won the verdict may not appeal the new trial order, and must instead wait until the end of the new trial. [287]
X. JUDGMENT NOT WITHSTANDING VERDICT/JUDGMENT AS A MATTER
OF LAW
A. Definition: Most states allow the judge to set aside the jury’s verdict, and enter judgment for the verdict-loser. This is called a Judgment
Notwithstanding Verdict, or JNOV. In federal
practice, the device is called "judgment as a matter
(JML). [289 - 291] of law"
1. Usefulness: Judges like the JNOV procedure
better than directed verdicts, because it
allows the jury to reach a verdict – then, if
the judge is reversed on appeal, a new trial is not necessary (as would be the case if the trial judge erroneously directed a verdict).
B. Federal practice: Federal practice for "judgment
as a matter of law" is spelled out in FRCP 50: [290]
1. Motion before jury retires: The most important thing to remember about JML in federal practice is that the party seeking the JML must make a motion for that judgment before
. The movant the case is submitted to the jury
also specifies why (in terms of law and facts) she thinks she is entitled to the JML. The judge reserves decision on the motion, then submits the case to the jury. If the verdict goes against the movant, and the judge agrees that no reasonable jury could have found against the movant, then the judge may effectively overturn the verdict by granting JML. [290] 2. Appeal: Appellate courts frequently reverse both grants and denials of JML. Since a JML is
granted based on the legal sufficiency of the parties’ cases, not a detailed consideration of the evidence, the appellate court is quicker to second-guess the trial judge than in the case of a motion for a new trial. [291 - 292]
XI. CONSTITUTIONAL RIGHT TO JURY TRIAL
A. Seventh Amendment: The Seventh Amendment
...the right provides that "in suits at common law
of trial by jury shall be preserved...." [292] 1. No state application: The Seventh Amendment
has never been applicable to state trials, only
federal ones.
2. Federal Rule: The Seventh Amendment does
apply to all federal civil jury trials, and is incorporated in Rule 38(a).
a. Party must demand: The right to a jury
trial in federal practice is not
self-executing. A party who wishes a jury
trial on a particular issue must file a
demand for that jury trial to the other
10 days after the service parties within
of the last pleading directed to that
issue. (Rule 38(b).)
b. Equitable claim: There is no jury trial
right as to "equitable" claims (e.g., a
claim for injunction). The distinction
between legal and equitable claims is
very important, and is discussed further
below.
B. Law in diversity cases: In a diversity case, the
issue of whether a party has a right of jury trial on a particular claim is to be determined by federal,
not state, law. (Example: Federal principles, not
local state law, are used to determine whether a particular claim is "legal" rather than "equitable," even in diversity cases.) [292]
C. Suits with both legal and equitable claims: If a case presents both legal and equitable claims, and
one party wants a jury trial on the legal claims, the court must normally try the legal claims first.
[Beacon Theatres v. Westover] If the court allowed
the equitable claims to be tried first, without a jury, this might effectively dispose of some of the legal issues as well, thus thwarting the party’s right of jury trial on the legal claims. [293 - 296] Example: P sues D for an injunction against certain contract violations. D counterclaims for damages for breach of contract. D demands a jury trial on its counterclaim. Assuming, as seems likely, the injunction claim is equitable and the damages counterclaim is legal, the judge must try the
before it conducts a bench counterclaim to a jury
trial of the injunction claim, as long as there may be some issues common to both claims.
D. Distinguishing "legal" vs. "equitable" claims: In deciding whether a claim is "legal" rather than "equitable," the issue is whether the claim is a claim "at common law." The main test is whether the claim is one in which the courts of law (as opposed to equity) would have recognized prior to the 1789 adoption of the Seventh Amendment. Here are the
general rules for deciding this: [293]
1. Damages: Claims that basically involve money damages are almost always legal.
2. Injunctions are equitable: An action where the principal relief sought is an injunction
will almost always be equitable. [295]
3. Shareholder derivative suit: A
suit is either legal shareholder’s derivative
or equitable, depending on the status of the corporation’s own suit – if the
corporation’s own suit would be legal, the derivative action is legal. (Example: P, a
stockholder in X Corp., brings a derivative suit attempting to enforce X’s rights against D, a former officer of X Corp., for an alleged embezzlement by D from X Corp. The suit seeks money damages. Since a suit on the same cause of action by X Corp. directly against D would be legal, P’s shareholder’s derivative suit is also legal. [Ross v. Bernhard]) [296]
4. Declaratory judgment: A declaratory
suit can be either legal or equitable, judgment
depending on the underlying issues in the suit.
[295]
5. Bankruptcy is equitable: A claim asserted
proceedings will as part of bankruptcy
generally be treated as equitable, and will
thus not involve a right to jury trial.
[Katchen v. Landy] [298]
Chapter 8
MULTI-PARTY AND MULTI-CLAIM LITIGATION
I. COUNTERCLAIMS
A. Federal Rules generally: A "counterclaim" is a claim by a defendant against a plaintiff. The
Federal Rules provide for both "permissive" and
"compulsory" counterclaims. FRCP 13. [307]
1. Permissive counterclaim: Any defendant may
bring against any plaintiff "any claim ... not
arising out of the transaction or occurrence
that is the subject matter of the opposing
party’s claim." Rule 13(b). This is a
"permissive" counterclaim. This means that no claim is too far removed from the subject of P’s claim to be allowed as a counterclaim. [307]
Example: P sues D in diversity for a 1989 car accident. D counterclaims for breach of a 1990 contract having nothing to do with the auto accident. D’s counterclaim is allowed, and is a "permissive" one because it has nothing to do with the subject matter of P’s claim against D.
2. Compulsory counterclaim: If a claim does
arise "out of the transaction or occurrence
that is the subject matter of the opposing
," it is a "compulsory" party’s claim...
counterclaim. See Rule 13(a). [308]
a. Failure to state compulsory
counterclaim: If D does not assert her
compulsory counterclaim, she will lose
that claim in any future litigation.
[308]
Example: Cars driven by P and D collide. P sues D in diversity, alleging personal injury. D makes no counterclaim. Later, D wants to bring either a federal or state suit against P for property damage sustained by D as part of the same car accident. Neither federal nor state courts will permit D to bring this action, because it arises out of the same transaction or occurrence as P’s original claim – the car accident – and
is thus barred since D did not assert it as a compulsory counterclaim in the initial action.
i. Exceptions: There are a couple of
exceptions to the rule that any main
claim involving the same
"transaction or occurrence" as P’s
claim is compulsory: (1) claims by
D which for "just adjudication"
require the presence of additional
of whom the court cannot get parties
personal jurisdiction
; and (2)
claims by D in which the suit against
D is in rem or quasi in rem (assuming
D is not making any other
counterclaim in the action). See
Rule 13(a), including 13(a)(2).
b. Default by plaintiff: If D asserts a
counterclaim (whether compulsory or
permissive), and P neglects to either
serve a reply or make a motion against the
counterclaim, a default judgment may be
entered against P on the counterclaim.
Rule 55(d). [308]
B. Claims by third parties: A counterclaim may be made by any party against "any opposing party." Rule
13(a), Rule 13(b). [309]
1. By third-party defendant: Thus a
third-party defendant may counterclaim
against either the original defendant, or
against the original plaintiff. (In the latter
case, a claim by the plaintiff against the
third-party defendant must first have been made.) [309]
2. By plaintiff: If D has counterclaimed against P, P may then assert a "counterclaim" against D, even though P has already asserted "regular" claims against D. In fact, P’s "counter-counterclaim" will be compulsory if it relates to the same subject matter as D’s
Example: P sues D about a car counterclaim. (
accident. D sues P for breach of an unrelated contract. Any claims P might have against D relating to that same contract are now compulsory counterclaims.) [309]
3. New parties: New parties to a counterclaim
can be brought into a suit. Rule 13(h).
(Example: P sues D for an auto accident. D believes that P and X conspired to ruin D’s business, in an unrelated action. D may not only counterclaim against P for this conspiracy – a permissive counterclaim – but
D may bring in X as a new party to D’s counterclaim.) [309]
C. Subject-matter jurisdiction: The subject-matter
treatment of counterclaims depends on jurisdiction
whether the counterclaim is compulsory or permissive:
[310]
1. Compulsory counterclaim: A compulsory
counterclaim in a federal action is within the federal courts’ . supplemental jurisdiction
Therefore, it requires no independent
. subject-matter jurisdictional groundsExample: A, a New Yorker, sues B, from Massachusetts. The suit relates to an accident involving cars driven by A and B. B, in a counterclaim, asserts that A was at fault, and that the accident caused B $30,000 of damages. A’s car was owned by C, a Massachusetts resident not yet in the action whom B would also like to sue. B may bring C in as an additional party to his counterclaim. Because
supplemental jurisdiction applies to B’s
compulsory counterclaim, and even to the entrance of the new party defending that counterclaim, the fact that B and C are not diverse, and the fact that B’s counterclaim does not meet the jurisdictional amount, are irrelevant.
permissive 2. Permissive counterclaims: A
counterclaim is probably not within the
court’s supplemental jurisdiction, and must
therefore independently satisfy the
requirements of federal subject matter jurisdiction. (Example: Same facts as above
example, except that now, B’s claim against A and C does not relate to the same transaction as A’s claim against B. The absence of
diversity as between B and C, and the fact that B’s claim does not meet the jurisdictional amount, are both fatal, so B’s permissive counterclaim may not go forward against either A or C.)
D. Statute of limitations for counterclaims: [311]
1. Time-barred when P sues: If D’s
time-barred at the counterclaim was already
time P sued, few if any federal courts will
allow D to make an affirmative recovery. Some
courts will allow the counterclaim to be used
as a defense; the court is more likely to do
this if the counterclaim is compulsory than if
it is permissive.
2. Time-barred after P sued: Where the statute
of limitations on the counterclaim runs after
P commenced the suit, but before D asserted his
counterclaim, a federal court will probably
allow the counterclaim. [Azada v. Carson]
II. JOINDER OF CLAIMS
A. Joinder of claims generally: Once a party has made
, he may then make a claim against some other party
any other claim he wishes against that party. Rule
18(a). (Example: P sues D, claiming that D
intentionally assaulted and battered him. P may join to this claim a claim that D owes P money on a contract entirely unrelated to the tort.) [315]
never 1. Never required: Joinder of claims is
by Rule 18(a), but is left at the required
claimant’s option. (However, the rules on former adjudication, especially the rule against splitting a cause of action, may cause a claimant to lose the ability to bring the unasserted claim in a later suit.) 2. Subject-matter jurisdiction not affected: Supplemental jurisdiction probably does not
apply to a claim joined with another under Rule
18(a). Thus the requirements of subject-matter jurisdiction must be independently satisfied
by the joined claim. However, usually there will not be a subject-matter jurisdiction problem for joinder of claims (since diversity will not be affected, and since P may add all claims together for purposes of meeting the $75,000 requirement, under the aggregation doctrine).
III. JOINDER OF PARTIES
A. Permissive joinder: Joinder under Rule 20, done
at the discretion of the plaintiffs, is called "permissive" joinder. ("Compulsory" joinder under Rule 19 is described below.) FRCP 20 allows two types of permissive joinder of parties: (1) the right of multiple plaintiffs to join together; and (2) a plaintiff’s right to make several parties co-defendants to her claim. [317 - 318]
1. Joinder of plaintiffs: Multiple plaintiffs
may voluntarily join together in an action if
they satisfy two tests: [317]
a. Single transaction or occurrence:
Their claims for relief must arise from
a single "transaction, occurrence, or
," series of transactions or occurrences
and
b. Common questions: There must be a
question of law or fact common to all
which will arise in the plaintiffs
action.
2. Joinder of defendants: If one or more
multiple plaintiffs have a claim against
, these defendants may be joined defendants
based on the same two tests as
plaintiff-joinder. That is, claims against the co-defendants must: (a) arise from a single
"transaction, occurrence, or series of
transactions or occurrences"; and (b) contain a common question of law or fact. [317]
a. At plaintiff’s option: Joinder of
multiple defendants is at the option of
or plaintiffs. the plaintiff
B. Jurisdiction in permissive joinder cases: [318
- 320]
1. Personal jurisdiction: Where joinder of multiple defendants is involved, the
requirements of personal jurisdiction must be met with regard to each defendant individually.
That is: [318]
personally a. Service: Each D must be
; served
b. Contacts: Each D must individually
fall within the in personam jurisdiction
of the court (by having "minimum
contacts"); and
c. Long-arm limits: Each D must be
to suit. Since federal courts "amenable"
in diversity suits follow the long-arm of
the state where they sit, if a potential
co-defendant cannot be reached by the
state long-arm, he cannot be part of the
federal diversity action even if he has
the requisite minimum contacts. (But in
federal question suits, it doesn’t
matter that the state long-arm can’t
reach D.)
2. Subject-matter jurisdiction: There is no
supplemental jurisdiction for Rule 20 joinder
of multiple Ds; it’s not clear whether there
is for multiple Ps. So in a case with no federal
at question, it’s clear that there has to be
, and least one P who’s diverse with all Dscourts are split about whether it’s fatal that some P is a citizen of the same state as some D. [127 - 128]
Example 1 (multiple Ds): P, from Mass., may not join as co-Ds D1 from New York and D2, from Mass, in a diversity action, because there’s no supplemental jurisdiction for Rule 20 joinder
of multiple Ds.
Example 2 (multiple Ps): If P1 (from Mass.) and P2 (from N.Y.) sue D, from N.Y., courts are split as to whether the action can go forward as a diversity action. Some say that since the P1-D pair is diverse, supplemental
jurisdiction kicks in, so it doesn’t matter that P2 and D are not diverse. But other courts say that supplemental jurisdiction doesn’t apply to Rule 20 joinder of multiple Ps, so that complete diversity (all Ps to all Ds) is required; in such a court, the action can’t
go forward because of the lack of diversity between P2 and D.
Example 3 (multiple Ps and multiple Ds; no P diverse with all Ds): P1 (from Mass.) and P2 (from N.Y.) sue D1 (from Mass.) and D2 (from N.Y.) All courts agree that the case can’t go forward as a diversity-only suit, because there is no P who’s diverse with all Ds.
Example 4 (multiple Ps and multiple Ds; at least 1 pair is diverse: P1 (from Mass.) and P2 (from N.Y.) sue D1 (from N.Y.) and D2 (from N.J.) Courts are split about whether suit can go forward based solely on diversity. Some say that since there’s one P who’s diverse with all Ds (i.e., P1), supplemental jurisdiction applies [see e.g., Stromberg Metal Works, 128],
so P2 can be added. Other courts say supplemental jurisdiction does not apply to multiple Ps or multiple Ds, so the case can’t go forward.
a. Aggregation: It is not clear whether multiple plaintiffs may aggregate their
claims to meet the jurisdictional amount in a diversity case. If no plaintiff meets this amount, aggregation is not allowed. If one or more does, but others do not, it is not clear whether either the aggregation doctrine or supplemental jurisdiction will allow the
less-than-$75,000 plaintiffs to be part of the action.
i. Each defendant must meet: If the
Rule 20 joinder involves multiple
, supplemental defendants
jurisdiction definitely does not
apply to the claims against them, so
in a diversity case must have each D
claims against him equal to $75,000.
C. Compulsory joinder: There are certain situations
in which additional parties must be joined, assuming
the requirements of jurisdiction can be met. Such
joinder, specified by Rule 19, is called
"compulsory" joinder. The basic idea is that a party must be joined if it would be uneconomical or unfair to litigate a claim without her. [320 - 325]
1. Two categories: There are two categories of
parties who must be joined where possible:
a. "Necessary" parties: The "less vital"
group consists of parties: (1) who must
be joined if this can be done; but (2) in
whose absence because of jurisdictional
problems the action will nonetheless be
permitted to go forward. These parties
are called "necessary" parties. See Rule
19(a).
b. "Indispensable" parties: The second,
"more vital" group consists of parties
who are so vital that if their joinder is
impossible for jurisdictional reasons,
the whole action must be dropped. These
are called "indispensable" parties. See
Rule 19(b).
2. "Necessary" defined: A party is "necessary" – and must be joined if jurisdictionally possible – if the party is not "indispensable"
and either of the two following (defined below)
tests is met: [320]
a. Incomplete relief: In the person’s
absence, complete relief cannot be
accorded among those already parties; or
b. Impaired interest: The absentee has an
interest relating to the action, and
trying the case without the absentee will
either impair the absentee’s interest or
leave one of the people already parties
subject to multiple or inconsistent
. obligations
3. "Indispensable" defined: If a party meets the test for "necessary" given in paragraph (2) above, but the party’s joinder is impossible
because of jurisdictional problems, the court has to decide whether the party is
"indispensable." [321]
a. Consequence of indispensability: If the party is "indispensable," then the
dismissed in that party’s action must be
absence.
b. Factors: When the court decides whether a party is "indispensable," the factors are: (1) the extent of prejudice
to the absentee, or to those already parties; (2) the possibility of framing the judgment so as to mitigate such
prejudice; (3) the adequacy of a remedy
that can be granted in the party’s absence; and (4) whether the plaintiff will have an adequate remedy if the action is dismissed. Rule 19(b).
Example: P sues D, a bank holding some stock. P alleges that although the stock is registered solely in the name of X, P and X in fact co-own the stock. P and D are citizens of different states, but X is a citizen of the same state as P. X thus
cannot be joined as a co-defendant,
because his presence would destroy
diversity. The issue is whether X is
"necessary" or "indispensable."
Held: (1) X is definitely a person who
must be joined if feasible under Rule
19(a), because his absence will expose D
to the risk of double obligation – a
judgment that P owns the stock will not
bind X, who can later sue D for the whole
value of the stock; (2) X is in fact
"indispensable" – his presence is so
important that the suit must be dismissed
rather than proceed in X’s absence.
[Haas v. Jefferson Nat'l Bank] [323]
4. Jurisdiction: Where a non-party is one who must be "joined if feasible," the doctrine of
does apply to supplemental jurisdictionnot
overcome any jurisdictional problems. So if the person who is sought to be joined as a defendant is not diverse with all plaintiffs,
or if the claim against that would-be defendant
does not meet the amount-in-controversy
requirement in a diversity case, the joinder
may not take place. [321]
IV. CLASS ACTIONS
A. Definition: The class action is a procedure whereby a single person or small group of co-parties
a larger group, or , of persons may represent"class"
sharing a . [330] common interest
1. Jurisdiction: In the class action, only the
must satisfy the requirements representatives
of personal jurisdiction, subject-matter
jurisdiction, and venue. (Example: P1 and P2
are the named co-plaintiffs who bring a
diversity class action against D. There are
2,000 non-named class members. Only P1 and P2
must meet the requirements of diversity
vis-?vis D, so the fact that many non-named
plaintiffs are citizens of the same state as
D is irrelevant.)
2. Binding on absentees: The results of a class
binding on the absent action are generally
. Therefore, all kinds of procedural members
rules (discussed below) exist to make sure that these absentees receive due process (e.g.,
they must receive notice of the action, and notice of any proposed settlement).
3. Defendant class: In federal practice, as well as in states permitting class actions, the class may be composed either of plaintiffs or
defendants. The vast majority of the time, the class will be composed of plaintiffs. [331]
B. Rule 23 generally: The federal procedures for
class actions are spelled out in FRCP 23. [331]
1. Four prerequisites: Four prerequisites
(discussed below) must be met before there is any possibility of a class action.
2. Three categories: Once these prerequisites are met, a class action will still not be allowed unless the action fits into one of
three categories, represented by Rule 23(b)(1),
23(b)(2), and 23(b)(3). (See Table 8-2, "Class
Actions" [331].)
C. Prerequisites: Here are the four prerequisites
which must be met before any federal class action is
allowed: [331]
1. Size: The class must be that joinder so large
of all members is impractical. Nearly all class
actions involve a class of at least 25 members,
and most involve substantially more
(potentially tens of thousands). The more
geographically dispersed the claimants are,
the fewer are needed to satisfy the size
requirement. [331]
2. Common questions: There must be "questions
." This is of law or fact common to the class
seldom a problem. [332]
3. Typical claims: The claims or defenses of
the representatives must be "typical" of those
of the class. This requirement of "typicality"
is also rarely a problem. [332]
4. Fair representation: Finally, the
representatives must show that they can
"fairly and adequately protect the interests
. Thus the representatives must "of the class
not have any conflict of interest with the
absent class members, and they must furnish
competent legal counsel to fight the suit.
[332]
D. Three categories: As noted, there are three categories of class actions, all of which must meet the four prerequisites listed above. They are covered in Rules 23(b)(1), 23(b)(2) and 23(b)(3).
[334 - 335]
1. 23(b)(1) actions: The first of the three
categories, 23(b)(1), applies to situations
similar to the circumstances requiring the
joinder of necessary parties under Rule 19.
[334 - 335]
a. Test: A class action is allowed under 23(b)(1) if individual actions by or against members of the class would create risk of either: (a) inconsistent a
forcing an opponent of the decisions
class to observe incompatible standards
(Rule 23(b)(1)(A)); or (b) the of conduct
impairment of the interests of the
members of the class who are not actually parties to the individual actions (23(b)(1)(B)).
Example: Taxpayers residing in City XYZ are unhappy with a municipal bond issue by XYZ. Some taxpayers want the issue declared invalid; others want merely to have the terms of the issue changed. If each taxpayer brought his own action, as the result of one suit XYZ might have to refrain from floating the issue
altogether, but as the result of the other suit might just be forced to limit the size of the issue. XYZ thus faces a risk
of incompatible standards of conduct. Therefore, a Rule 23(b)(1) action would
be suitable on these facts.
b. No opting out: Members of the 23(b)(1)
class may not "opt out" of the class. Any
absentee will therefore necessarily be
by the decision in the suit. bound
c. Mass tort claims: Courts are increasingly allowing use of the 23(b)(1)
class action in mass tort cases, where
there are so many claims that D may be insolvent before later claimants can collect. See the further discussion of this topic infra.
Example: Tens of thousands of women may have been injured by breast implants manufactured by D. If each brings an individual suit, D’s financial
resources may be exhausted, leaving nothing for those who bring suit later. A federal court might therefore hold that
a 23(b)(1) action is suitable for
determining, once and for all, whether D
sold a defective device and whether it
typically caused a certain type of
medical injury. Each P would then have a
separate claim on causation and damages
only. [335]
2. 23(b)(2) actions: The second category, 23(b)(2), allows use of a class action if "the party opposing the class has acted or refused to act on grounds generally applicable to the
, thereby making appropriate final class
injunctive relief or...declaratory relief with respect to the class as a whole." In other words, if the suit is for an injunction or
declaration that would affect all class members, (b)(2) is probably the right category. [336]
a. Civil rights case: The main use of
23(b)(2) is for civil rights cases, where
the class says that it has been
discriminated against, and seeks an injunction prohibiting further
discrimination. (Example: A class action
is brought on behalf of all black employees of XYZ Corp., alleging that executives of XYZ have paid them less money and given them fewer promotions than white employees. The suit seeks an injunction against further
discrimination, as well as money damages. This would be an appropriate suit for a 23(b)(2) class action.)
b. No opt-out: Members of a 23(b)(2) class
may not of the class. See Rule "opt out"
23(c)(3).
3. 23(b)(3) actions: The final type of class
action is given in Rule 23(b)(3). This is the
type. [336 - 337] most common
a. Two requirements: The court must make two findings for a (b)(3) class action:
i. Common questions: The court must find that the "questions of law or
common to members of the class fact
predominate over any questions
affecting only individual
members..."; and
ii. Superior method: The court must also find that "a class action is superior to other available
" for deciding the methods
controversy. In deciding
"superiority," the court will consider four factors listed in 23(b)(3), including: (1) the
interest of class members in individually controlling their
separate actions; (2) the presence of any suits that have already been
involving class members; commenced
(3) the desirability of
concentrating the litigation of the
claims in a particular forum; and (4)
any difficulties likely to be
management of a encountered in the
class action.
b. Securities cases: (b)(3) class actions
are especially common in securities fraud
cases, and in cases. antitrust
c. Mass torts: (b)(3) actions are
sometimes brought in cases mass tort
(e.g., airline crashes) and mass product
cases (e.g., mass liability
pharmaceutical cases). But many courts
still frown on (b)(3) class action status
for such suits, because individual
elements typically predominate. See
supra.
E. Requirement of notice: Absent class members (i.e., those other than the representatives) must almost always be given notice of the fact that the suit is pending. [337 - 338]
1. When required: The Federal Rules explicitly
(b)(3) actions. But require notice only in
courts generally hold that notice is required in (b)(1) and (b)(2) actions as well.
a. Individual notice: Individual notice,
almost always , must be given to by mail
all those class members whose names and
addresses can be obtained with reasonable
. This is true even if there are effort
millions of class members, each with only
small amounts at stake. [Eisen v.
] [337] Carlisle & Jacquelin
b. Publication notice: For those class
members whose names and addresses cannot
be obtained with reasonable effort,
publication notice will usually be
sufficient.
2. Contents: The most important things notice does is to tell the claimant that he may opt
of the class if he wishes (in a (b)(3), but out
not (b)(1) or (b)(2), action); and that the
judgment will affect him, favorably or
unfavorably, unless he opts out.
3. Cost: The cost of both identifying and
each class member must normally be notifying
borne by the representative plaintiffs. If the
plaintiff side is unwilling to bear this cost,
the case must be dismissed. [Eisen v. Carlisle
; Oppenheimer Fund v. Sanders] & Jacquelin
[338]
F. Binding effect: Judgment in a class action is binding, whether it is for or against the class, on
all those whom the court finds to be members of the class. [338]
1. Exclusion: In the case of a (b)(3) action,
a person may opt out, i.e., exclude himself,
from the action, by notifying the court to that
effect prior to a date specified in the notice
of the action sent to him. A person who opts
out of the action will not be bound by an
adverse judgment, but conversely may not
assert collateral estoppel to take advantage
of a judgment favorable to the class. (Absent
class members in (b)(1) and (b)(2) actions do
not have the right to opt out and thereafter
bring their own suit.)
G. Amount in controversy: Only the named representatives of a class have to meet the requirements of diversity and venue. However, every
must satisfy the applicable member of the class
amount in controversy requirement. [339]
1. Diversity: Thus in diversity cases, each
member of the class must have more than $75,000
at stake. [Zahn v. International Paper Co.]
This obviously makes diversity class actions
difficult to bring (but has not stood in the
way of such actions in mass-tort cases).
2. Federal question suits: In federal question
cases, there is no general amount in
controversy requirement, so the problem does
not arise.
H. Certification and denial of class status: Soon after an action purporting to be a class action is
"certify" brought, the court must decide whether to the action. By certifying, the court agrees that the class action requirements have been met, and allows the suit to go forward as a class action. If the court refuses to certify the action: [340]
1. Continued by representative: The suit may
still be continued by the "representatives,"
but with no res judicata effect for or against
the absent would-be class members. Usually,
the representatives will not want to proceed
on this non-class-action basis. [340]
2. Sub-class: Alternatively, the suit may be
continued by a sub-class of the original class.
If so, res judicata extends to the members of
the sub-class, but not to the other members of
the original class. [340]
3. No appeal: The denial of class action status
may not be immediately appealed, because it is
"final order." [Coopers & not deemed to be a
] [340] Lybrand v. Livesay
I. Settlements: Any proposed settlement of the class
action must be . FRCP 23(e). approved by the court
The court will approve the settlement only if it is convinced that the interests of the absent class members have been adequately protected (e.g., that settlement is not being urged by greedy
contingent-fee lawyers who will pocket most of the settlement money). [341]
1. Notice requirement: If the class has already
been certified, notice of any proposed
settlement must be given to each class member.
J. Attorneys’ fees: The court may award reasonable
to the lawyers for the class. These attorneys fees
fees are generally in rough proportion to the size of the recovery on behalf of the class. [342]
1. Federal statute requires: In the usual case
of a class action brought under a federal
, attorneys fees may be awarded only if statute
a federal statute so provides
. [Alyeska
.] Pipeline Service Co. v. Wilderness SocietyCongress has authorized attorneys fees for many important federal statutes that are frequently the subject of class action suits (e.g., civil rights and securities law).
K. Mass tort cases: Class actions have begun to be
used increasingly in "mass tort" cases. [342 - 350]
1. Definition of "mass tort": Mass torts fall into two categories. In a "mass accident," a
large number of persons are injured as a result of a single accident. (Examples: an airplane
crash, the collapse of a building, or the explosion of a factory accompanied by the release of toxic substances.) In a "mass
case, a defective product product liability"
is sold to thousands of buyers, who are thereby injured. [342]
2. Single-accident cases: In mass-tort cases involving a single "mass accident," or a single
"course of conduct" by one defendant, many
courts allow class certification. Cases involving a single explosion, or a single toxic dumping by one defendant on one occasion, are examples. [344]
3. Product liability cases: In mass-tort cases
, by contrast, most involving product liability
federal courts have held that the federal class action is not suitable. Usually courts don’t
allow it to be used even for the limited purpose of deciding core "all or nothing" issues like D’s negligence, or the product’s
defectiveness. [345]
4. Factors for mass-tort cases: Here are some of the factors that courts consider in deciding whether to allow certification in a mass accident or mass product liability case: [346]
a. State-by-state law variations: If the
suit is based on diversity (as it usually
will be in a product liability case), and
involves plaintiffs from many states, and
if the federal court would therefore
differing laws somehow have to apply the
(because of Erie), the of many states
court is less likely to grant class
status.
b. Centrality of single issue: Where one issue is truly to the case, the "central"
court is most likely to certify the class.
c. Size of typical claim: The larger each
, the the less likelyindividual claim
court is to allow class status (because each claimant could sue on his own). d. Novelty of claim: Where the
plaintiffs’ claim is "novel," i.e.,
untested (e.g., that cigarette companies have fraudulently entrapped young people into addiction to nicotine),
certification is unlikely, because the
court won’t want to let the future of a whole industry turn on whether one jury likes the claim.
e. Limited funds: Where there are so many
thousands of claimants that there’s
reason to believe that the defendant(s)
insolvent before the last will be
claimant has recovered, certification is
more likely.
V. INTERVENTION
A. Intervention generally: By the doctrine of
, certain persons who are not "intervention"
initially part of a lawsuit may enter the suit on
. The person who intervenes is their own initiative
called an "intervenor." [356]
1. Two forms: In federal suits, FRCP 24 creates
two forms of intervention:
a. "Intervention of right" (Rule 24(a));
and
b. "Permissive intervention" (Rule
24(b)).
2. Distinction: Where the intervention is "of
no leave of court is required for the right,"
party’s entry into the case. Where the facts are such that only "permissive" intervention is possible, it is up to the court’s
discretion whether to allow intervention.
B. Intervention of right: [356 - 358] 1. Three tests: A stranger to an existing action may intervene , under Rule "of right"
24(a), if she meets all of the three following
criteria: [356]
a. Interest in subject-matter: She must
"claim an interest relating to the
property or transaction which is the
subject of the action";
b. Impaired interest: She must be "so
situated that the disposition of the
action may as a practical matter impair
or impede [her] ability to protect that
"; and interest
c. Inadequate representation: She must
not show that this interest is
"adequately represented by existing
." parties
Note: Even if the outsider cannot meet one or more of these criteria, she may nonetheless automatically intervene under Rule 24(a) if a federal statute
gives her such a right. (Example: The U.S.
may intervene in any action involving the constitutionality of an act of Congress.) [356]
Example: P (the U.S. government) sues D, a local Board of Education, charging that D has drawn school boundaries on
racially-discriminatory lines. X, the parent of a black public school student attending D’s schools, wants to
intervene. Probably X’s intervention will be of right, since X has an interest in the subject-matter, and his ability to
bring his own action in the future will
be compromised if the U.S. loses the case.
X will have to show that the U.S. may not
adequately represent X’s interest,
which he can do by showing that the U.S.
may be pursuing other objectives, such as
settling a lot of suits quickly.
Independent subject-matter 2. Jurisdiction:
jurisdictional grounds are required for
intervention of right in a diversity case. In other words, such intervention does not fall within the court’s supplemental jurisdiction.
[357]
Example: P, from California, sues D, from New York, in a diversity suit. X, from New York, would like to intervene. Even if the court concludes that the requirements of
intervention of right are met by X, X cannot intervene because there is no supplemental jurisdiction for intervention of right; after X’s intervention there would have to be
complete diversity, and this would not be the
case since X and D are both citizens of New
York.
C. Permissive intervention: For a person to seek "permissive intervention," she merely has to have
a "claim or defense" that involves a "question of
. [358] law or fact in common" with the pending action
1. Discretion: Where the outsider seeks
permissive intervention, it is up to the trial
court’s discretion whether to allow the
intervention. The trial court’s decision –
whichever way it goes – is rarely reversed on
appeal.
2. Jurisdiction: Like any intervenor of right,
a permissive intervenor in a diversity case
must independently meet federal
subject-matter jurisdictional requirements.
(Example: There must be diversity between the
intervenor and all defendants.) [358]
VI. INTERPLEADER
A. Definition: Interpleader allows a party who owes something to one of two or more other persons, but is not sure whom, to force the other parties to argue out their claims among themselves. The technique is designed to allow the "stakeholder" to avoid being made to pay the same claim twice. [360]
Example: X and Y both claim a bank account at Bank. Y demands the money from Bank. If Bank had to litigate against Y, and then possibly defend a second suit brought by X, Bank might have to pay the amount of the account twice. By using the interpleader doctrine, Bank can force X and Y to litigate between themselves as to the ownership of the account, with Bank paying only the winner.
two 1. Federal practice: In federal practice,
kinds of interpleader are allowed:
a. "Statutory interpleader" under 28
U.S.C. ?335; and
b. "Rule interpleader" under FRCP 22.
Note: See Table 8-3, "Comparison:
Statutory and Rule Interpleader" [365].
B. Federal statutory interpleader: 28 U.S.C. ?335
or allows a person holding property which ismay be
claimed by two or more "adverse claimants" to
interplead those claimants. [362 - 364] 1. Jurisdictional benefits: The main benefits to the stakeholder from using statutory interpleader instead of Rule interpleader relate to jurisdiction and service: [362]
a. Nationwide service: Nationwide
is allowed in service of process
statutory interpleader actions. See 28
U.S.C. ?361. Thus the court where the
stakeholder files a statutory
interpleader suit may serve its process
on any claimant, no matter where in the
. U.S. that claimant resides or is found
b. Diversity: Diversity is satisfied as
long as some two claimants are citizens
of different states
. (Example: Two New
York residents and a Californian all
claim the proceeds of a particular
insurance policy. Since either New Yorker
and the Californian form a diverse pair,
the diversity requirement for statutory
interpleader is satisfied. The
citizenship of the insurance company is
irrelevant.)
c. Amount in controversy: The property
which is the subject of the suit must
merely exceed $500 in value, in contrast
to the usual $75,000.
2. How commenced: A statutory interpleader suit is commenced by the stakeholder. The
stakeholder must, to begin the suit, deposit
the amount of the property in into court
question, or post a for that amount. [363] bond
a. Right to deny debt: Even though the
stakeholder must deposit the amount of
the property with the court, he is not
estopped from claiming at trial that he
not owe the money to any claimant at does
. [363] all
3. Restraint on other suits: Once the statutory
interpleader suit is begun, the court may
from starting or restrain all claimants
continuing any other action, in any state or
federal suit, which would affect the property.
(Example: On the facts of the above example,
the court could prevent the two New Yorkers and
the Californian from starting any state action
to collect on the policy.) [363 - 364] C. Rule interpleader: FRCP 22 provides an
interpleader remedy for any person who "is or may be exposed to double or multiple liability." This is so-called "Rule interpleader." The stakeholder may
invoke interpleader by coming into court on his own initiative (i.e., as plaintiff), or by
counterclaiming or cross-claiming as defendant in
an action already commenced against him by one claimant. [364]
1. Jurisdiction: The main difference between
statutory interpleader and Rule interpleader
Rule 22 interpleader has no effect on is that
ordinary jurisdictional and venue
. requirements
a. Complete diversity: Thus diversity
must be complete between the stakeholder
on one hand and all claimants on the other (assuming there is no federal question). (Example: Two New Yorkers and a
Californian all claim a particular insurance policy, which is issued by a California-based insurer. Rule 22
interpleader cannot be used, because it is not the case that all claimants are of different citizenship than the insurer.) b. Service: Service of process must be carried out as in any other diversity action – that is, within the state where the district court sits, or pursuant to the long-arm of the state. There is no
"nationwide service of process"
as in
statutory interpleader.
c. Amount in controversy: The $75,000
amount in controversy requirement must be
met.
2. No deposit: The stakeholder is not required
to the property or money into the court deposit
(as she is in statutory interpleader).
3. Denial of liability: The stakeholder may
"aver that the plaintiff is not liable in whole
or in part to any or all of the claimants." FRCP
22(1). In other words, the stakeholder may deny
. liability
VII. REAL PARTY IN INTEREST
A. Generally: FRCP 17, and most states, require that a complaint be in the name of the "real party in
." This means, for instance, that an interest
– a person to whom the original holder of assignee
a claim assigned that claim – must sue in the
assignee’s own name. [367]
1. Subrogation: This "real party in interest"
subrogation. An insurer who has rule covers
compensated its policy holder may sue the
tortfeasor in lieu of suit by the policy holder
– but the insurance company must sue in its
own name, not in the name of the policy holder.
2. Representatives: Executors, administrators,
bailees and other representatives are
considered to be themselves "real parties in
interest." Therefore, they may bring suit in
their own names, not in the names of persons
they represent (e.g., the estate). But the
citizenship of the represented party (e.g.,
the estate) generally controls for diversity
purposes.
VIII. THIRD-PARTY PRACTICE (IMPLEADER)
A. Impleader right generally: A defendant who believes that a third person is liable to him "for
all or part of the plaintiff’s claim against [the defendant]" may "implead such a person as a ‘third
.’" FRCP 14(a). [368] party defendant
Example: Victim is injured when a van driven by Employee and owned by Employer runs her over. Victim brings a diversity action against Employer, on a respondeat superior theory. Employer believes that
if Employer is required to pay a judgment to Victim, Employee, under common law indemnity rules, will be required to reimburse Employer. Instead of waiting until the end of the Victim-Employer suit, Employer may instead "implead" Employee. That is, Employer (the third-party plaintiff or TPP) brings Employee into the action as a "third party defendant" (TPD), so that in a single action, the court may conclude that Employer owes Victim, and that Employee owes indemnity to Employer.
B. Claim must be derivative: For a third-party claim to be valid, the TPP may not claim that the TPD is the one liable to the plaintiff, and that he only
himself is not liable at all. (Examples: Impleader
works for claims for indemnity, subrogation,
contribution and breach of warranty, since as to
each of these, the TPD is liable only if the TPP is liable.) [368]
1. Alternative pleading: However, the TPP is
alternative not precluded from claiming in an
pleading that neither she nor the TPD is
liable.
2. Partial claim: Also, the TPP may allege that
only a of the recovery is due from the portion
TPD. (Example: If TPP claims that TPD is liable
for "contribution" rather than "indemnity,"
TPP will recover from TPD at most only part of
any judgment that TPP owes to P.)
C. Leave of court: Leave of court is not necessary
for impleader, as long as the TPP serves a summons and complaint on a TPD within 10 days after the time
the TPP served his answer to P’s claim. FRCP 14(a),
second sentence. After this 10-day period, however, the court’s permission to implead is necessary. [368]
D. Impleader by plaintiff: Just as the defendant may implead a TPD, so a plaintiff against whom a
counterclaim is filed may implead a third person who
is liable to him for any judgment on the counterclaim. FRCP 14(b). [369]
E. Jurisdictional requirements relaxed: Both
personal and subject-matter jurisdictional
requirements are relaxed with respect to the
third-party claim: [369]
1. 100-mile bulge: Service of the third-party
complaint may be made anywhere within the
surrounding the courthouse, 100-mile bulge
even if the place of service is outside the
state and is beyond the scope of the local
long-arm. FRCP 4(k)(1)(B). [369]
Example: In the above
Victim/Employer/Employee example, if the suit
is pending in the Southern District of New York
(Manhattan), Employee could be served in
Newark, New Jersey, even if the New York State
long-arm would not reach him.
2. Supplemental jurisdiction: A third-party
claim falls within the court’s supplemental
jurisdiction
. Thus the TPD’s citizenship is unimportant, and no amount-in-controversy requirement must be satisfied. [369]
3. Venue: Similarly, if is proper between venue
the original parties, it remains valid regardless of the residence of the TPD. [369]
F. Additional claims involving the TPD: [369 - 371] 1. Claim by TPD: Once a TPD has been impleaded, she may make claims of her own, including: (1)
counterclaims against the TPP (either permissive or compulsory); (2) cross-claims against any other TPDs; (3) any claim against the original plaintiff, but only if it arises out of the same transaction or occurrence that is the subject of the plaintiff’s claim against the TPP; (4) any counterclaim against the original plaintiff, if the original plaintiff has made a claim against the TPD; and (5) impleader claims against persons not previously part of the suit, if these persons
may be liable to the TPD for all or part of the TPP’s claim against the TPD. [369]
a. Supplemental jurisdiction: All of the
above kinds of claims, except permissive
counterclaims, fall within the court’s
, and thus need supplemental jurisdiction
no independent federal subject-matter
jurisdictional grounds.
b. Defenses: A TPD may also raise against
the original plaintiff the same defenses
that the original defendant could have
raised.
2. Claims by original plaintiff: The original plaintiff may assert any claims against the TPD arising out of the transaction or occurrence that is the subject-matter of that
plaintiff’s claim against the TPP. [370]
a. Jurisdiction: A claim by a plaintiff
against the TPD must independently
– satisfy jurisdictional requirements
supplemental jurisdiction does not apply
Example: In a in this situation. (
diversity case, the original
plaintiff’s claim against the TPD must
be supported by diversity between the
plaintiff and the TPD, and that claim must
satisfy the $75,000 amount in
controversy.)
G. Dismissal of main claim: If the main claim is dismissed before or during trial, the court has discretion whether to hear the third-party claims relating to it (assuming that these are within the court’s supplemental jurisdiction, as they will be in the case of an ordinary impleader claim). [371]
IX. CROSS-CLAIMS
A. Definition: A claim by a party against a co-party
is called a "cross-claim." A cross-claim is made
only against a party who is on the same side of an
already-existing claim (e.g., a claim by one co-defendant against another, or by one co-plaintiff against another). [374]
B. Requirements: A cross-claim must meet two main requirements: [374]
1. Transaction requirements: It must have
arisen out of the "transaction or occurrence"
that is the subject of the original action or
the subject of a counterclaim. FRCP 13(g). (A
cross-claim is thus comparable to a compulsory
counterclaim, in terms of how closely related
it must be to the original claim.)
2. Actual relief: The cross-claim must ask for
actual relief from the co-party against whom
it is directed. (Example: D1 claims that he is
blameless, and that D2 is the one who should
be liable for all of P’s claims. This is not
a cross-claim, since D1 is not asking for
actual relief from D2 – instead, D1 is merely
asserting a defense.)
C. Not compulsory: A cross-claim, no matter how closely related it is to the subject of the existing action, is never compulsory. [375]
D. Jurisdiction: Cross-claims are within the supplemental jurisdiction of the court, and thus
need no independent jurisdictional grounds. [375]
Chapter 9
FORMER ADJUDICATION
I. GENERAL PRINCIPLES
A. Former adjudication generally: There is a set of rules that prevents re-litigation of claims and issues; the set is sometimes collectively called the doctrine of "res judicata" (Latin for "things which
have been decided"). [383]
1. Two categories: There are two main
categories of rules governing re-litigation:
a. Merger and bar: One set of rules
prevents a claim (or "cause of action")
from being re-litigated. These rules are
collectively called the rules of claim
. They break down into two preclusion
sub-rules:
i. Merger: Under the rule of
"merger," if P wins the first action,
his claim is "merged" into his
judgment. He cannot later sue the
same D on the same cause of action
for higher damages.
ii. Bar: Under the doctrine of
"bar," if P loses his first action,
his claim is extinguished, and he is
barred from suing again on that
cause of action.
b. Collateral estoppel: The second main set of rules prevents re-litigation of a particular issue of fact or law. When a
particular issue of fact or law has been determined in one proceeding, then in a subsequent proceeding between the same parties, even on a different cause of
, each party is "collaterally action
from claiming that that issue estopped"
should have been decided differently than
it was in the first action. This is known
as the doctrine of "collateral estoppel"
"issue preclusion". or
i. Use by stranger: Today, even one
who is not a party to the first
action (a " to the first stranger
action") may in some circumstances
assert in the second suit that her
adversary, who was a party to the
first action, is collaterally
estopped from re-litigating an
issue of fact or law decided in that
first action.
B. Applicable only to new actions: The rules discussed in this "Former Adjudication" chapter apply only to new actions subsequent to the action in which the original judgment was rendered – they
do not apply to in the same further proceedings
action in which the original judgment was rendered. (Examples: These rules do not apply to a party
new trial, or to one seeking to have a seeking a
judgment reversed on appeal.) [384]
C. Privies: The rules of claim preclusion and collateral estoppel apply not only to the parties to the first action, but also to other persons who are said to be in with the litigants in the "privity"
other action. [384]
Example: Victim is injured when hit by a van driven by Employee and owned by Employer. Victim sues Employer under respondeat superior. Employer
notifies Employee of the latter’s right to control the defense, but Employee does nothing. Victim gets a judgment against Employer, but Employer goes bankrupt before Victim can collect. Victim then sues Employee. Employee, as an indemnitor of Employer, will be covered by the same rules of claim preclusion and collateral estoppel in the Victim-Employee suit as Employer would be in a new suit by Victim. Therefore, Employee will be collaterally estopped from denying that he was at fault.
II. CLAIM PRECLUSION (MERGER AND BAR)
A. Definition: If a judgment is rendered for the plaintiff, his claim is "merged" into the judgment – the claim is extinguished and a new claim to enforce the judgment is created. If a judgment is for the defendant on the merits, the claim is
extinguished and nothing new is created; plaintiff is "barred" from raising the claim again. [384 - 385] Example 1: P sues D for $1,000 damages resulting from an automobile accident. The verdict and judgment grant P only $500. His claim, or cause of action, is "merged," meaning that P cannot start a new suit for the other $500.
Example 2: Same as Example 1, but D is found not to be liable at all. P is now "barred" from making the same claim in a second suit against D.
B. No claim-splitting: The basic concept of claim preclusion is that a judgment is conclusive with respect to the entire "claim" which it adjudicates.
Consequently, P may not split her claim – if she
sues upon any portion of the claim, the other aspects
of that claim are merged in her judgment if she wins, and barred if she loses. [385 - 386]
Example: P believes that D has breached a contract with him, and that P has lost $100,000 as a result. If P sues for $25,000 and loses, P may not bring a second suit for the other $75,000. The same is true if P wins the $25,000 – the rule is "one suit per
claim."
1. Installment contracts: Where the claim
relates to payments due under a lease or
installment contract, generally P must sue at
the same time for all payments due at the time
the suit is filed. (Example: If Tenant is six
months behind in the rent at the time Landlord
brings suit, Landlord must sue for the entire
six months at once – any months missed that
are not sued for when the suit is brought are
waived.) [385 - 386]
2. Personal and property damage from accident:
Today, most states hold that claims for
personal injuries arising from an auto
same cause of action accident are part of the
as a claim for property damage sustained in the
same accident. Thus generally, P must bring a single suit for property damage and personal injuries from a given accident. [387] 3. Multi-theory actions: The rule against splitting a claim also applies where P has several claims, all arising from the same set of facts, but involving different theories or
remedies. The modern rule is that there will be merger or bar of all of P’s rights against D with respect to all or any part of the transaction, or series of connected
transactions, out of which the action arose. [386 - 387]
Example: P works for D, and is then fired. P sues D for breach of an alleged oral contract promising two years of employment. P loses. P then sues D, alleging the same facts, and asserting the right to recover in quantum
for the reasonable value of services he meruit
performed for D. A modern court would probably hold that the two suits related to a single transaction or series of transactions, and that the first judgment against P therefore barred him from bringing the second suit.
a. Equitable/legal distinction: A demand
legal relief (generally, money for
damages) and a demand for equitable
relief (e.g., an injunction) will both be
deemed to be part of the same claim if they
relate to the same facts – therefore,
demands for both types of relief will have
to be made in the same action. (Example:
If P believes that D is violating P’s
copyrights, P cannot bring a suit for an
injunction, followed by a separate suit
for money damages.) [387]
4. Exceptions based on jurisdictional requirements: There is one important exception
to the rule against splitting a cause of action – if the court trying the first action would
subject matter jurisdiction for not have had
a claim now asserted in the second action, there will be no bar or merger. (Example: P sues
D in state court under state antitrust law, and loses on the merits. P then sues D in federal court alleging the same facts, and charging a violation of federal antitrust laws. Because the federal courts have exclusive jurisdiction of antitrust claims, the state court could not have heard the federal claim. Therefore, the second – federal court – action will not be
barred.) [387]
5. State law followed in diversity cases: In diversity cases, the federal courts follow state law with respect to the application of the rules of claim preclusion (as well as collateral estoppel). In other words, if (and only if) the law of the state where the district court sits would have granted claim preclusion or collateral estoppel effect to an earlier state court judgment, the federal court will do the same. [387]
C. Adjudication on merits: Not every loss by the plaintiff in the first action will act as a "bar" to subsequent suits on the same claim. Plaintiff will be barred only if the original adjudication in favor
"on the merits." [388 - 389] of the defendant was
1. Non-prejudicial grounds: In other words,
some of the ways that a plaintiff may "lose"
the first suit are deemed to be "without
prejudice" to future suits. For instance, if
the first suit is brought in federal court,
plaintiff will not be barred from bringing a
new action if the first action is dismissed
because of: (1) lack of jurisdiction; (2)
improper venue; or (3) failure to join an
indispensable party. See FRCP 41(b). Any other
type of dismissal (e.g., dismissal for failure
to state a claim under 12(b)(6)) bar a does
future claim by P, unless the court granting
the dismissal specifies otherwise in its order.
FRCP 41(b), last sentence. [388]
D. Counterclaims: A defendant who pleads a counterclaim is, in effect, a plaintiff with respect to that claim. He is bound by the outcome, just as a plaintiff is bound by the outcome of his original claim. [389 - 390]
1. No splitting: Thus D may not split his
counterclaim into two parts. (Example: P sues
D for damages from an auto accident. D
counterclaims for his property damage from
that same accident, but not for personal
injuries. Whether D wins or loses with the
counterclaim, he may not bring a second suit
against P for personal injury arising from that
same accident.) [389]
2. Compulsory counterclaim: Observe that state
and federal rules making certain counterclaims
"compulsory" serve a similar function to the
merger or bar doctrine. ( P sues D for Example:
damages arising out of an auto accident. The
rules of merger and bar do not by themselves
force D to assert either his claim for property
damage, or for personal injury, arising out of
that same accident. But in the federal court
and in most state courts, any counterclaim by
D for either of these things would be
"compulsory," so that D would not be able to
use that claim in a subsequent suit against P.)
[390]
E. Change of law: Once a final judgment has been
not even a rendered (and any appeals resolved),
will prevent claim change in the applicable law
preclusion from operating. The fact that the losing party would, because of such an overruling of legal precedent, win the lawsuit if she were allowed to start it again, is irrelevant. [390]
F. Privies not party to the first action: Remember that sometimes, a non-party may be so closely
to a party to the first judgment, that she related
will be both burdened and benefited by that judgment as if she had been a party to it. The non-party is said to be a "privy" to the first judgment. A trustee and his beneficiary, and an indemnitor and her
indemnitee, are examples of privity relationships. [391]
III. COLLATERAL ESTOPPEL
A. Definition: Regardless of which of the parties to an action wins, the judgment decides for all time
in the suit. A party any issue actually litigated
who seeks to re-litigate one of the issues disposed of in the first trial is said to be "collaterally
from doing so. [392] estopped"
Example: Cars driven by A and B collide. A sues B for property damage. Assume that the jurisdiction has no rules making any counterclaim a compulsory counterclaim. B declines to assert any counterclaim in the suit brought by A. A recovers $1,000 of damages. The jurisdiction follows common-law contributory negligence, by which even a small amount of contributory negligence by A would have barred him from recovery. In a subsequent suit, B sues A for personal injuries arising out of the same accident.
The court will hold that B is "collaterally estopped" from re-litigating the issue of whether A was negligent – the first judgment in A’s favor
amounted to a specific finding that A was not negligent, because contributory negligence would have barred recovery if he had been. Therefore, B
Little cannot recover from A on a negligence theory. [
] v. Blue Goose
1. Distinguished from merger and bar: There are
two major differences between collateral
estoppel and claim preclusion (merger and bar):
[392]
a. Issue vs. claim: Whereas claim
preclusion applies only where the "cause
of action" or "claim" in the second action
is the same as the one in the first action,
collateral estoppel applies as long as
any is the same, even though the issue
causes of action are different.
b. Suit not prevented: Whereas claim
preclusion prevents the second suit
altogether, collateral estoppel does not
prevent suit, but merely compels the
same finding of fact court to make the
that the first court made on the identical
issue.
2. To whom applied: Collateral estoppel always
applies where both the parties in the second
action were present in the first action.
Collateral estoppel sometimes, but not always,
applies where only the person against whom
estoppel is sought to be used was present in
the first action. [398 - 400]
B. Issues covered: For an issue to be subject to collateral estoppel, three requirements concerning that issue must be satisfied: (1) the issue must be the same as one that was fully and fairly litigated
in the first action; (2) it must have been actually
by the first court; and (3) the first decided
court’s decision on this issue must have been
necessary to the outcome in the first suit. [393 - 398]
1. Same issue: For the re-litigation of an issue to be collaterally estopped, that issue
identical to an issue litigated in the must be
earlier trial. [393]
2. Actually litigated and decided: The issue must have been actually and litigateddecided
at the first trial. [393]
a. Need not raise all defenses: This means
that D in the first trial is not obligated
. D does not to raise all of his defenses
forfeit these defenses by not raising
them as he would forfeit a compulsory
counterclaim. (Example: P sues D for an
installment of rent under a lease, and
wins. In a later suit for subsequent
installments due on the same lease, D will
not be collaterally estopped from denying
that the lease was ever executed – since
the issue of execution was not actually
litigated and decided in the first action,
collateral estoppel does not apply even
could have raised this as a though D
defense the first time. [Jacobson v.
]) Miller
b. "Full and fair" litigation: Also, the
party against whom collateral estoppel is
sought to be used must have had a "full
to litigate the and fair opportunity"
claim. (Example: In a negligence case by
P against D, D asserts his own due care,
but the trial court unjustly excludes
relevant evidence tending to prove that
D was careful. In a subsequent suit by D
against P for his own injuries, D will not
be estopped from contending that he
behaved with due care, since he lacked a
full and fair opportunity to litigate the
due care issue in the first suit.) 3. Issue essential to verdict: Not only must the issue have been litigated and decided in the first action, but the finding on that issue must have been necessary to the judgment. [394]
Example: A sues B for common-law negligence, and loses. The court’s findings state that both parties were negligent, and recovery is denied on the grounds that A was contributorily negligent. B then sues A. A claims that the earlier finding of B’s negligence, together with the doctrine of contributory negligence, mean that B cannot now recover as plaintiff. Held, collateral estoppel should not be applied against B. The first case’s finding that B was negligent was not necessary to the first verdict, since A’s contributory negligence would have been enough to dispose of the case. Collateral estoppel applies only to issues whose adjudication was necessary to the verdict in the first action. [Cambria v.
] Jeffery
a. Alternate findings: Where a judgment
rests upon alternate findings, either of
which would be sufficient to sustain it,
courts are split about whether either
finding should be given collateral
estoppel effect. The modern (and
neither should Restatement) view is that
be given collateral estoppel effect,
since the case could have turned out the
same way without that finding. [394] 4. Reasonably foreseeable future litigation: Many courts today apply collateral estoppel in a subsequent action only where that action was reasonably foreseeable at the time of the
initial suit. Otherwise, "defeat in one suit might entail results beyond all calculation...; a trivial controversy might bring utter disaster in its train." [The Evergreens v.
] [394] Nunan
5. Court of limited jurisdiction: A finding made by a court of limited jurisdiction may be
denied collateral estoppel effect in a subsequent suit that would have been beyond the first court’s jurisdiction. This is
especially true where the first court has
jurisdiction limited to a dollar amount, and also has informal procedures. (Example: If the
first suit is in a small claims court, most of which have no pleadings, no rules of evidence, and usually no lawyers, a finding will generally not be held to have collateral estoppel effect in a later suit that could not have been brought in the small claims court.) [394 - 395]
6. Differences in burden of proof: If in the first action the allocation of the burden of
was more favorable to the party now proof
seeking to apply collateral estoppel than it was in the second action, collateral estoppel will not be allowed. [396]
7. Settlement: In most jurisdictions, the settlement of an action by consent of the parties has collateral estoppel effect. no
(The settlement document may, of course, provide otherwise.) [396]
8. Findings of law: A court’s conclusion of
law, like a conclusion of fact, is generally
given collateral estoppel effect. [396 - 397] a. Exceptions: But there are two
situations in which a conclusion of law generally will be given collateral not
estoppel effect: (1) where the two actions involve claims that are
substantially unrelated to each other;
and (2) where there has been a significant change in legal principles between the
two suits, especially where use of collateral estoppel would impose on one of the parties a significant disadvantage, or confer on him a significant benefit, with respect to his competitors.
Example: D is a liquor wholesaler. P, a state liquor licensing agency, sues to have D’s license revoked on the grounds
that D is really functioning as a retailer. The trial court finds in D’s favor. P
then sues X, whose conduct is the same as
D’s; a higher court finds in favor of P,
and orders X’s license revoked. Now, P
brings a second suit against D for
revocation.
Collateral estoppel effect will probably
not be given to the first P-D suit, since
there has been an intervening change in
legal principles, and since use of
collateral estoppel would give D a
perpetual, and unfair, advantage over X
and other similar competitors.
C. Persons who can be estopped: Generally, only the
actual parties to the first action can be bound by
the finding on an issue. [398 - 400]
1. Privies: But someone who is very closely related to a party in the first action can also be bound. Such "privies" include successors in
interest to real property, beneficiaries of trusts, and indemnitors. [398 - 399]
2. Strangers to first action: The most important thing to remember is that a true stranger to the first action cannot be
collaterally estopped by the former judgment.
[399]
Example: A bus owned by Bus Co. collides with a car driven by Driver. In a suit between these two, Bus Co. is held to have full
responsibility. Passenger, who was riding in Driver’s car, now sues Driver. Even though the
court in the first action decided that Driver was not at all at fault, Passenger is not bound by this finding. This is because Passenger was a complete stranger to the first action (the rules about who was a privy do not apply to the passenger-driver situation where the two are not related), and a stranger can never be bound by any finding of fact in the first action.
D. Persons who can benefit from estoppel: [400 - 405] 1. Mutuality: Originally, it was held that a party not bound by an earlier judgment (because
not a party to it) could not use that judgment
was a party to the to bind his adversary who
first action. This rule prohibiting a stranger’s use of collateral estoppel was known as the doctrine of "mutuality." [400]
a. Abandoned: Nearly all courts have
abandoned the general principle of
mutuality. While many courts refuse in
particular circumstances to allow the use
of estoppel by one not a party to the first
action, it is no longer a general rule
that a stranger to the first action cannot
benefit from findings of fact made
against her adversary.
Example: A bus owned by Bus Co. and a car
driven by Driver collide. Also involved
in the collision is Pedestrian, who is
badly injured. Bus Co. sues Driver for
negligence, and the court decides that
Driver was totally at fault. In a separate
suit, Pedestrian now sues Driver.
Application of the doctrine of mutuality
would prevent Pedestrian from
collaterally estopping Driver on the
issue of negligence. But most courts
today would give Pedestrian the benefit
of collateral estoppel in this situation,
even though Pedestrian was a stranger to
the first action.
2. Offensive/defensive distinction: Courts are more willing to allow the "defensive" use
of collateral estoppel by a stranger than they are to allow the "offensive" use. "Offensive"
use refers to use by a stranger to the first action who is a in the second action; plaintiff
"defensive" use refers to use by a stranger who is a defendant in the second action. [401]
a. Offensive use sometimes OK: But even
offensive use is sometimes approved by
the courts, just not as often as defensive
use. (The above example is an
illustration of offensive use that would
probably be accepted by a court.) [402 - 403]
Example: The SEC sues D, a corporation, based on a false proxy statement D has issued. The trial court decides in the SEC’s favor, concluding that the proxy statement contained certain falsehoods. P then brings a stockholder’s derivative action against D, based on the same proxy statement. P wants to collaterally estop D from relitigating the falsity of the proxy statement.
Held, P may use collateral estoppel. This is true even though P was a stranger to the first action, and even though P’s use is offensive, in the sense that the person seeking collateral estoppel is the plaintiff in the second action. [Park
] Lane Hosiery Co. v. Shore
b. Factors: Here are some of the factors courts consider in deciding whether to
allow offensive non-mutual estoppel in a
particular case: [403 - 404]
i. Alignment: Whether the party sought to be bound (the defendant in the second suit) was a plaintiff or
in the suit. (If she defendantfirst
was a defendant, this will militate against use of estoppel.)
ii. Incentive to litigate: Whether the person to be estopped had a reasonable incentive to litigate
the issue fully in the first suit, which will depend in part on whether the second suit was foreseeable at
the time of the first suit. (The more incentive the party had to litigate the first time, the fairer it is to bind him now.)
iii. Discouraging break-away suits: Whether the plaintiff in the second action could have joined in the
first action, but instead sat out that first action in order to derive a tactical advantage.
iv. Multiple plaintiff anomaly: Whether permitting offensive estoppel would present a danger of
"multiple plaintiff anomaly." the
(Example: All 200 passengers are killed when a plane owned by D crashes. If each P sues seriatim,
and offensive estoppel is allowed, D might win the first 20 suits, lose the 21st, and then be estopped from denying liability in the next 179. This would be unfair to D.) v. Procedural opportunities: Whether there are procedural
not available to the opportunities
party in the first action but available now in the second action – if there are, allowing offensive
Examples: estoppel is less likely. (
There was less extensive discovery available in the first action, or no jury trial right.)
vi. Issue of law: Whether the issue is one of or merely of "fact." law
(Where the issue is one of law, the court is likely to use the more flexible doctrine of stare decisis,
rather than collateral estoppel.) vii. Government as party: Whether the defendant in the second action is the government – non-mutual
offensive use of collateral
estoppel will virtually never be
allowed against the government. [U.S. v. Mendoza]
3. Criminal conviction: Courts are split as to
whether a party’s previous criminal
may serve to collaterally estop him conviction
in the subsequent civil action. (Example: D is
convicted of drunk driving after getting into an accident in which V is injured. In a subsequent civil suit by V, some but not all courts will allow V to collaterally estop D from denying that he was drunk.) [404]
a. Guilty plea: Courts are also split
about whether offensive collateral
estoppel effect should be given to a
guilty plea in the first proceeding.
b. Acquittal: Acquittal in a criminal
case is never binding in a subsequent
civil action. The main reason is that to
grant estoppel effect to an acquittal
would be to allow the criminal defendant
to bind a non-party. (Example: D is
prosecuted by the state for drunk driving
in an accident in which V was injured. D
is acquitted. V now brings a civil action
for negligence against D, and seeks to
show that D was drunk. V will not be
collaterally estopped by the acquittal,
because V was not a party to the earlier
action. A second reason for rejecting
estoppel is that the "beyond a reasonable
doubt" standard of proof necessary in a
criminal case was tougher for the
prosecution to meet than the
"preponderance of the evidence" standard
used in the later civil suit, so estopping
V would be extra unfair to him.) [405]
IV. FULL FAITH AND CREDIT
A. Full Faith and Credit generally: Special problems
different arise when two related suits occur in
. There may be two different states jurisdictions
involved, or a state court and a federal court. In either situation, the second court’s handling of the first court’s judgment is governed by a general principle called "full faith and credit." [410]
1. Two states: When the courts of two different
are involved, the result is dictated by states
the Full Faith and Credit Clause of the U.S.
Constitution (Article IV, Section 1). This
clause requires each state to give to the
the same effect judgment of any other state
that that judgment would have in the state
. [410] which rendered it
Example: P wins a judgment against D in Connecticut, but cannot find any property in Connecticut on which to levy. P then locates property held by D in Illinois. P may collect in Illinois by bringing a suit based on the Connecticut judgment. Because of the Full
Faith and Credit Clause, the courts of Illinois
must accept this judgment at face value, and may not reconsider any issues which it concluded. The Illinois courts must therefore give P all the rights that a judgment creditor would have if he got an Illinois judgment, including the right to have the sheriff sell D’s Illinois assets.
a. Misinterpretation: The rule of full
faith and credit applies even where the
second court is convinced that the first
mistake on law or facts. court made a
Indeed, State A must give full faith and credit to an adjudication of State B even if that judgment was based on a
misinterpretation of the laws of State A.
[Fauntleroy v. Lum] [410]
b. Collateral attack on jurisdiction: There is one exception to the rule that
the second court may not reconsider any aspect of the original judgment: the second court may reconsider whether the first court had jurisdiction (either
personal or subject-matter), provided that the jurisdictional question was not
in the first action. litigated or waived
This is the doctrine of "collateral
. "attack
Example: P sues D in Connecticut. D defaults, by never appearing in the suit at all. The Connecticut court enters a judgment in favor of P. P then sues in
Illinois, having found property of D
there. At D’s request, the Illinois
court may consider whether the
Connecticut court ever had valid personal
jurisdiction over D. If it concludes that
Connecticut did not, the Illinois court
need not enforce the judgment. (But if D
had litigated the jurisdictional issue in
Connecticut, Illinois could not
reconsider the jurisdiction question,
even if it was convinced that Connecticut
wrongly determined that it had
jurisdiction.)
2. State followed by federal court: If the first court is a state court, and the second
federal court, a similar full faith court is a
and credit principle applies, but this is not dictated by the Constitution. Instead a federal statute, 28 U.S.C. ?738, requires
every federal court to give to the judgment of any state court the same effect that that
judgment would have in the courts of the state
which rendered it. [411]
3. Federal followed by state court: Conversely,
if the first judgment is in a federal court and
the second suit is in a state court, full faith
and credit again applies, though the mechanism
by which this happens is not so clear.
(Probably the Constitution’s Supremacy
Clause dictates that the state court honor a
federal court judgment). [414]
B. Duty to follow the res judicata effect of first
judgment: The full faith and credit principle –
that one jurisdiction’s courts must honor the judgments of another jurisdiction – applies not
only generally, but specifically to the issue of res
. In other words, the earlier judicata effect
judgment must be given exactly the same effect, in
terms of claim preclusion and collateral estoppel, as the judgment would have in the court that rendered it. [412]
1. Two states: Thus a state must give to the
res judgment of any other state at least the
effect that that judgment would have judicata
in the state of its rendition. (Example: P
litigates an issue with D in State 1. The issue is decided in favor of P. X now sues D in State 2 in a suit raising the same issue. The State 2 court determines that the courts of State 1 would allow X to use offensive collateral estoppel in this situation. The courts of State 2 must follow suit, even if the State 2 courts do not themselves generally allow offensive collateral estoppel in this situation.) [411]
a. Greater effect: Courts are split about
whether they may or should give greater
to another state’s judgment than effect
it would have in that other state.
Probably no constitutional principle
prevents the second state from giving
greater effect to the first state’s
judgment, so it is within the second
court’s discretion whether to do so.
Example: On the facts of the above (
example, assume that State 2 would allow
offensive collateral estoppel, but State
1 would not. Probably State 2 is free to
give the State 1 judgment collateral
estoppel effect, but State 2 might choose
not to do so.)
2. State followed by federal: Similarly, if the first judgment is in a state court and the second suit is in a federal court, the federal court must grant the state court judgment the same res judicata effect that it would have in that state. [411 - 414]
a. Right of Congress to specify otherwise:
There is an exception to this rule:
Congress is always free to provide
otherwise, in a specific context. If
Congress does provide otherwise, then the
federal court may be free to deny the
earlier state court judgment the res
effect it would have in the judicata
Example: 42 U.S.C. ?983 rendering state. (
gives a person the right to bring a federal suit against anyone who violates his constitutional rights "under color of" state law. Suppose Congress added a clause to ?983 saying that any state court criminal proceeding absolving an
official of unconstitutional conduct should be ignored by the federal court hearing the ?983 action. If Congress did this, a federal court hearing a ?983 suit would be free to deny any state judgment the collateral estoppel effect it would have in the courts of the state that rendered it. But Congress has not in fact done this in ?983, so the federal courts must honor the collateral estoppel effect of state court judgments in ?983 suits.) b. Can’t give greater effect: The
federal court may not give greater
preclusive effect to the prior state court judgment than that state would give
Migra v. Warren City Board of Ed.] it. [
(Example: If the initial state judgment
comes from a state that does not allow
non-mutual offensive use of collateral
estoppel, the federal court hearing the
second suit may not apply such collateral
estoppel, even if the situation is one in
which the Supreme Court allows the use of
collateral estoppel.) [413]
3. Federal suit followed by state suit: If the federal suit comes first and the state suit second, the state court must give to the federal judgment the same res judicata effect
that that federal court would give to its own judgment. [414]