PROCEDURE OUTLINEProfessor Drew S. Days III

Fall 2005

Procedure

TABLE OF CONTENTS

INTRODUCTION.........................................................................................................................1

I. CHOOSING THE PROPER COURT.....................................................................................1

A. TERRITORIAL/PERSONAL JURISDICTION....................................................................2

1. CONSTITUTIONAL LIMITS ON TERRITORIAL JURISDICTION......................................................2Pennoyer v. Neff, 95 U.S. 714 (1877)..............................................................................3International Shoe Co. v. Washington, 326 U.S. 310 (1945)..........................................4Shaffer v. Heitner, 433 U.S. 186 (1977)..........................................................................8

2. STATUTORY LIMITS ON TERRITORIAL JURISDICTION...............................................................9a. State statutory limits........................................................................................................9b. Federal statutory limits..................................................................................................10

3. CHALLENGING TERRITORIAL JURISDICTION.........................................................................10a. Challenging Jurisdiction in the Rendering State (“Direct Attack”)...............................10b. Challenging Jurisdiction in the Enforcing State (“Collateral Attack”).........................11

B. SUBJECT MATTER JURISDICTION................................................................................11

1. FEDERAL QUESTION JURISDICTION.....................................................................................12a. Constitutional Scope of Federal Question Jurisdiction..................................................12b. Statutory Scope of Federal Question Jurisdiction.........................................................13

2. DIVERSITY JURISDICTION.....................................................................................................13a. Constitutional Scope of Diversity Jurisdiction..............................................................14b. Statutory Scope of Diversity Jurisdiction......................................................................14

3. CHALLENGING SUBJECT MATTER JURISDICTION..................................................................14

C. VENUE, ETC.......................................................................................................................15

1. VENUE.................................................................................................................................15

2. FORUM NON CONVENIENS...................................................................................................15Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).........................................................16

3. REMOVAL............................................................................................................................16

4. TRANSFER............................................................................................................................18

II. JOINDER AND SUPPLEMENTAL JURISDICTION.......................................................19

A. JOINDER..............................................................................................................................19

B. SUPPLEMENTAL JURISDICTION...................................................................................20

1. CONSTITUTIONAL AUTHORIZATION OF SUPPLEMENTAL JURISDICTION..................................20

2. STATUTORY AUTHORIZATION OF SUPPLEMENTAL JURISDICTION...........................................21Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365 (1978)...............................21Exxon Mobil Corp. v. Allapattah Services, Inc., 125 S. Ct. 1241 (2005)......................24

III. ASCERTAINING THE APPLICABLE LAW...................................................................26

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).....................................................27

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IV. PROCEDURAL DUE PROCESS........................................................................................32

A. NOTICE................................................................................................................................32

Mullane v. Central Hanover Bank & Trust, 339 U.S. 306 (1950)................................32

B. OPPORTUNITY TO BE HEARD........................................................................................34

Goldberg v. Kelly, 397 U.S. 254 (1970)........................................................................34Connecticut v. Doehr, 501 U.S. 1 (1991)......................................................................36

C. RIGHT TO COUNSEL.........................................................................................................38

Lassiter v. Dept. of Social Services of Durham County, North Carolina, 453 U.S. 927 (1981).............................................................................................................................38

V. PRETRIAL..............................................................................................................................41

A. PLEADINGS........................................................................................................................41

Conley v. Gibson, 355 U.S. 41 (1957)...........................................................................41

B. DISCOVERY........................................................................................................................43

1. DISCOVERY PROCESS...........................................................................................................43

2. DISCOVERY METHODS.........................................................................................................44

3. PRIVILEGES.........................................................................................................................45a. Attorney-client...............................................................................................................45b. Work product.................................................................................................................46

Hickman v. Taylor, 329 U.S. 495 (1947).......................................................................46

C. SUMMARY JUDGMENT...................................................................................................48

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)..............................................................49

VI. TRIAL....................................................................................................................................52

A. JURY....................................................................................................................................52

Colgrove v. Battin, 413 U.S. 149 (1973).......................................................................52

B. JUDGE..................................................................................................................................55

Cheney v. United States District Court for the District of Columbia, 124 S. Ct. 1391 (2004).............................................................................................................................56

C. ATTORNEY.........................................................................................................................57

1. LEGAL SERVICES FOR THE INDIGENT...................................................................................57

2. ATTORNEY’S FEES...............................................................................................................58

VII. JUDGMENT........................................................................................................................60

A. PRECLUSIVE EFFECT.......................................................................................................60

1. RES JUDICATA (CLAIM PRECLUSION)...................................................................................60

2. COLLATERAL ESTOPPEL (ISSUE PRECLUSION)......................................................................61Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979)...................................................62

3. OTHER DOCTRINES OF PRECLUSION....................................................................................64

B. REMEDIES...........................................................................................................................64

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1. DAMAGES............................................................................................................................64

2. INJUNCTIONS.......................................................................................................................65

C. APPEALS.............................................................................................................................67

VI. CLASS ACTIONS.................................................................................................................72

Hansberry v. Lee, 311 U.S. 32 (1940)...........................................................................72

VII. ALTERNATIVE DISPUTE RESOLUTION....................................................................76

SOURCES:Clermont, Civil Procedure Stories (2004)Friedenthal, Kane & Miller, Civil Procedure (4th ed. 2005)Glannon, Civil Procedure: Examples and Explanations (4th ed. 2001)Hazard, Tait, Fletcher & Bundy, Pleading and Practice: State and Federal (9th ed. 2005)

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INTRODUCTION

Some important themes: Justice vs. efficiency. The purpose underlying the establishment of most rules of

civil procedure, in any judicial system, is to provide a fair process for ascertaining the truth and achieving the just, efficient, and economical resolution of civil disputes. This is not to say that these goals always will be met or that they are entirely consistent

Adversary system vs. judicial management. The Anglo-American judicial system is based on the adversary model, which in many respects is lawyer-centered

The main feature of the adversary system that influences the development of particular procedures is that the parties (or their lawyers) control and shape litigation

The traditional view is that the judge sits solely to decide disputed questions of law and procedure. Issues not raised, objections not mentioned, and points not made are, with very few exceptions, waived. The case proceeds only in response to the demands of the litigants. Necessarily, then, the adversary model places enormous emphasis and responsibility on the lawyers; the court maintains a relatively passive role throughout the proceedings

The ideal of the adversary system has come under increasing pressure in modern times. Many judges have assumed more active roles in guiding the litigation before them. This is seen in the participation of judges in the settlement process, during the pre-trial conference stage, and in the various management techniques by which courts are responding to complex modern litigation

Substance vs. procedure. The field of civil procedure necessarily overlaps with other matters that are related more directly to whether a claimant possesses a recognized legal right to recover, or, conversely, any defenses

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I. CHOOSING THE PROPER COURT

Requirements to be satisfied before a suit can be brought in a particular court:1. Territorial jurisdiction2. Subject matter jurisdiction3. Venue and the ability to withstand a motion to dismiss for forum non conveniens

A. TERRITORIAL/PERSONAL JURISDICTION

Territorial jurisdiction: the authority of a court to require a person or thing to submit to binding adjudication

Every territorial jurisdiction issue involves a two-step analysis:1. Given the circumstances of the case, would it be constitutional under the Due Process

Clause of the 14th Amendment for the court to exercise territorial jurisdiction?2. Is there a state statute that authorizes the court to exercise such jurisdiction?

Brief History Development of territorial jurisdiction proceeded from an early focus on physical presence in

a state to the modern concept of “minimum contacts” between a party and a state Before the adoption of the 14th Amendment, territorial jurisdiction operated along

“international” law lines COMITY: respect and deference that one sovereign shows to another, even if there is

no force of law compelling such respect Since the adoption of the 14th Amendment, the validity of a state’s judgments on jurisdiction

(even within its own borders) may be directly questioned by federal government

Rationale for Territorial Jurisdiction Basic fairness

The geographical limitation on the places where a plaintiff may choose to sue a defendant for a particular claim is intended to prevent the plaintiff from suing a nonresident defendant in a state unless that defendant has established a relationship to that state that would reasonably lead her to anticipate being sued there

1. CONSTITUTIONAL LIMITS ON TERRITORIAL JURISDICTION

The 14th Amendment to the U.S. Constitution forbids the states from “depriv[ing] any person of life, liberty or property without due process of law.” A state would violate this guarantee if its courts entered judgments against defendants without following a fair judicial procedure, and fair procedure includes not only such traditional elements as the right to counsel or to cross-examine witnesses, but also appropriate limits on places where a defendant can be required to defend a lawsuit

The 5th Amendment to the U.S. Constitution forbids the federal government from “depriv[ing] any person of life, liberty or property without due process of law.” It is generally held that Congress has the power to authorize federal courts to exercise nationwide jurisdiction, that is, to require parties with contacts anywhere in the United States to respond

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to suits brought in any federal district court. However, the authority for federal district courts to exercise territorial jurisdiction outside the state where they sit is restricted by the Federal Rules of Civil Procedure (see I-A-2-b).

Bases for Territorial Jurisdiction Domicile

DOMICILE: where a person has taken up residence with the intent to reside indefinitely

In Milliken v. Meyer, 311 U.S. 457 (1940), the Court approved of general jurisdiction over individual defendants based on domicile in the state

Physical presence (i.e., service of process within the state) See Pennoyer In Burnham v. Superior Court of California, 495 U.S. 604 (1990), the Court upheld

“tag” jurisdiction based on in-state service, which requires only that the defendant be present in the state at the time that the summons and complaint are served upon her

Consent (lack of territorial jurisdiction is a waivable defect) A defendant may consent to territorial jurisdiction or fail to make a timely objection

to want of territorial jurisdiction, and thereby subject herself to the adjudicatory authority of the court

Minimum contacts See International Shoe

Pennoyer v. Neff, 95 U.S. 714 (1877)Posture Appeal from the federal Circuit Court for the District of Oregon, where judgment

was entered for Neff on the ground that Mitchell’s affidavit in the Oregon trial court had not complied with the procedural requirements of the Oregon statute

Facts Mitchell (an Oregon resident) brought suit against Neff (a non-resident who owned property in Oregon) in Oregon state trial court for unpaid legal services

Mitchell sought to establish in personam jurisdiction over NeffMitchell published notice of suit for 6 weeks in county newspaperNeff did not appear in court to defend the suit, so a default judgment was entered

against himNeff’s property was attached and sold to Mitchell, who sold it to Pennoyer (an

Oregon resident)Neff sued Pennoyer in federal circuit court (on diversity of citizenship), seeking to

recover his propertyIssue Whether service by publication was enough to subject a non-resident to territorial

jurisdiction in Oregon Holding Non-residents must be given personal service of process for a state to exercise

territorial jurisdiction over them Reasoning Opinion by Field

“No State can exercise direct jurisdiction and authority over persons or property without its territory”

“If, without personal service, judgments in personam, obtained ex parte against non-residents and absent parties, upon mere publication of process, which, in the great majority of cases, would never be seen by the parties interested, could

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be upheld and enforced, they would be the constant instruments of fraud and oppression”; such judgments violate the Due Process Clause of the 14th A

Service by publication allowed only in proceedings in rem; whether property is attached to establish jurisdiction, or attached merely to satisfy a judgment, matters

“[T]he personal judgment recovered in the State Court of Oregon against the plaintiff herein, then a non-resident of the State, was without any validity, and did not authorize a sale of the property in controversy”

Significance Demonstrated relevance of state boundariesFavored nonresident defendants by making them harder to sueJurisdiction constitutionalized under 14th A Due Process Clause

Mitchell v. Neff: lawyer sues a former client Suits over attorney’s fees are an exception to the confidentiality rules

When Pennoyer was decided, service of process on the defendant within the forum state was the predominant means of obtaining jurisdiction, as well as giving notice to the defendant of the suit. Thus, under Pennoyer, if service was not made properly (that is, delivered personally to the defendant within the state), personal jurisdiction was not obtained. The two requirements were thus frequently discussed as though they were interchangeable; but today the two are quite distinct, and either may be satisfied though the other is not

Mitchell’s mistake: he failed to attach land to establish jurisdiction ATTACHMENT: seizure of property in connection with suit as means of notice that suit is

pending; purpose of attachment is to satisfy a judgment, to establish jurisdiction, or to hold defendant’s property while trial is pending (to ensure proceedings are not nugatory)

In Personam vs. In Rem Jurisdiction IN PERSONAM: jurisdiction over a person, binding a defendant personally, typically

providing damages or injunctive relief (in personam actions include, e.g., suits for damages arising out of tort or breach of contract, or for an injunction against wrongful acts)

IN REM: jurisdiction over a thing TRUE IN REM: bind property in the sense of adjudicating the rights of all persons

who claim interest in the property (in rem actions include, e.g., suits to settle all potential claims to a fixed sum, as in a quiet title action to settle all possible claims to land)

QUASI IN REM: settles property rights only of specific persons Type 1: resolves a dispute about the property itself (e.g., a suit to foreclose a

mortgage on property within the jurisdiction of the court where a claimant is outside the court’s jurisdiction)

Type 2: establishes rights to property, but the underlying dispute is unrelated to the property (e.g., tort or contract claims for damages against an absent defendant who owns real property within the state); property is brought within the jurisdiction of the court by “attachment”

International Shoe Co. v. Washington, 326 U.S. 310 (1945)Posture Appeal from the Supreme Court of Washington, where judgment was entered for

Washington Facts International Shoe Co. (a Delaware corporation, appellant) employed 11–13

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salesmen in Washington International Shoe had no office in Washington, so its salesmen were supervised

by managers in St. LouisUnder Washington law, all employers must contribute to a state unemployment

fundInternational Shoe failed to make contributions to the fundWashington (appellee) served notice of assessment of delinquent contributions on

a salesman employed by International Shoe; Washington also mailed a copy of the notice to the company’s St. Louis office

Washington sued International Shoe for unpaid contributions to the state unemployment compensation fund

Issue Whether, within the limits of the 14th A’s Due Process Clause, International Shoe has, by its activities in Washington, rendered itself amenable to proceedings in Washington courts to recover unpaid contributions to the state unemployment compensation fund

Holding A state may exercise personal jurisdiction over a defendant if she has such minimum contacts with the state that it would be fair to require her to return and defend a lawsuit in that state

“[Washington] may maintain the present suit in personam to collect the tax laid upon the exercise of the privilege of employing appellant’s salesmen within the state”

Reasoning Opinion by StonePresence established if out-of-state defendant has “minimum contacts” with the

forum “[D]ue process requires only that in order to subject a defendant to a judgment in

personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’”

“[T]he activities carried on behalf of appellant in the State of Washington were neither irregular nor casual. They were systematic and continuous throughout the years in question. They resulted in a large volume of interstate business”

“[T]hese operations establish sufficient contacts or ties with the state of the forum to make it reasonable and just according to our traditional conception of fair play and substantial justice to permit the state to enforce the obligations which appellant has incurred here”

Concurrence by BlackAll these rules do not mean anything; if you do business in the state, expect to be

sued“I believe that the Federal Constitution leaves to each State, without any ‘ifs’ or

‘buts,’ a power to tax and to open the doors of its courts for its citizens to sue corporations whose agents do business in those states”

Significance Established the doctrine of “minimum contacts” for proceedings in personam—a new basis for territorial jurisdiction

Undermined core premise of Pennoyer—that states could assert no direct jurisdiction over people outside the state

Increased the ability of the state courts to obtain personal jurisdiction over

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nonresident defendantsSpecific vs. General Jurisdiction SPECIFIC JURISDICTION: the defendant may be sued in the state only for claims arising

out of its “minimum contacts”—that is, only for claims related to its in-state activities; whenever specific jurisdiction is at issue, a court must consider the relation of the contacts to the cause of action against the defendant

GENERAL JURISDICTION: the defendant may be sued in the state for any claim, even one completely unrelated to its in-state activities; general jurisdiction is appropriate where the defendant’s activities in the state are so substantial and continuous that she would expect to be subject to suit there on any claim and would suffer no inconvenience from defending there

What Contacts Meet the “Minimum” Requirement? The Shoe Spectrum No contacts = no jurisdiction, unless defendant consents to it “Casual” or “isolated” contacts = no jurisdiction, unless defendant consents to it Single act of a certain “quality or nature” = specific in personam jurisdiction (i.e., jurisdiction

only over claims arising out of that single act) Continuous but limited activity (e.g., an ongoing business relationship) = specific in

personam jurisdiction (i.e., jurisdiction only over claims arising out of that continuous activity)

Very substantial contacts = general in personam jurisdiction

How Do We Know Where Line (1) Lies? The Doctrine of Purposeful Availment Many cases have relied on the statement in Hanson v. Denckla, 357 U.S. 235 (1958), that the

defendant must have “purposely avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws”

This language emphasizes that the defendant must have made a deliberate choice to relate to the state in some meaningful way before she can be made to bear the burden of defending there

In Worldwide Volkswagen v. Woodson, 444 U.S. 286 (1980), the Court concluded that the Audi dealer, Seaway, had not purposely availed itself of the opportunity to conduct activities in Oklahoma, although it could foresee that others would take its cars there. The dealer had

no contacts

no jurisdiction

casual or isolated

no jurisdiction

specificjurisdiction

specificjurisdiction

generaljurisdiction

singleact

continuousbut limited

substantial or

pervasiveExtent ofContacts

JurisdictionalConsequences

Decreasingcontacts Increasing

contacts

(1) (2)

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not sold cars there, advertised there, cultivated Oklahoma customers, or deliberately focused on Oklahoma as a market. Thus, it had not sought any direct benefit from Oklahoma activities sufficient to require it to submit to jurisdiction there

How Do We Know Where Line (2) Lies? The Court has not clearly indicated where the line lies between contacts that support general

in personam jurisdiction and those that support only specific, minimum contacts jurisdiction A corporation will almost certainly be subject to general in personam jurisdiction in the states

where it is incorporated and has its principal place of business, but it may also be subject to general in personam jurisdiction in many additional states

For example, a major American oil company would be subject to personal jurisdiction in many, if not all states, regardless of whether the claim arose in the state where suit was brought. Companies that have such extensive activities, personnel, and facilities in a state may fairly be considered “at home” there and, therefore, subject to the burden of submitting generally to jurisdiction there

Some Additional Guidelines in Applying Minimum Contacts A defendant may have sufficient contacts with a state to support minimum contacts

jurisdiction there even though she did not act within the state For example, in Calder v. Jones, 465 U.S. 783 (1984), the defendant was held subject

to personal jurisdiction in California for an allegedly defamatory article written in Florida, since the article was to be circulated in California, the plaintiff lived there, and the plaintiff’s career was centered there

Minimum contacts analysis focuses on the time when the defendant acted, not the time of the lawsuit

The Rationale for Minimum Contacts The principle of reciprocity

The Shoe Court suggested that a corporation that chooses to conduct activities within a state accepts (implicitly, of course) a reciprocal duty to answer for its in-state activities in the local courts

A defendant should understand that her activities within the state will have an impact there, that those activities may lead to controversies and lawsuits there, and that the state has a right to enforce the orderly conduct of affairs within its borders by adjudicating disputes that arise from such in-state activities.

The defendant who deliberately chooses to take advantage of the “benefits and protections of the laws” of a state will not be heard to cry “foul” when that state holds her to account in its courts for her in-state acts

The problem of the “artificial” person It is usually very easy to determine whether a natural person is present in a state. She

is either physically present, or she is not. But the question is not so easy for an artificial person such as a corporation

The minimum contacts test applies to individual as well as corporate defendants

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Other Factors in the Jurisdictional Calculus of “Fair Play and Substantial Justice” It is only when minimum contacts exist between the defendant and the forum state that other

factors will be weighed in determining whether the exercise of jurisdiction would comport with “fair play and substantial justice”

Other factors include: the interests of the forum state in

providing redress to its citizens enforcing their substantive law or policy

the interest of the plaintiff in obtaining relief in a convenient forum the interest of the defendant in defending in a convenient forum

Shaffer v. Heitner, 433 U.S. 186 (1977)Posture Appeal from the Delaware Supreme Court, where judgment was entered for

HeitnerFacts Heitner (appellee/plaintiff, a nonresident of Delaware) owned 1 share of stock in

GreyhoundHeitner alleged that 21 officers and directors of Greyhound

(appellants/defendants, nonresidents of Delaware) had violated their duties by subjecting Greyhound to damages in an antitrust suit and a large fine in a criminal contempt action

Heitner filed a motion for an order of sequestration of the Delaware property of the defendants, by which defendants’ shares of Greyhound stock were seized

Defendants contended that the sequestration procedure did not accord them due process of law and that the property seized was not capable of attachment in Delaware

Issue Whether the standard of fairness and substantial justice set forth in International Shoe should be held to govern actions in rem as well as in personam

Whether a Delaware statute that allows a court of that state to take jurisdiction of a lawsuit by sequestering any property of the defendant that happens to be located in Delaware is constitutional

Holding “[A]ll assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny”

“Delaware’s assertion of jurisdiction over appellants in this case is inconsistent with that constitutional limitation [in the 14th A’s Due Process Clause] on state power”

Reasoning Opinion by Marshall“[I]n order to justify an exercise of jurisdiction in rem, the basis for jurisdiction

must be sufficient to justify exercising ‘jurisdiction over the interests of persons in a thing.’ The standard for determining whether an exercise of jurisdiction over the interests of persons is consistent with the Due Process Clause is the minimum-contacts standard elucidated in International Shoe”

“The Delaware courts based their assertion of jurisdiction in this case solely on the statutory presence of appellants’ property in Delaware. Yet that property is not the subject matter of this litigation, nor is the underlying cause of action related to the property. Appellants’ holdings in Greyhound do not, therefore, provide contacts with Delaware sufficient to support the jurisdiction of that State’s

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courts over appellants”“Appellants have simply had nothing to do with the State of Delaware”

Significance Extended doctrine of “minimum contacts” to proceedings in rem SHAREHOLDERS’ DERIVATIVE ACTION: an action in which shareholders sue directors

on behalf on the corporation, for the benefit of the corporation Situs of the stock: Delaware was the only state that considered stock to be located in the state

of incorporation; all other states deem stock to be located where the stock certificates are held

Court refused to be tied down by “ancient forms”: the distinction between in personam and quasi in rem jurisdiction is artificial; the focus in the latter is really on the interest of a person in the property

2. STATUTORY LIMITS ON TERRITORIAL JURISDICTION

a. State statutory limits

The Due Process Clause of the 14th Amendment does not actually confer any jurisdiction on state courts; it only defines the outer bounds of permissible jurisdictional power

It is up to the legislature of each state to actually grant the power to its courts to exercise personal jurisdiction, through jurisdictional statutes

State legislatures are free to grant to their courts the power to exercise personal jurisdiction to the limits of the Due Process Clause or to confer only part of the constitutionally permissible jurisdiction

LONG-ARM STATUTE: a statute providing for jurisdiction over a nonresident defendant who has had contacts with the territory where the statute is in effect; most (though not all) state long-arm statutes extend this jurisdiction to its constitutional limits under the Due Process Clause

“ENUMERATED ACT” LONG-ARM STATUTE: a statute that authorizes a state’s courts to exercise jurisdiction over defendants based on specific types of contact with the forum state; such a statute does not necessarily convey all of the jurisdiction permissible under the Due Process Clause

Why would a state enact an enumerated act long-arm statute instead of granting the courts the full scope of jurisdiction permissible under the Due Process Clause?

The first modern long-arm statute used the enumerated act approach, and many states followed its example; these states are now reluctant to tinker with statutes that have worked for years and have been construed repeatedly by the courts

The list of jurisdictionally sufficient acts in enumerated act long-arm statutes provides some guidance to nonresidents about the jurisdictional consequences of their choice to conduct particular activities within the state

The enumerated act long-arm statutes give courts some leeway to reject jurisdiction in cases having little connection to the state; the state legislature might want to reduce the courts’ caseload

The reach of a state’s long-arm statute may sometimes exceed its constitutional grasp (e.g., a long-arm statute that authorized state courts to take jurisdiction in all cases brought by resident plaintiffs would be unconstitutional as applied to a case in which a nonresident defendant lacked minimum contacts with the state)

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b. Federal statutory limits

Congress has the constitutional power to authorize federal district courts to exercise nationwide jurisdiction

However, under Rule 4(k)(1)(A), federal district courts may only exercise territorial jurisdiction over a defendant “who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located”

In other words, the federal court may exercise territorial jurisdiction only to the extent it could be exercised by the courts of the state in which the federal court sits

Thus, the territorial jurisdiction of federal courts is primarily tied to the rules of territorial jurisdiction of state courts

By generally confining the reach of territorial jurisdiction in the federal court to that of the state courts of the same state, the Rules eliminate a potential ground for “forum shopping”

In many cases, plaintiffs will have a choice of state or federal court because both systems have subject matter jurisdiction over the suit

If the reach of territorial jurisdiction were generally broader in federal court, plaintiffs would frequently choose to bring suit there for this reason alone, even though state court would otherwise be a more appropriate forum

3. CHALLENGING TERRITORIAL JURISDICTION

A defendant has two ways of objecting to the exercise of territorial jurisdiction over him by the courts of another state:

1. By raising a challenge in the court in which the original action is brought (a “direct attack” in the rendering state)

2. By raising a challenge in the court in which enforcement of the original judgment is sought (a “collateral attack” in the enforcing state)

a. Challenging Jurisdiction in the Rendering State (“Direct Attack”)

The defendant’s first option is to appear in the original action at the beginning of the suit and object to the court’s exercise of jurisdiction over her

The objection to jurisdiction must be raised immediately or be lost: A defendant who answers on the merits and later concludes that personal jurisdiction is lacking will have waived the objection by failing to raise it at the outset

In some states, the defendant who objects to jurisdiction files a special appearance SPECIAL APPEARANCE: a defendant’s showing up in court for the sole purpose of

contesting the court’s assertion of personal jurisdiction over the defendant; the defendant litigates the jurisdictional question without submitting to jurisdiction by the very act of appearing before the court

If the court concludes: there is no basis to exercise jurisdiction, it will dismiss the suit there is basis to exercise jurisdiction, it will proceed with the case

The defendant may proceed to defend the merits of the suit without waiving her objection to the court’s jurisdictional ruling; if the defendant loses the suit on the merits, she may appeal to an appellate court in the rendering state,

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claiming that the trial court’s conclusion that it had personal jurisdiction was wrong

b. Challenging Jurisdiction in the Enforcing State (“Collateral Attack”)

The defendant’s second option is to ignore the original suit entirely The court in the rendering state will enter a default judgment for the plaintiff the plaintiff will then take her judgment against the defendant to a state (i.e., the enforcing

state) where the defendant lives or has property and seek a court order from the courts of that state authorizing the sheriff to sell the defendant’s assets to satisfy the judgment

The plaintiff can “domesticate the judgment” in the enforcing state in one of two ways: By filing a new action on the judgment in the enforcing state (i.e., seeking a

“judgment on the judgment” By registering a certified copy of the rendering state’s judgment in the enforcing

state’s court Once the plaintiff “domesticates the judgment,” she may invoke the enforcing state’s

procedures for collecting damages against the defendant Although this entire process is required by the Full Faith and Credit Clause (Art. IV, Sec. 1)

of the U.S. Constitution, the enforcing state may always inquire as to whether the rendering state had jurisdiction in the original action and refuse enforcement if it did not

The defendant may oppose enforcement of the rendering state’s action by raising a collateral attack—i.e., by asserting in the enforcing state’s court that the rendering state’s court lacked personal jurisdiction over her

COLLATERAL ATTACK: the defendant challenges the original court’s jurisdiction in the enforcement action rather than directly in the original suit

Advantages to a raising a collateral attack: More convenient for the defendant, who does not have to leave her home state Because the enforcing court is in the defendant’s home state, it may be more

sympathetic to the defendant’s challenge Disadvantage to raising a collateral attack:

By failing to appear in the rendering state, the defendant has waived her defense on the merits; if the enforcing court concludes that the rendering court had jurisdiction over the defendant, it will automatically enforce the rendering court’s default judgment

Due to collateral estoppel, a defendant may not challenge personal jurisdiction in the enforcement action if she has already done so in the original action

B. SUBJECT MATTER JURISDICTION

SUBJECT MATTER JURISDICTION: the authority of a court to adjudicate a particular type of suit

The basic trial courts of each state are said to exercise “general jurisdiction”; that is, they have broad subject matter jurisdiction over many types of suits

NOTE: when used in the territorial jurisdiction context, “general jurisdiction” has a different meaning; in the territorial jurisdiction context, it refers to the authority of a

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state’s courts to hear any claim against a particular defendant, whether or not the claim is related to the defendant’s in-state contacts

Federal courts are all courts of limited jurisdiction, capable of hearing only those disputes for which jurisdiction is specifically conferred by both the Constitution and federal statute

Federal courts have subject matter jurisdiction either because of: The nature of the law involved (e.g., “federal question” jurisdiction, in which plaintiff

asserts a claim based on federal law) The identity of the parties (e.g., “diversity” jurisdiction, in which plaintiff and

defendant are citizens of diverse states)

Concurrent and Exclusive Jurisdiction State courts have concurrent jurisdiction over all cases within the federal judicial power,

unless Congress has explicitly provided for exclusive jurisdiction for a particular type of claim

Federal district courts have concurrent jurisdiction with the state courts over many cases involving state law; usually, jurisdiction in such cases is based on diversity of citizenship, but often a federal question case also involves a claim or defense based on state law

State courts have exclusive jurisdiction in cases where there is no federal grant of subject matter jurisdiction to the federal courts

Rationale behind Federal Subject Matter Jurisdiction Federalism

The federal courts were not created to displace the preexisting state systems, but only to provide a federal forum for specific categories of national concern

1. FEDERAL QUESTION JURISDICTION

Every federal subject matter jurisdiction issue involves a two-step analysis:1. Is this case one that constitutionally may be granted to the federal courts, because the

power for them to hear it is granted in Art. III, Sec. 2 of the Constitution?2. If the case does fall into one of the categories in Art. III, Sec. 2, has Congress actually

conveyed jurisdiction over this type of case in a federal statute?

Rationale behind Federal Question Jurisdiction Federal courts are able to hear cases that involve the application and interpretation of federal

law: To protect federal law from unsympathetic construction by state courts To allow definitive interpretation of federal law

a. Constitutional Scope of Federal Question Jurisdiction

Article III, Sec. 2 of the U.S. Constitution authorizes federal courts to hear cases “arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority”

The Supreme Court has long taken an expansive view of the “arising under” language in the Constitution

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In Osborn v. Bank of the United States, 22 U.S. 738 (1824), Chief Justice Marshall held that a case arises under federal law if “the title or right set up by the party, may be defeated by one construction of the constitution or law of the United States, and sustained by the opposite construction. We think, then, that when a question to which the judicial power of the Union is extended by the constitution, forms an ingredient of the original cause, it is in the power of Congress to give [the lower federal courts] jurisdiction of that cause, although other questions of fact or law may be involved in it” (emphasis added)

The bottom line is that the phrase “arising under” in Art. III, Sec. 2 is very broadly construed. It is probably satisfied in any case in which a party seeks to rely on or establish a proposition of federal law in order to prove either a claim or defense in the case

However, Article III does not confer subject matter jurisdiction on the lower federal courts; it merely establishes the outer bounds of the subject matter jurisdiction that Congress may confer on them

In addition to constitutional authorization for the exercise of federal court jurisdiction, there must also be statutory implementation of that authorization; in almost all instances, the statutory grant of jurisdiction does not go to the full extent of the jurisdiction authorized by the Constitution

b. Statutory Scope of Federal Question Jurisdiction

Even though 28 U.S.C. §1331 grants jurisdiction in the same language as Article III, Sec. 2, the federal courts have interpreted the reach of the statute much more narrowly than the constitutional scope of arising-under jurisdiction

The cases consistently hold that §1331 only applies if the plaintiff’s claim requires proof of federal law. The statute does not confer jurisdiction on the federal district courts over cases that involve federal law unless the federal issue is necessary to the proof of the plaintiff’s claim

2. DIVERSITY JURISDICTION

Every federal subject matter jurisdiction issue involves a two-step analysis:1. Is this case one that constitutionally may be granted to the federal courts, because the

power for them to hear it is granted in Art. III, Sec. 2 of the Constitution?2. If the case does fall into one of the categories in Art. III, Sec. 2, has Congress actually

conveyed jurisdiction over this type of case in a federal statute?

Rationale behind Diversity Jurisdiction The Framers’ apparent reason for singling out diversity cases for federal jurisdiction was a

fear that out-of-state citizens would suffer prejudice if they were forced to litigate against local citizens in the local state courts

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a. Constitutional Scope of Diversity Jurisdiction

One of the major categories of cases that the Framers authorized federal courts to hear is the so-called diversity jurisdiction, described in Art. III, Sec. 2 of the U.S. Constitution as cases “between citizens of different states”

The Constitution demands neither “complete diversity” nor a specific “amount in controversy”

In addition to constitutional authorization for the exercise of federal court jurisdiction, there must also be statutory implementation of that authorization; in almost all instances, the statutory grant of jurisdiction does not go to the full extent of the jurisdiction authorized by the Constitution

b. Statutory Scope of Diversity Jurisdiction

Congress has granted to the federal courts some, but not all, of the Art. III, Sec. 2 diversity jurisdiction

The statutory grant of diversity jurisdiction in 28 U.S.C. §1332 is narrower than that which is permissible under Art. III, Sec. 2 in two ways:

28 U.S.C. §1332 includes an amount-in-controversy requirement of $75,000 Except in cases of supplemental jurisdiction, each plaintiff must have a

colorable claim for more than $75,000 against each defendant A plaintiff’s good-faith claim for more than $75,000 is sufficient to meet the

amount-in-controversy requirement, unless it “appear[s] to a legal certainty that the claim is really for less”; even if the plaintiff eventually recovers $75,000 or less, the requirement would still be met

28 U.S.C. §1332 requires “complete diversity” between the parties (i.e., all plaintiffs in a suit must be from different states than all defendants at the time the suit is brought)

For natural persons (i.e., human beings), the courts have equated state citizenship for diversity purposes with the common law concept of domicile, which is defined as the state where a person has taken up residence with the intent to reside indefinitely (i.e., the person has no definite intent to leave at a particular time or upon the occurrence of a particular event)

Corporations are citizens for diversity purposes of both the state where their principal place of business is located and the state where they are incorporated

3. CHALLENGING SUBJECT MATTER JURISDICTION

The existence of federal subject matter jurisdiction may be challenged at any time during the litigation of the case (see Kroger)

Want of subject matter jurisdiction cannot be cured by conduct or neglect of the parties In the federal courts, there is a presumption against the existence of subject matter

jurisdiction; the party invoking federal subject matter jurisdiction bears the burden of establishing that it exists

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C. VENUE, ETC.

1. VENUE

Venue concerns the subconstitutional doctrines that work to site litigation in particular, and presumably appropriate, courts among the several of the sovereign’s courts that have constitutional authority—or conceivably to oust them all of authority

The federal venue statute, 28 U.S.C. §1391, basically requires in most cases that the defendants be sued in a district where they reside or where important events relevant to the suit took place

Venue, like personal jurisdiction, is considered a personal privilege of the defendant, which may be waived

Rationale for Venue Provisions Federal venue provisions assure some reasonable connection between the court where suit

may be brought and the suit itself They are also meant to further restrict the places where the plaintiff may choose to bring suit

2. FORUM NON CONVENIENS

Forum non conveniens allows a court discretionarily to decline existing authority to adjudicate if the court is a seriously inappropriate forum and if a substantially more appropriate forum is available to the plaintiff

Forum non conveniens arises most often in state court, where the alternative forum is a court in a different state; when it arises in federal court, the alternative forum is a foreign court

Important precepts of the doctrine of forum non conveniens:1. Forum non conveniens may be invoked on the defendant’s motion or on the court’s

own motion2. In passing on the motion, the court gives the plaintiff’s choice of forum great

deference, especially when the plaintiff is a local, but the interests of both the private parties and the public for and against litigating elsewhere also enter the balance. For dismissal, the balance of other factors must not merely tilt toward the alternative forum, but must tilt strongly in that direction

Private factors: residence of the parties, relative ease of access to sources of proof, problems of judgment enforcement

Public factors: which sovereign’s law will apply, relative burdens on the court system from hearing the case, and the benefits to the polity from deciding the case

3. If the court grants the motion, the remedy is ultimately dismissal, either outright or conditional upon defendant’s waiving defenses (such as personal jurisdiction or the statute of limitations) that would impede suit in the more appropriate forum

4. Appellate courts subject the trial court’s decision on dismissal only to deferential review

Should federal courts follow the law of forum non conveniens of the states in which they sit, or should they follow their own independent federal law of forum non conveniens?

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The now-standard answer in the lower federal courts is that federal forum non conveniens law is applicable irrespective of any differences from the law of the state in which the federal court sits

Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)Posture Appeal from the U.S. Court of Appeals for the Third Circuit, where petitioners’

motion to dismiss on the ground of forum non conveniens was deniedFacts A small commercial aircraft manufactured by Piper Aircraft Co. and Hartzell

Propeller, Inc. (petitioners/defendants) crashed in the Scottish highlands Pilot and 5 passengers, all Scottish citizens, were killedReyno (respondent/plaintiff) was appointed administratrix of the estates of the 5

passengers by a California probate courtReyno commenced wrongful death actions against Piper in the Superior Court of

California, admitting that U.S. has more favorable products liability law than Scotland

Piper removed the suit on the basis of diversity to the U.S. District Court for the Central District of California

Piper transferred the suit to the U.S. District Court for the Middle District of Pennsylvania, where Piper manufactured the plane

Hartzell and Piper moved to dismiss the action on the ground of forum non conveniens

District Court granted dismissal, conditioning it on Piper’s and Hartzell’s waiving any personal jurisdiction or statute of limitations defenses in Scotland

Issue Whether dismissal is automatically barred where the law of the alternative forum is less favorable to the plaintiff than the law of the forum chosen by the plaintiff

Whether the district court had abused its discretion in balancing the factorsHolding The possibility of an unfavorable change in law should not, by itself, bar dismissal

on the ground of forum non conveniensThe showing to get dismissal in the district court was sufficient, such showing

being generally easier to make than the court of appeals imaginedReasoning Opinion by Marshall

“The possibility of change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry”

Convenience: “[B]y holding that the central focus of the forum non conveniens inquiry is convenience, Gilbert implicitly recognized that dismissal may not be barred solely because of the possibility of an unfavorable change in law. Under Gilbert, dismissal will ordinarily be appropriate where trial in the plaintiff’s chosen forum imposes a heavy burden on the defendant or the court, and where plaintiff is unable to offer any specific reasons of convenience supporting his choice”

Flexibility: “[This Court’s earlier forum non conveniens decisions] have repeatedly emphasized the need to retain flexibility. . . . If central emphasis were placed on any one factor [like an unfavorable change in law], the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable”

Justice: “We do not hold that the possibility of an unfavorable change in law

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should never be a relevant consideration in a forum non conveniens inquiry. Of course, if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight; the district court may conclude that dismissal would not be in the interests of justice”

Dissents by Stevens and BrennanThe Court should not have reviewed the lower courts’ application of the

discretionary balance in this case because of the limited question on which the Court had granted certiorari

Significance Made doctrine of forum non conveniens largely a doctrine of inconvenience in which a change in substantive law should not “ordinarily” be given “substantial weight”

A motion to dismiss on grounds of forum non conveniens in federal district court is proper only when the alternative forum is a foreign country, as it was in Piper. If the alternative forum is in the United States, the proper motion is for transfer to another federal district court

3. REMOVAL

REMOVAL: suit moved from state court to federal court by defendant; authorized by 28 U.S.C. §1441

Removal is available to the defendant only in cases that the plaintiff could have commenced in federal court

But while it is generally true that a defendant cannot remove case if the federal court would not have had original jurisdiction over it, some cases are not removable even though the plaintiff could have brought them in federal court originally

1. If a defendant is sued in his home state, he may not remove on the basis of diversity (the defendant has no need to be protected from local prejudice, since he is from the forum state)

Removal from state court can only be made to one place: the federal district court in whose district the state court sits

When the defendant properly removes a suit to federal court, the defendant’s entire suit is removed, including not only the specific claim that gives rise to removal jurisdiction, but also any related claims that the federal court has the power to hear under supplemental jurisdiction

Removal is a one-way street: a defendant who is properly sued in federal court cannot remove to state court

Rationale for Removal The principle of fairness

Defendants as well as plaintiffs should have the option to choose federal court for cases within the federal jurisdiction—that jurisdiction is intended to protect both parties, and, therefore, both parties should have access to it

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4. TRANSFER

TRANSFER: suit moved from one district court in within the federal system to another in a different state or district; authorized by 28 U.S.C. §1404

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II. JOINDER AND SUPPLEMENTAL JURISDICTION

A. JOINDER

SCOPE OF THE LAWSUIT: who is sued and which claims are asserted The permissible scope of a lawsuit is governed by rules of joinder

Rules of Joinder in the Federal Rules of Civil Procedure Rule 20: Joinder of Parties

1. Authorizes (but does not require) plaintiffs to sue together if (1) they assert claims arising out of the same transaction or occurrence (or series of transactions or occurrences); and (2) their claims against the defendant(s) will involve a common question of law or fact

2. Authorizes (but does not require) the plaintiff to sue multiple defendants in a single action if the same criteria are met

Rule 13: Counterclaims and Crossclaims1. Authorizes parties, once they are properly joined in a lawsuit, to assert additional

claims (i.e., counterclaims and crossclaims) against opposing parties2. COUNTERCLAIM: a claim for relief asserted against an opposing party after an

original claim has been made; especially, a defendant’s claim in opposition to or as a setoff against the plaintiff’s claim

COMPULSORY: a counterclaim that must be asserted to be cognizable, usually because it relates to the opposing party’s claim and arises out of the same subject matter; if a defendant fails to assert a compulsory counterclaim in the original action, that claim may not be brought in a later, separate action (with some exceptions)

PERMISSIVE: a counterclaim that need not be asserted to be cognizable, usually because it does not arise out of the same subject matter as the opposing party’s claim or involves third parties over which the court does not have jurisdiction; permissive counterclaims may be brought in a later, separate action

3. CROSSCLAIM: a claim asserted between codefendants or coplaintiffs in a case and that relates to the subject of the original claim or counterclaim

Rule 18: Joinder of Claims1. Provides that a party seeking relief from an opposing party may join with his original

claim any additional claims he has against that opposing party2. Unlike Rule 20, Rule 18 does not contain a common transaction or occurrence

requirement Rule 14: Impleader Claims/Third-Party Complaints

1. Gives a defendant a limited right to implead (i.e., bring into the suit) new parties against whom she has claims related to the main action

2. The defendant may bring in a person not yet a party to the suit who may be liable to her, the defendant, for all or part of any recovery the plaintiff obtains on the main claim

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3. THIRD-PARTY COMPLAINT: a complaint filed by the defendant against a third party, alleging that the third party may be liable for some or all of the damages that the plaintiff is trying to recover from the defendant

B. SUPPLEMENTAL JURISDICTION

Joinder vs. Jurisdiction A particular suit is proper only if both the joinder rules and the jurisdictional requirements

are met Permission under the joinder rules to assert a claim, while necessary, is not sufficient to

allow the court to hear it: the court must always have subject matter jurisdiction over a claim if it is to proceed

While the Court has broadly authorized joinder of claims and parties under the Federal Rules, the need for subject matter jurisdiction provides an implicit limitation on joinder in every case

Where there is no independent federal subject matter jurisdiction over a claim, Congress has often authorized supplemental jurisdiction

SUPPLEMENTAL JURISIDICTION: jurisdiction over claims brought between existing parties, or between existing and new parties, for which there is no federal subject matter jurisdiction if those claims are considered independently

FREESTANDING CLAIM: a claim over which there is an independent basis for subject matter jurisdiction

SUPPLEMENTAL CLAIM: a claim over which there is no independent basis for jurisdiction in the district court

Rationale for Supplemental Jurisdiction Efficiency

1. When a number of claims involve a single transaction or occurrence, and the same issue or issues will have to be litigated to resolve each claim, it is more efficient to litigate those issues once in a combined action, rather than repeatedly in separate suits

2. The modern notion of judicial efficiency is that a court should resolve as much as reasonably possible in a single proceeding

Consistency1. Resolving issues in a single action avoids the possibility of inconsistent judgments on

the same issue

Every supplemental jurisdiction issue involves a two-step analysis:1. Is there constitutional power under Art. III, Sec. 2 to hear the supplemental claim?

(Is there a “common nucleus of operative facts”?)2. Is there a statutory grant of jurisdiction over the supplemental claim?

1. CONSTITUTIONAL AUTHORIZATION OF SUPPLEMENTAL JURISDICTION

In United Mine Workers v. Gibbs, 383 U.S. 715 (1966), the Court allowed the federal court to exercise pendent jurisdiction over a state-law claim that was related to a federal-law claim, even though the parties were not diverse

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The Court rationalized this conclusion on the ground that Art. III grants jurisdiction over entire “cases” and “controversies,” not just over particular claims or issues

If a “case” includes a claim that is jurisdictionally proper under Art. III, the argument goes, the court has constitutional power to hear the entire dispute between the parties, not just the claim that is expressly provided for in Art. III, Sec. 2

Thus, so long as a the plaintiff asserts a proper claim based on federal law, diversity, or some other federal ground, the federal court has at least the constitutional power to hear other claims arising out of the same “case”—that is, the same “common nucleus of operative facts”

2. STATUTORY AUTHORIZATION OF SUPPLEMENTAL JURISDICTION

Brief History Historically, two doctrines evolved to support supplemental jurisdiction

PENDENT JURISDICTION PENDENT-CLAIM JURISDICTION: jurisdiction over additional (otherwise

jurisdictionally insufficient) claims brought by the same plaintiff against the same defendant; when a plaintiff asserts both a federal claim and a related state-law claim, a federal court’s federal-question jurisdiction over the federal claim gives it discretionary power to hear the related state claim, even absent the diversity jurisdiction normally needed to allow federal adjudication of claims based on state law

PENDENT-PARTY JURISDICTION: jurisdiction over (otherwise jurisdictionally insufficient) claims brought by the plaintiff against additional parties

ANCILLARY JURISDICTION: jurisdiction over additional claims brought by existing parties other than the plaintiff (usually the defendant) after the initial complaint

In Aldinger v. Howard, 427 U.S. 1 (1976), Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365 (1978), and Finley v. United States, 490 U.S. 545 (1989), the Court interpreted federal statutes narrowly to limit supplemental jurisdiction

In Aldinger, the Court rejected pendent-party jurisdiction where plaintiff asserted only state-law claims against an additional defendant

In Kroger, the Court rejected ancillary jurisdiction over a related claim asserted by the plaintiff against a nondiverse third-party defendant

In Finley, the Court held that the Federal Tort Claims Act (which gives federal courts exclusive jurisdiction over any suit brought under it) did not authorize pendent-party jurisdiction over non-federal, nondiverse defendants

In Zahn v. International Paper Co., 414 U.S. 291 (1973), the Court held that each plaintiff in a diversity-based class action in federal court must satisfy the jurisdictional amount in controversy; the decision implicitly rejected pendent-party jurisdiction over additional parties who did not independently qualify for diversity jurisdiction

Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365 (1978)Posture Appeal from the U.S. Court of Appeals for the Eighth Circuit, where petitioner’s

motion to dismiss the complaint for lack of jurisdiction was denied

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Facts James Kroger was electrocuted when the boom of a steel crane next to which he was walking came too close to a power line

Mrs. Kroger (an Iowa citizen, respondent) filed a wrongful-death action against the Omaha Public Power District (OPPD, a Nebraska citizen), alleging that OPPD’s negligent construction, maintenance, and operation of the power line had caused Kroger’s death

OPPD then impleaded Owen Equipment & Erection Co. (petitioner, a citizen of both Nebraska and Iowa) as a third-party defendant, alleging that the crane was owned and operated by Owen, and that Owen’s negligence had been the proximate cause of Kroger’s death; OPPD sought to be indemnified by Owen for any damages OPPD might be required to pay Kroger

OPPD moved for summary judgment on Kroger’s claimKroger filed an amended complaint naming Owen as an additional defendantU.S. District Court for the District of Nebraska granted OPPD’s motion for

summary judgmentCase went to trial between Kroger and OwenOn 3rd day of trial, it was disclosed that Owen’s principal place of business was in

Iowa; Owen was a citizen of both Nebraska and IowaOwen moved to dismiss the complaint for lack of jurisdiction

Issue Whether, in an action in which federal jurisdiction is based on diversity of citizenship, the plaintiff may assert a claim against a third-party defendant when there is no independent basis for federal jurisdiction over that claim

Holding Federal court lacked jurisdiction to hear Mrs. Kroger’s claim against Owen, a nondiverse party

Reasoning Opinion by Stewart“It is undisputed that there was no independent basis of federal jurisdiction over

the respondent’s state-law tort action against the petitioner, since both are citizens of Iowa”

“The Gibbs case differed from this one in that it involved pendent jurisdiction, which concerns the resolution of a plaintiff’s federal- and state-law claims against a single defendant in one action”

“The relevant statute in this case, 28 U.S.C. § 1332(a)(1), confers upon federal courts jurisdiction over ‘civil actions where the matter in controversy exceeds the sum or value of $10,000 . . . and is between . . . citizens of different States.’ This statute and its predecessors have consistently been held to require complete diversity of citizenship. That is, diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff”

“Thus it is clear that the respondent could not originally have brought suit in federal court naming Owen and OPPD as codefendants, since citizens of Iowa would have been on both sides of the litigation. Yet the identical lawsuit resulted when she amended her complaint”

Risk of collusion: plaintiff could initially sue only a diverse defendant and then add an initially forbidden claim against a nondiverse defendant once the latter was predictably joined as a third-party defendant

Despite “common nucleus of operative facts,” no logical dependence of claims: “The respondent’s claim against the petitioner . . . was entirely separate from

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her original claim against OPPD, since the petitioner’s liability to her depended not at all upon whether or not OPPD was also liable. Far from being an ancillary and dependent claim, it was a new and independent one”

Plaintiff chose federal forum: “A plaintiff cannot complain if ancillary jurisdiction does not encompass all of his possible claims in a case such as this one, since it is he who has chosen the federal rather than the state forum and must thus accept its limitations”

“[N]either the convenience of litigants not considerations of judicial economy can suffice to justify extension of the doctrine of ancillary jurisdiction to a plaintiff's cause of action against a citizen of the same State in a diversity case.”

Dissent by WhiteCommon nucleus of operative facts: “[T]he majority goes on to hold that in

diversity suits federal courts do not have the jurisdictional power to entertain a claim asserted by a plaintiff against a third-party defendant, no matter how entwined it is with the matter already before the court, unless there is an independent basis for jurisdiction over that claim”

Defendant, not plaintiff, chose to bring in Owen: “Since the plaintiff has no control over the defendant’s decision to implead a third party, the fact that he could not have originally sued that party in federal court should be irrelevant”

Judicial efficiency: “Because in the instant case Mrs. Kroger merely sought to assert a claim against someone already a party to the suit, considerations of judicial economy, convenience, and fairness to the litigants—the factors relied upon in Gibbs—support the recognition of ancillary jurisdiction here”

Significance Announced a statutory limit on supplemental jurisdiction in the face of competing considerations of judicial efficiency

When the freestanding claim is brought under diversity jurisdiction, the requirement of complete diversity of citizenship extends to the supplemental claim (between the plaintiff and the third-party defendant)

28 U.S.C. §1367: Supplemental Jurisdiction In 1990, pursuant to a recommendation by the Federal Courts Study Committee, Congress

enacted 28 U.S.C. §1367, conferring “supplemental jurisdiction” on the federal courts Effect of statute is to authorize broad supplemental jurisdiction (to the extent allowed in the

Constitution) over claims combined with claims under federal question jurisdiction (overturning Finley), and to authorize a somewhat narrower supplemental jurisdiction over claims combined with state-law claims brought under diversity jurisdiction (overturning Zahn (see Exxon), but preserving Kroger)

Why does the statute distinguish between federal question and diversity cases? In federal question cases, broad supplemental jurisdiction facilitates the core business

of the federal courts of adjudicating cases involving questions of federal law in an effective and efficient way

In diversity of citizenship cases, supplemental jurisdiction is restricted as a way of conserving the resources of the federal courts, and of encouraging litigants to take such disputes to state courts

Federal courts retain the discretion to grant or deny supplemental jurisdiction; 28 U.S.C. §1367(c) gives federal judges a checklist to guide their discretion in authorizing

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supplemental jurisdiction (e.g., if the case involves complex questions of state law, judge should decline to authorize supplemental jurisdiction)

Exxon Mobil Corp. v. Allapattah Services, Inc., 125 S. Ct. 1241 (2005)Posture Appeal from the U.S. Court of Appeals for the Eleventh Circuit, where

supplemental jurisdiction was upheldFacts 10,000 Exxon dealers (appellee) filed a class-action suit against Exxon Mobil

Corp. (appellant), alleging that Exxon was intentionally and systematically overcharging them for fuel

Some of the dealers did not meet the jurisdictional minimum amount in controversy ($75,000)

Issue Whether a federal court in a diversity action may exercise supplemental jurisdiction over additional plaintiffs whose claims do not satisfy the minimum amount-in-controversy requirement, provided the claims are part of the same case or controversy as the claims of plaintiffs who do allege a sufficient amount in controversy

Holding Where the other elements of jurisdiction are present and at least one named plaintiff in the action satisfies the amount-in-controversy requirement, §1367 does authorize supplemental jurisdiction over the claims of other plaintiffs in the same Article III case or controversy, even if those claims are for less than the jurisdictional amount specified in the statute setting forth the requirements for diversity jurisdiction

Reasoning Opinion by Kennedy“When the well-pleaded complaint contains at least one claim that satisfies the

amount-in-controversy requirement, and there are no other relevant jurisdictional defects, the district court, beyond all question, has original jurisdiction over that claim”

“Once the court determines it has original jurisdiction over the civil action, it can turn to the question whether it has a constitutional and statutory basis for exercising supplemental jurisdiction over the other claims in the action”

“§ 1367(a) is a broad jurisdictional grant, with no distinction drawn between pendent-claim and pendent-party cases”

No exception for Rule 20 plaintiffs: “While § 1367(b) qualifies the broad rule of § 1367(a), it does not withdraw supplemental jurisdiction over the claims of the additional parties at issue here”

No contamination: “The presence of a single nondiverse party may eliminate the fear of bias with respect to all claims, but the presence of a claim that falls short of the minimum amount in controversy does nothing to reduce the importance of the claims that do meet this requirement”

Dissent by Ginsburg“Under the majority’s reading, § 1367(a) permits the joinder of related claims cut

loose from the nonaggregation rule that has long attended actions under § 1332. Only the claims specified in § 1367(b) would be excluded from § 1367(a)’s expansion of § 1332’s grant of diversity jurisdiction. And because § 1367(b) contains no exception for joinder of plaintiffs under Rule 20 or class actions under Rule 23, the Court concludes, Clark and Zahn have been overruled”

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“If one reads § 1367(a) to instruct, as the statute’s text suggests, that the district court must first have ‘original jurisdiction’ over a ‘civil action’ before supplemental jurisdiction can attach, then Clark and Zahn are preserved, and supplemental jurisdiction does not open the way for joinder of plaintiffs, or inclusion of class members, who do not independently meet the amount-in-controversy requirement”

“[I]f one recognizes that the nonaggregation rule delineated in Clark and Zahn forms part of the determination whether ‘original jurisdiction’ exists in a diversity case, then plaintiffs who do not meet the amount-in-controversy requirement would fail at the § 1367(a) threshold”

Significance Overruled ZahnExpanded the supplemental jurisdiction of the federal courts, authorizing them to

hear cases in which only one plaintiff satisfies the amount-in-controversy requirement

In class action suits, complete diversity remains a requirement, but only for named, representative parties

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III. ASCERTAINING THE APPLICABLE LAW

Under Art. III of the U.S. Constitution, the federal courts have judicial power to hear diversity cases; under Art. I, however, Congress has no legislative power to create the governing law in diversity cases

Domestic Law at the Time of Swift FEDERAL LAW: the law of the national government, based on the Constitution, treaties, or

statutes; both jurisdiction-conferring and supreme GENERAL LAW: a general common law, applied more or less uniformly by all civil courts,

federal and state Originally covered commercial subjects like contracts, insurance, and negotiable

instruments Not jurisdiction-conferring: to the extent that the federal courts heard cases involving

questions of general law, their jurisdiction was based on diversity of citizenship or admiralty

Not supreme: state courts were not obliged to follow it STATE/LOCAL LAW: non-federal, non-general law

Covered particular subject areas to which the general law did not extend, such as marriage, inheritance, and real property: in these subject areas, federal courts routinely followed the local law of the states in which they sat

Also included particular rules of commercial law where the state had clearly departed from the uniform rule of the general law: Swift said federal courts were not obliged to follow local law in such instances

Rules of Decision Act, 28 U.S.C. § 1652, Section 34 of the Judiciary Act of 1789:And be it further enacted That the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.

Swift v. Tyson, 41 U.S. 1 (1842) In an opinion by Justice Story, the Court ruled that the word “laws” in the Rules of Decision

Act referred only to “strictly local” rules—state constitutions, statutes, and “long-established local customs having the force of law,” not state judicial decisions that applied “general” principles of commercial law

In Story’s view, the federal court should examine all common law authorities—including cases from the state in which it sat, from other states, from federal courts, English courts, and the view of respected commentators—to ascertain the proper rule. The federal judge’s job, Story believed, was the same as that of any other common law judge: to choose the right rule of consideration, rather than to follow a rule that some other judge deemed to be the right one

When federal courts hear cases presenting issues of “general” commercial law, they are unrestricted by Section 34 and free to exercise their own “independent judgment”—that is, to ignore state court rulings—in determining what legal rules and principles they should apply

Embraced “declaratory” theory of law, in which the common law grew from general principles of right and reason that existed independent of judicial decisions, and the function

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of judges was to find, “declare,” and apply the proper ones to each new fact situation that arose

Justice Story sought to strengthen the independence and authority of the federal courts and to use those federal courts to create a uniform national commercial law that would encourage and facilitate commerce between the states

Between Swift and Erie As part of its general expansion of federal judicial power, the Court began expanding the

scope of the “general” law. By the early twentieth century the “general” law covered most common-law areas and seemed poised for further expansions at the slightest opportunity

The Court also used the Swift doctrine to enforce rules that increasingly favored corporations in their disputes with ordinary individuals, especially tort victims and policyholders claiming benefits under insurance contracts

National corporations were considered noncitizens in every state but the one that had chartered them; when they were sued, they could often remove the suits to the local federal court

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)Posture Appeal from Court of Appeals, where judgment in favor of Tompkins was

affirmedFacts While walking on a footpath along the railroad tracks, Tompkins (Pennsylvania

citizen, respondent) was struck by an open door of a passing freight train of the Erie Railroad Co. (New York citizen, petitioner)

Erie contended that its liability should be determined in accordance with Pennsylvania common law, which held railroads liable for only “wanton and willful” negligence against trespassers

Tompkins contended that Erie’s liability should be determined in accordance with “general” law

Issue Whether the federal court is free to disregard the alleged rule of the Pennsylvania common law

Holding The federal court is constitutionally bound to follow the alleged rule of state common law

Reasoning Opinion by BrandeisSwift v. Tyson misinterpreted the Rules of Decision Act: “[T]he purpose of the

section was merely to make certain that, in all matters except those in which some federal law is controlling, the federal courts exercising jurisdiction in diversity of citizenship cases would apply as their rules of decision the law of the state, unwritten as well as written”

Experience in applying the doctrine of Swift had revealed its practical defects: “Persistence of state courts in their own opinions on questions of common law prevented uniformity; and the impossibility of discovering a satisfactory line of demarcation between the province of general law and that of local law developed a new well of uncertainties”

Swift had led to discrimination in the administration of justice: “Swift v. Tyson introduced grave discrimination by noncitizens against citizens. It made rights enjoyed under the unwritten ‘general law’ vary according to whether

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enforcement was sought in the state or in the federal court; and the privilege of selecting the court in which the right should be determined was conferred upon the noncitizen. Thus, the doctrine rendered impossible equal protection of the law”

Swift authorized federal judges to make law in areas in which the federal government had no delegated powers: “There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts”

Swift is overruled: “Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. And whether the law of the state shall be declared by its legislature in a statute or by its highest court in a decision is not a matter of federal concern”

“In disapproving that doctrine [of Swift] we do not hold unconstitutional section 34 of the Federal Judiciary Act of 1789 or any other act of Congress. We merely declare that in applying the doctrine this Court and the lower courts have invaded rights which in our opinion are reserved by the Constitution to the several states”

Concurrence by Reed“To decide the case now before us and to ‘disapprove’ the doctrine of Swift v.

Tyson requires only that we say that the words ‘the laws’ include in their meaning the decisions of the local tribunals. As the majority opinion shows . . . that this Court is now of the view that ‘laws’ includes ‘decisions,’ it is unnecessary to go further and declare that the ‘course pursued’ was ‘unconstitutional,’ instead of merely erroneous”

“I am not at all sure whether, in the absence of federal statutory direction, federal courts would be compelled to follow state decisions. . . . If the opinion commits this Court to the position that the Congress is without power to declare what rules of substantive law shall govern the federal courts, that conclusion also seems questionable. The line between procedural and substantive law is hazy, but no one doubts federal power over procedure”

“It seems preferable to overturn an established construction of an act of Congress, rather than, in the circumstances of this case, to interpret the Constitution”

Significance Overruled SwiftEliminated the federal “general” common lawGave rise to the Erie doctrine

Review had been granted to determine, and argument before the Supreme Court had been limited to, the question of whether the responsibility of the railroad to Tompkins was governed by local or general law. The railroad argued that the local (i.e., Pennsylvania) law governed the dispute, and Tompkins argued that the general law governed. That the parties should have been so aligned was unusual, for big business had been the prime beneficiary of the regime of Swift v. Tyson and the general law

Under Swift v. Tyson, there were three categories of domestic law—federal, general, and state. Under Erie, there are only two—federal and state. Two previous categories of substantive law—general and local—were collapsed into one, and became, for purposes of

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the Rules Enabling Act, state law that the federal courts were obliged to follow. If a domestic law is not federal, it is necessarily state

The Erie Doctrine’s Constitutional Basis Brandeis’s constitutional argument:

The Constitution made Congress the lawmaking branch of the national government and delegated to it the legislative powers of that government

The Constitution made the federal judiciary the law-applying branch of that national government

If Congress could not make law in a particular area, neither then could the federal courts, and no other law existed or could apply but state law

If state law applied, it made no difference which institution of state government made the law

Thus, where the Constitution did not control and Congress could not legislate, the laws of the states necessarily governed; and where state law governed, state judge-made rules were every bit as binding on the federal courts as were statutory provisions

Brandeis was not asserting any new restriction on the powers of Congress, nor was he arguing that Congress should be barred from legislating in any particular area. Erie held only that the federal courts were barred from making rules of law in an area if Congress was not authorized to make law in that same area

Erie did not imply that the Tenth Amendment created an independent and substantive limit on federal powers but only that it stated the tautological principle that any powers not granted to the federal government remained with the states or the people

Rationale for the Erie Doctrine To create uniformity, by requiring the same substantive law to apply in federal diversity

cases and cases that were brought in state courts To prevent forum-shopping and discrimination, by not allowing an out-of-state plaintiff to

choose a different rule of substantive law because he could choose federal court To serve the principle of federalism, by limiting national judicial power To serve the principle of separation of powers, by preserving the lawmaking primacy of

Congress

Applying the Erie Doctrine The basic Erie doctrine:

In diversity cases, federal courts must apply the substantive law that would be applied by the courts of the state in which they sit; rather than create “general common law,” their job in a diversity case is to apply state common law

Note, however, that the Erie doctrine is not limited to diversity cases; even in federal question cases, federal courts must look to state law to define terms (such as “children”) that appear in federal law

How do federal judges decide what state law is? Federal judges should look first to the decisions of the state’s highest court

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If no decision of the state’s highest court is on point, federal judges should give “proper regard” to decisions of trial and intermediate appellate courts, and apply the law as it would be announced by the state’s highest court

Federal judges can also certify the issue to the state’s highest court; when a federal judge certifies the issue, a statement of the issue and the relevant facts is sent to the state’s highest court, which then issues an opinion resolving the issue

Which issues are governed by the Erie doctrine? (substance vs. procedure) The problem:

The Constitution grants Congress the power to establish lower federal courts (Art. I, Sec. 8 and Art. III, Sec. 1), and to make laws “necessary and proper” for exercising that power (Art. I, Sec. 8)

Thus, Congress has constitutional authority to make federal procedural rules, even for diversity cases

As the Supreme Court moved in Erie to require the federal courts to conform their decisions to those of the states on matters of substantive law, Congress moved in precisely the opposite direction on matters of procedural law

In 1934, four years before Erie, Congress enacted the Rules Enabling Act, authorizing the adoption of a uniform system of procedural rules for civil cases in the federal courts

In 1938, the same year Erie was decided, the Federal Rules of Civil Procedure were adopted

How do federal judges determine which federal rules are “procedural” and thus valid?

The current doctrine teaches us to determine whether rules are “procedural” by dividing them into 3 categories and then directing a series of questions to the rules in each category

Federal rules mandated by federal statutes Valid if “rationally capable of classification” as procedural. Hanna v.

Plumer, 380 U.S. 460 (1965). Federal rules promulgated under the Rules Enabling Act, specifically the

Federal Rules of Civil Procedure or the Federal Rules of Appellate Procedure Valid if “rationally capable of classification” as procedural and if do

not “abridge, enlarge, or modify” a substantive right under the terms of the Rules Enabling Act. (Very few rules have actually been invalidated.)

All remaining federal rules, which are judge-made Valid if application of the rule is not “outcome determinative” in the

sense that it would not encourage forum-shopping or cause an “inequitable” administration of the laws. Hanna.

Which state’s law should control in suits involving connections to different states? State courts have not opted to apply their own substantive law in all cases Because state courts do not always apply the law of the state in which they sit, they

have developed “choice of law” rules for deciding when they will apply the law of another state instead

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In Klaxon v. Stentor Manufacturing Co., 313 U.S. 487 (1941), the Court held that the policy underlying Erie mandates the application of the forum state’s choice of law rules as well as its substantive law

Under the Klaxon doctrine, the federal court must apply whichever state’s law the forum state court would apply; furthermore, the federal court must follow the forum state’s interpretation of the other state’s law

In Klaxon, the federal district court in Delaware should have followed Delaware choice of law rules, which called for the application of New York law; furthermore, the federal district court in Delaware should have followed Delaware’s interpretation of New York law

Federal Common Law FEDERAL COMMON LAW: the body of decisional law derived from federal courts when

adjudicating federal questions and other matters of federal concern The areas in which the federal courts have applied federal common law most frequently

include: Admiralty and maritime cases Interstate disputes Proceedings raising matters of international relations Cases concerning the legal relations and proprietary interests of the United States Actions involving gaps in federal statutory provisions

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IV. PROCEDURAL DUE PROCESS

A. NOTICE

SERVICE OF PROCESS: service of the initial notice to the defendant of the filing of a lawsuit against him

Types of service: PERSONAL/ACTUAL: actual delivery of the notice or process to the person to

whom it is directed SUBSTITUTED: any method of service allowed by law in place of personal service,

such as service by mail (e.g., notice left at last known home/business address) CONSTRUCTIVE: service accomplished by a method or circumstance that does not

give actual notice (e.g., posting on land, service by publication in a newspaper or other public medium)

When Pennoyer was decided, service of process on the defendant within the forum state was the predominant means of obtaining jurisdiction, as well as giving notice to the defendant of the suit. Thus, under Pennoyer, if service was not made properly (that is, delivered personally to the defendant within the state), personal jurisdiction was not obtained. The two requirements were thus frequently discussed as though they were interchangeable; but today the two are quite distinct, and either may be satisfied though the other is not

Mullane v. Central Hanover Bank & Trust, 339 U.S. 306 (1950)Posture Appeal from the New York Court of Appeals, where judgment was entered for

respondentFacts New York Banking Law allowed pooling of small trust estates into a common

fund for investment administrationAccountings of common fund were made 12–15 months after establishment and

triennially thereafterCentral Hanover Bank & Trust (respondent) established a common trust fund of

113 small trusts, half inter vivos and half testamentary, some of whose beneficiaries were not residents of New York

Central Hanover filed petition for judicial settlement of its first account as trusteeOnly notice of settlement required, and only notice given, was by newspaper

publicationMullane was appointed attorney for all persons not otherwise appearing who had

or might have any interests in the income of the trust fundIssue Whether the notice to beneficiaries on judicial settlement of accounts by the

trustee of a common trust fund were inadequate to afford due process under the 14th A

Holding Statutory notice sufficient for beneficiaries whose interests or addresses are unknown to the trustee

Statutory notice inadequate to beneficiaries whose names and post office addresses are known

Reasoning Opinion by Jackson“Without disparaging the usefulness of distinctions between actions in rem and

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those in personam . . . we do not rest the power of the State to resort to constructive service in this proceeding upon how its courts or this Court may regard this historic antithesis”

“Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case”

“[T]he vital interest of the State in bringing any issues as to its fiduciaries to a final settlement” must be balanced against “the individual interest sought to be protected by the Fourteenth Amendment”

“[W]hen notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes”

“It would be idle to pretend that publication alone as prescribed here, is a reliable means of acquainting interested parties of the fact that their rights are before the courts”

“The trustee has on its books the names and addresses of the income beneficiaries represented by appellant, and we find no tenable ground for dispensing with a serious effort to inform them personally of the accounting, at least by ordinary mail to the record addresses”

“The statutory notice to known beneficiaries is inadequate, not because in fact it fails to reach everyone, but because under the circumstances it is not reasonably calculated to reach those who could easily be informed by other means at hand”

Significance Disassociated the question of the constitutionality of a method of service of process from the classification of the underlying cause of action as in personam, quasi in rem, or in rem

Key terms in Mullane TRUST: a property interest held by one person (the trustee) at the request of another

(the settlor) for the benefit of a third party (the beneficiary) INTER VIVOS TRUST: a trust that is created and takes effect during the settlor’s

lifetime; also termed living trust TESTAMENTARY TRUST: a trust that is created by a will and takes effect when the

settlor (testator) dies; also termed trust under will FIDUCIARY: a person who is required to act for the benefit of another person on all

matters within the scope of their relationship SETTLEMENT: the conveyance of property—or of interests in property—to provide

for one or more beneficiaries, usually members of the settlor’s family, in a way that differs from what the beneficiaries would receive as heirs under the statutes of descent and distribution

ACCOUNTING: a process through which the trust company explains its actions, the judge reviews them, and the beneficiaries’ rights are extinguished

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TOLL: (of a time period, especially a statutory one) to stop the running of; to abate Because the bank has only limited responsibility for contingent interests (i.e., the unknown

beneficiaries), the Court concluded that it is not worth the costs to find and contact them Why isn’t personal service required for the known beneficiaries?

“This type of trust presupposes a large number of small interests. The individual interest does not stand alone but is identical with that of a class. The rights of each in the integrity of the fund and the fidelity of the trustee are shared by many other beneficiaries. Therefore notice reasonably certain to reach most of those interested in objecting is likely to safeguard the interests of all, since any objections sustained would inure to the benefit of all”

Jackson’s “reasonableness” test is a cost-benefit analysis: on one side, the interest of the beneficiaries; on the other, the interest of the state and the cost of administration

B. OPPORTUNITY TO BE HEARD

Goldberg v. Kelly, 397 U.S. 254 (1970)Posture Appeal from a 3-judge panel of the U.S. District Court for the Southern District of

New York, where judgment was entered in favor of welfare recipientsFacts New York residents (appellees) receiving financial aid under the federally assisted

program of Aid to Families with Dependent Children (AFDC) or under New York State's general Home Relief program alleged that the New York officials administering these programs terminated, or were about to terminate, such aid without prior notice and hearing, thereby denying them due process of law

At the time the suits were filed there was no requirement of prior notice or hearing of any kind before termination of financial aid

However, the New York adopted procedures for notice and hearing after the suits were brought, and the appellees then challenged the constitutional adequacy of those procedures

Issue Whether a State that terminates public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process in violation of the Due Process Clause of the Fourteenth Amendment

Holding The Due Process Clause requires that a welfare recipient be afforded an evidentiary hearing before the termination of benefits

Reasoning Opinion by Brennan“The constitutional challenge cannot be answered by an argument that public

assistance benefits are ‘a “privilege” and not a “right”’”“The extent to which procedural due process must be afforded the recipient is

influenced by the extent to which he may be ‘condemned to suffer grievous loss,’ and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication”

“[T]he crucial factor in this context . . . is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits”

“The same governmental interests that counsel the provision of welfare, counsel as well its uninterrupted provision to those eligible to receive it; pre-termination

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evidentiary hearings are indispensable to that end”“Thus, the interest of the eligible recipient in uninterrupted receipt of public

assistance, coupled with the State’s interest that his payments not be erroneously terminated, clearly outweighs the State’s competing concern to prevent any increase in its fiscal and administrative burdens”

“[T]he pre-termination hearing need not take the form of a judicial or quasi-judicial trial”

A recipient must be given “timely and adequate notice detailing the reasons for a proposed termination,” “be allowed to state his position orally,” “be given an opportunity to confront and cross-examine the witnesses relied upon by the department,” and “be allowed to retain an attorney”

The decision maker should be “impartial” and “state the reasons for his determination and indicate the evidence he relied on”

Dissent by Black“[A]lthough some recipients might be on the lists for payment wholly because of

deliberate fraud on their part, the Court holds that the government is helpless and must continue, until after an evidentiary hearing, to pay money that it does not owe, never has owed, and never could owe. I do not believe there is any provision in our Constitution that should thus paralyze the government's efforts to protect itself against making payments to people who are not entitled to them”

“I regret very much to be compelled to say that the Court today makes a drastic and dangerous departure from a Constitution written to control and limit the government and the judges and moves toward a constitution designed to be no more and no less than what the judges of a particular social and economic philosophy declare on the one hand to be fair or on the other hand to be shocking and unconscionable”

“While this Court will perhaps have insured that no needy person will be taken off the rolls without a full ‘due process’ proceeding, it will also have insured that many will never get on the rolls, or at least that they will remain destitute during the lengthy proceedings followed to determine initial eligibility”

Significance Signaled the emergence of a “new property” that the government could not take away without “due process”

Goldberg teaches 5 lessons:1. Causes of action are not comprised of a set of fixed concepts but change over time.

Concerns once understood to be mere privileges become recharacterized as predicated on legal rights, just as injuries (such as the breach of a promise to marry) that were once seen as providing cognizable legal claims sometimes shift in their valence and cease to be enforceable rights

2. Fair and just outcomes depend on adequate process and offers the framework for what constitutes fair process. Brennan’s majority opinion details the key features of procedural systems—notice, exchange of information between disputants in writing or orally hearings, and decisionmaking by a third party who is constrained in some respects. Goldberg is part of a series of cases that resulted in a due process revolution, obliging administrative decisionmakers to fashion their processes closer to the format familiar in courts

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3. The disagreement between the Brennan’s majority opinion and the Black’s dissent exemplifies a basic debate of United States law about the respective roles of courts and legislatures in articulating rights, establishing remedies, and assessing the values, costs, and benefits of both. Further, their debate is illustrative of different approaches to reading the Constitution, itself an essential document in American procedural law

4. As it imposed requirements for process, the majority in Goldberg considered the capacities of those using the process. By doing so, Goldberg highlights a major fault line of the adversarial system—that opponents have different resources and capacities. The ruling paved the way for a small set of indigent litigants in civil cases to be accorded lawyers paid by the state, and the decision articulated the tension between formal statements of the right to process and their practical implementation by users with varying capacities to obtain information and argue effectively its relevance and meaning

5. Goldberg exemplifies a basic problem for all procedural systems—the pull towards trans-substantive process and the competing need to contextualize process to the specifics of the conflicts presented. The Court reiterated in Goldberg a long-held view of the Due Process Clause, that the process varied depending on the kind and nature of the interests at stake. Further, the Goldberg majority focused on the needs of welfare recipients, presumed to be ill-equipped to produce written briefs. But Goldberg also sought to inscribe elements of fair process—notice, oral hearings, decisions made based on a record and reasons given by an impartial decision maker—that transcended the specifics of any given case. The Goldberg formulation of the values of process remains critical to understanding the aspirations of adjudicatory systems as well as why those aspirations are now contested

Mathews v. Eldridge, 424 U.S. 319 (1976) The Court held that the Due Process Clause does not require an evidentiary hearing before

the termination of Social Security benefits The Court adopted a flexible, three-factor balancing test to determine what process is due

when a defendant is deprived of “property” before a judgment is handed down:1. The private interest that will be affected2. The risk of erroneous deprivation through the procedure and the value of alternate

safeguards3. The interest of the party seeking the prejudgment remedy (and/or the interest of

the government) Mathews was viewed as a shift from Goldberg’s right-based due process approach to a

utilitarian due process approach

Connecticut v. Doehr, 501 U.S. 1 (1991)Posture Appeal from the U.S. Court of Appeals for the Second Circuit, where statute was

found unconstitutionalFacts DiGiovanni submitted application for an attachment in amount of $75,000 on

Doehr’s homeUnderlying issue was civil action for assault and battery; suit did not involve

Doehr’s real estate, nor did DiGiovanni have any pre-existing interest in Doehr’s home

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Connecticut law authorized prejudgment attachment of real estate without prior notice or hearing, without a showing of extraordinary circumstances, and without a requirement that the person seeking the attachment post bond

Connecticut Superior Court found “probable cause” to sustain Doehr’s claim of assault and battery, and ordered attachment of Doehr’s home

Issue Whether a state statute that authorizes prejudgment attachment of real estate without prior notice or hearing, without a showing of extraordinary circumstances, and without a requirement that the person seeking the attachment post bond, satisfies the Due Process Clause of the 14th A

Holding Statute does not satisfy Due Process Clause of the 14th AReasoning Opinion by White

“For this type of case, therefore, the relevant inquiry requires, as in Mathews, first, consideration of the private interest that will be affected by the prejudgment measure; second, an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and third, . . . principal attention to the interest of the party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections”

“[T]he property interests that attachment affects are significant”“[T]he risk of erroneous deprivation that the State permits here is substantial”:

probable-cause standard is accompanied by a high potential for unwarranted attachment

“[T]he interests in favor of an ex parte attachment, particularly the interests of the plaintiff, are too minimal to supply such a consideration here. Plaintiff had no existing interest in Doehr’s real estate when he sought attachment”

“[T]he procedures of almost all the States confirm our view that the Connecticut provision before us, by failing to provide a preattachment hearing without at least requiring a showing of some exigent circumstance, clearly falls short of the demands of due process”

“Without a bond, at the time of attachment, the danger that these property rights may be wrongfully deprived remains unacceptably high even with such safeguards as a hearing or exigency requirement” (plurality only)

“Reliance on a bond does not sufficiently account for the harms that flow from an erroneous attachment to excuse a State from reducing that risk by means of a timely hearing” (plurality only)

“[N]either a hearing nor an extraordinary circumstance limitation eliminates the need for a bond, no more than a bond allows waiver of these other protections” (plurality only)

Concurrence by Rehnquist“I do not believe that the result follows so inexorably as the Court’s opinion

suggests. All of the cited cases dealt with personalty—bank deposits or chattels—and each involved the physical seizure of the property itself, so that the defendant was deprived of its use. . . . In the present case, on the other hand, Connecticut’s prejudgment attachment on real property statute, which secures an incipient lien for the plaintiff, does not deprive the defendant of the use or

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possession of the property”Present case is also distinguished by lack of interest of plaintiff in the property

which he seeks to enforce“It is both unwise and unnecessary, I believe, for the Court to proceed, as it does

in Part IV, from its decision of the case before it to discuss abstract and hypothetical situations not before it”

Significance Adopted the Mathews 3-factor balancing test and the “utilitarian”/cost-benefit approach to due process

LIEN: a legal right or interest that a creditor has in another's property, lasting usually until a debt or duty that it secures is satisfied; typically, the creditor does not take possession of the property on which the lien has been obtained

MECHANIC’S LIEN: a statutory lien that secures payment for labor or materials supplied in improving, repairing, or maintaining real or personal property, such as a building, an automobile, or the like; the theory is that in making the improvements, they have acquired an interest in the property proportional to their contribution

LIS PENDENS: notice, recorded in the chain of title to real property, required or permitted in some jurisdictions to warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pendency of the suit are subject to its outcome; practical effect is to chill buyer interest in property and reduce the property’s marketability

Adopting the Mathews balancing test, the Court determined: (debtor’s interest X risk of error under status quo) > (creditor’s interest – administrative burden of adopting alternate procedures)

Aren’t legislatures better than courts in finding the balance of interests? But legislatures might only hear from powerful interests Moreover, courts have adapted to polycentric (as opposed to bipolar) litigation

Amici brief of Connecticut Bankers Association argued: 1) importance of prejudgment real estate attachments to the credit industry, especially during times of crisis; 2) pre-attachment hearing requirement could backfire on debtors and impede economic growth by causing creditors to reduce the availability of credit or increase its price

C. RIGHT TO COUNSEL

Lassiter v. Dept. of Social Services of Durham County, North Carolina, 453 U.S. 927 (1981)Posture Appeal from the Supreme Court of North Carolina, where petitioner’s application

for discretionary review was denied Facts Lassiter (petitioner) was the mother of an infant son, William, who was

adjudicated a neglected child and placed in the custody of the Department of Social Services (respondent)

Subsequently, Lassiter was incarcerated for a murder convictionThe Department petitioned the District Court of Durham County to terminate

Lassiter’s parental rightsLassiter was notified that a hearing on her parental rights would be heldAlthough Lassiter had an attorney to represent her in the appeal of her murder

conviction, she did not inform her lawyer about the termination of parental rights proceeding

Lassiter represented herself at the proceeding

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The court terminated Lassiter’s status as William’s parentOn appeal, Lassiter contended that due process required the State to appoint

counsel for her because she was indigentIssue Whether the trial court erred in failing to appoint counsel for Lassiter

Holding The trial court did not err in not appointing counsel for LassiterReasoning Opinion by Stewart

“[T]he Court’s precedents speak with one voice about what ‘fundamental fairness’ has meant when the Court has considered the right to appointed counsel, and we thus draw from them the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty”

Applying the Mathews v. Eldridge balancing test: “[T]he parent’s interest is an extremely important one (and may be supplemented by the dangers of criminal liability inherent in some termination proceedings); the State shares with the parent an interest in a correct decision, has a relatively weak pecuniary interest, and, in some but not all cases, has a possibly stronger interest in informal procedures; and the complexity of the proceeding and the incapacity of the uncounseled parent could be, but would not always be, great enough to make the risk of an erroneous deprivation of the parent's rights insupportably high”

“If, in a given case, the parent’s interests were at their strongest, the State’s interests were at their weakest, and the risks of error were at their peak, it could not be said that the Eldridge factors did not overcome the presumption against the right to appointed counsel, and that due process did not therefore require the appointment of counsel. But since the Eldridge factors will not always be so distributed, . . . neither can we say that the Constitution requires the appointment of counsel in every parental termination proceeding. We therefore . . . leave the decision whether due process calls for the appointment of counsel for indigent parents in termination proceedings to be answered in the first instance by the trial court, subject, of course, to appellate review”

“[W]e hold that the trial court did not err in failing to appoint counsel for Ms. Lassiter”

Dissent by Blackmun“Rather than opting for the insensitive presumption that incarceration is the only

loss of liberty sufficiently onerous to justify a right to appointed counsel, I would abide by the Court’s enduring commitment to examine the relationships among the interests on both sides, and the appropriateness of counsel in the specific type of proceeding. The fundamental significance of the liberty interest at stake in a parental termination proceeding is undeniable, and I would find this first portion of the due process balance weighing heavily in favor of refined procedural protections”

“[W]here, as here, the threatened loss of liberty is severe and absolute, the State’s role is so clearly adversarial and punitive, and the cost involved is relatively slight, there is no sound basis for refusing to recognize the right to counsel as a requisite of due process in a proceeding initiated by the State to terminate parental rights”

“Because the three factors ‘will not always be so distributed,’ reasons the Court,

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the Constitution should not be read to ‘requir[e] the appointment of counsel in every parental termination proceeding.’ This conclusion is not only illogical, but it also marks a sharp departure from the due process analysis consistently applied heretofore. The flexibility of due process, the Court has held, requires case-by-case consideration of different decisionmaking contexts, not of different litigants within a given context”

Significance Applied Mathews 3-factor balancing test to the issue of the right to appointed counsel

Reaffirmed the general presumption against right to appointed counsel in civil cases, where physical liberty is often not at issue

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V. PRETRIAL

A. PLEADINGS

COMPLAINT: the initial pleading that starts a civil action and states the basis for the court’s jurisdiction, the basis for the plaintiff’s claim, and the demand for relief (Rule 8)

ANSWER: a defendant's first pleading that addresses the merits of the case, usually by denying the plaintiff’s allegations; an answer usu. sets forth the defendant's defenses and counterclaims

REPLY: in federal practice, the plaintiff’s response to the defendant’s counterclaim (or, by court order, to the defendant’s or a third party’s answer); in common-law pleading, the plaintiff’s response to the defendant’s plea or answer; the reply is the plaintiff’s second pleading, and it is followed by the defendant’s rejoinder

Kinds of pleading systems in civil suits: NOTICE: complaint need only provide “a short and plain statement of the claim

showing that the pleader is entitled to relief”; used in federal district court and in most state trial courts

CODE: also known as “fact pleading,” is characterized by pleading facts rather than legal conclusions; requires somewhat (but usually not a great deal more) than notice pleading; used in the courts of 15 states, including California and New York

Rationale for Pleadings To provide notice to the other party of the pendency of the action and nature of the pleader’s

contentions, so as to facilitate informed preparation for discovery, settlement, or disposition on a more complete factual record

To provide the basis for a prompt and inexpensive resolution of the case at the outset on the ground of legal insufficiency of a claim or defense

To disclose matters of fact that are not in dispute, so that the parties and the court can focus their time and financial resources on the disputed contentions

To provide an important record of what was disputed and decided

Conley v. Gibson, 355 U.S. 41 (1957)Posture Appeal from the Court of Appeals for the Fifth Circuit, where the district court’s

dismissal of the complaint was affirmedFacts Petitioners were employees of the Texas and New Orleans Railroad at its Houston

Freight HouseLocal Union No. 28 of the Brotherhood of Railway and Steamship Clerks was the

designated bargaining unit for employeesThe Railroad discharged or demoted 45 black employees, filling their jobs with

whitesThe Union did nothing to protect the black employeesPetitioners charged that the Union had failed to represent them equally and in

good faith as required by the Railway Labor Act of 1926Petitioners asked for relief in the nature of a declaratory judgment, injunction, and

damages

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Issue Whether the lower courts erred in dismissing the complaint for lack of jurisdictionHolding The lower courts erred in dismissing the complaint for lack of jurisdiction

Reasoning Opinion by BlackThe complaint should not be dismissed for failing to state a claim upon which

relief could be given: “In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief”

The complaint did not need to set forth specific facts to support its general allegations of discrimination: “[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. . . . Such simplified ‘notice pleading’ is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues”

“The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits”

Significance Put an end to “the art of pleading”Notice was accepted as the purpose of pleading

Taken literally, Justice Black’s brief discussion of pleading establishes that a complaint is sufficient if it (1) encompasses a legal claim and (2) does not contain allegations that defeat the plaintiff’s claim. The complaint need not allege facts that constitute all the substantive elements of a recognized or recognizable legal claim, as long as the elements are inferable. It must give notice that the plaintiff has a claim, and probably mention some of the circumstances such as the transaction on which the claim is based, but it need not identify the issues likely to be in dispute

The functions previously associated with pleadings, such as revealing facts, identifying issues, facilitating preparation, disposing of meritless cases, and organizing the course of a trial, have been largely shifted to later phases of the civil process, to be handled through discovery, summary judgment, or pretrial conference

Lenient pleading rules may result in more plausible threats of litigation that produce more unjust settlements, in more discovery and drawn-out litigation, and in a flourishing of the “judicial imagination,” in which the parties and the judge depart from established rules of substantive law

Motion to Dismiss The defendant who moves to dismiss “for failure to state a claim upon which relief can be

granted” (a Rule 12(b)(6) motion) asserts that even if the plaintiff were to prove all the allegations in the complaint, she would still not be entitled to any relief

The only question posed by the motion is whether the complaint itself states a legally sufficient claim; assuming that the facts alleged in the complaint are true, the motion addresses a purely legal question

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In considering the motion, the court liberally construes the pleadings in favor of sustaining the complaint

It hardly makes sense for the court to entertain the action and decide the facts if the law will not provide any relief to the plaintiff even if she proves everything alleged in the complaint

An example would be a suit for negligent infliction of emotional distress in a jurisdiction that does not recognize a right to recover for emotional distress unless the plaintiff also suffers physical injury. If physical injury is required, and the plaintiff cannot allege it, the court might just as well dismiss at the outset since the plaintiff will not be entitled to relief if she is allowed to proceed with the suit

A plaintiff whose complaint has been dismissed under Rule 12(b)(6) will virtually always be given at least one opportunity to amend the complaint to state a compensable claim, before her case is dismissed

B. DISCOVERY

The big news in civil procedure over the last century has been the demise of pleading and the rise of discovery

DISCOVERY: the legal process for compelling the disclosure of information relevant to disputed factual issues in litigation

Under our current notice pleading rules, the complaint and the answer provide a tentative view of the parties’ positions, based on preliminary research and investigation. Once issue is joined, full development of the parties’ positions evolves through the process of discovery, the court-mandated production of information from other parties and non-party witnesses

Under Rule 26(b)(1), “Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . .” (emphasis added)

Rationale for Broad Discovery To enable more accurate outcomes by allowing each party to present at trial the most

favorable case that can be made on its side To narrow the issues at trial To make available prior to trial information revealing whether case may be disposed of, in

whole or in part, without trial—that is, by summary judgment To encourage settlement by educating the parties about the strengths and weaknesses of their

cases

1. DISCOVERY PROCESS

Discovery is conducted by the parties, not by the court Interrogatories and requests for production are sent by counsel for the parties to each other,

and responses are sent back by counsel. The responding party either provides the requested information or raises an objection to doing so

The 1993 amendments to Rule 26 introduced, for the first time, automatic disclosure requirements in civil actions

Under Rule 26(a)(1), parties are required, at the outset of the case and without a request from any other party, to disclose to other parties information and witnesses the party “may use to support its claims or defenses”

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Automatic disclosure was introduced to speed the process of discovery and reduce its costs; critics say it undermined the adversary system by forcing lawyers to disclose too much

The judge is not present at the depositions, nor does she screen interrogatories and document requests before they are sent. She is there to assist in scheduling discovery and resolving disputes that arise during the exchange, but does not directly participate in the exchange herself

Under Rule 26(c), an abused party may obtain a protective order limiting discovery where the party believes that proposed discovery extends too broadly, threatens information that is exempt from discovery or confidential, or is too expensive or harassing

Under Rule 37(a)(2), a party who believes an opponent has failed to comply with a proper discovery request must first confer informally with the opponent. If informal means do not resolve the matter, the requesting party may move to compel disclosure or discovery

2. DISCOVERY METHODS

INTERROGATORIES: questions propounded by one party to an opposing party, seeking information relevant to the issues in dispute (Rule 33)

Responding party answers under oath Probably the most frequently used form of discovery Probably most effective for obtaining basic background information (e.g., the names

and addresses of witnesses, the location and nature of records and other evidence, etc.)

Inexpensive REQUESTS FOR PRODUCTION OF DOCUMENTS: requests by one party to an opposing

party or non-party, seeking designated documents or things in its control for inspection and copying (Rule 34)

ORAL DEPOSITIONS: the taking of testimony from a witness under oath (Rule 30) Counsel for both parties sit down with the witness, and the attorney requesting the

deposition questions the witness; counsel for the deponent has the right to cross-examine

Because the witness is sworn, her testimony is subject to penalties for perjury The testimony is recorded, usually by a court stenographer Probably the most effective means of obtaining detailed information from witnesses

before trial Expensive and time-consuming

PHYSICAL OR MENTAL EXAMINATIONS Available only against parties and only when the physical or mental state of party is

at issue Parties must obtain a court order for an examination, which will only be granted “for

good cause shown” (Rule 35) Potentially used as an instrument of intimidation, especially when no physical or

mental injury is included in the complaint REQUESTS FOR ADMISSIONS: requests by one party to an opposing party, seeking

admission of certain facts (Rule 36)

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Receiving party is required to admit or deny the truth of the statements, or raise an objection to the request

A means of narrowing the scope of trial by eliminating uncontested issues

3. PRIVILEGES

Courts have long recognized that some evidence, even though relevant to litigation, should be protected from disclosure in a lawsuit

Privileges commonly recognized by the courts include: attorney-client, priest-patient, doctor-patient, psychotherapist-patient, husband-wife

Do privileges serve the search for truth? The reporter-source privilege is unique in that it ultimately protects the revealing of information, not the hiding of it

a. Attorney-client

ATTORNEY-CLIENT PRIVILEGE: bars inquiry into communications between a client and her counsel in the course of legal representation

An attorney-client relationship is created when the client reasonably believes that the attorney is providing, or is willing to consider providing, legal services

The attorney-client privilege cannot be overcome by a showing that the information embodied in the protected communication is not available from any other source

The attorney-client privilege can be waived by the client, either by voluntarily disclosing the communication or by failing to claim the privilege

Exceptions to attorney-client privilege include: Crime-fraud (whereby communications in furtherance of crime or fraud are not

protected) Lawyer-client disputes (whereby communications relevant to a breach of duty by the

lawyer to the client or the client to the lawyer are not protected) Lawyer self-protection (whereby communications that are necessary for a lawyer to

rebut an accusation of wrong-doing are not protected)

Rationale for Attorney-Client Privilege Effective representation requires full and frank communication between lawyer and client;

such communication will be inhibited if opposing counsel could essentially “listen in” on these communications by asking about them at trial

Upjohn Co. v. United States, 449 U.S. 383 (1981) The Internal Revenue Service demanded production of all files relating to Upjohn Co.’s

internal investigation of one of its foreign subsidiaries that was suspected of making illegal payments to secure government business

Upjohn Co. refused to produce the documents, citing attorney-client privilege and the work-product doctrine

The Court ruled that the scope of attorney-client privilege extends beyond the “control group” of senior officials to reach middle-level and lower-level employees who possess information needed by the corporation’s lawyers

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The Court also ruled that Upjohn’s attorneys’ notes of witnesses’ oral statements were protected by the work-product doctrine because they revealed the attorneys’ mental processes

b. Work product

WORK-PRODUCT DOCTRINE: bars production of certain materials developed in anticipation of litigation, including but not limited to statements taken from witnesses, notes taken at meetings with witnesses or other people knowledgeable about the matter in dispute, and memoranda summarizing legal research (Rule 26(b)(3))

Under Rule 26(b)(3), a party may not obtain in discovery material “prepared in anticipation of litigation or for trial by or for another party or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent)” unless the party seeking discovery “has substantial need of the materials in the preparation of the party’s case and . . . the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means”

The work-product doctrine only protects materials prepared in anticipation of litigation, whereas the attorney-client privilege protects communications made in connection with legal service of any kind, whether or not related to litigation; on the other hand, the work-product doctrine covers information form other sources than the client, notably witness statements and document compilations

The work-product doctrine can be overcome if the information either cannot be obtained from other sources or can only be obtained with great difficulty (but there is no exception to the attorney-client privilege based on the unavailability of information from other sources)

Rationale for Work-Product Doctrine To prevent interference with the confidentiality of trial preparation (such as an adversary’s

legal theories, evaluation of witnesses, and plans for trial and settlement) To prevent lawyers from riding on their adversary’s coattails in preparing for trial—from

letting opposing counsel do all the work and then obtaining the results through discovery To prevent lawyers from becoming witnesses in their own cases if the statements they

produced contradicted other testimony from the same witnesses Making lawyers into witnesses would force them to balance truthfulness against

faithfulness to their clients

Hickman v. Taylor, 329 U.S. 495 (1947)Posture Appeal from the Third Circuit Court of Appeals, which held that the information

sought was part of the “work product of the lawyer” and hence privileged from discovery under the Federal Rules

Facts Taylor (respondent) owned a tug boat that sank in an unusual accident, causing the death of nine crew members

Taylor employed a law firm to defend him against potential suits resulting from the tug boat accident

Fortenbaugh, Taylor’s attorney, interviewed and took written statements from the survivors with an eye toward litigation

Hickman (petitioner), representing the deceased, filed 39 interrogatories directed to Taylor

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Interrogatory No. 38 requested copies of written statements taken from the surviving crew members and detailed reports of oral statements, records, or other memoranda made concerning the tug’s sinking

Taylor, through counsel, refused to provide the requested materialsIssue Whether the methods of discovery may be used to inquire into materials collected

by an adverse party’s counsel in the course of preparation for possible litigationHolding The methods of discovery may not be used to inquire into materials collected by

an adverse party’s counsel in the course of preparation for possible litigationReasoning Opinion by Murphy

“[Petitioner] has sought discovery as of right of oral and written statements of witnesses whose identity is well known and whose availability to petitioner appears unimpaired”

“We are thus dealing with an attempt to secure the production of written statements and mental impressions contained in the files and the mind of attorney Fortenbaugh without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner’s case or cause him any hardship or injustice. For aught that appears, the essence of what petitioner seeks either has been revealed to him already through the interrogatories or is readily available to him direct from the witnesses for the asking”

“[N]either Rule 26 or any other rule dealing with discovery contemplates production under such circumstances”

“[I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel”

“We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had. . . . And production might be justified where the witnesses are no longer available or can be reached only with difficulty”

“As to oral statements made by witnesses to Fortenbaugh, whether presently in the form of his mental impressions or memoranda, we do not believe that any showing of necessity can be made under the circumstances of this case so as to justify productions”

Concurrence by Jackson “[A] common law trial is and always should be an adversary proceeding.

Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary”

“Every lawyer dislikes to take the witness stand and will do so only for grave reasons. . . . But the practice advocated here is one which would force him to be a witness, not as to what he has seen or done but as to other witnesses’ stories, and not because he wants to do so but in self-defense”

Significance Announced the work-product doctrine

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Adversary system vs. broad discovery: Hickman stated the enduring importance of maintaining adversarial incentives despite also recognizing a general commitment to broad discovery

Hickman did not limit the discovery of facts themselves; facts are always discoverable While Rule 26(b)(3) codified much of Hickman, the Rule only limits discovery of that which

is a document or tangible thing; Hickman itself continues to provide protection of intangible attorney trial preparation, such as an attorney’s recollections

Adversary system vs. judicial management: To what extent to do we have an adversarial system that is structured by decisions of the lawyers? We may not want judges to be exposed to the evidence early in the process, for we may not want them to develop biases early on

C. SUMMARY JUDGMENT

SUMMARY JUDGMENT: entry of judgment by the court in favor of either the plaintiff or the defendant without trial; appropriate only if the evidence before the court demonstrates that there are no disputed issues of material fact to be tried and that the moving party is entitled to judgment on the undisputed facts (Rule 56)

Summary judgment is not meant to try the facts but only to determine whether there are genuinely contested issues of material fact

Rule 56 provides that a motion for summary judgment may be supported by affidavits, depositions, answers to interrogatories, admissions, and admissible documents; these materials are not always admissible at trial themselves, but they demonstrate that the party has access to evidence that would be admissible

Allegations in the pleadings, which represent the parties’ assertions as to what they can prove, may not be used as supporting evidence on a summary judgment motion

When summary judgment does not end a case, it may nevertheless streamline it; the court may limit summary judgment to individual claims, portions of a claim, etc.

Relationship between the Standard for Granting Summary Judgment and the Burdens of Production and Persuasion BURDEN OF PRODUCTION: a party’s (typically the plaintiff’s) burden of producing

evidence that is sufficiently persuasive that a jury, acting rationally, could find that the party had proven each element of its case

BURDEN OF PERSUASION: a party’s (typically the plaintiff’s) burden of establishing that its version of events is more probably true than its opponent’s

Summary judgment serves as a device that can be used, prior to trial, to determine whether a party who bears the burden of production will be able to meet it. Indeed, most motions for summary judgment are made by defendants against plaintiffs who bear the burden of production

The Moving Party’s Obligation to Support the Motion for Summary Judgment (When the Nonmoving Party Carries the Burdens of Production and Persuasion at Trial) Summary judgment procedure is designed so that a moving party can “pierce” the

nonmoving party’s pleading and force a test of the nonmoving party’s ability to meet its burden of production at trial. It does not follow, however, that the moving party should be

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entitled to force such a test without affirmatively demonstrating that there is reason to believe that the nonmoving party will fail it

Rule 56 has been interpreted as imposing an initial burden on the party moving for summary judgment to “support” the motion by showing the absence of factual dispute

If the motion is adequately supported, the nonmoving party must show, based on evidentiary materials (and not on the pleadings), that a factual dispute exists

If the motion is not adequately supported, the nonmoving party need not submit any evidentiary materials in opposition

Rationale for Motion for Summary Judgment Efficiency

To allow early resolution of cases in which the plaintiff meets the minimal burden to plead the elements of a compensable claim, but cannot prove one or more of those elements (however, because a motion for summary judgment is made before trial, summary judgment may sometimes be premature)

Adickes v. S.H. Kress & Co., 398 U.S. 464 (1970) Adickes, a white teacher, accompanied by six black students, had attempted to order lunch at

a Kress store in Mississippi and, after being ordered out of the store, had been arrested on a vagrancy charge as she walked out

Adickes alleged that the refusal of service and the subsequent arrest were part of a conspiracy between the store and the police to violate her Fourteenth Amendment rights

The federal district court dismissed her claim on a motion for summary judgment, and the Second Circuit affirmed

The Court unanimously reversed the summary judgment order As the moving party, Kress “failed to carry its burden of showing the absence of any genuine

issue of fact”; Kress failed “to foreclose the possibility that there was a policeman in the Kress store while petitioner was awaiting service, and that this policeman reached an understanding with some Kress employee that petitioner not be served”

Most commentators read the decision as placing the burden on the movant, even one who would not have the burden of proof at trial, “to show the absence of genuine issues of material fact in order to obtain summary judgment” (i.e., the movant had to negate the material facts to be proved at trial)

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)Posture Appeal from the Court of Appeals for the D.C. Circuit, which held that

petitioner’s failure to support its motion precluded the entry of summary judgment in its favor

Facts Catrett (respondent) alleged that the death of her husband resulted from his exposure to products containing asbestos manufactured by Celotex Corp. (petitioner)

Celotex moved for summary judgment in federal district court, arguing that Catrett had “failed to produce evidence that any [Celotex] product . . . was the proximate cause” of her husband’s death

In response to the motion, Catrett produced three documents that she claimed “demonstrate that there is a genuine material factual dispute” as to whether the

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decedent has ever been exposed to Celotex’s asbestos productsThe district court granted Celotex’s motion for summary judgment

Issue Whether Celotex, the moving party, had carried its initial burden of supporting its motion for summary judgment

Holding Celotex, the moving party, had carried its initial burden of supporting its motion for summary judgment

Reasoning Opinion by Rehnquist“[T]he plain language of Rule 56(c) mandates the entry of summary judgment,

after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”

“[W]e find no express or limited requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim”

“In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on file.’ Such a motion, whether or not accompanied by affidavits, will be ‘made and supported as provided in this rule,’ and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions of file,’ designate ‘specific facts showing that there is a genuine issue for trial”

“We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. . . . Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves”

“[T]he burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case”

Dissent by Brennan“If the moving party will bear the burden of persuasion at trial, that party must

support its motion with credible evidence—using any of the materials specified in Rule 56(c)—that would entitle it to a directed verdict if not controverted at trial”

“If the burden of persuasion at trial would be on the nonmoving party, the party moving for summary judgment may satisfy Rule 56’s burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim. Second, the moving party may demonstrate to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party’s claim”

“Where the moving party adopts this second option . . . a conclusory assertion that the nonmoving party has no evidence is insufficient. . . . [T]he moving party must affirmatively demonstrate that there is no evidence in the record to support a judgment for the nonmoving party”

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“If the moving party has not fully discharged this initial burden of production, its motion for summary judgment must be denied, and the court need not consider whether the moving party has met its ultimate burden of persuasion”

“I do not read the Court’s opinion to say anything inconsistent with or different than the preceding discussion. My disagreement with the Court concerns the application of these principles to the facts of this case”

“Celotex was not free to ignore supporting evidence that the record clearly contained. Rather, Celotex was required, as an initial matter, to attack the adequacy of this evidence”

Significance Widely interpreted as making summary judgment motions easier to win by lessening the burden on the moving party

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VI. TRIAL

A. JURY

7th Amendment to the U.S. Constitution:In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

The 7th Amendment applies only to lawsuits brought in federal court. The federal constitutional guarantee of jury trial in civil cases has not been incorporated into the Fourteenth Amendment. So far as the federal constitution is concerned, a state is free to modify or wholly abolish trial by jury in civil cases

At common law, the traditional jury was composed of twelve people who were required to reach a unanimous verdict

Under Rule 48, a jury in a federal civil trial shall not be fewer than six nor more than twelve; many states have civil juries of fewer than twelve, with six being the most common number

Under Rule 48, a unanimous jury verdict is required in federal civil cases “unless the parties otherwise stipulate”—this unanimity requirement applies even in diversity cases tried in states that permit non-unanimous verdicts; thirty states allow non-unanimous jury verdicts in civil cases

Should complex cases be sent to a jury? In In re Japanese Electronic Products Antitrust Litigation, 631 F.2d 1069 (3d Cir.

1980), the Court of Appeals for the Third Circuit recognized, in dictum, that the Due Process Clause of the 5th Amendment requires that litigants be provided a competent decision-maker. When a particular case is too complex for a jury, a jury trial might be a denial of due process

How do you safeguard the role of the jury in cases of law and equity? Jury addresses the factual/legal claims first Judge then addresses the equitable claims

Why aren’t juries allowed to take notes? Jurors are supposed to be watching and judging the credibility of witnesses, not writing

JURY NULLIFICATION: a jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness

Colgrove v. Battin, 413 U.S. 149 (1973)Posture Appeal from the Court of Appeals for the Ninth Circuit, which upheld the local

RuleFacts Local Rule 13(d)(1) of the Revised Rules of Procedure of the United States

District Court for the District of Montana provided that a jury for the trial of civil cases shall consist of six persons

When Battin (respondent, a district court judge) set this diversity case for trial before a jury of six in compliance with the Rule, Colgrove (petitioner) sought mandamus from the Court of Appeals for the Ninth Circuit to direct Judge Battin to impanel a 12-member jury

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Colgrove contended that the local Rule violated, among other things, the 7th Amendment

Issue Whether a local federal district court rule providing for a 6-person jury for civil cases violated the 7th A

Holding A local federal district court rule providing for a 6-person jury for civil cases did not violate the 7th A

Reasoning Opinion by Brennan“The pertinent words of the Seventh Amendment are: ‘In Suits at common law . . .

the right of trial by jury shall be preserved . . . .’ On its face, this language is not directed to jury characteristics, such as size, but rather defines the kind of cases for which jury trial is preserved, namely, ‘suits at common law’”

“[B]y referring to the ‘common law,’ the Framers of the Seventh Amendment were concerned with preserving the right of trial by jury in civil cases where it existed at common law, rather than the various incidents of trial by jury”

“The Amendment, therefore, does not ‘bind the federal courts to the exact procedural incidents or details of jury trial according to the common law in 1791,’ and ‘[n]ew devices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice . . .’”

“Our inquiry turns, then, to whether a jury of 12 is of the substance of the common-law right of trial by jury. . . . [T]he question comes down to whether jury performance is a function of jury size”

“In Williams, we rejected the notion that ‘the reliability of the jury as a factfinder . . . [is] a function of its size,’ and nothing has been suggested to lead us to alter that conclusion. Accordingly, we think it cannot be said that 12 members is a substantive aspect of the right of trial by jury”

“[W]hile we express no view as to whether any number less than six would suffice, we conclude that a jury of six satisfies the Seventh Amendment’s guarantee of trial by jury in civil cases”

Dissent by Marshall“We deal here not with some minor tinkering with the role of the civil jury, but

with its wholesale abolition and replacement with a different institution which functions differently, produces different results, and was wholly unknown to the Framers of the Seventh Amendment”

“[T]he Seventh Amendment requires a historical analysis geared toward determination of what the institution was in 1791 which the Framers intended to ‘preserve.’”

“When a historical approach is applied to the issue at hand, it cannot be doubted that the Framers envisioned a jury of 12 when they referred to trial by jury”

Significance Adopted a functional analysis of the 7th Amendment’s provisions Critics of Colgrove argue that a jury 6-person jury would differ from a 12-person jury in two

important respects: Quality of deliberation. A smaller group is likely to remember less information and

need less effort to convince any members with divergent views that they should conform to the will of the majority

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Breadth of representation. Cutting the jury size by half has a fairly large effect on the likelihood that no member of a minority group will be seated as a juror

Jury Selection Jury selection takes place in two stages:

1. A group of potential jurors is assembled at the courthouse. Those potential jurors are called the venire

VENIRE: a panel of persons selected for jury duty and from among whom the jurors are to be chosen; also termed ARRAY, JURY PANEL, or JURY POOL

The Jury Selection and Service Act, 28 U.S.C. §§1861–1878, provides that “all litigants in Federal courts entitled to trial by jury” shall be entitled to a venire “selected at random from a fair cross section of the community,” and requires that “[n]o citizen shall be excluded from [jury] service . . . on account of race, color, religion, sex, national origin, or economic status”

The Jury Selection and Service Act implements 2 independent constitutional requirements that are binding in both state and federal court:

i. The prohibition on intentional discrimination against individual jurors imposed by the 14th Amendment (Equal Protection Clause) and the 5th Amendment (Due Process Clause)

ii. The requirement of the 6th Amendment, applicable in criminal cases only, that the venire must be drawn “from a fair cross section of the community”

The “fair cross section” requirement serves 2 main purposes:i. To prevent bias in fact-findingii. To assure that the broader public fulfills its civic responsibility by

sharing in the administration of justice To establish a prima facie violation of the “fair cross section” requirement, the

defendant must show:i. That the group alleged to be excluded is a “cognizable” or

“distinctive” group in the communityii. That the representation of this group in venires from which juries are

selected is not “fair and reasonable” in relation to the number of such persons in the community

iii. That this underrepresentation is due to “systematic exclusion” of the group in the jury-selection process

Once a prima facie case has been established, the state can justify its selection process only by showing that a “significant state interest” is “manifestly and primarily advanced by those aspects of the selection process that result in the exclusion”

2. The actual jury is chosen from the members of the venire, through a process called voir dire

VOIR DIRE: a preliminary examination of a prospective juror by a judge (common in federal court) or lawyer (common in state court) to decide whether the prospect is qualified and suitable to serve on a jury

Answers to questions during voir dire provide the basis for the lawyers to excuse particularly jurors, either for cause or peremptorily

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A party has an unlimited number of challenges for cause, but a limited number of peremptory challenges. In civil cases in federal court, each party has 3 peremptory challenges (28 U.S.C. §1870)

PEREMPTORY CHALLENGE: one of a party’s limited number of challenges that do not need to be supported by a reason unless the opposing party makes a prima facie showing that the challenge was used to discriminate on the basis of race, ethnicity, or sex

At one time, a peremptory challenge could not be attacked and did not have to be explained. But if discrimination is charged today, the party making the peremptory challenge must give a nondiscriminatory reason for striking the juror. The court must consider several factors in deciding whether the proffered reason is merely a screen for illegal discrimination

People v. Currie, 87 Cal.App.4th 225 (2001) Currie, who was convicted after a jury trial of second-degree murder, alleged that he was

denied his 6th Amendment right to a trial by an impartial jury drawn from a representative cross-section of the community

Specifically, Currie alleged that blacks were underrepresented on the lists of potential jurors in the county where he was convicted

The court held that Currie failed to establish a prima facie violation of the fair-cross-section requirement because he failed to show that the underrepresentation was caused by the “systematic exclusion” of blacks

The court explained that “[s]tatistical underrepresentation of minority groups resulting from race-neutral . . . practices does not amount to ‘systematic exclusion’ necessary to support a representative cross-section claim”

B. JUDGE

28 U.S.C. §144:Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

28 U.S.C. §455:(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in

any proceeding in which his impartiality might reasonably be questioned.(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

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(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;(ii) Is acting as a lawyer in the proceeding;(iii) Is known by the judge to have an interest that could be substantially affected

by the outcome of the proceeding;(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

While the rules with respect to financial disqualification are detailed and strict, those with respect to political leanings or attitudes are inexplicit and judges are rarely disqualified on those grounds

Under the “extrajudicial source” doctrine, actions taken and statements made by the judge on the basis of events occurring in the case—as distinct from attitudes or communications that predate or occur independently of the proceedings—are typically not a basis for recusal

A judge’s extrajudicial commentary (for example, to reporters) may be grounds for recusal Under 28 U.S.C. §455, the judge against whom the motion for recusal is made hears and

decides any factual issues presented, including the question of his actual bias A judge has an obligation not to recuse herself unless the charge of actual or apparent bias

really holds water: disqualification is appropriate only if the facts provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge’s impartiality

Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988) The Court held that 28 U.S.C. §455(a) “can be violated based on an appearance of partiality,

even though the judge was not conscious of the circumstances creating the appearance of impropriety”

With respect to Rule 60(b), which provides a procedure whereby, in appropriate cases, a party may be relieved of a final judgment, the Court concluded that, “in determining whether a judgment should be vacated for a violation of § 455, it is appropriate to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process”

Cheney v. United States District Court for the District of Columbia, 124 S. Ct. 1391 (2004)Facts Cheney convened a National Energy Policy Task Force

Alleging that oil industry executives were de facto members of the Task Force and favored by its recommendations, the Sierra Club requested the minutes of the Task Force’s meetings

Justice Scalia went on a duck-hunting trip in a group that included CheneyCheney’s case reached the Supreme CourtSierra Club made a motion for Justice Scalia’s recusal under 28 U.S.C. §455(a),

alleging that his “impartiality might reasonably be questioned”

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Issue Whether Justice Scalia should recuse himself under 28 U.S.C. §455(a)Holding The motion to recuse is denied

Reasoning Memorandum by Scalia“I never hunted in the same blind with the Vice President. Nor was I alone with

him at any time during the trip, except, perhaps, for instances so brief and unintentional that I would not recall them”

“The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case”

“[W]hile friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue, it has traditionally not been a ground for recusal where official action is at issue, no matter how important the official action was to the ambitions or the reputation of the Government officer”

“To be sure, there could be political consequences from disclosure of the fact (if it be so) that the Vice President favored business interests, and especially a sector of business with which he was formerly connected. But political consequences are not my concern, and the possibility of them does not convert an official suit into a private one”

“[S]ocial courtesies, provided at Government expense by officials whose only business before the Court is business in their official capacity, have not hitherto been thought prohibited. Members of Congress and others are frequently invited to accompany Executive Branch officials on Government planes, where space is available”

“Recusal would in my judgment harm the Court. . . . [R]ecusing in the face of such charges would give elements of the press a veto over participation of any Justices who had social contacts with, or were even known to be friends of, a named official. That is intolerable”

C. ATTORNEY

1. LEGAL SERVICES FOR THE INDIGENT

Many states provide free legal assistance for indigents through legal services programs INTEREST ON LAWYERS’ TRUST ACCOUNTS (IOLTA): a program that allows a

lawyer or law firm to deposit a client's retained funds into an interest-bearing account that designates the interest payments to charitable, law-related purposes, such as providing legal aid to the poor; almost all states have either a voluntary or mandatory IOLTA program

LEGAL SERVICES CORPORATION: a nonprofit federal corporation that provides financial aid in civil cases to those who cannot afford legal assistance through grants to legal-aid and other organizations and by contracting with individuals, firms, corporations, and organizations to provide legal services; the agency was created by the Legal Services Corporation Act of 1974

Funds cannot be used for political activities, abortions, military desertions, etc. Funds cannot be used to challenge existing welfare law

Americans spend only $2.25 per capita annually for indigent legal services How do the non-indigent afford legal services?

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CONTINGENT FEE: a fee charged for a lawyer’s services only if the lawsuit is successful or is favorably settled out of court; contingent fees are usually calculated as a percentage of the client’s net recovery (such as 25% of the recovery if the case is settled, and 33% if the case is won at trial)

While a contingent fee system may increase the incentives for lawyers to work hard and reduce the risks and costs of litigation for clients, it may cause lawyers to take cases based on the size of the potential recovery rather than on the legal merits

The alternative to contingent fees is an hourly wage system, which may lead to more “junk suits”

Insurance companies provide lawyer services as needed (services are paid by insurance premiums)

Unions often provide low-cost legal services Fee bidding for class-action representation

Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296 (1989) Mallard was asked by the Volunteer Lawyers Project, a joint venture of the Legal Services

Corporation of Iowa and the Iowa State Bar Association, to represent two current inmates and one former inmate who sued prison officials under federal law

Mallard filed a motion to withdraw with the District Court, stating that he had no familiarity with the legal issues presented in the case and would willingly volunteer in an area in which he possessed some expertise

In upholding the Magistrate’s decision denying Mallard’s motion, the District Court held that 28 U.S.C. §1915(d) empowers federal courts to make compulsory appointments of counsel in civil actions

The Supreme Court held that 28 U.S.C. §1915(d) does not authorize a federal court to require an unwilling attorney to represent an indigent litigant in a civil case; under §1915(d), a federal court may only “request” an attorney to represent an indigent litigant

2. ATTORNEY’S FEES

AMERICAN RULE: the general policy that all litigants, even the prevailing one, must bear their own attorney’s fees; the rule is subject to bad-faith and other statutory and contractual exceptions

ENGLISH RULE: the requirement that a losing litigant must pay the winner's costs and attorney’s fees

COMMON-FUND DOCTRINE: the principle that a litigant who creates, discovers, increases, or preserves a fund to which others also have a claim is entitled to recover litigation costs and attorney's fees from that fund

SUBSTANTIAL-BENEFIT DOCTRINE: when other shareholders benefit in a pecuniary or non-pecuniary way from litigation, the corporation owes attorney’s fees

PRIVATE ATTORNEYS GENERAL DOCTRINE: when a private plaintiff prevails in a (civil rights) suit of societal importance and of great magnitude, he is entitled to attorney’s fees, even absent clear statutory authorization

Civil Rights Attorney’s Fees Award Act of 1967: the court, in its discretion, may grant the prevailing party reasonable attorney’s fees

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“Prevailing”: see Buckhannon “Party”: does not include pro se plaintiffs but does include defendants, who can

obtain attorney’s fees only if the plaintiff’s suit is frivolous; when the plaintiff’s suit is not frivolous, fees are not awarded because the losing plaintiff is not guilty of violating a law and still has fulfilled a civic duty by bringing the suit

“Reasonable”: general rule for determining fees is to multiply the number of hours the attorney spent on the case by the prevailing hourly rate in the jurisdiction where suit was brought; where plaintiff’s damages was $33,000, a court once allowed attorney’s fees of $245,000

Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2004) Buckhannon Board and Care Home, Inc. failed a state inspection because its care home did

not conform with requirements under state law Buckhannon brought suit in federal district court, alleging that state law violated the Fair

Housing Amendments Act of 1988 and the Americans with Disabilities Act of 1990 While the suit was pending, the West Virginia legislature amended state law, and the court

dismissed the case as moot Under the FHAA and the ADA, Buckhannon requested attorney’s fees as the “prevailing

party” Buckhannon argued that it was entitled to attorney’s fees under the “catalyst theory,” which

posits that a plaintiff is a “prevailing party” if it achieves the desired result because the lawsuit brought a voluntary change in the defendant’s conduct

The Supreme Court held that a “prevailing party” for purposes of awarding attorney’s fees does not include a plaintiff that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct

In rejecting the “catalyst theory,” the Court held that an award of attorney’s fees under the FHAA or the ADA is allowed only where there is a “judicially sanctioned change in the legal relationship of the parties”

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VII. JUDGMENT

A. PRECLUSIVE EFFECT

MERGER: the effect of a judgment for the plaintiff, which absorbs any claim that was the subject of the lawsuit into the judgment, so that the plaintiff’s rights are confined to enforcing the judgment

BAR: A barrier to or the destruction of a legal action or claim; the effect of a judgment for the defendant

Rationale for Preclusive Effect Repose

1. For the winner, such repose is clearly welcome; for the lose, it is greeted with more mixed emotions

Reliance1. Without the certainty provided by res judicata/collateral estoppel, parties would not

be able to rely on court decisions in planning their future conduct Efficiency

1. Allowing parties to go at it again once they have had a full and fair opportunity to litigate a claim would multiply the costs and delay of litigation

2. The specter of res judicata encourages the parties to take full advantage of the Rules to present their claims initially, since they know that they will not get a second chance to try the suit, that there will be no “second bite at the apple”

1. RES JUDICATA (CLAIM PRECLUSION)

RES JUDICATA: an affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been—but was not—raised in the first suit

In most jurisdictions, there are 4 prerequisites for res judicata:1. There must be a “final judgment”

Many courts give res judicata effect to a judgment once it has become final in the trial court, even if an appeal is pending

Other courts only give res judicata effect to judgments if the time for appeal has passed or the case has been finally resolved by the appellate court

2. The judgment must be “on the merits” At one extreme, a full trial followed by a verdict and judgment is the

paradigm of a decision “on the merits” At the other extreme, some dismissals, such as dismissals for improper venue

or lack of personal jurisdiction, are not decisions “on the merits” Dismissals for failure to prosecute are considered “on the merits,” because the

plaintiff had a full opportunity to litigate on the merits Default judgments are considered “on the merits”

3. The “claim” in the second suit must be the “same” as the “claim” in the first suit

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A “claim” in the second suit is considered the “same” as one in the first suit if the claim was asserted or could have been asserted in the first suit

A party who has asserted a right to relief arising out of a particular “transaction or occurrence” must join all claims she has arising from it, or the omitted claims will be barred by res judicata

Under the “transaction or occurrence” test, preclusion turns on the right to join the claim in the original action, not on whether the claim actually was asserted

“Claim” is not defined in terms of state or federal substantive law. So long as the forum in which the first suit is filed is jurisdictionally competent to hear state and federal causes of action arising out of the claim, the plaintiff must assert all of his causes of action—both state and federal—in that first suit

4. The parties in the second action must be the same as those in the first (or have been represented by a party to the prior action)

Res judicata (claim preclusion) requires that all related claims against existing parties be litigated in the same suit. Does res judicata also require that all related causes of action be brought against all possible parties? In other words, does res judicata require not only joinder of causes of action but also joinder of parties? In virtually all jurisdictions, the answer is no

Ordinarily, a defense of res judicata should be raised by the party advantaged by the defense. But a court may raise the question of claim preclusion on its own motion for the sake of judicial economy

2. COLLATERAL ESTOPPEL (ISSUE PRECLUSION)

COLLATERAL ESTOPPEL: a doctrine barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one

Collateral estoppel is both broader and narrower than res judicata It is broader in that it can foreclose litigation of a particular issue in an entirely new

context It is narrower in that it does not preclude all possible issues that might have been

raised in a prior action but only those actually decided in that action In most jurisdictions, there are 4 prerequisites for collateral estoppel:

1. The issue in the second suit must be the same as the issue in the first suit2. The issue must have been actually litigated (and not merely raised) in the first suit3. The issue must have been actually decided

The issue must have had a “winner” and a “loser”4. The decision on the issue in the first suit must have been necessary to the court’s

judgment (and not merely dictum)

Nonmutual Collateral Estoppel MUTUALITY: a general rule allowing only parties who were involved in the suit in which

the issue was initially decided to invoke collateral estoppel

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NONMUTUAL COLLATERAL ESTOPPEL: estoppel asserted either offensively or defensively by a nonparty to an earlier action to prevent a party to that earlier action from relitigating an issue determined against it

DEFENSIVE NONMUTUAL COLLATERAL ESTOPPEL “occurs when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost against another defendant.” Parklane.

In defensive estoppel cases, the party being estopped was usually the plaintiff in the original suit, in which it chose the forum and the defendant against whom to litigate the issue; when that is true, it seems fair to bind the plaintiff to the first resolution of the issue

In Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971), the Court approved of the use of defensive nonmutual collateral estoppel

OFFENSIVE NONMUTUAL COLLATERAL ESTOPPEL “occurs when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party”

In offensive estoppel cases, the party being estopped was usually a defendant in the original suit, in which it did not choose the forum or adversary

In the first suit, the defendant may not have litigated the issue aggressively, or it may not have been possible to litigate the issue effectively

Allowing offensive use may lead plaintiffs to “wait and see”—that is, to hold back from joining in the first plaintiff’s suit

In Parklane, the Court held that lower courts should exercise discretion in deciding whether to allow offensive assertions of estoppel

The Court has held that offensive nonmutual collateral estoppel is not available against the United States

Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979)Posture Appeal from Court of Appeals for the Second Circuit, where use of offensive

nonmutual collateral estoppel was upheldFacts Shore (respondent) sued Parklane Hosiery Co. (petitioner) in a stockholders’ class

action, alleging misleading and material misrepresentations in Parklane’s proxy statement in connection with a merger

Before the action came to trial, the Securities and Exchange Commission (SEC) filed suit against Parklane in federal district court, making essentially the same allegations as Shore

The district court entered a declaratory judgment in the SEC’s favorShore moved for a partial summary judgment to estop Parklane from relitigating

the issues that had been resolved against it in the SEC actionIssue Whether a litigant who was not a party to a prior judgment may nevertheless use

that judgment “offensively” to prevent a defendant from relitigating issues resolved in the earlier proceeding

Holding Shore’s offensive use of collateral estoppel is validReasoning Opinion by Stewart

“In both the offensive and defensive use situations, the party against whom estoppel is asserted has litigated and lost in an earlier action. Nevertheless,

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several reasons have been advanced why the two situations should be treated differently”

“First, offensive use of collateral estoppel does not promote judicial economy in the same manner as defensive use does. . . . Since a plaintiff will be able to rely on a previous judgment against a defendant but will not be bound by that judgment if the defendant wins, the plaintiff has every incentive to adopt a ‘wait and see’ attitude, in the hope that the first action by another plaintiff will result in a favorable judgment”

“A second argument against offensive use of collateral estoppel is that it may be unfair to a defendant. If a defendant in the first action is sued for small or nominal damages, he may have little incentive to defend vigorously, particularly if future suits are not foreseeable”

“Allowing offensive collateral estoppel may also be unfair to a defendant if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant”

“Still another situation where it might be unfair to apply offensive estoppel is where the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result”

“The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel”

“In the present case, however, none of the circumstances that might justify reluctance to allow the offensive use of collateral estoppel is present”

“Since the petitioners received a ‘full and fair’ opportunity to litigate their claims in the SEC action, the contemporary law of collateral estoppel leads inescapably to the conclusion that the petitioners are collaterally estopped from relitigating the question of whether the proxy statements were materially false and misleading”

“[I]f, as we have held, the law of collateral estoppel forecloses the petitioners from relitigating the factual issues determined against them in the SEC action, nothing in the Seventh Amendment dictates a different result, even though because of lack of mutuality there would have been no collateral estoppel in 1791”

Dissent by Rehnquist“I think it is clear that petitioners were denied their Seventh Amendment right to a

jury trial in this case”“In my view, it is ‘unfair’ to apply offensive collateral estoppel where the party

who is sought to be estopped had not had an opportunity to have the facts of his case determined by a jury”

Significance Lower courts retain discretion to decide whether to allow offensive use of collateral estoppel

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3. OTHER DOCTRINES OF PRECLUSION

STARE DECISIS: the doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation

LAW OF A CASE: the doctrine holding that a decision rendered in a former appeal of a case is binding in a later appeal

JUDICIAL ESTOPPEL: estoppel that prevents a party from contradicting previous declarations made during the same or an earlier proceeding if the change in position would adversely affect the proceeding or constitute a fraud on the court

DOUBLE JEOPARDY: the doctrine that a party cannot be prosecuted or sentenced twice for substantially the same offense

B. REMEDIES

1. DAMAGES

DAMAGES: money claimed by, or ordered to be paid to, a person as compensation for loss or injury

COMPENSATORY DAMAGES: damages sufficient in amount to indemnify the injured person for the loss suffered; are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct; also called ACTUAL DAMAGES

PUNITIVE DAMAGES: damages awarded in addition to actual damages when the defendant acted with recklessness, malice, or deceit; specifically, damages assessed by way of penalizing the wrongdoer or making an example to others; are aimed at deterrence and retribution

State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003) Campbells brought suit against State Farm Mutual Automobile Insurance Co. to recover for

bad-faith failure to settle within the policy limits, fraud, and intentional infliction of emotional distress

At trial, the jury awarded the Campbells $1 million in compensatory damages and $145 million in punitive damages

After the Court of Appeals of Utah remitted the damages, the Supreme Court of Utah reinstated them

The U.S. Supreme Court held that, in the circumstances of the case, an award of $145 million in punitive damages, where full compensatory damages were $1 million, was excessive and in violation of the Due Process Clause of the 14th A

The Court explained: “The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor. The reason is that ‘elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose’”

The Court reviewed the award of $145 million in punitive damages in light of the 3 “guideposts” set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996):

1. The degrees of reprehensibility of the defendant’s misconduct

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2. The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award (“few awards exceeding a single-digit ration between punitive and compensatory damages, to a significant degree, will satisfy due process”)

3. The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases

The Court concluded: “An application of the Gore guideposts to the facts of this case . . . likely would justify a punitive damages award at or near the amount of compensatory damages. The punitive award of $145 million, therefore, was neither reasonable nor proportionate to the wrong committed, and it was an irrational and arbitrary deprivation of the property of the defendant”

2. INJUNCTIONS

INJUNCTION: a court order commanding or preventing an action; to get an injunction, the complainant must show that there is no plain, adequate, and complete remedy at law and that an irreparable injury will result unless the relief is granted

Typical flow of equitable remedies: Temporary restraining order → preliminary injunction → permanent injunction →

contempt for noncompliance TEMPORARY RESTRAINING ORDER (TRO): a court order preserving the status quo

until a litigant’s application for a preliminary or permanent injunction can be heard; a temporary restraining order may sometimes be granted without notifying the opposing party in advance

PRELIMINARY INJUNCTION: a temporary injunction issued before or during trial to prevent an irreparable injury from occurring before the court has a chance to decide the case; a preliminary injunction will be issued only after the defendant receives notice and an opportunity to be heard; also called a TEMPORARY INJUNCTION, an INTERLOCUTORY INJUNCTION, or a PROVISIONAL INJUNCTION

When a party obtains a preliminary injunction, pressure often mounts on the other party to settle; this is because the likelihood of success on the merits is considered by the court when issuing a preliminary injunction

PERMANENT INJUNCTION: an injunction granted after a final hearing on the merits; despite its name, a permanent injunction does not necessarily last forever

PROHIBITORY INJUNCTION: an injunction that forbids or restrains an act; this is the most common type of injunction

MANDATORY INJUNCTION: an injunction that orders an affirmative act or mandates a specified course of conduct

DECLARATORY JUDGMENT: a binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement; often serves as an alternative to a permanent injunction; declaratory judgments are often sought, for example, by insurance companies in determining whether a policy covers a given insured or peril

Professor Fiss has identified 3 types of injunctions: PREVENTIVE INJUNCTION: a forward-looking injunction to retrains a party from

acting in the future

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REPARATIVE INJUNCTION: a backward-looking injunction to repair a past violation and make the aggrieved party whole

STRUCTURAL INJUNCTION: an injunction to create a substantially new institutions, when current institutions are so beyond repair and reparative and preventive injunctions are insufficient because the whole system is corrupt (e.g., Brown II desegregation orders)

Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429 (7th Cir. 1986) Lawson Products, Inc., a distributor of automotive supplies, moved for a preliminary

injunction against its competitor, Avnet, Inc., alleging a scheme by Avnet to lure customers and salespeople away from Lawson in a manner that tortiously interfered with Lawson’s business and contracts

The federal district court denied Lawson’s motion for a preliminary injunction against Avnet The Court of Appeals for the Seventh Circuit affirmed the denial of the preliminary

injunction The Court of Appeals held that “[p]reliminary injunctions should be granted when the

plaintiff has suffered an irreparable injury for which there is no adequate remedy at law and where the balance of equities, reflecting the relative harm to each party entailed in granting or denying the injunction, the probable outcome of a trial on the merits, and the public interest, is determined by the district judge to favor the movant”

The Court of Appeals noted that the “balance of equities” can be reflected by Judge Posner’s formula:

P x Hp > (1 – P) x Hd

That is, if the probability of plaintiff winning multiplied by the harm to the plaintiff is greater than the probability of plaintiff losing multiplied by the harm to the defendant, then a preliminary injunction should be granted

The Court of Appeals further held that “the standard of review of the grant or denial of a preliminary injunction is the deferential ‘abuse of discretion’ standard”

The Court of Appeals concluded that “the district court . . . did not abuse its discretion in denying Lawson’s motion”

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) The Governor and residents of Puerto Rico sued to enjoin the U.S. Navy’s operations on

nearby Vieques Island, alleging that the Navy had violated the Federal Water Pollution Control Act (FWPCA) by discharging ordnance into the waters surrounding Puerto Rico without having obtained a permit from the Environmental Protection Agency

The federal district court refused to enjoin Navy operations pending consideration of the permit application, arguing that an injunction was not necessary to ensure suitably prompt compliance by the Navy

The Court of Appeals for the First Circuit vacated and remanded with instructions that the district court order the Navy to cease the violation until it obtained a permit

The Supreme Court ruled that, “[r]ather than requiring a district court to issue an injunction for any and all statutory violations, the FWPCA permits the district court to order that relief it considers necessary to secure prompt compliance with the Act”

The Court explained that “the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies,” and, “where plaintiff and defendant

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present competing claims of injury,” the district court must “balance[] the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction”

The Court concluded that the district court had not “abused its discretion in denying an immediate cessation order while the Navy applied for a permit”

C. APPEALS

APPEAL: a proceeding undertaken to have a decision reconsidered by a higher authority; especially, the submission of a lower court’s or agency’s decision to a higher court for review and possible reversal

CROSS-APPEAL: an appeal by the appellee, usually heard at the same time as the appellant’s appeal

Why appeal? The court below failed to adhere to proper procedure in reaching its decision The decision was based on misapplication of the substantive law or gross

misapplication of the facts Who may pursue an appeal?

If the person has won less than that which he sought in the way of relief, he is an “aggrieved party” who can seek appellate relief

If the person obtained the relief he sought, he cannot pursue an appeal to secure vindication of a legal theory the lower court declined to adopt or to obtain an appellate imprimatur on the judgment

A person who was substantially affected by the judgment but was not a party to the action cannot seek appellate review

When and how may an appeal be pursued? A matter cannot be complained of on appeal unless objection was intelligibly made in

the trial court at the time the event or ruling occurred or promptly thereafter A matter will not be considered by the appellate court unless it is properly cited in the

appellant’s papers on appeal The general rule is that orders entered during the course of the trial proceeding, called

“interlocutory” orders, may be reviewed in connection with an appeal from a final judgment, but may not be reviewed prior to that time by means of an interlocutory appeal

FINAL-JUDGMENT RULE: the principle that a party may appeal only from a district court’s final decision that ends the litigation on the merits; under this rule, a party must raise all claims of error in a single appeal (28 U.S.C.A. §1291)

But there are exceptions to the final-judgment rule: INTERLOCUTORY APPEAL: an appeal that occurs before the trial court’s

final ruling on the entire case; some interlocutory appeals involve legal points necessary to the determination of the case, while others involve collateral orders that are wholly separate from the merits of the action

28 U.S.C.A. §1292(b) provides that a district judge may state in writing that an otherwise non-appealable interlocutory order “involves a controlling question of law as to which there is a substantial difference of opinion and that

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an immediate appeal . . . may materially advance the ultimate termination of the litigation”

Rule 23(f) allows appeal of a grant or denial of class action certification Rule 54(b) allows a district judge in a multi-claim or multi-party to enter a

final judgment as to any claim or party prior to the termination of the entire litigation

Extraordinary writs WRIT OF MANDAMUS: a writ issued by a superior court to compel

a lower court or a government officer to perform mandatory or purely ministerial duties correctly

For an appellate court to issue a writ of mandamus, there must be “a clear and indisputable showing” of abuse of discretion by the district court

Appellate courts are reluctant to issue writs because they turn a district court judge into a litigant and encourage “piecemeal” litigation

What are the standards of review in the appellate court? An appellate court will decide questions of law de novo An appellate court will not receive new evidence, and will reverse a determination of

fact only when it is “clearly erroneous” or “unsupported by evidence” A appellate court will not disturb rulings that are within the “sound discretion” of the

trial court, unless there was an “abuse” of that discretion The scope of review of injunctive relief traditionally has been limited to “abuse of

discretion,” unless the trial judge relied on an erroneous view of the law Even if there have been errors in the trial proceeding, reversal will not be granted if

those errors were “harmless” or “nonprejudicial” There is no federal constitutional right to an appeal, though all states allow an appeal from

the state trial court; the appellate process in the state courts is not federally mandated Very few federal cases are appealed, and only 10% of all federal appeals are reversed; most

disputes are resolved at the trial court level

Rationale for Appellate Review To identify the extent to which the trial court has committed reversible error To provide guidance and direction to the lower courts and the broader public

Dealing with the Appellate Crunch In the face of overwhelming caseloads, most courts of appeals have felt the need to institute

screening procedures to decide which cases merit oral argument and how much time should be allowed for it

Many cases are now disposed of by summary orders Even when an opinion is written, it is frequently designated as not for publication and these

opinions are usually regarded as without precedential effect Proposals have been made to reduce the subject matter jurisdiction of the federal courts and

increase the number of federal judges

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)

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Cohn brought suit against Cox Broadcasting Corp., alleging that his right to privacy has been invaded by Cox’s television broadcasts giving the name of his deceased daughter

The Georgia Supreme Court held that the broadcasts were not privileged under the First and Fourteenth Amendments and remanded the case to the lower court for trial

The U.S. Supreme Court noted that it generally does not review the decisions of state courts until “the highest state court in which judgment could be had has rendered a ‘[f]inal judgment or decree’”

The Court identified 4 categories of “cases in which the Court has treated the decision on the federal issue as a final judgment for purposes of 28 U.S.C. §1257 and has taken jurisdiction without awaiting the completion of the additional proceedings anticipated in the lower state courts”:

Cases “where for one reason or another the federal issue is conclusive or the outcome of further proceedings preordained”

Cases “in which the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings”

Cases “where the federal claim has been finally decided, with further proceedings on the merits in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case”

Cases “where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come”

The Court concluded that the case at bar fell into the fourth category: “Given these factors—that the litigation could be terminated by our decision on the merits and that a failure to decide the question now will leave the press in Georgia operating the shadow of the civil and criminal sanctions of a rule of law and a statute the constitutionality of which is in serious doubt—we find that reaching the merits is consistent with the pragmatic approach that we have followed in the past in determining finality”

The definitions of the categories are so open-ended as to make exceptions subjective The Court was frustrated about appeals coming too late from the state courts By reviewing the decision of the state court, the Court raised concerns about federalism;

normally, the Court should not preempt the state courts

Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994) Desktop Direct, Inc. sued Digital Equipment Corp., charging Digital with unlawful use of the

Desktop Direct name Desktop and Digital reached a settlement Several months later, Desktop moved to rescind the settlement agreement, alleging

misrepresentation of material facts during settlement negotiations The federal district court granted the motion, and Digital appealed The Court of Appeals for the Tenth Circuit dismissed the appeal for lack of jurisdiction,

holding that the District Court order was not appealable under 28 U.S.C. §1291, because it

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did not end litigation on the merits or fall within the “collateral order” exception to the final-judgment requirement

The U.S. Supreme Court held that “an order denying effect to a settlement agreement does not come within the narrow ambit of collateral orders” and thus cannot be immediately appealed

The Supreme Court explained: “The collateral order doctrine is best understood not as an exception to the ‘final decision’ rule laid down by Congress in §1291, but as a ‘practical construction of it’; under the collateral order doctrine, immediate appeals are allowed “from a narrow class of decisions that do not terminate the litigation, but must, in the interest of ‘achieving a healthy legal system,’ nonetheless be treated as ‘final’”

Digital’s asserted “right not to stand trial” was not “important” enough to warrant immediate appeal

Because “collateral” is an elusive concept, the decision essentially turns on what the Court deems “important” enough to warrant immediate appeal

Digital Equipment signaled disapproval of an expansive interpretation of the collateral order doctrine

Kerr v. United States District Court, 426 U.S. 394 (1976) Seven California prisoners filed a class action suit against the California Adult Authority

(CAA) in federal District Court, alleging constitutional violations in which the CAA carried out is function of determining the length and conditions of punishment for convicted criminal offenders

In the course of discovery, the plaintiffs submitted requests for the production of a number of CAA personnel files and prisoners’ files

The CAA objected to the discovery, and the prisoners moved to compel it in the federal District Court

The District Court ordered production of the files without prior in camera review The CAA filed a petition for a writ of mandamus under the All Writs Act, 28 U.S.C.

§1651(a), requesting the Court of Appeals for the Ninth Circuit to vacate the District Court’s order

The Court of Appeals denied the petition for a writ of mandamus The Supreme Court held that “in the circumstances of this case—and particularly in light of

the availability of an alternative, less extreme, path to modification of the challenged discovery orders—issuance of the writ is inappropriate”

The Court emphasized that “[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations”; “the writ ‘has traditionally been used in the federal courts only to “confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so”’”

The “alternative, less extreme, path” recommended by the Supreme Court was for the CAA to apply specifically for in camera review in the District Court

Despite denying the petition for the writ, the Supreme Court sent a strong message to the District Court, urging it to allow in camera review

IN CAMERA INSPECTION: a trial judge’s private consideration of evidence

Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71 (1988)

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Crenshaw brought suit in Mississippi state court against Bankers Life & Casualty Co. for the tort of bad-faith refusal to pay an insurance claim

The jury awarded Crenshaw $20,000 in compensatory damages and $1.6 million in punitive damages

The Mississippi Supreme Court affirmed the jury verdict without modification Bankers Life filed a petition for rehearing, arguing that “[t]he punitive damage verdict was

clearly excessive, not reasonably related to any legitimate purpose, constitutes excessive fine, and violates constitutional principles”

On appeal to the U.S. Supreme Court, Bankers Life challenged the punitive damages award as a violation of the Excessive Fines Clause of the Eighth Amendment, the Due Process Clause, and the Contract Clause

The U.S. Supreme Court held that “these claims were not raised and passed upon in state court,” and therefore it “decline[d] to reach them here”

The Court explained that “[a] party may not preserve a constitutional challenge by generally invoking the Constitution in state court and awaiting review in this Court to specify the constitutional provision relied upon”; “the crucial language from the appellant’s petition contains no reference whatsoever to the Eighth Amendment, the Federal Constitution, or federal law”

Assuming that the “not pressed and passed upon below” rule is merely prudential (and not jurisdictional), the Court declined to review the claims

The “not pressed and passed upon below” rule is justified by two considerations: (1) comity to the states, and (2) the benefit of “a properly developed record on appeal” (percolation)

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VI. CLASS ACTIONS

CLASS ACTION: a lawsuit in which the court authorizes a single person or a small group of people to represent the interests of a larger group; also called a representative suit or action

Types of class actions: PLAINTIFF: a suit brought by one or more plaintiffs who are individually named in

the complaint; named plaintiffs are parties to the suit in their individual capacities, but they also sue in a representative capacity (i.e., as persons acting on behalf of the members of a class of similarly situated persons); in appropriate circumstances, they are permitted to proceed on behalf of the class members and to obtain a judgment binding on all members of the plaintiff class

DEFENDANT: a suit brought by a plaintiff against individual named defendants as representatives of a defendant class

The unique characteristic of a class action is that a determination made at the request of a representative of a group can be binding on members of the group who are absent, unnamed, and sometimes unnotified; the unnamed members of the class usually have no prior connection to the class representative and no advance opportunity to challenge the qualifications of those who undertake to speak on their behalf

The law treats class actions as justified only in limited circumstances, where the advantages of proceeding on a collective basis are substantial and sufficient steps have been taken to ensure adequacy of representation (i.e., to reduce or eliminate the risk of incompetence or disloyalty on the part of the class representative and/or his or her lawyer)

Hansberry v. Lee, 311 U.S. 32 (1940)Posture Appeal from the Supreme Court of Illinois, which concluded that petitioners were

bound by a judgment rendered in an earlier “class” suit to which they were not parties

Facts Landowners of an area in Chicago entered into an agreement stipulating that for a specified period no part of the land should be “sold, leased to or permitted to be occupied by any person of the colored race”

Restrictive covenant became binding after the owners of 95% of the frontage signed

Respondents were owners of land within the restricted area who either signed the agreement or acquired their land from others who did sign

Petitioners Hansberry, who were black, acquired land in the restricted area with the aid of other petitioners

Petitioners argued that the restrictive covenant had never become effective because owners of 95% of the frontage had not signed it

Respondents argued that the issue was res judicata by the decree in an earlier case, Burke v. Kleiman

In Burke v. Kleiman, the Supreme Court of Illinois accepted an agreed statement of facts stipulating that 95% of the owners of frontage had signed, even though this was irrelevant; the Illinois court thus upheld the validity of the covenant

The Supreme Court of Illinois concluded that Burke was a “class” suit that bound other members of the class, including petitioners

Issue Whether the Supreme Court of Illinois, by its adjudication that petitioners in this

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case are bound by a judgment rendered in an earlier litigation to which they were not parties, has deprived them of the due process of law guaranteed by the 14th A

Holding The Supreme Court of Illinois deprived petitioners of the due process of law guaranteed by the 14th A; petitioners are not bound by the decision in Burke

Reasoning Opinion by Stone“It is a principle of general application in Anglo-American jurisprudence that one

is not bound by a judgment in personam in litigation in which he is not designated as a party or to which he has not been made a party by service of process”

“To these general rules there is a recognized exception that, to an extent not precisely defined by judicial opinion, the judgment in a ‘class’ or ‘representative’ suit, to which some members of the class are parties, may bind members of the class or those represented who were not made parties to it”

“[T]here is a scope within the framework of the Constitution for holding in appropriate cases that a judgment rendered in a class suit is res judicata as to members of the class who are not formal parties to the suit”

“[T]his Court is justified in saying that there has been a failure of due process only in those cases where it cannot be said that the procedure adopted, fairly insures the protection of the interests of absent parties who are to be bound by it”

“It is familiar doctrine of the federal courts that members of a class not present as parties to the litigation may be bound by the judgment where they are in fact adequately represented by parties who are present”

“If those who thus seek to secure the benefits of the [restrictive] agreement were rightly regarded by the state Supreme Court as constituting a class, it is evident that those signers or their successors who are interested in challenging the validity of the agreement and resisting performance are not of the same class”

“Because of the dual and potentially conflicting interests of those who are putative parties to the agreement in compelling or resisting its performance, it is impossible to say, solely because they are parties to it, that any two of them are of the same class. Nor without more, and with due regard for the protection of the rights of absent parties which due process exacts, can some be permitted to stand in judgment for all”

Significance Applied the Due Process Clause to class actions for the first timeEstablished the foundation of modern class action law—namely, that class

representatives must “adequately represent” absent class members, and that adequate representation is required by the Due Process Clause

Influenced the content of 1966 amendments to Rule 23 In Hansberry, the Burkes (the plaintiffs in Burke v. Kleiman) could not be adequate

representatives of owners who wanted to sell or lease their property to blacks, because they obviously were interested in achieving exactly the opposite outcome

If the plaintiffs in Burke v. Kleiman could not represent those objecting to the enforcement of the covenant, could the defendants have done so? The Hansberry Court notes that the defendants in Burke were not formally designated as a class

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Rule 23 Rule 23(a): 4 basic requirements of a class action:

Numerosity: the class must be so numerous that joinder of all members as individual named parties is “impracticable”

Commonality: there must be questions of law and fact common to the class Typicality: the claims or defenses of the named (“representative”) party or parties

must be typical of those of the class as a whole, such that in representing their own interests they also represent the interests of the class members

Fair and adequate protection of the interests of the class: the named party or parties must not have a conflict of interest with the members of the class; the class must not be defined to include representatives of groups of plaintiffs with sharply different interests; the actual representation provided by the class attorney must be adequate

Rule 23(b): 3 kinds of class actions: When individually prosecuted suits would result in “incompatible” (or inconsistent)

standards of conduct for the non-class party, or would “as a practical matter be dispositive of the interests” of potential class members who have not brought individual suits (e.g., suits for injunctive or declaratory relief, and the “limited fund” suit); mandatory, in that members of the properly certified class are not permitted to opt out of the action and under the rule are not entitled to notice of the filing of the action

When the party opposing the class has “acted or refused to act on grounds generally applicable to the class,” so that “final injunctive or corresponding declaratory relief” is “appropriate (e.g., civil rights suits); mandatory, non-opt out

When questions of law or fact common to the class “predominate” over questions affecting only individual class members, and the class action device is “superior” to other available methods of adjudication; notice is mandatory and class members must be afforded the right to opt out of the class

Rule 23(c): Critical decisions in managing the class action: Certification: requires court to determine whether the requirements for class action

treatment have been satisfied and to appoint class counsel Notice: permits notice to class members under subsections (b)(1) and (b)(2) and

requires it for class members of (b)(3) class who can be identified through reasonable effort

Scope of judgment: requires court to specify precisely who are members of the class Restriction to certain issues, and subclasses: allows a court to certify a class as to

certain issues only, and to certify subclasses when there is variation of claims or conflict among the members of the class

Rule 23(d): gives considerable discretion to the District Judge to manage the class action effectively

Rule 23(e): provides that class members must receive notice of any settlement and requires that the settlement be approved only after hearing and upon a finding that the settlement is fair

Rule 23(f): allows an interlocutory appeal of a district judge’s certification decision if the Court of Appeals, “in its discretion,” decides to permit it

Rule 23(g): requires the court to make a formal appointment of class counsel on the basis of a finding that the counsel will fairly and adequately represent the interests of the class

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Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) The Court faced a “settlement” class action: asbestos victims and asbestos manufacturers

settled the claims of thousands (perhaps millions) of asbestos victims Included in the settlement were not only those who had present injuries, but also those who

were presently healthy and whose injuries, if any, might not manifest themselves for years or decades

The settlement provided a schedule of compensation for certain injuries, but the amount of the compensation did not increase with time to account for inflation

The Court invalidated the settlement on both Rule 23(a)(4) and other grounds The Court found that there were conflicts on interest within the class of asbestos

victims Present victims wanted as much money as possible now; future victims wanted an

inflation-protected fund for the future SETTLEMENT CLASS: numerous similarly situated people for whom a claimant's

representative and an adversary propose a contract specifying the payment terms for the class members' claims in exchange for the release of all claims against the adversary; during the 1980s and 1990s, mass-tort defendants began using settlement classes as a means of foreclosing claims by some unknown number of existing and future claimants.

How settlement classes work: The representative parties reach a settlement before the action has commenced Putative plaintiffs call putative defendants and say, “We’re about to file suit” Putative defendants say, “Very interesting, why don’t we talk?” Both sides work toward a consent decree that would resolve the issue as a legal

matter CONSENT DECREE: a court decree that all parties agree to

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VII. ALTERNATIVE DISPUTE RESOLUTION

ALTERNATIVE DISPUTE RESOLUTION (ADR): a procedure for settling a dispute by means other than litigation

Questions relevant to evaluating forms of ADR: Who resolves the disputes? By what standards is the dispute resolved? What is the binding effect of the resolution?

Forms of ADR: NEGOTIATION: a consensual bargaining process in which the parties attempt to

reach agreement on a disputed or potentially disputed matter; negotiation usually involves complete autonomy for the parties involved, without the intervention of third parties

MEDIATION: a method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution; sometimes involves an “active persuader,” who suggests terms on which the dispute might be resolved

OMBUDSMAN: an official appointed to receive, investigate, and report on private citizens’ or nongovernmental organizations’ (such as companies’ or universities’) complaints about the government

MINITRIAL: A private, voluntary, and informal form of dispute resolution in which each party's attorney presents an abbreviated version of its case to a neutral third party and to the opponent's representatives, who have settlement authority; the third party may render an advisory opinion on the anticipated outcome of litigation; process is confidential and nonbinding; sometimes saves time and money

PRIVATE JUDGING: a type of alternative dispute resolution whereby the parties hire a private individual to hear and decide a case; this process may occur as a matter of contract between the parties or in connection with a statute authorizing such a process; also termed “rent-a-judging”; unlike arbitration, privately judged trials may be: (1) required to use the same rules of procedure and evidence used in ordinary litigation, (2) exposed to public view by court order, (3) adjudicated only by a former judge, and (4) subject to appeal in the same manner as other trial verdicts; private judging is essentially an ordinary bench trial except that the parties select, and pay for, the judge

ARBITRATION: method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding

Rationale for ADR Informality Interpersonal relationships Low cost Speed Personal growth and awareness

Concerns about ADR Privatizes justice; protection of the public eye is lost May hurt those who are less resourceful

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First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) The Kaplans denied that their contract dispute with First Options of Chicago, Inc. was

arbitrable and filed objections with the arbitration panel The arbitrators decided that the dispute was arbitrable, and ruled in favor of First Options The federal district court confirmed the arbitration award in favor of First Options, but the

Court of Appeals for the Third Circuit ruled that the dispute was not arbitrable and reversed the district court’s confirmation of the award

The U.S. Supreme Court ruled that, “because the Kaplans did not clearly agree to submit the question of arbitrability to arbitration, the Court of Appeals was correct in finding that the arbitrability of the Kaplan/First Options dispute was subject to independent review by the courts”

The Court further ruled that, “review of . . . a district court decision confirming an arbitration award on the ground that the parties agreed to submit their dispute to arbitration, should proceed like review of any other district court decision finding an agreement between parties, e.g., accepting findings of fact that are not ‘clearly erroneous’ but deciding questions of law de novo”

Terminix International Company, LP v. Palmer Ranch Limited Partnership, 2005 WL 3445533 (11th Cir. (Fla.)) Palmer Ranch filed suit against Terminix, accusing Terminix of fraud and negligence, among

other things Terminix filed suit in federal district court, seeking to compel arbitration under the Federal

Arbitration Act (FAA) The district court denied Terminix’s motion to compel arbitration, holding the arbitration

agreement invalid The Court of Appeals ruled that, “[b]y incorporating the AAA [American Arbitration

Association] Rules, including Rule 8, into their agreement, the parties clearly and unmistakably agreed that the arbitrator should decide whether the arbitration clause is valid”

The Court of Appeals reversed the district court’s decision denying Terminix’s motion to compel arbitration

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