Civil Procedure Law Notes by JohnMValentine

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									Notice and the Opportunity to be Heard MULLANE v. CENTRAL HANOVER BANK & TRUST CO. 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950) (Notice and opportunity to be heard) RULE: “Many controversies have been raised 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” “The fundamental requisite of due process of law is the opportunity to be heard” “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonable calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” “Notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance” Justice Jackson FACTS: Thirty states have permitted pooling small trusts into one fund for efficient administration. In 01/1946, Central and Trust established a combined trust fund and petition the Surrogate’s Court for settlement on its first account as a common trustee. 113 trust in total, ½ inter vivos and half testamentary, with 3 million dollars in total funds. Some beneficiaries were not residents of NY. Notice of the action given in a local NY newspaper, achieving minimum compliance with NY Banking Laws. Ad contained: name and address of trust company, name and date of establishment of trust fund, and all participating estates. At time of first investment in their respective funds, mail notice was given to beneficiaries. PROCEDURE: Appellant’s due process objections of the 14th amendment were overruled. A final decree accepting the accounts was affirmed by the Appellate division of the Supreme Court and the Court of Appeals of the State of New York. Appealed to the Supreme Court (Petition for Certiorari?) - Under the strict doctrine of Pennoyer, the Surrogate is without jurisdiction to nonresidents ISSUE: Where the names and addresses of parties are known, does notice by publication comply with due process? HOLDING: NO. Reversed and remanded. Overruled appellant constitutional objections to NY Banking Law insofar as they are urged on behalf of the beneficiaries whose interests and addresses are unknown to the trustees. However, the New York Banking Law violates the 14th Amendment in that they are depriving persons whose whereabouts are known information regarding their property rights. ANALYSIS: - Unknowing does not give beneficiaries the right to contest the action (Notice for hearing appropriate to the case) - Cuts off rights to have trustee answer for negligent or illegal impairments of their interest - Interests may be subject to fees and commissions (They may not get to contest this) - “The fundamental requisite of due process of law is the opportunity to be heard” - Impossible that publication alone is a reliable means of informing interested parties - The notice did not even name those whose attention it is supposed to attract - For unknown parties, publication may be the best practice that does not put undue burden on the companies


The mail is an effective and efficient means of communication and would not burden the plan The minimum requirements of the 14th due process clause may be above NY Banking Law minimum requirements LIKELINESS in getting to the persons involved. Was the method of information conveyed adequate? A number of the beneficiaries will look out for the best interests of the rest of the trust

Notes and questions: 1. Court reversed the judgment of those beneficiaries with known whereabouts. Notice towards them was deficient because getting their attention by mail was more efficient. The Court affirmed those whose whereabouts are unknown. It was sufficient because it was the best practice that would not be detrimentally costly 2. The property of their individual trusts were taken from them 3. There are apparent benefits to combining the trusts together, and in-person notification would be detrimentally costly and impossible to conduct with those whose whereabouts are unknown 4. Notice must be made within the limits of practicability 5. No requirement that the notice actually be received. 6. Notice, combined with the opportunity to be heard, may increase the likelihood of accuracy in ensuing litigation. Everyone has a different purpose for the holding of their funds in a trust. This action could be beneficial for some and not for others. (inter vivos and testamentary) 7. Do all senders have to make inquiries into mental capacities of the receiver? Does due process allow that notice be given in a manner the receiver understands? 3 ways to challenge notice 1. Method of delivery (Mullane) 2. The timing 3. Information contained The Opportunity to be Heard - Follows the due process clause of the 14th and 5th Amendments - The defendant must receive sufficient advance warning to allow time to prepare an adequate defense. - The amount of advance warning depends on the nature of the proceeding - Court have held that security is not required where there is no risk of monetary loss to the defendant or where, despite the risk of loss, the case advances an important public interest 1. Role of dicta, role of holding 2. Balancing test that the court establishes to determine whether 14th Amendment Due Process Clause has been satisfied 1. Court establishing a constitutional standard (procedures that are reasonably calculated) a. Does not ban states from imposing stricter regulations Notice is reasonably certain to reach most of those interested in objecting 14th Amendment is a right within itself CONNECTICUT v. DOEHR 501 U.S. 1, 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991)

Justice White RULE: Prejudgment Property Attachment “Threefold inquiry requiring consideration of “private interest that will be affected by the official action; the risk of erroneous deprivation of such interest through the proceedings used, and the probable value, if any, of additional or substitute safeguards; and, lastly “the government’s interest, including the functions involved ad the fiscal and administrative burden that the additional or substitute procedural requirement would entail” “Permitting a court to authorize attachment merely because plaintiff believes that the defendant is liable, or because the plaintiff can make out a facially valid complaint, would permit deprivation of the defendant’s property when the claim would fail to convince a jury, when it rested on factual allegations that were sufficient to state a cause of action but which the defendant would dispute, or in the case of a mere good-faith standard, even when the complaint failed to state a claim upon which relief could be granted.”

FACTS: On 3/15/88, John DiGiovanni applied to the Conn. Superior Court for a $75,000 attachment on respondent Brian Doehr’s house. This was in conjunction with a civil suit for assault and battery in the same court. The suit didn’t involve Doehr’s real estate nor did DiGiovanni have any interest in it. Conn. Law authorizes prejudgment of real estate without giving prior notice to the person whose property is subject to attachment. The Conn. Statute allows this if there is probable cause to sustain the validity of the plaintiff’s claims and the pre-judgment request is of real property. The statute doesn’t require bond from the plaintiff for defendant damages if the suit were proven unsuccessful. DiGiovanni’s affidavit ended with, “In my opinion, the foregoing facts are sufficient to show that there is probable cause to sustain the validity of the plaintiff’s claim and to order a $75,000 attachment on Doehr’s home. The sheriff attached the property before Doehr found out about it and he got a notice giving him the right to a post-attachment hearing. PROCEDURE: Doehr filed suit against DiGiovanni in Federal District Court, claiming that §52 was unconstitutional under the Due Process clause of the 14th Amendment. The District Court Upheld the Statute and granted summary judgment in favor of DiGiovanni. On appeal, the Court of Appeals reserved the decision. ISSUE: Can a state statute that authorizes prejudgment attachment of real estate without prior notice or hearing, without a showing of extraordinary circumstances, and without requiring that the person seeking attachment post a bond, satisfy the Due Process Clause of the 14th Amendment? HOLDING: Appeals Court decision upheld. Prejudgment attachment in this case violates the 14th Amendment ANALYSIS: - Deprived of intangible uses of his property. - Process afforded by the state to enable and individual to enlist the state to deprive another of property by means of prejudgment attachment o Fuentes: Due process violation in state provisions that permitted vendors to have good seized through application to a clerk and posting a bond





o Mitchell: Immediate post-deprivation hearing, preventing waste or alienation of the property o Mathews: Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place, and circumstances. (Difference between this case is where government was taking and someone was using the government to take property) Need to consider in Mathews: o Private interest to be affected by the action o Risk of erroneous deprivation of such interest o The Government’s interests in administrative burdens of additional procedural requirement o (Changed the 3-step process: Looking at the interest of the person seeking the attachment) Hurt’s Doehr o Clouds title; impairs ability to sell or alienate the property; taints credit rating; reduces chances of obtaining a home loan o Not total deprivation o Even temporary impairments to property rights are entitled due process protection Risk of erroneous deprivation o Only one factual contingency – the award of damages to plaintiff which the defendant cannot satisfy o Conn. Statute – Plaintiff only needs to show objective likelihood of suit’s success. Plaintiff must provide sufficient facts to survive a motion to dismiss (Poor requirements) o Judge could make no realistic assessment based upon one-sided arguments. o The person in jeopardy of serious loss must get notice of the case against him and the opportunity to meet it. MacGrath Conn. Points to expeditious post-attachment hearing with double damages action. That doesn’t eliminate the need to pre-deprivation hearing Plaintiff had no interest in the actual property, and there was no evidence of Doehr taking action to render his real estate unavailable. Pre-judgment attachment is a remedy unknown in common law Attachments usually allowed when plaintiff’s award is in jeopardy Nearly every state requires a pre-attachment hearing.

BOND ISSUE (Rehnquist and Blackmun do not join) (Not binding) - Plaintiffs in these cases should post a bond to protect property rights affected by the mistaken award of prejudgment remedies - Wrongful deprivation - The state double damages remedy does not make up for a posted bond - No guarantee that the plaintiff would have adequate assets to satisfy a defendant award - Double Damages cannot undo certain initial damages…Hearing avoids the problems - Double damages remedy only available when the suit is commenced without probable cause - Reliance on an attorney’s advice that there is probable cause removes the double damages clause

NOTES AND QUESTIONS: 1. DiGiovanni attached Doehr’s home because it was his largest attainable asset in case of a favorable verdict 3. Should the due process clause ensue an efficient amount of procedure? How would estimate benefits and costs? 4. After Doehr, pre-judgment attachment is permissible if there is an interest in the property and the damages are easily calculated. 5. Yes, but there will be a chilling effect

6. There should be notices placed on the cars or sent to the home of the owners and give them ample time to pay their fines or claim their cars The Complaint Must contain: A short and plain statement of the grounds upon which the court’s jurisdiction depends”, a “short and plaint statement showing that the pleader is entitled to relief”, and “A demand for judgment for the relief the pleader seeks” Federal Rules Pleading Dioguardi v. Durning -Poorly drafted complaint by an immigrant. -However inartistically they may be stated, the plaintiff has disclosed his claims that the collector has converted or otherwise done away with two of his cases of medicinal tonics and has sold the rest in a manner incompatible with the public auction he had announced. - Asking the judge to act as the person’s attorney. Judges should remain more neutral. Judge is determining what law could have been violated. - Idea in this case is to provide the defendant with notice so he can prepare a defense. In this case, how does the defendant know what statute to use in his defense if just the facts are in the complaint? - It is important to remember that the factual allegations of a complaint must cover all elements of the substantive claim. Although as a matter of policy the Federal Rules do not require great factual specificity, remember that the pleader must allege each part of the right of action. Omitting one of the elements, or alleging an element insufficiently, renders the complaint subject to attack as legally insufficient. -Liberal pleading rules make it easier for litigants to get to the discovery phase of the case and thereby secure necessary evidence. On the other hand, the discovery phase can be quite expensive and therefore liberal pleading rules may increase the settlement leverage of a plaintiff.

Heightened Specificity Requirements in Certain cases

LEATHERMAN v. TARRANT COUNTY 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed. 2d 517 (1993) Justice Rehnquist FACTS: Action arose out of two separate incidents involving the execution of search warrants by local law enforcement officers. Forcible entry into a home based on detecting odors of narcotics. The plaintiffs sued several local law officials in their capacity and two municipal corporations that employed the officers, asserting violation of the 4th Amendment. Section 1983 sets up the substance of the claim Rule 8A – Procedural law. A short and plain statement that the claimant is entitled to relief. Rule 9b – Heightened pleading standard Rule 12b6 – How do we decide whether or not to dismiss a claim? What standard do you apply when determining whether or not to dismiss a claim. (Failure to state a claim upon which relief could be granted). First you read the complaint. Need to go somewhere to check the substantive law. See below Dismissal only appropriate when it doesn’t seem that they’re entitled to relief Typically the heightened pleading standard comes into play when specific facts can meet the elements

PROCEDURE: - U.S. District Court in North Texas ordered the complaints dismissed because they failed to meet the “heightened pleading standard” required by decisional law of the 5th Circuit Court of Appeals - The 5th Circuit affirmed the order of dismissal - Supreme Court granted certiorari ISSUE: Whether a federal court may apply a “heightened pleading standard” (Section 1983)- more stringent than the usual pleading requirements in 8(a) of FRCP – in civil rights cases alleging municipal liability. HOLDING: NO. Judgment of the Court of Appeals is reversed. This instance is not a case of heightened pleading standards. There is nothing in this case applying to rule 9. You need to make it clear in your complaint. ANALYSIS: - Respondents reason that municipalities are state operators and should be immune, that a more relaxed pleading requirement would subject municipalities to expensive and time consuming discovery in every case, eviscerating immunity from the suit and disrupting municipal functions. (Wrongly equates freedom from liability with immunity) - Owens v. city of Independence: Rejected a claim that municipalities should be afforded qualified immunity. - RULE 12 B6 – (Failure to state a claim upon which relief can be granted). As a general rule of pleading of complaint, we want to include facts to meet all elements of claim. Color of state law, deprived of constitutional right, and person isn’t entitled to immunity. If this stuff isn’t stated outright, than you are letting judges infer things. (only looking at the plaintiff’s complaint. Court assumes validity of plaintiff’s allegations



Respondents argue that to plead municipal liability, one must do more than plead a single instance of misconduct. (Impossible to reconcile “heightened pleading standard with “notice pleading system” Rule 9 already imposes standards and exceptions to “notice pleading” Without an amendment changing the rules, summary judgment and discovery must weed out unmeritous claims. Municipalites do not want to do discovery for a frivolous case

Rule 8a – Failure to state a claim, must look at elements of the claim - Defendant denied the plaintiff of a constitutionally protected right - Defendant is acting under the color of state law (they have a badge of authority…connected to the state) Rule 9 – Heightened pleading standard Must be specific with your facts Rule 12e – Motion for more definite statement Have to ask the court for permission to amend complaint Rule 12C – going beyond the complaint Plaintiff files a complaint 20 Days Defendant files answer Default judgment Defendant files a motion

Elements of the Claim (i.e. what plaintiff is required to prove at trial to prevail) 1. Defendant, acting under the color of state, 2. Deprived of a constitutional right 3. That the defendant is not entitled to immunity Problematic – When the 5th circuit issued the opinion, the Supreme Court did not ever hold municipality was entitled to immunity. Battery - Acts intending to cause harm - Actual injury (Offensive contact) - They cause the contact Negligence - Duty - Breach - Causation - Harm Defamation False imprisonment

Loss of consortium Intentional infliction of emotional distress Harassment Assault – Act, intent to cause apprehension or imminent offensive contacts, reasonable apprehension

Rule 41a: A dismissal without prejudice means that the plaintiff can reinstate the case. A dismissal with prejudice or on the merits bars the plaintiff from bringing the claim again. Involuntary Dismissal:

MARSH v. COLEMAN Marsh v. Coleman Company 774 F. Supp. 608 (D. Kan.1991) Facts/Procedure: Coleman terminated Marsh’s employment on January 20, 1988. Marsh filed suit on January 19, 1990, alleging that the termination was in breach of contract and violated the federal Age Discrimination in Employment Act. On November 5, 1990, Marsh sought leave to amend his complaint to add a claim for fraud, based on alleged representations made by his superiors in 1985. Coleman opposed the motion for leave to amend, and argued that the fraud claim was barred by the applicable twoyear Kansasstatute of limitations. Marsh argued that the fraud claim could take advantage of relation back under Rule 15 (c). Issue: Whether the plaintiff’s fraud claim relates back to the filing of the original complaint and therefore falls under Rule 15 (c). Holding: The plaintiff’s fraud claim does not relate back to the filing of the original complaint and, therefore, is barred by the 2-year statute of limitations. Analysis: Rule 15 (c) is based upon the premise that once notified of pending litigation over particular conduct or a certain transaction or occurrence, the defendant has been given all the notice required for purposes of the statute of limitations. The linchpin to Rule 15(c) is notice before the limitations period expires. Relation back does not offend the notice policies underlying a statute of limitations if the original complaint fairly discloses the general fact situation out of which the new claims arise. Relation back is denied those amendments which are based on entirely different facts, transactions, and occurrences. The complaint made no reference to anything occurring in 1984 or 1985. None of the claims were based on promises by defendant that the plaintiff would always have employment with it. A reasonably prudent person would not have expected from reading the plaintiff’s original complaint that promises made to the plaintiff before termination, in particular those made more than three years earlier, might be called into question through subsequent pleadings. Defendant had no reason to anticipate from reading the plaintiff’s original complaint that it should prepare to defend a case based on acts more than three years earlier. Notes: -Rule 55- clerk can only enter judgment against the defendant who has never showed up at all. If the defendant has showed up then it must -go to the court. -Judgment by the court when the sum’s not certain, if the party has already appeared in the action, an infant or incompetent person -If the plaintiff uses some other source of info besides an affidavit it might have to go to the court. - defendant may file a 12b motion, file an answer or do nothing and be in default

-Rule 7a- defines what counts as a pleading. Once any person that is defending an action has responded the pleadings are closed.

RECTOR v. APPROVED FEDERAL SAVINGS BANK 265 F.3d 248 (4th Cir. 2001).

PROCEDURE: - Plaintiff filed complaint - Rector amends his complaint, to make his 60 billion an infinite amount of money. - District court approved motion to dismiss all claims. - He has failed to state a claim upon which relief can be granted. - Defendant files a motion for sanctions with the court - Plaintiff appeals sanctions after district court approves $33,000 in sanctions - Appellate court remands the case so district court (They didn’t use the right standard) - District court imposes the same amount of sanctions. - Plaintiff appeals to this court ISSUE: Whether the 21-day safe harbor provision of the Fed. R. Civ. P. 11 is a non-waivable rule of jurisdiction. HOLDING: It is not a jurisdictional rule and may be waived. Here, Rector didn’t amend his pleading within 21 days, so the afe harbor provision is waived. ANALYSIS: - The 21-day safe harbor provision allows people to correct their mistakes and decrease court time. - Did plaintiff make the argument at an earlier time? It is a valid defense, but you must raise it when motion for sanctions was first filed. Court would have probable given him the opportunity to withdraw his amended complaint. What are your obligations as an attorney to find the underlying facts of the case? ANDERSON v. HALE You can’t conspire together to injure another. Where do you find information of a conspiracy between two guys. Montana Bar Association, character and fitness. Defendant’s motion to quash. They don’t have to answer the subpoena. It stops the behavior while the court is deciding on the quashed action. Defendant feels like the information is irrelevant, purpose is to harass. Motion to quash is denied. There may be relevant information in there. ANDERSON v. HALE Language of 26(b)(1) – Old rule: Discovery on any information not priveliged, reasonable calculated on subject matter, related to claim of defense, not simply the subject matter. How does the court define relevant? If it directly involves claims or defenses in lawsuit

Work Product Hickman v. Taylor, U.S. Supreme Court (1947) Author: Bram Cause of action: The following is a cause of action originally for wrongful death and for damages to a tugboat. This action is an appeal on Circuit Court reversal of trial court's finding that information requested was privileged work product. Procedural History: District Court of Eastern District of PA held the requested matters were not privileged. Third Circuit Court of Appeals reversed, holding the information sought was indeed work product and hence privileged from discovery. This Court affirms. Facts: Public hearing after a tug boat accident resulted in counsel for PL filing interrogatories asking for all detailed conversations between counsel for respondent and survivors from the accident. Issue(s): Under federal law, may any pre-trial device at the disposal of either counsel be used to inquire into materials collected by an adverse party's counsel in the course of preparation for possible litigation? Court's Rationale/Reasoning: Discovery has a two-fold purpose: (1) to narrow basic issues between parties; and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, related to those issues. The deposition-discovery rules are to be accorded a broad and liberal treatment, but there are limits (oppressing the other party, bad faith). Memoranda, statements and mental impressions in issue in this case fall outside the scope of the attorney-client privilege and thus aren't protected from discovery on that basis. Nor is there privilege for information, which counsel secured from a witness while acting for his client in anticipation of litigation, and the privilege does not apply to anything prepared by counsel for his own use in prosecuting his client's case, or to writings which reflect an attorney's mental impressions, conclusions, opinions, or legal theories. But the survivors' testimony is of a different matter; they were just as available to PL counsel and they were to DF. There is no evidence of impropriety or dishonesty by those witnesses, the tug owners or Fortenbaugh (counsel for PL). Bottom line: PL's counsel is asking for information which has or could have been provided to him during interrogatories or available to him directly direct from asking the witnesses for the asking. The information requested was also not provided with any proof from PL that any refusal to reveal it would cause hardship or injustice. The District Court just ordered the information be turned over. This is not how the Court sees this process as happening. Such behavior undermines the public policy set which underlies the orderly prosecution and defense of legal claims. If the thoughts of opposing counsel were available before trial by simply asking for it, the whole system would be undermined and would become "unfair." Rule: "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 be properly had. Such written statements and documents might, under certain circumstances, be

admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for the purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty." Holding: No. Were production of written documents statements and documents to be precluded under such circumstances, the liberal ideas of the deposition-discovery portions of the FRCP would be stripped of much of their meaning. Concurring: (Jackson) This is a question as to whether the demand by PL's counsel is authorized by the rules relating to various aspects of discovery. Here counsel is asking for a very broad extension of latitude regarding accessibility of information to him during discovery. This is an adversarial system, and no matter what PL's counsel says, an extension of latitude in discovery materials able to be requested does not apply when the reasoning is to make sure all mental bases are checked, so to speak, in preparation for examining witnesses. This would out trials on a level one step below a "battle of wits." The statements are not usable for discovery purposes, but they are possibly for purposes of impeachment, should the case come up. Attorney’s would stop writing things down if there was no privilege on attorney work product. Since you can’t pose interrogatories to attorneys, it would be backhanded to get attorney mental impressions from work product

MCA 33-18-201 MONTANA CODE ANNOTATED TITLE 33. INSURANCE AND INSURANCE COMPANIES CHAPTER 18. UNFAIR TRADE PRACTICES PART 2. INSURER'S RELATIONS WITH INSURED AND CLAIMANT 33-18-201. Unfair claim settlement practices prohibited No person may, with such frequency as to indicate a general business practice, do any of the following: (1) misrepresent pertinent facts or insurance policy provisions relating to coverages at issue; (2) fail to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies; (3) fail to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies; (4) refuse to pay claims without conducting a reasonable investigation based upon all available information; (5) fail to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed; (6) neglect to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear;

(7) compel insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds; (8) attempt to settle a claim for less than the amount to which a reasonable man would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application; (9) attempt to settle claims on the basis of an application which was altered without notice to or knowledge or consent of the insured; (10) make claims payments to insureds or beneficiaries not accompanied by statements setting forth the coverage under which the payments are being made; (11) make known to insureds or claimants a policy of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration; (12) delay the investigation or payment of claims by requiring an insured, claimant, or physician of either to submit a preliminary claim report and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information; (13) fail to promptly settle claims, if liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage; or (14) fail to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement.

HOLMGREN v. STATE FARM MUTUAL INS. CO. 9th Federal Circuit, 1992. Justice Farris Opinion work product RULE: “Opinion work product may be discovered and admitted when mental impressions are at issue in a case and the need for materials is compelling” FACTS: Holmgren was injured when Cannon ran a stop sign and collided with Holmgren’s car. Cannon plead guilty to several charges, one being DUI. Holmgren was treated for a headache and back and neck pain. Dr. Bishop recommended that she leave work for approximately four months and prescribed physical therapy. Her employer discharged her from her job 3 months after the accident. Holmgren hired an attorney after the accident that contacted state farm. Their rep concluded Cannon’s liability was clear, and State farm reimbursed Holmgren $5,000 for car damage, medical expenses, lost wages, and advance payments. She lost her home to foreclosure in 12/1987 and the family’s fiscal pressures were communicated the State Farm. PROCEDURE: - In 12/1987, State Farm offered to settle for $12,500 and it was rejected - Settlement didn’t work and the suit was filed in 7/1988 - Cannon’s attorney admitted injury but denied liability - Suit settled for $40,000 on the second day of trial. Settlement reserved Holmgren’s rights against state farm for bad faith in settling the claim - Invoking diversity jurisdiction, State Farm brought the case to federal court - District court entered verdict for Holmgren for $149,115.40 - Holmgren’s request for attorney’s fees under FRCP 37c for State Farm’s denial during discovery of requests for admission - District court awarded attorney’s fees of $11,639 - State Farm Appealed ISSUE: Does Holmgren have a claim for unfair claim settlement practices? And attorney’s fees? HOLDING: Yes, Affirm in all aspects except size of FRCP rule 37c award ANALYSIS: - State Farm contends that the district court erred in compelling it to produce and admit as evidence plaintiff exhibits 92 and 93. These were handwritten memos drafted during litigation of Cannon suit by a State Farms adjuster. Containing a range of values for Holmgren’s claims. They argue the work product is protected under 26(b)(3) - Work product rule prevents exploitation of a party’s efforts in preparing for litigation - Exhibits 92 and 93 meet the threshold for work product o Documents sought by Holmgren that were o Prepared for trial o By a representative of State Farm - Party seeking opinion work product must make a showing beyond hardship test required in 26(b)(3) o Hickman: case-by-case approach to work product cases o Rule 26b3 doesn’t mandate absolute protection of work product

o Opinion work may be discovered when  The need is compelling  Perpared in the regular of business – not in anticipation of litigation  Document or tangible item o Unless information is available elsewhere, a plaintiff may be able to establish a compelling need for evidence in the insurer’s claim regarding the insurer’s opinion of viability and value of the claim o In bad faith claims, insurers may call their adjusters to testify to their opinions as to the lack of viability of the underlying claim Privileged material – Depends on the privilege asserted  Sort privileges are considered absolute, other entitled to qualified protection (can obtain discovery but compelling need needed) Trial preparation material – Qualified protection – Party may overcome protection by showing substantial need and undue hardship Figuring out discovery - Relevant to claims and defenses, cannot be privileged Opinion trial preparation material – Depends on jurisdiction - Some jurisdictions hold that absolutely protected (4th circuit) - Others hold that qualified (9th circuit) EXPERTS - Expert witnesses testified in 86% of trials, an average of 3.3 experts/trial - Qualified experts may offer opinions where” scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence to determine a fact at issue.” Rule 26(a)(2) – At least 90 days before trial, each party must identify all experts who may testify at trial Rule 26(a)(2)(B) – This disclosure must be accompanied by a written report signed by the expert. Failure to produce the report can prohibit the expert from testifying Rule 26(b)(4)(A) – Once the report is turned over, the expert can be deposed Rule 26(a)(2)(B) – Provides that the report must include the data or information considered by the witness in forming opinions Controversy whether material given to testifying experts is discoverable AGER v. JANE C. STORMONT HOSPITAL 10th Circuit, 1980. FACTS: During 2nd stage of labor, Emily’s mother suffered a massive rupture of the uterine wall. She died, and Emily was born with severe neurological dysfunction. Emily’s father sued for damages sustained at her birth. (Negligence and carelessness of doctors) PROCEDURE: - Dr. Tappan served interrogatories - Plaintiff filed objections and Tappan answered the objections HOLDING: The status of non-witness experts against whom discovery is sought should be undertaken as a two-step process. 1. Was the expert informally consulted in anticipation of litigation but not retained? If so, no discovery may be had. 2. If the expert was not formally consulted, but retained and not expected

to testify at trial, do exceptional circumstances exist justifying disclosure of expert’s identity and opinions? ISSUES DISCUSSED: SEE “AGER CHART” TIMING AND PRETRIAL DISCLOSURES, CONFERENCES, AND ORDERS 1. Timing Rule 26(f) – Requires that all parties or their council confer “as soon as possible in any event at least 21 days before a scheduling conference or before a scheduling order is due under Rule 26(b). (To discuss nature and basis of claims in hope of a prompt settlement) Rule 26(a)(1) – Arrange for disclosures Rules 26(d) – Absent court order or agreement of the parties, no formal discovery can commence until after this conference has occurred. Rule 16(b) – Scheduling order can be issued at any time, but no later than 90 days after the appearance of the defendant and 120 days after service of the complaint. Rule 26(f) – Conference between the parties could be as late as 99 days after service, with no formal discovery permitted in that period Form 35 – Parties must submit a written report within 14 day of the Rule 26(f) conference 2. Pre-trial disclosures Rule 26(a)(3) – Parties are required prior to trial to disclose the names of witnesses expected to be called at trial or whose depositions will be used in trial, and a list of expected documents and exhibits. Must be made at least 30 days prior to trial. Other side has 14 days to object the admissibility of documents, exhibits, or depositions 3. Pretrial Conferences and Orders Rule 16 – Here, the judge is a participant in the conferences Rule 16(a)(2) – court may hold a conference to establish early and continuing control so the case will not be protracted because of lack of management Rule 16(f) – Outlines sanctions Rule 16(a) – Outlines a broad range of proper goals for conferences. Rule 16(c) – Specifies subjects that might be considered in achieving objectives of 16(a) Rule 16(a)(5) – Objective of facilitating settlement of the case Rule 16(b) – Requires a scheduling order in all cases except those exempted by court rule. It permits the court to hold a scheduling conference with the parties and lawyers to assist in preparation of scheduling order Rule 16(d) – Late in the pre-trial stage, court may hold a final pre-trial conference. Here, parties have completed discovery and know what issues remain in contention and know the evidence and witness points of view on those issues. It is a blueprint for the trial. The final pre-trial conference order will contain each party’s assertion of every factual and legal contention to be raised, every witness will call, and every piece of evidence to introduce Rule 16(e) – The final pre-trial order shall be modified only to prevent manifest injustice (STRINGENT) 1. Has the party identified the person as an expert that will testify at trial a. Yes, Disclose name and give report mentioning data and opinion of expert

2. Experts who won’t testify at trial a. No, Whether of not they had been retained in anticipation of litigation i. Yes, party won’t be able to discover facts or opinion absent extraordinary circumstances ii. Name? Ager says you aren’t able to learn name absent showing of extraordinary circumstances. Others say normal discovery rules apply iii. Informal or formal consultation on information that is discoverable 1. Rules don’t make distinction. Expert status is denoted by retained in preparation for trial 1970 Advisory rule – B4B is only concerned with experts retained in connection with trial preparation. To find out who knows what about what? - Look through names of people who have something discoverable - Issue interrogatory asking for names of people involved with something When you determine what must be disclosed in regards to an expert: 1. Whether party has identified expert as one who will testified at trial a. Yes, obtain a report from expert. Find out name, data, and opinion. b. No, has he been retained in preparation for litigation? i. Yes, Only can discover info upon which he relies in his upon exceptional circumstance, Rule 35(b), less clear about discovering name. ii. No, Need not disclose any information 2. Is the expert an employee of a party but not expected to testify? a. Yes, you can learn any information as long as it falls within relevant and not privileged. Rule 26(a) – Parties are required to disclose certain information at the beginning of litigation Rule 26(f) – the parties must meet before discovery process begins. Rule 16(b) - Discuss subjects upon which discovery is needed. Submit that report to a judge, to a magistrate judge. SCHEDULING ORDER. Establish time limits to complete discovery, dates for conferences, final pre-conference. Requirement. Can only be changed upon a showing of good cause Rule 37 – Failure to cooperate in discovery. Motion to compel discovery. Motion for sanctions. Should be a last resort. You need to contact the other side first. SANCTIONS Washington State Physicians v. Fison “Sanction rules are designed to confer wide latitude and discretion upon the trial judge to determine what sanctions are proper in a given case and to reduce the reluctance of courts to impose sanctions” “A response to request for production shall state, with respect to each item in a category, that inspection and related activities will be permitted as requested, unless the request is objected to, , in which event the reasons for objection shall be stated” CR34b “Whether the attorney’s certifications to the responses to the interrogatories and requests for production were made after reasonable inquiry and (1) were consistent with the rules, (2) were not interposed for any improper purpose and (3) were not unreasonable or unduly burdensome or expensive” Procedural Issues: - Whether the plaintiff has stated a legally cognizable claim. o The doctor sued for injuries to his reputation and the child’s problem



o It isn’t his fault because the corporation didn’t inform him of the toxicity of the drug. o How can you tell he has stated a cognizable claim?  Trial court held that it was a cognizable claim.  If it wasn’t cognizable, we could 12(b)(6) motion or 12C motion for judgment on pleadings  If the plaintiff doesn’t file any of these motions, the court is still not required to hear the case. Sua sponte motion – Judge tosses the case  Abuse of Discretion Standard of review – How is the higher court going to review the lower court’s determination.  When the order is unreasonable  Based its ruling on an erroneous view of the law  Based upon untenable grounds  Standard Rule 26G should be applied…When Signing the discovery, saying you made all effort pursuant to discovery. Applying objective inquiry and determining whether a reasonable attorney would turn over these documents, consistent with the rules, not made for improper purposes, not unduly expensive Was the plaintiff’s verdict excessive? o Special master ruled that he could not find “on the basis of record that there was nay intentional withholding of the document” Were the attorney’s fees applied by the trial court excessive Did the trial court err in refusing to grant sanctions against the defendant? The real goal is the get to the truth of the matter. Vigorously representing your client sometimes conflicts with the overarching goals of justice.

Rule 37(b) – Only applies when a party fails to respond to an order Rule 37(c) - Only applies to info required under Rule 26(a)(5) or Rule 26(e)(2) Rule 26(e)(2) – You have to learn that it is incomplete or incorrect Sanction under rule 37(c) wouldn’t have punished the defendant in this case. The sanctions here are that you cannot use the document, doesn’t hurt them Rule 37(d) – Only violations are when you don’t respond to a request to produce documents. Rule 26 is better here - Provides that the signature was made in good faith that the disclosure was complete and correct - Matters what a reasonable attorney would believe Right to a Jury Chauffeurs, Teamsters, and Helpers v. Terry To determine whether a particular action involves legal rights, and hence a jury trial is allowed, we conduct a 2-step inquiry. First, we compare the statutory actions with the 18th-century actions brought in England prior to the merger of law and equity. Second, we examine the remedy sought ans determine whether its legal or equitable in nature. If a plaintiff requests damages in the form of money or certain other forms of relief, such as the return of a specific item of property, the remedy is considered legal, and the American Constitution guarantees a right to a trial by jury. On the other hand, if the plaintiff requests an injunction, declaratory judgment, specific performance or modification of contract, or other non-monetary relief, the claim would usually be the one in equity.

Under what conditions is a right to jury trial applicable? - Based on common law - Valued of more than $20 Supreme Court continues to expand the 7th Amendment right to jury trial Procedural Basis: Writ of cert. considering the affirmance of denial of motion to strike demand for jury trial in action for back pay for breach of fair representation FACTS: McLean Trucking and the Teamsters were parties to a collective bargaining agreement. Terry and 26 drivers were employed by McLean as truck drivers and were members of the union. Terry and others filed a grievance with the union, but they declined to refer the charges to a grievance committee. They filed action in district court, alleging the union violated duty for fair representation. They sought damages for lost wages and benefits. Union moved to strike Terry’s request for jury trial on the ground that no right to a jury trial exists in a duty of fair representation suit. District court denied the motion to strike, and 4th Circuit affirmed upon appeal. ISSUE: Does an employee seeking an award of back pay from a union’s alleged breach of fair representation have a right to trial by jury? (Were the terms of the collective bargaining agreement breach?) HOLDING: Yes ANALYSIS: - Compare the statutory action to the 18th-century actions brought in England prior to the merger of law and equity. Second, examine the remedy sought and determine whether it is legal or equitable in nature. - No such thing in 18th century as collective bargaining. Both sides presented their analogies: trustee/beneficiary relationship most relevant - Only remedy sought is back payments and benefits. Is the remedy legal or equitable in nature - 1st inquiry: the nature of the issue o Court first has to determine that employer violated the collective bargaining agreement o What issue at common law in England is most similar to the current issue?  The respondent’s action against the union encompasses equitable and legal issues.  The remedy is legal here…monetary damages

Breach of collective bargaining agreement Breach of duty of fair representation

Nature of the Issue Legal – 301 issue Equitable

Nature of the Remedy Legal Legal

Does the plaintiff get a jury trial here? Yes, the court determines that the claim is legal; so let a jury decide the issue. You need to look at an entire claim to decide whether the claim will be heard.

Differences between law and equity: Is there an easy way to distinguish between common law and equity court cases? Relief available is the major difference. Only courts of law are entitled to trial by jury. (7th Amendment), nature of the claim, nature of the remedy, functional approach. When deciding the right to a jury trial: - Functional approach – Whether the judge or jury would be better suited to take the case - Classifying an issue as a claim heard in the court of equity or the court of law If there is a legal and equitable issue in the same case, the jury will hear it. (Legal) In mixed cases, does the judge or jury makes the decision first? o Depends on the nature of the claims. If they are interrelated and rely on similar facts, jury makes the decision first. If the court decided those issues first, it was negating the jury’s role (Issue preclusion) o The presence of a legal issue doesn’t mean the equitable issues will go to the jury. Role of the jury is limited to claims that would have been heard in a court of law


The Parties’ Claims - Claim 1 – Erisa Claim o Remedies equitable in nature so courts treat as equitable - Claim 2 – Section 301 – Breach of fair rep. (Equitable) & Violation of agreement (Legal) - Claim 3 – Contract – Whether legal or equitable depends on the remedy sought o Contract o Performance by P o Breach by D o Damages History of equity – Several court system in England. The common law court is only giving monetary damages. There are some cases where people want some sort of equitable relief. These people went to the chancellor. They might hear the same types of cases, but the distinction is based on what kind of remedy you want.

Rule 37 – (B) Applies to instances when a party fails to comply with a court order. Court must first have issued an order. (C) A party fails to disclose information as applies in 26 A, E1, and E2. 37C knowledge idea. You knowingly withhold documents that you are supposed to hand over. The smoking gun documents did not fit in the initial disclosures, because the defendant doesn’t want to use it. Does it fit under 36(E), which requires supplemental disclosure? They did send it over when asked. 7th Amendment - …and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law The Relation Between Law and Fact The law applied by the courts depends on the facts of the cases they decide and not on the facts as the courts erroneously suppose them to be

o Finding what happened in the case o Determining what should be the legal consequences Law, Fact, and the Discretion in the Application of Law - Questions of law are for the judge - Questions of fact are for the jury - One would question why the judge gave an issue to the jury: was it inherently one of fact, or is it made a question of fact because it was given to the jury? - “Fact” and “law” denote a division of function The three-fold nature of the decisional process - Law declaration - The judge must make a formulation in general terms of the relevant law to be applied - Fact identification – Determination and statement of relevant characteristics of a particular matter before a judge. “What happened here?” - Law application – The job of linking up the particular with the general, and making a conclusion. Take the facts of the situation, look at the general rule, and determine how it should be adjudicated. - Some questions are initially posed as law questions, but the answer whether it be a law or fact analysis does not flow from the question - When the judge gives the jury a general verdict, the jury decides the law application issues. Questions of law are much more general, sometimes you don’t have to look at the facts of a case - Functional approach – Court has discretion with here to put it - Is it a legal or equitable claim o Equitable – Judge decides the entire claim o Legal claims – Law determined by judge, fact determined by jury, law application has discretion Distribution of duties in a trial court - The judge always has at least the job of law declaration - If he is sitting without a jury, he has two other jobs as well - If he submits the case to a jury for general verdict, the jury has the jobs of fact identification and law application - If the judge asks the jury for a special verdict limited to questions of what happened, he is taking away the law application from the jury When its an issue of law application, the judge has the ability to assign the issue to himself or the jury. Reasonableness standard in negligence law will go to the fury. Jury selection -

J.E.B. v. Alabama ex rel T.B. 511 U.S. 127 (1994) There is an intersection between procedural and substantive law. Preemptory strike – you are allowed a certain number. Ability to remove a potential juror from the jury pool without reason (his prerogative) States’ interest is to provide a fair and impartial jury


Eliminating jurors based on gender give a bad rap to litigation. People will lose belief in the fairness of a process that allows this discriminatory behavior to go on. Also, the individual juror that was stricken removes their right to serve on a jury. 14th Amendment – Need a state action requirement. Would continue to be applicable even if you had two private litigants because the government set up the system When is a party required to prove that they haven’t been discriminatory? o A prima facie showing of discrimination o Striking party has to go through and show a purpose o

- Summary Judgment: Adjudication without trial or jury Complaint – Motion to dismiss – Answer – Motion for judgment on pleadings – Discovery – motion for summary judgment (Anywhere from answer to anytime during trial) - Trial Rule 56 authorizes the court to enter judgment whenever it appears that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law. Judges must determine whether there is an issue of fact the be tried When the parties agree on facts and their dispute is entirely about the law, there is no need for trial by jury When parties disagree about facts, but there is no genuine dispute, one side may have so little evidence that the jury could not decide for that side Circumstantial evidence is not inherently unreliable and can create a genuine issue of fact Mixed questions of law and fact – when parties agree on the facts, but the issue turns on several conclusions from those facts In Rule 12 motions, pleadings determine the facts Ruling in summary judgment, affidavits, interrogatories, and sworn statement are used Summary judgment – Affidavits Directed Verdict – based on evidence presented at trial

DOES SUMMARY JUDGMENT ACTUALLY INCREASE THE AVERGAE SPEED OF A TRIAL? The higher the rate of summary judgment motions, the more time spent. The higher the rate of defeated (Superfluous) summary judgment motions, the less effective it is. How quickly are summary judgment motions disposed of? Fink Speed Addiction The Los Angeles Daily Journal Summary Judgment ANDERSON v. LIBERTY LOBBY S.Ct. 1986. Justice White FACTS: Respondent Liberty Lobby has Carto as it’s founder. Investigator Magazine published articles portraying respondents as neo-nazis, anti-Semesitcs, racist, and fascist PROCEDURE: - Respondents filed diversity action in U.S. District Court, alleging 28 statements were false and derogatory - Petitioners moved for summary judgment pursuant to rule 56 o Respondents were public figures are required to prove their case under NY Times standards. They also argued that malice was absent as a matter of law o Petitioners submitted affidavit of Bermant, author of the two longer articles. Stated facts were obtained from reliable sources. Truthful, accurate as well o Respondents asserted there were inaccuracies in the articles and Bermant relied on unreliable sources. They presented evidence that an editor of the Investigator told petitioner that the articles were terrible o District Court granted summary judgment in favor of petitioners o Court of appeals affirmed summary judgment to some statements and reversed in others

ISSUE: Whether the court of appeals erred in holding that the heightened evidentiary requirements that apply to proof of actual malice in the NY Times case need not be considered for the purposes of a motion for summary judgment. HOLDING: Because the Court of Appeals did not correctly apply the standard in reviewing the District Court’s grant fo summary judgment, we vacate the decision and remand ANALYSIS: - Summary judgment will not lie if the dispute about a material fact is genuine, if a reasonable jury could return verdict for non-moving party - The judge’s function is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial - N requirement that the judge make a finding of fact - FRCP 50(a) – the trial judge must direct a verdict if there can be but one reasonable conclusion as to the verdict - Ruling for motion of summary judgment implicate the substantive evidentiary standard of proof that would apply at the trial on the merits - A scintilla of evidence is not sufficient, there must be enough evidence so the jury could reasonably find for the plaintiff. - The clear-and-convincing standard of proof taken into account in ruling on summary judgment motions does not denigrate the role of the jury. - Summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on evidence that has been submitted. Brennan dissents - Invitation to trial courts to assess and weigh evidence as much as a juror would - Determinations of “caliber and quantity” could only be performed by weighing the evidence - The new rule will transform what is meant to provide an expedited summary procedure into a fullblown paper trial on the merits - Lawyers will come up with ALL evidence he can muster for the summary judgment - Whether the evidence is ”clear and convincing” or a preponderance should be for the jury to decide Rehnquist dissents - Credibility determinations - As long as credibility is exclusively for the jury, it seems the Court’s analysis would still require this case to be decided by that body

Summary judgment - Filter out frivolous claims or filter out specific issues - Concerns: Use of Rule 56 as a tool for harassment o Increases cost of litigation and gets a better sense of the other parties arguments and evidence o If a court grants a motion for summary judgment, it may raise 7th Amendment concerns about denying of a jury trial on the issue - Two interpretations o If there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law. o Some courts may say that if there is no genuine issue of material fact, then the case must be decided at the summary judgment phase. Because juries decide issues of fact, and there are no issues of fact, so there is no place for the jury. But the jury also applies the law, so law applications may be necessary. o If all facts are agreed upon, should the motion for summary judgment be made? No. Requirement that the defendant be entitled to judgment as a matter of law. o If no dispute of facts, defendant is denied summary judgment, plaintiff doesn’t file summary judgment, and so does it have to go to jury trial? Judge can file sua sponte motion to decide issue of summary judgment on her own. - Material fact: Has to affect the outcome of the case - If the evidence is not colorable or probative, summary judgment may be granted - The higher the standard of proof, the more more evidence you need for the jury to decide in your favor o Preponderance of the evidence = likely than not (51%) at trial o Preponderance  Clear and convincing  Beyond reasonable doubt o Weighing the evidence. Material facts go to the nature of the dispute (Is it going to affect the outcome of the case?) o Genuine issue – Is there enough evidence so the jury could return the verdict for the nonmoving party? CELOTEX v. CATRETT S.Ct. 1986. Justice Rehnquist PROCEDURE: - Respondent commenced lawsuit alleging the death of her husband resulting from exposure to products containing asbestos distributed or manufactured by 15 corporations. The complaint was negligence, breach of warranty, and strict liability - Petitioner’s motion argued that summary judgment was proper because respondent failed to produce evidence that any Celotex product was the proximate cause of the injuries. They noted that respondent failed to identify interrogatories requesting information, any witnesses who could testify of the plaintiff’s exposure. - Respondent produced 3 documents claiming that respondent was exposed to the asbestos, but petitioner claimed hearsay. - District court granted motion filed by the defendants because there was no showing that the plaintiff was exposed to asbestos in D.C. or anywhere else. - D.C. circuit reversed on appeal, holding that the grant of summary judgment was wrong because petitioner made no efforts to support its motion

o Adickes: the party opposing the motion for summary judgment bears the burden of responding only after the moving party has met the burden of coming forward with proof of absence of genuine issues of material fact HOLDING: REVERSED. Granted motion for summary judgment is valid. ANALYSIS: - Under Rule 56(c), summary judgment is proper “if the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law - Rule 56c mandates 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 the party will bear the burden of proof at trial - Any potential problem with such premature motions can be adequately dealt with under Rule 56(f), which allows a summary judgment motion to be denied, or the hearing on the motion to be continued, if the non-moving party has not had an opportunity to make full discovery. - In a summary judgment motion, a moving party may meet its burden of persuasion by demonstrating that the nonmoving party failed to supply sufficient evidence of a genuine issue of material fact. - Summary judgment may be appropriate even if the moving party fails to prduce evidence demonstrating a lack of factual dispute. - No implied or express requirement in Rule 56 requiring the moving party to support its motion negating the opponent’s claim. o Claimants and defendants may move for summary judgment with or without supporting affidavits - Rule 56e requires the non-moving party to go beyond the pleadings and by her own evidence designate specific facts showing that there is a genuine issue for trial - The Adickas language is better interpreted as a “showing” – pointing out to the court – that there is an absence of evidence to support the non-moving parties’ cause - Rule 56e facilitates the granting of motions for summary judgment, and an amendment would make it more difficult - Rule 56f, full discovery was made White Concurs - It is not enough for a moving party to enter summary judgment without supporting the motion in any way or simply with a statement that the non-moving party has no case - It should not be granted without Celotex showing that the witness testimony would not bring anything relevant to light Brennan dissents - Court has not clearly explained what is required of a moving party seeking summary judgment on the ground that the non-moving party cannot prove its case - Celotex did not meet its burden of production - The burden of establishing the nonexistence of a genuine issue is on the party moving for summary judgment. o Initial burden of production – Prima facie showing o Ultimate burden of persuasion - The party moving for summary judgment on the ground of no evidence must affirmatively show the absence of evidence in the record.

Rule 56 – Summary Judgment - No genuine issue as to material fact (This only demonstrates that the case need to proceed to trial) o Genuine issue of material fact – Whether there is sufficient evidence for the jury to return a verdict for the non-moving party. - Entitled to judgment as a matter of law Ways to establish summary judgment: - Can offer affirmative evidence to negate plaintiff’s evidence - Point to an absence of evidence on record Non-Moving party has to offer evidence so the jury could return a verdict in their favor. What if the facts contained in the plaintiff’s evidence would not be admissible at trial? Can the court consider it in the summary judgment stage? - No, overall goal of summary judgment is to determine whether a trial is necessary. If the court is trying to make that determination, if the jury couldn’t hear that information, then it wouldn’t be logical to accept that information. Affidavit, still asking whether portions may be admissible in trial. Assuming that the moving party doesn’t bear the burden of proof at trial, the court must determine if there is no genuine issue of material facts. The non-moving party must go beyond the pleadings and offer evidence that there is a genuine issue of material fact. A party who is going to bear the burden of proof at trial and moves for summary judgment, then you have a higher standard to prove summary judgment (Celotex isn’t applicable anymore). Here, the higher standard of proof is that every jury would find for you. Burden of proof - Burden of production o Must produce evidence o Goes back and forth - Burden of persuasion o Must persuade the fact-finder of its position o Will always stay the same Moving party bears the burden of showing they are entitled to summary judgment How would they discharge this burden? o Depends on who bears burden at trial  Non-moving – Identify gap in the record  Moving – Higher requirement

Summary Judgment Process 1. Moving party moves for summary judgment and identifies the portion. 2. Non-moving party must present affirmative evidence to counter that claim 3. Moving party comes back and offers affirmative evidence for their side 4. Judge decides (Grant, deny, partially deny) a. Can file sua sponte – file their own motion for summary judgment (But hesitant to do it when there is a question of fact)

Controlling and Second Guessing Juries Judgment as a Matter of Law (Directed Verdict and JNOV) Judgment as a matter of law (Directed Verdict) – If a court determines that there is insufficient evidence, it may decline to submit the case to jury and enter judgment Judgment notwithstanding verdict (JNOV) – If a jury returns a verdict for which there is insufficient evidence Sequence at trial (Rule 50b) 1. Plaintiff presents her case 2. When the plaintiff rests, defendant can move for JMOL 3. If it is denied, defendant can present case 4. When all evidence is closed, plaintiff and defendant can move for JMOL 5. If these motions are denied, the judge can send the case to the jury for verdict 6. The losing party can moved for JNOV within 10 days of the completion of verdict. 7. In ruling on a renewed motion, the court may: a. If a verdict is returned: i. Allow judgment to stand ii. Order a new trial 1. When is a new trial appropriate? a. Clear and convincing evidence iii. Direct entry of judgment as a matter of law 1. But this is a problem is you shouldn’t go against the jury decision because, yes, a jury could find for that party. b. If verdict is not returned: i. Order a new trial ii. Direct entry of judgment as a matter of law 3 Questions to ask before making a motion When a party should file the motion Prerequisites for granting the motion The standard the court will use to determine the motion LAVENDER v. KURN S.Ct. (1946) Justice Murphy FACTS: Federal Employers’ Liability act permits recovery for personal injuries to an employee of a railroad engaged in interstate commerce if injuries result in negligence in its equipment. Haney worked for Grand Central as a switchman for Illinois Central and Frisco. Haney was found dead on the tracks. He had been struck in the head, causing a fractured skull. There were no eyewitnesses. Petitioner claims that Haney was struck by the tip of a mail hook hanging down off the back of the train. Respondent claims that a hobo murdered Haney, because they frequented the area and the hook could not reach the point of contact with Haney’s head because of the mound. PROCEDURE: - Estate of Haney brought suit that Haney, while employed as a switchman in Grand Central Station in Memphis, was killed as a result of respondents’ negligence. - St. Louis circuit court returned a verdict in favor of petitioner for $30,000


On appeal, Supreme Court of Missouri reversed the judgment, holding that there was no substantial evidence of negligence to support the submission of the case to a jury (JMOL)

Issue: Whether the Supreme Court of Missouri was justified in issuing a JMOL HOLDING: REVERSED. There is sufficient evidence of negligence to justify submission of this case to the jury and require the appellate courts to abide by their decision. No factual determination by the jury can be reviewed by another court. ANALYSIS: - It might be inferred that the mail hook struck Haney in the back of the head. o The evidence cannot be so unreasonable as to warrant the taking of the case from the jury - It would be an undue invasion of the jury’s duty for the appellate court to arrive at a conclusion opposite of that of the jury - Only when there s a complete absence of probative facts to support the conclusion reached does a reversible error appear - When the evidence is such that a reasonable jury could find for the non-moving party (evidentiary basis), the case should go to the jury even when its not clear that the jury will find for the nonmoving party

New Trials - JMOL is only available where the evidence is so weak for one side that no reasonable jury could find for that side - Rule 59 provides a mechanism allowing for the court to order a new trial. Who wins and loses will be left to a new jury DADURIAN v. LLOYD’S AT LONDON 1st Cir. 1986 Justice Campbell FACTS: Lloyd’s refused to pay plaintiff Dadurian after he claimed the loss of jewelry he owned that had been insured under Lloyd’s insurance policy. Lloyd’s claimed that Dadurian’s claim was fraudulent and that Dadurian knowingly made false statements about facts material to his claim. PROCEDURE: - The jury entered special verdicts favorable to Dadurian, recovering $267,000 plus interest o Dadurian was robbed o That he had not given false answers on any material subject when he was examined under oath o He had not made a false statement about the 12 items of jewelry he claimed to have lost o $267,000 was the total market value of the jewelry - Lloyd moved for judgment notwithstanding verdict or for new trial - USDC RI denied the motion - Lloyd’s appeals ISSUE: Was the USDC RI court correct in ruling against a judgment n.o.v.? HOLDING: REVERSE AND REMAND. The district court abused its discretion in denying defendant’s motion for trial n.o.v. Even though we find it hard to see that any reasonable jury could find anything other than Dadurian was lying, a new trial is more appropriate (Clear and convincing evidence standard) ANALYSIS: - Lloyd’s argues that Dadurian lied that he purchased the 12 pieces of jewelry and that he used bank loans to make the purchase. - Evidence was so overwhelming against Dadurian that no reasonable jury would have ruled in favor of Dadurian - There is no documentation for the jewelry purchases, and the record shows Dadurian swore falsely when he testified as to owning the jewelry o We cannot say that no jury would have found for Dadurian o Howe testified that he sold the pieces to Dadurian o Howe testified that they usually didn’t give cash receipts - Lloyd’s argues that Dadurian lied about the bank loans used to buy the jewelry o An employee of the bank testified that the loans totaling $49,000 were renewals and money was withdrawn in too small amounts to be used for purchasing jewelry o Dadurian conceded that the notes attached to each piece of jewelry were probably the wrong ones. o Overwhelming evidence stated that Dadurian knew he was giving false testimony

When there are inquiries are purely factual, the court can’t decide those, and the jury must make the decision. JMOL: There can be but one conclusion that a reasonable jury would make. Other techniques for controlling juries Admissibility of Evidence o A litigant’s criminal record is usually inadmissible o A judge can exclude evidence where its probative value is outweighed by the danger of unfair prejudice, or misleading the jury o Expert witnesses  Jurors may be unduly swayed by expert testimony and not be able to differentiate good from bad opinion  Daubert v. Dow: Trial judges must act as the gatekeepers of expert evidence and assure that the expert’s testimony rests on a reliable foundation  Experts need peer review and publication. Applied to all experts, not just scientific Jury instructions o Jury instructions provide a mechanism for controlling juries. They identify and define the elements of each claim explaining which party has the burden of proof and what the burden of persuasion is. o Errors in jury instructions are a common basis for appeal and reversal Form of the verdict o Rule 49a authorizes use of a special verdict by which the court asks the jury to decide one or more specific factual question but not the bottom-line winner or loser Judicial comment o In federal court, the judge is also permitted to comment on the evidence and express her opinion on factual issues Juror misconduct o The common law rule was that the affidavits of jurors could not be used to impeach their verdict. Juror’s testimony is inadmissible o Iowa Rule – Distinction between extrinsic and intrinsic influences  Extrinsic involve overt acts which may be objectively corroborated or disproved. (Like a juror conducting an independent investigation of the facts outside the courtroom)  Intrinsic influences are not capable of being corroborated or disproved and are excluded “Inhere in the verdict” Motions to set aside the judgment o Rule 60b – It is not an appeals, it is made to the trial court that entered the judgment o Addressed only the correction of clerical errors






Relevant questions for personal jurisdiction - Look at the state statute that specifically authorizes a court’s jurisdiction o The court can’t exercise its power over the defendant if not - Whether the state statute comports with due process requirements o The state’s basis for jurisdiction o The method of notice Oregon statute – Different way Oregon may have jurisdiction - Resident o Notified by publication o Constitutional - Has property there and it is attached o Notified by publication o Constitutional - Appears in court o Notified by publication o Constitutional Even under the state’s own code, they don’t have the jurisdiction to hear Mitchell v. Neff because the property wasn’t even attached. You need the property attached to comport with due process because you want to property-owner to be on guard PENNOYER v. NEFF

FACTS: Neff staked a claim for property and sought Mitchell, a lawyer, to give him advice. He never paid for the advice, and Mitchell brought a suit against Neff in Oregon state court for unpaid legal fees. Mitchell did not serve Neff personally but published the notice in a local newspaper. Neff, a non-resident of Oregon, failed to get the notice and didn’t show up to defend himself in court. Mitchell obtained a default judgment against Neff. Mitchell assigned the land to Pennoyer, who improved upon the property over nine years until Neff showed up claiming that the land was his. PROCEDURE: - Neff sued Pennoyer in federal court for possession of the property, claiming that the Oregon court erred in that it didn’t have jurisdiction over him or the land. - Federal circuit court agreed that the other judgment was invalid and that the land belonged to Neff ISSUE: Can a state court exercise personal jurisdiction over a non-resident who had not been personally served with process within the state, and whose property within the state was not attached before litigation began? HOLDING: Affirmed. Every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory. The courts of that state may enter a binding judgment against a non-resident only if he is personally served with process while within the state, if that property is attached before litigation begins. ANALYSIS:





In Personam jurisdiction can be obtained by the state over a non-resident only if that non-resident is personally served with process while within the territory of the state In Rem jurisdiction can be obtained if the non-resident owns property within the state, and the property is attached at the outset of trial. (To establish the status or title to the property as against all other claims) In Personum jurisdiction – the state has complete power over the individual, stemming from the idea that the state has complete control over all people within its borders o Person is a resident (Can sue the person personally) o Someone voluntarily appears In Rem jurisdiction – stems from the idea that the state has exclusive control over all land within its borders, meaning that the state can adjudicate disputes over status of such property The presence in the state gives jurisdiction. Neff was not within the state of Oregon at the time, and so could not personally be served with process. He could not be made to appear before an Oregon court If he had come to Oregon and been served with process there, then the Oregon courts would had in personam jurisdiction over him. They didn’t. In rem still remains to be seen If the land owner doesn’t at least occasionally check on the property, he doesn’t deserve to own it and it is forfeited. Quasi in rem jurisdiction developed to allow attachment of land as a means of initiating an action that had absolutely nothing to do with land o Type 1 – Only resolves interest as to the parties in the suit. A third person not in the suit cannot challenge. Doesn’t effect interested parties not joined in the proceedings o Type 2 – Attachment. Created by attachment. And property in state Neff’s land patent didn’t arrive until after Mitchell had obtained judgment. Default judgment is invalid. Mitchell have created quasi in rem type 2 Plaintiff’s recovery limited to the amount for which the property is sold.

Examples 1. Mitchell enters into a contract with Neff to buy property Neff owns in CA. Mitchell pays Neff but Neff refuses to transfer the deed. Mitchell files suit against Neff in Oregon and attempts service via publication. Does Oregon have jurisdiction? NO 2. Mitchell enters into a contract with Neff to buy property Neff owns in CA. Mitchell pays Neff but Neff refuses to transfer the deed. Mitchell files suit against Neff in Oregon and attaches Neff’s car, which Neff has left at his aunt’s house in Oregon. Mitchell attempts service via publication. Does Oregon have jurisdiction? YES. If the car is attached in Oregon, it is sufficient. 3. Mitchell enters into a contract with Neff to buy property Neff owns in CA. Mitchell pays Neff but Neff refuses to transfer the deed. Mitchell files suit against Neff in Oregon and personally services Neff at Neff’s residence in CA. NO…He needs to be in Oregon. 4. Mitchell and Neff live in Oregon. Mitchell sues Neff for $100. An Oregon state court enters judgment for Mitchell, accordingly Neff owes Mitchell $100. Pennoyer lives in CA. Pennoyer recently sold Mitchell Laker’s tickets for $500. Mitchell has not paid for the tickets. Neff takes a trip to CA. Pennoyer, who lives in CA, learns that Neff is there. Pennoyer files suit against Mitchell in CA and attaches Neff. He serves him with a writ of attachment, a summons, and a complaint. Does CA have jurisdiction he hear Pennoyer’s suit against Mitchell? …YES…IN REM

HESS v. PAWLOSKI S.Ct. 1927. Justice Butler FACTS: PROCEDURE: - Action brought by defendant to recover damages for personal injuries. Alleged that plaintiff negligently drove a motor vehicle on a public highway in MA and hit a truck, injuring the defendant. Plaintiff is a resident of PA. No personal service made to him and no property was attached. Service made in compliance with MA law. Serving the registrar in the state. - Plaintiff contested jurisdiction and moved to dismiss on the ground that he would be deprived of property without due process of law in violation of the 14th Amendment. - Court denied the motion - Jury returned a verdict for the defendant. ISSUE: Whether MA enactment contravenes the due process clause of the 14th Amendment 1. Basis for jurisdiction 2. Method of notice HOLDING: Affirmed. A statute deeming that use by a non-resident of the public highways of a state is equivalent to the appointment of a state officer as his attorney in fact to receive service of process based on litigation arising out of an automobile accident does not violate the Fourteenth amendment. ANALYSIS: - The process of a court cannot go into another state to serve process. Notice sent outside the state is unavailing to give jurisdiction in an action against him personally for money recovery. - The Massachusetts statute did not violate the Privileges and Immunities clause. It treated nonresidents and residents alike to the extent possible. It required that the non-resident actually receive notice of the service of process. It guaranteed that courts would grant continuances to afford the non-resident an opportunity to defend the litigation. The State's power to regulate its public highways extended to the requirement that, in advance of operation of an automobile, Massachusetts had the right to require non-residents to appoint the registrar as agent for the service of process without offending the Fourteenth amendment.

The Modern Era - Away from presence and towards “doing business in the state” INTERNATIONAL SHOE v. WASHINGTON S.Ct. 1945 Justice Stone “Due 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” “The casual presence of a corporate agent or even his conduct of single or isolated items to activities in a state in the corporation’s behalf are not enough to subject it to suit on causes of action unconnected with the activities there.”

FACTS: - Section 14c – long arm statute authorizes appellee Commisioner to issue an order and notice of assessment of delinquent contributions upon personal service of the notice upon employer if found within the state, or if not found by mailing the notice to the employer by registered mail at their last known address. Here, the notice was personally served upon a sales solicitor employed by appellant in Washington, and a copy was sent to its address in St. Louis. - Appellant is a Delaware Company, with its principal place of business in St. Louis manufacturing footwear. It has distribution and sales outlets in state other than Washington. They have no contacts for sale purchase in WA, but have employed salesmen in WA who make commission based on their sales. The salesmen transmit orders for acceptance or rejection PROCEDURE: - Appellant moved for improper service; appellant was not a WA corp. or doing business in the state, and they are not an employer in the state upon meaning of the statute - Tribunal ruled the commissioner was entitled to the unpaid funds…Superior and Supreme Courts affirmed o Supreme Court: Regular and systematic solicitations of orders by salesman, with a continuous flow of product into the state, was sufficient to make appellant amenable to suit in its courts ISSUE: Whether, within the limitations of the 14th Amendment, appellant, a Delaware Corp., has by its activities in Washington rendered itself amendable to proceedings in the courts of that state to recover unpaid contributions to state unemployment comp fund. HOLDING: AFFIRMED. Permit the state to enforce the obligations incurred here. It is not an unreasonable or undue procedure. Mailing of notice was reasonably calculated to reach the party ANALYSIS: - Appellant insists on a unjust constitutional burden – Reject - Appellant insists activities weren’t sufficient to establish presence, and since there was no presence the state doesn’t have the power to tax - Capias ad respondendum has given way to personal summons of service – Only minimum contacts needed in the suit consistent with traditional notions of fair play and substantial justice if it is connected with those activities



o Extent of the contacts o Inconvenience of litigation in a foreign state on the defendant o Whether the suit stemmed from activities within the state Isolated instances not enough, but here there is continuous corporate operation so substantial Corporations have the privilege to conduct operations within a state, and the privilege comes with obligations o SYSTEMATIC and CONTINUOUS o LARGE VOLUME OF INTERSTATE BUSINESS o RECEIVED BENEFITS AND PROTECTION OF THE LAWS OF THE STATE Presence – continuous activities

Start with statute Think about the factors the court is considering when determining the presence of minimum contacts Looking at notions of fair play and substantial justice: - In convenience - Impact of litigation - Benefits derived by the defendant - If the suit stems from activities within the state

MCGEE v. INTL. LIFE FACTS: A CA citizen purchased a life insurance policy from an AZ insurance company. A TX insurance company took over the AZ company, and mailed a reinsurance certificate to the insured. The insured committed suicide in CA, and dispute as to jurisdiction arose. PROCEDURE: - Beneficiaries sued the TX insurance co. in CA court. HOLDING: Although there is no evidence defendant solicited business in CA besides this one policy, the court found jurisdiction here. ANALYSIS: - Sufficient for due process that the suit was based on a contract which had substantial connection with that state. - The residents would be at a disadvantage if they had to go to a different state to hold an insurance company accountable HANSON v. DENCKLA FACTS: Validity of trust in a family inheritance dispute. Donner created the trust while living in PA. The trust was executed in DE with a DE bank. Donner moved to FL and designated recipients of the trust. She died. Will was probated in FL, and the Delaware Bank was a party. ISSUE: Whether Florida had jurisdiction over the Delaware bank HOLDING: Florida did not have jurisdiction over the bank

ANALYSIS: - When the trust was created, there was no connection with FL. The later move to FL was not sufficient consideration HANSON WAS LARGELY IGNORED FOR A WHILE GRAY FACTS: Titan manufactured the value on OH, then sold it to a PA company incorporating it into their water heater. The heater was sold to the IL. Consumer. No evidence of record that Titan had done any business in IL. PROCEDURE: - Plaintiff sued Titan Value alleging negligence when their water heater exploded. - Plaintiff sued in IL and Titan, an OH corp. challenged personal jurisdiction HOLDING: Supreme Court of IL upheld jurisdiction ANALYSIS: - Reasonable inference that its commercial transactions result in substantial use in the state. It enjoys benefits of law from this state - The use of such products in the ordinary course of business is sufficient contact with the state - If a corp elects to sell for ultimate use in the state, it is not unjust to hold it answerable

WORLDWIDE VOLKSWAGEN v. WOODSON S.Ct. 1980 Justice White “The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the states, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” “It is the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there”

FACTS: Robinson’s purchased and Audi from Seaway in NY. They got into an accident with the car in OK and their car caught on fire. World-wide is incorporated in NY, distributing vehicles to people in NY, NJ, and CT. They don’t do business in OK. PROCEDURE: - Robinson’s brought action against them in OK. Seaway and World-wide entered special appearances, saying OK doesn’t have jurisdiction over them - District court rejected their claim - Petitioners sought writ of prohibition in S.Ct. of OK to restrain District judge from in personum jurisdiction over them (WE HAD NO MINIMAL CONTACTS) - Supreme Court of OK denied the writ o Design and purpose of a car is to be mobile to petitioners can foresee its use in OK


Granted cert.

ISSUE: Whether petitioners were subject to jurisdiction of OK courts HOLDING: Reversed. Petitioners have no contact or ties with OK. ANALYSIS: - The minimal contacts rule protects the defendant from the burdens of distance litigation and ensures that the states do not go beyond their limitations in the constitution - Increasing nationalization of commerce, increased in interstate commerce, less burdensome for a party sued to defend himself in the state of occurrence o Still 14th Amendment sometimes divests the state of its power to render a valid judgment - Petitioners carry no activity in OK, conduct no sales or perform services there, have no privileges of OK law, solicit no business through salespeople, and do not advertise there. - Foreseeability alone is not sufficient to prove jurisdiction o It is that the defendant should reasonably anticipate being hauled into court there - The unilateral activity of those who claim a relationship with the non-resident defendant cannot satisfy contact requirement - Nature and extent of the contact by defendant and forum state. - Single, isolated incident - Fair play and substantial justice Brennan dissents - Too little weight to state’s interest and inconvenience to defendant here - Accident was in OK. Hospitalization in OK. Witnesses and evidence in OK. Legitimate interest in keeping state highways safe. - Autos are intended to move around - An auto seller derives benefits from the highways system (TIES) - Businesspeople cannot assume that their good will remain in the locality

Pennoyer v. Neff – LOCATION – Required for in rem and in personum Harris v. Balk – In rem jurisdiction over tangible objects in the state (debt) Hess v. Pawloski – In personum jurisdiction over non-residents when “agent” in a state In personum – Jurisdiction over corporations present in state (continuous and systematic activities) Intl. Shoe – Minimum contacts with the state such that suit does not offend traditional notions of fair play and substantial justice

Personal Jurisdiction in Federal Court - Absent federal legislation, a federal court has jurisdiction only if a state court in the state court sits would have had personal jurisdiction - Personal jurisdiction focuses on the relationship between the defendant and the sovereign government conducting the trial - Rule 4 exceptions o Nationwide service of process - Jurisdiction when authorized by statute of the U.S. o Personal jurisdiction in federal court where  The claim is based on federal law  Jurisdiction is constitutional  There is no state which would have personal jurisdiction KEETON v. HUSTLER PROCEDURE: - Concerned a libel suit brought against Hustler in NH. - Suit alleged defamation in an issue distributed by Hustler nationwide - Keeton was a citizen of NY but sued in NH because statute of limitations had not expired there - Keeton sought damages to her reputation in NH and nationwide injury HOLDING: Supreme Court upheld personal jurisdiction not only in NH but nationwide ANALYSIS: - NH has an interest in cooperating with other states to litigate damages here - Respondent is carrying part of their general business in NH CALDER v. JONES HOLDING: Court upheld jurisdiction in CA against an editor and writer of a defamatory article about a CA citizen. FACTS: - Both writer and editor were citizens of FL. Neither traveled to CA to research the article. It was written and edited in FL. The National Enquirer published the article. ANALYSIS: - Impuned professionalism of an entertainer whose career was in CA. The article was drawn from CA sources - Jurisdiction in CA is property because of the effects of their actions in FL Why Litigants Care About Where Litigation Occurs - The want to avoid an inconvenient forum. Distant litigation burdens a party: o Making more difficult to subpoena witnesses o More expensive to ship or store documents o Home base lawyer may not have a bar admission there o Hiring a new lawyer - Juries might be biased in a particular area against them

Tests for reasonableness: Forum’s interest in adjudicating the dispute Burden of litigation on defendant Plaintiff’s interest in obtain effective relief Interstate judicial system’s interest in obtain efficient resolution Shared interest in several states in furthering substantive social policies Looking at notions of fair play and substantial justice: - In convenience - Impact of litigation - Benefits derived by the defendant If the suit stems from activities within the state For a federal district court to have personal jurisdiction, the state in which the federal court sits would also have to have jurisdiction. Nature and extent of contact to determine whether jurisdiction is reasonable and fair BURGER KING v. REDZEWICZ S.Ct. 1985 Supreme Court Rules that minimum contacts can be a single contract Once it has been established that a defendant has minimum contacts with a state, it is up to the defendant to prove that being required to defend a suit there would be fundamentally unfair. Justice Brennan “Parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state” are subject to regulation and sanctions in other state for the consequences of their activities.” “The purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random fortuitous or attenuated contacts, or of the “unilateral activity of another party or a third person” Procedural basis: Appeal from reversal of judgment in action for damages and injunctive relief for breach of contract FACTS: Ruddy and MacShara, Michigan residents, entered into a franchise agreement with BK, a FL company. The contract licensed Ruddy and MacShara to use BK’s trademarks and services for 20 years, in connection with operating a BK in MI. The agreement would be governed by FL law, and payments and fees went to the Miami headquarters. MacShara attended a training course in Miami. The men fell behind on monthly payments, BK instituted an action in FL courts, the men claimed that they didn’t have sufficient contacts with FL to be subject to litigation there. PROCEDURE: - District court found that FL could exercise jurisdiction, based on a long-arm statute which extends jurisdiction to anyone who breaches contract in the state.


Court of Appeals reversed, finding that the exercise of jurisdiction would be unfair and infringe due process. No reasonable notice…and Ruddy would be financially unprepared for litigation in FL

ISSUE: In asserting jurisdiction against out-of-state defendants, does a state have to show that the defendant has minimum contacts AND that it would be fair and reasonable? (Fair play and substantial justice) HOLDING: No. REVERSED. The state does not have to show both minimum contacts and fair and reasonable ANALYSIS: - Once minimum contacts has been found, presumption that it would be fair and reasonable to litigate there - Presumption is overcome by showing of unfairness by the defendant, not the state showing it was fair - Under Florida law, the state may have personal jurisdiction “failing to perform acts required by the contract to be performed in the state” - The “purposeful availment” necessary but not sufficient, requirement ensures that a defendant will not be haled into a jurisdiction as a result of random contacts or from third party unilateral activity. Individual has to have fair warning. o These circumstances can’t be avoided because the defendant wasn’t physically in the forum state o As long as the actor’s activities are ”purposefully directed” at the forum state o Stream of commerce…That corporation has purposefully availed itself - Fairness: balancing state’s interest in litigation with plaintiff’s interest in convenient relief, with the interests of the federal system and the interest of a disadvantageous forum for defendant - Ruddy voluntarily entered into the 20-year agreement with a FL corp under FL law - Ruddy didn’t show how his case would be prejudiced by FL jurisdiction - Stream of commerce…expectation - Distributing magazines Stevens Dissents - Ruddy did no business in FL, sold no products there, did not anticipate his products would end up there, no offices there, had never been there. - Principal contact was BK’s Michigan office - No reason to anticipate involvement with the FL office - Unfair to have local franchise operators to defend themselves in the franchisor’s corporate headquarters

Pay attention to: 1. What it means to purposefully avail yourself 2. Pay attentions to what parts of the opinion are law, and what is o’connor’s opinion

1. Defendant must have fair warning 2. Once the court decides fair warning…Court will balance the nature of the defendant’s contacts with other factors to determine whether personal jurisdiction comports with due process requirements ASAHI METALS v. SUPERIOR COURT OF CA S.Ct. 1987 Justice O’Connor RULE: The plaintiff must purposefully avail himself of the forum by more than just putting a product into the stream of commerce with the expectation that it will reach the forum state, however such conduct is sufficient to satisfy the minimum contacts requirement. Once minimum contacts has been met, a fairness requirement must be met.

FACTS: In 1978, Zurcher was injured when he lost control of his motorcycle. Zurcher alleged that it was caused by a defective rear tire which suddenly lost air. Zurcher sued several defendants, including Shin, a Taiwanese manufacturer of tire tube. All other lawsuits were settled PROCEDURE: - Zurcher files a suit against Shin and others…Others settle - Shin filed a third party claim for indemnification against Asahi, a Japan manufacturer of the tube’s valve assembly. - Asahi moved to dismiss his claim for lack of personal jurisdiction - CA Supreme Court held that CA had jurisdiction over Asahi FACTS: Asahi, Japanese company, manufactures tire valve assemblies in Japan and sells to Shin and several others for use in tire tubes. Asahi’s sales to Shin took place in Taiwan. Their relationship has been formed over 4 years. 20% of Chin’s sales are in CA. An attorney checked out the tire tubes in a CA bike shop. 115 tubes in the store, 97 manufactured in Japan or Taiwan, 21 Asahi valves, 12 in Shin’s tubes. Asahi knows that the tubes are sold all around the world, however, Asahi never contemplated it would be subject to a suit in CA. ISSUE: Is it sufficient, in order to establish minimum contacts with a state, to put a product into the stream of commerce, with the expectation that it will reach the forum state? Whether mere awareness on the part of defendant that the components the defendant made, sold, and delivered outside the U.S. would reach the forum state in the stream of commerce constitute minimum contacts with forum state such that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. HOLDING: No, It is not sufficient, for purposes of establishing that the defendant has a minimum contact with the state, to show intentional placement into the stream of commerce.

Due Process Requirements for personal jurisdiction over an absent defendant - PART II-A - Fair Warning – Purposefully directs activities at the forum state. o What amounts to activities purposefully directed? - Hustler, McGee. o His activities are not purposefully directed at the state. Asahi has put the valve into the stream of commerce. o 4 justices suggest placing an item in stream of commerce isn’t sufficient to give a defendant fair warning. Attach a note, that is purposeful directing…Not an SOS in a bottle. o Examples of “PLUS”  Designing the product for the market in the forum state and placed it in stream of commerce  Advertising in the forum state  Channels for providing advice for customers in forum state PART II-B – Whether jurisdiction over the defendant comports with traditional notions of fair play and substantial justice o Jurisdiction would violate Asahi’s due process rights. Was Asahi’s activity enough to establish fair warning?  Factors considered  Burden on defendant  Forum state’s interest o None  Plaintiff’s interest in relief o Kurcher got a new bike  Interstate judicial interest o Foreign manufacturers  Shared interest of the several state o 2 foreign manufacturers  Factors weigh against jurisdiction

Shin manager – Asahi was fully aware that valve assembly would end up in CA. Asahi says that they never contemplated that their sales to Shin would subject them to jurisdiction in CA. What does it mean to reasonably anticipate being haled into court? When the law says so…Circular test Defendant never says that they had no idea the product would end up in CA, he had no idea that he would have ended up defending himself in CA. No conflict here…

ANALYSIS: - Asahi would have had to do something to deliberately show it was taking advantage of CA’s laws or market. - Also, it is fundamentally unfair to require Asahi to present in CA. CA’s interests are not concrete here…Also, foreign legal system - Minimum contacts in which the defendant purposely avails itself of the privilege of conducting activities in a forum state. Jurisdiction is proper where contacts result from proximately from actions by the defendant HIMSELF that create a substantial connection with the forum state - WW Volkswagon allow personal jurisdiction based on: o Defendant’s placing the product in the stream of commerce



o Defendant purposefully directing the product at the forum state than mere placing in stream of commerce YES  Need the substantial connection Defendant’s awareness that the product will be placed in stream does not convert it into “purposefully directed.” Determination of reasonableness o Burden on defendant  Severe – Travel across the world and submit dispute to foreign judiciary o Interests of state  Small because plaintiff is not a resident o Plaintiff’s interest in obtaining relief  Slight o Interstate judiciary system getting an efficient resolution o Interest of several states furthering social policies The transaction for indemnification took place in Taiwan, more convenient

Part II-A – Fair warning – as opposed to reasonably anticipate - Fair warning requirement satisfied when defendant purposefully directs its activities with the forum state. These contacts might be considered in light of other factors to determine whether it comports with fair play and substantial justice o Court will weigh the nature and extent of defendant’s contacts with all the interests after fair warning is determined…Determine whether jurisdiction comports with due process requirements Brennan disagrees with Part II-A - This is a rare case in which minimum contacts defeats the reasonableness test - Stream of commerce refers to the anticipated flow of products, the possibility of a lawsuit is not a surprise - Asahi benefits from the goods sold in the forum state - That DOES establish minimum contacts Stevens disagrees with II-A - It isn’t necessary in the court’s decision - No reason for the plurality to articulate purposeful direction - Plaintiff assumes there is a line between “mere awareness” and “purposeful direction” - Deliveries of over 100,000 valves/year…purposeful availment

Plaintiff’s claim arises from action directed at foreign state HELICOPTEROS NACIONALES DE COLOMBIA v. HALL S.Ct. 1984 Justice Blackmun FACTS: Petitioner Helicol is a Columbian company with Bogota headquarters. It provides helicopter transport for companies in South America. A Helicol copter crashed in Peru carrying 4 U.S. citizens who died. The respondents’ decedents were employed by Consorcio, a Peruvian company working on a pipeline in Peru. Consorcio is run by a three-person U.S. joint venture with Peru, it allowed them to contract with Peru’s government. Connections between Consorcio and Texas: - Helicol CEO went to Texas to confer with Consorcio (Contract discussions). The contract stated that controversies would be limited to Peruvian courts. - Helicol purchased copters from Fort Worth based Bell Helicopter - Helicol sent pilots to Texas for training, and sent maintenance people to receive plant familiarization - Helicol was never authorized to do business in TX, never performed opps in TX, never solicited business in TX, never employed or recruited anyone from there, never had an office there. - None of the respondents or their decedents lived in TX, but they were hired by TX-based Consorcio PROCEDURE: - Respondents issued a wrongful death action in district court in TX against Consorcio/Bell Helicopter/Helicol. - Helicol filed special appearances and moved to dismiss for lack of personal jurisdiction - Judgment entered against Helicol and damages to respondents ISSUE: Whether it was consistent with 14th Amendment for Texas courts to assert in personum jurisdiction over Helicol. Cause of action arising out of or related to HOLDING: NO, no sufficient contacts. REVERSED. Insufficient Arise from activities of defendant General jurisdiction - Do not arise from activities in forum state…sufficient contacts

ANALYSIS: - Texas long-arm statute reaches as far as the Due Process Clause of the 14th Amendment permits - Due process is not offended by a State’s subjecting a corporation to its in personum jurisdiction when there are sufficient contacts between a state and a foreign corporation. (minimum contacts establishing fair play and substantial justice) - PERKINS: (General business contacts) Foreign corporation had been carrying on in Ohio in a continuous and systematic (purposely directing activities at the forum state (availing himself)), but limited part of general business…Jurisdiction was reasonable and just - Respondent’s claims did not arise out of Helicol’s activities within Texas. - Helicol does not have a place of business in TX and isn’t licensed there - One trip to Houston by the CEO is not “continuous and systematic”


Rosenberg: Purchases and related trips, standing alone, are not a sufficient basis for a State’s assertion of jurisdiction The training was part of the heli-package ROSENBERG – Mere purchases or visits, even at regular intervals, are not enough to warrant a state’s in personum jurisdiction over a non-resident corporation in a cause of action not related to those purchase transactions. Small clothing retailer.

Brennan dissents – SUFFICIENT CONTACTS - Contacts are related to the cause of action in the TX courts and are fair and reasonable - Distinction between contacts “related to” the underlying cause of action and ones that “give rise” o We think “related to” here - Helicol is solely responsible for the negligence of its employee…he was trained in TX - The contract was signed in TX - Helicopter that crashed was purchased in TX General jurisdiction – claim unrelated to defendant’s activities in the state - Easier to establish when you are going for specific jurisdiction as opposed to general jurisdiction o Need to have cause of action for personal jurisdiction o Argue that the claim is related to defendant’s activities in the forum state o 2nd Standard - Sufficiency Is the court’s holding based on part that we Reasonableness prong Do we have to consider the interests? Yes. UNCLEAR IF IT WOULD APPLY - Minimum contacts ------ Continuous and systematic activities…Little guidance on how extensive contacts must be to support jurisdiction. Somewhere above minimum contacts and max. at continuous and systematic relationships


Consent A person may consent to jurisdiction even long in advance of litigation Sometimes parties to a contract agree to litigate only in a designated forum. Such provisions have been upheld even where the designated forum is relatively burdensome for one defendant Parties may also consent to jurisdiction by virtue of their conduct in the litigation Failure to raise a timely objection to jurisdiction constitutes a waiver of the objection

In Rem and Quasi in-Rem Jurisdiction SHAFFER v. HEITNER S.Ct. 1977 Justice Marshall Court extends minimum contacts to in rem jurisdiction In rem jurisdiction is applicable only where a defendant purposefully avails himself of the benefits and protections of the forum state, or where the is sufficient relatedness between the cause of action and the forum state. “In 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” “Although the presence of the defendant’s property in a state might suggest the existence of other ties among the defendant, the state, and the litigation, the presence of the property alone would not support the state’s jurisdiction.”

FACTS: Appellee Heitner, a nonresident of Delaware, is the owner of one share of stock in the Greyhound Corp., and business incorporated under the laws of Delaware with principal place of business in AZ. PROCEDURE: - Heitner filed a shareholder’s derivative suit in Delaware, naming Greyhound and Greyhound Lines, and 28 officers or directors as defendants o Alleging that defendant’s violated their duties acting in a way that the company was liable for damages in a private antitrust suit and a large fine for criminal contempt action o Actions took place in Oregon - Heitner filed a motion for an order of sequestration of Delaware property of the defendants…Common stock and options (Seized 82,000 shares of stock) o None of the certificates representing the seized property was physically present in Delaware - All 28 defendants notified by mail and publication in Delaware newspaper. 21 defendants entered a special appearance to quash the order…Alleging that property was not capable of attachment and they didn’t have sufficient contacts in Delaware - Court of Chancery rejected those arguments, noting “sequestration is used to compel the personal appearance of a nonresident defendant to defend a suit brought against him o Sequestering is released upon appearance - Chancery Court held that the statutory Delaware situs of the stock provided a basis for quasi in rem jurisdiction in Delaware - Delaware Supreme Court affirmed ISSUE: Whether the standard of fairness and substantial justice set forth in Intl. Shoe should be held to govern actions in rem as well as in personum…Yes

HOLDING: REVERSED. Delaware’s assertion of jurisdiction over appellants is inconsistent with constitutional limitations on state power. No contacts, ties, or relations here. ANALYSIS: - Quasi in-rem jurisdiction is based on attachments of property, not contacts between defendant and state - Property cannot be subject to court’s judgment unless reasonable and appropriate efforts have been made to give property owners notice - In order to justify jurisdiction in rem, the basis for jurisdiction must be sufficient to satisfy jurisdiction over the interests of persons in a thing - When cause of action is unrelated the presence of property in the state may suggest other ties, but the presence of property alone wouldn’t satisfy jurisdiction - A wrongdoer should not be able to avoid payment by removing assets outside the bounds of an in personum suit - The Court argues that no in rem action is, strictly speaking, “thing-related”. There is always a person behind the thing they own who will be affected. The Court suggests that apply minimum contacts standards to in rem actions won’t change anything, because the simple fact that you own land or other big-time property in a state can be seen as sufficient proof that you have more than minimal contacts there. - The Court says that quasi in rem jurisdiction is going to have to change. The difference with quasi in rem is that the property in question isn’t really related to the subject of the plaintiff’s lawsuit. The Court will no longer allow the states to assert jurisdiction merely because somebody owns some property in that state. - The Shaffer court pierced, and then collapsed, the distinction between jurisdiction over things and jurisdiction over persons Justice Marshall theorized that in rem actions would remain mostly unaffected by the ruling but "Type 2" quasi in rem actions (actions seizing property for the purpose of settling a dispute unrelated to that property) would be greatly affected because the mere ownership of property in a state is not a sufficient contact to subject the property owner to a lawsuit in that state, unless that property is the issue of the lawsuit. The state in which property is located will still generally have personal jurisdiction over disputes concerning the ownership of property within that state, because the owner will be receiving the benefits and protections of that state, while the state will have a strong interest in the peaceful resolution of disputes, and records and witnesses will probably be located therein. IV - Appellants holdings in Greyhound do not provide sufficient contacts with Greyhound to support jurisdiction - Plaintiff alleges: o Position of Officers and directors provides sufficient contacts o Delaware interest in supervising management of DE corp.  However, DE law bases jurisdiction on presence of property in the state  No relationship between holder of stock and directorship o DE law benefits officers  No reason to expect to be haled before a DE court  Anyone buying DE securities should not have to expect to be haled by a DE court Haled into court Fair and just Powell concurs


Reserve judgment on whether ownership of some forms of property permanently located in a state may provide sufficient contacts for jurisdiction Requirement of fair notice includes fair warning that an activity may be subject to jurisdiction Overbroad

Brennan concurs and dissents - Dissent on part IV o An inquiry into minimum contacts is dependant on creating a proper factual foundation o Court’s ruling will affect laws of all 50 states - As a general rule a state forum has jurisdiction to adjudicate a derivative action centering on the policies of officers of a state corp. - Cause of action is not plaintiffs’ but all shareholders’. State has powerful interest in insuring a convenient forum of litigation - Policies furthered by jurisdiction o State interest in providing restitution for its local corps. that have been victimized by fiduciary misconduct. o Regulatory interests o Interest in overseeing a corporation formed by the state’s laws - Choice of law and jurisdiction depend on similar considerations o Extent of contacts - Stepping foot in DE is not the issue; jurisdiction can be based on out-of-state acts affecting the forum state - Minimum contacts…Not best contacts If the court really wants to follow the same structure for in rem and in personum, maybe minimum contacts is not applicable - If suit is not related to the person’s property, you may need sufficient contacts rather than minimum contacts (Shaffer doesn’t apply sufficient contacts) - Shaffer court puts aside property question and treats it like an in personum case - Analyzing this as an in personum case

The Purposes of Personal Jurisdiction 1. A guaranty of immunity from the inconvenience of distant litigation a. WW Volkswagon stated that even the most convenient forum may not have jurisdiction 2. To protect a defendant from the bias of states with which she is not affiliated a. Developed doctrine is not involved with protecting against biases 3. Concrete manifestation of a complex philosophical problem whether a sovereign has the right to exercise authority over an individual a. Cost of interstate commerce is he harms that can be inflicted far form participants to a transaction 4. Prevent the forum from always shifting the costs to the person to whom its sovereignty does not extend a. Less a protection of individual liberty and more of a device to regulate interstate federalism 5. Apply the most advantageous law for plaintiff…Limiting on plaintiff

Does in rem remain a viable form of jurisdiction after Shaffer? - Post Shaffer, the status of in rem is unclear. Where you are, who you ask. - 4 or 5 interpretations o Narrow: Shaffer only applies to quasi in rem type II proceedings. If defendant’s property is in forum state and claim is unrelated, minimum contacts is required. Apply Intl. Shoe only in Quasi in rem type II jurisdiction. Pennoyer is sufficient for quasi in rem type I and in rem o Shaffer doesn’t apply to real property. Intl. Shoe only applied with not real property. When you are trying to establish juris. Over a real thing, Shaffer doesn’t apply o Broader interpretation: Shaffer applies to all forms of in rem jurisdiction. o All assertions of state court jurisdiction of a nonresident absent defendant must be evaluated by Shaffer standards. Labels don’t matter…It’s against who the claim is made o Broadest: Courts have to apply intl. shoe standards to all jurisdictional questions. Supported by Marshall’s opinion. The effect of Shaffer and Burnham on “Tag” Transient Jurisdiction - One way to frame Burnham is whether intl. shoe standards can be applied when a nonresident defendant is served when present in the forum state - Depends on how you interpret Shaffer. Justices disagree whether the standards in Intl. Shoe must Apply o Scalia: 4th interpretation. Not about labels on type of jurisdiction. Matters where the defendant is at the time the litigation takes place. Because defendant was present in Ca when served, Intl. Shoe doesn’t need to be applied. Pennoyer is still good law here. o Brennan: Would apply Intl. Shoe when a non-resident defendant is served in-state. Shaffer applies to all forms of jurisdiction. The reasoning of Shaffer stretches to all forms of jurisdiction. Applies to tag jurisdiction. o In Burnham, they only agree on the outcome of the case o Shaffer must be analyzed with intl. shoe standards. Whether Shaffer applies to other than quasi in rem type 2 is up for grabs. Establishing jurisdiction when the defendant’s acts of omissions occurred over the Internet? - 2 approaches o Sliding scale to determine whether the defendant’s operation on the Internet can support minimum contacts. Now, almost everyone has an interactive site.

 Zippo: Non interactive – no minimum contacts  Some interactive elements with some bi-lateral exchange  Repeated online contact with forum residents – minimum contacts o Sliding scale test is not completely applicable anymore. If the effects were felt in the forum state and if the defendant targeted the forum state.

Personal jurisdiction and the internet REVELL v. LIDOV 317 F.3d 467 (5th Cir. 2002) FACTS: D wrote an article on the Pan Am terrorist bombings, charging a government cover-up and singling out P, Director of the FBI, for severe criticism. When writing the article, L had never been to TX, never conducted business there, and was unaware P resided in TX PROCEDURE: - P sued Columbia and D in Texas, claiming damage to his reputation in TX and emotional distress from alleged defamation - D’s moved for dismissal for lack for personal jurisdiction - District court granted motion under FRCP 12(b)(2) ISSUE: Whether P made out his prima facie case with respect to defendant’s contacts with TX. HOLDING: AFFIRM. P failed to make out personal jurisdiction over D. Low level of interactivity in the Bulletin Board online, “effects” test of Calder, insufficient contacts ANALYSIS: - Zippo test o Passive site: only allows user to post information o Other end: Owners engaged in repeated contacts with forum participants (Jurisdiction proper) - Sliding scale doesn’t work because even repeated contacts with forum residents may not constitute the continuous and systematic requirement. They made be doing business w/TX, but not in TX - Website hits the entire world, and TX contacts not substantial - Less than 20 subscriptions to Columbia Journalism review form TX residents - ABANDON ZIPPO o The website was interactive - Calder: Conduct “expressly aimed” towards the forum state o Largest circulation in the forum state o Defendants knew of the harm that could have been cause in the forum state  Here, the article had no reference to TX, doesn’t refer to TX activities of P, was not directed t TX readers, and had its largest audience in CA - The post was directed at entire world, but not specifically at TX - Knowledge of the forum in which a P will bear the brunt of harm is essential part of Calder test Personal Jurisdiction in other countries - EU doesn’t not have a purposeful availment clause Statutory Limits on Personal Jurisdiction


Personal jurisdiction is proper only if: o The case falls within the terms of a state statute o Jurisdiction is constitutional FLINT v. GUST

Whether the trial court had jurisdiction over appellees with respect to the tort action - New York Rule – A tort is deemed to have been committed within the state only if the tortuous act or omission itself, and not merely the injury resulting therefrom - Illinois Rule – A tort resulting in damage inside the state is deemed to have occurred inside the state regardless of where the tortuous act or omission took place - In Supreme Court, the statute wins out, not these rules Long arm statutes - You have to read them and interpret them. o 50 Long arm statutes. - Determine whether the court allows personal jurisdiction - If it appears that the state statute would allow for jurisdiction, you have to analyze due process - Many states have a sentence saying that their long arm statute allows jurisdiction as applies to the federal constitution. In that scenario, the focus depends on the analysis under the due process clause. - The state statue becomes a vehicle with which you can attack jurisdiction. They don’t analyze the due process



Raising Jurisdictional and Related Challenges Two approaches for raising a direct objection to in personam jurisdiction o “Special appearance” – Allowing a defendant appear in the forum for the sole purpose of contesting in personam jurisdiction. If the defendant asserts more, they are making a “general appearance”, subjecting her to in personum  States do not have to provide for this o FRCP 12(b)(2) – Allows the defendant to raise several defenses simultaneously with an objection to personal jurisdiction (Lack of jurisdiction over the person). Can file in your answer or as a separate motion o 12(h) you waive defense if you don’t file them in the right order. The safest best is to file the 12(b) motion before you file an answer. o By going to the forum and arguing that it lacks jurisdiction, does the defendant risk submitting herself to jurisdiction there through appearance or consent? Challenges to in rem jurisdiction faces the problem is limiting liability to the value of property attached. Appearances to contest jurisdiction may turn it into personam “Limited appearance” – Permits her to appear and defend without facing liability beyond the value of the property attached

Collateral and Direct attacks on Personal Jurisdiction - Direct attack – appearing to contest personal jurisdiction o Problems  Client will have to find new counsel at forum state  - Collateral Attack – Argue that the Hawaii judgment is not entitled to full faith and credit because Hawaii did not have personal jurisdiction. Here, the client can litigate at home. o Risky:  You are raising the attack in a distant forum  The client can only raise the issue of whether the HI court has jurisdiction: she can’t cover the merits of the plaintiff’s claim

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