CIVIL PROCEDURE OUTLINE
A. CRIMINAL LAW VS. CIVIL LAW
1) Criminal law: state, deterrence, punishment
2) Civil law: private, requiring compensation, private remedy
1) Federalism: multi-layers of sovereign power
2) Subordinate sovereigns: seems like oxymoron, but federalism allows in role of
3) Two types of federalism:
a) Dual federalism: Two parallel lines of authority never crossing (layer cake)
b) Cooperative/dual federalism: Wild crossing, two lines of power that work
together (marble cake).
4) American courts represent cooperative/dual federalism
a) Federal courts cannot decide issues of state law and vice-versa.
b) Constitution as counter-majoritarian document. Federal judges given powers
over other branches and independence not seen in state courts.
i) Protections of integrity
ii) Floor of competence with presidential appointment and Senate
iii) System allegiance (broader perspective than state judges)
5) Diversity jurisdiction: citizens from two different states suing each other. Can be
done in federal court to preserve interests of both states. Courts follow state law
where suit is brought.
A. THREE PARTS OF PLEADING
3) Reply (sometimes allowed)
B. RULE 8(A) AND (B) AND RULE 12(B)
1) Rule 8(a): Claims for Relief
a) Short and plain statement of grounds upon which court‟s jurisdiction depends,
unless court already has jurisdiction.
b) “A short and plain statement of the claim showing that the pleader is entitled
c) Relief that the pleader seeks.
2) Rule 8(b): Defenses: Form of Denials
a) Short and plain statement of defenses to each claim asserted
b) Admit or deny averments upon which adverse party relies.
c) Lack of knowledge should be stated if true, which has effect of denial.
d) Specific denials of particular averments or general denial.
3) Rule 12(b)6: “Failure to state a claim upon which relief may be granted.”
a) Respondent motion with two functions:
i) Procedural vehicle to detect legal validity, assuming the truth of the
ii) Throwing out the complaint for the reason that even if there is enough
factual detail, it doesn‟t say enough to constitute a claim for relief.
C. FACT PLEADING VERSUS NOTICE PLEADING
1) Federal Rules enacted in 1938 create controversy in standard of pleading.
Traditional, code pleading or fact pleading approach is replaced by a less
stringent notice pleading system. While notice pleading is generally
predominant, exceptions and different interpretations moving toward fact
2) Cases demonstrating the fact versus notice distinction:
a) Gillipsie v. Goodyear Service Stores (N.C. Sup. Ct. 1963): Woman alleges
trespass, assault, public scorn and ridicule, seized and exhibited as
prisoner and confined in public jail. Court dismisses on basis that not
pleaded with particularity. Plaintiff advised to replead with factual basis.
b) Rabbi Klein: Rabbi lost money in stock market and files claim for fraud.
What happens to Klein, loss of money in stock market is a normal
occurrence, not “fishy.” As a result, it is dismissed, on basis in cannot
mean higher standard than notice pleading, mandated for fraud action in
c) Conley v. Gibson (U.S. Sup. Ct. 1957): African-American union members
accused union of racial discrimination conspiracy related to release of
workers. No specific, direct factual allegations are included but it is
alleged that union gave no assistance to pleas to address the abolishment
of 45 jobs held by blacks. Court uses notice pleading standard to allow
this “fishy” sounding case to move to discovery.
d) Dioguardi v. Durning: (2d Cir. 1944): Italian immigrant filing home-
drawn complaint. Court rules the “even if inarticulate,” motion to dismiss
as 12(b)6 is denied. Eventually dismissed on summary judgment.
3) Redish‟s argument: Rule 8(a) should draw distinction between cases such as
Rabbi Klein and Conley, between those who should be expected to know
something without discovery (Rabbi Klein) and those who can‟t (Conley).
FACT PLEADING NOTICE PLEADING
HIGHER STANDARD LOWER STANDARD
Rabbi Klein Gillipsie Dioguardi Conley
Fraud case demands Decided with fact Notice pleading Notice pleading allows
higher standard pleading, could go protects inarticulate “fishy” complaints to get
Rule 9(b) either way complaints to discovery
D. RULE 12(E): MOTION FOR MORE DEFINITE STATEMENT
1) Motion for more definite statement: If a pleading is so vague and ambiguous a
statement that party cannot reasonably be required to frame responsive pleading,
party make be able to move for more definite statement before responding. If
motion is granted and not obeyed in 10 days, court may strike pleading to which
motion was directed.
2) United States v. Board of Harbor Commissioners (U.S. Dis. Ct., Del., 1977): that
enough specificity is included in complaint that gives defendants notice of what
they are accused, but reserves finding of specific facts to discovery. Court argues
that this Rule 12(e) motion is only attempt to flesh out more detail when not
3) Policy for 12(e): To assist in cases that suffer from unintelligibility, such as when
date of event occurred in order to determine if statute of limitations had run out.
4) Strategic use of 12(e): Try to get 12(e) motion passed in order to build up to a
12(b)6. Courts rarely allow this strategy which would allow movant to get case
a) nonmovant does not reply in time specified or
b) nonmovant replies with details that may exonerate movant and allow a 12(b)6
5) Reality of 12(e): Rarely used and considered anachronism by many.
E. RULE 8 (E): INCONSISTENT ALLEGATIONS
1) Inconsistent Allegations: Party may set forth two or more statements of a
claim or defense alternately or hypothetically, either in one count or defense
or in separate counts or defenses. This is subject to Rule 11.
2) McCormick v. Kopmann (App. Ct., Ill., 1959): A party making a claim on
behalf of fatality of an automobile accident can make inconsistent allegations
regarding negligence of other driver and of tavern owners when the party was
not present at the alleged crime and need the process of discovery to occur.
3) Policy: When don‟t know truth is, sue together to maximize chances to win.
Ex: If McCormick sues Kopmann first and loses, the Huls (tavern owners),
who are entitled to their day in court through due process, may have a better
chance of winning. McCormick could not win against both, however, but by
pleading together has a better chance of winning against one of them.
F. 1983 AMENDMENT TO RULE 11: SIGNING OF PLEADINGS, MOTIONS
AND OTHER PAPERS; REPRESENTATIONS TO COURT; SANCTIONS.
1) What‟s new in 1983 Rule 11?:
a) Reasonable inquiry.
b) Well-grounded in fact vs. pre-1983 “good grounds to support.”
c) Not just pleadings, but any papers filed in court are bound by the Rule.
d) Mandatory sanctions: act of sanctioning mandatory on court, although
discretion allowed in the type of sanctions.
Pre-83 Rule 11 goes after first two, but 83 extends to “bigger fish,”
Lying through teeth Frivolous Reasonable suspicion //////////// Well grounded
trying to close the “open sesame” door to discovery for cases of reasonable suspicion.
This creates tension with Rule 8, notice pleading.
3) Satellite Litigation: 1983 Amendment was supposed to decrease burdens on court, but
does opposite, increasing Rule 11 motions and satellite litigation. Ex: Defendant
files a 12(b)6, plaintiff files a Rule 11 on a 12(b)6, defendant files a Rule 11 on the
4) Judicial Administration: 1983 Amendment is seen as way for defense attorneys to
shut down plaintiffs trying to get to settlement, but instead it chills them and prevents
them from making claims in the first place, creating a chilling effect:
You‟re at point X. Only go to Y. b/c you Don‟t know if you can get to Z
5) Redish‟s problems with 1983 Amendment:
a) Would not allow Conley
b) Timing vis-à-vis 1980 Amendment instituting Rule 26(f) discovery conference
which should deal with some of these issues.
c) Procedural element of deception, resulting in chaos.
G. 1993 AMENDMENT TO RULE 11: SIGNING OF PLEADINGS, MOTIONS
AND OTHER PAPERS; REPRESENTATIONS TO COURT; SANCTIONS.
1) Rule 11 Summary: Pleadings, written motions and other papers to the court
must be signed, certifying that they are not being presented for improper purpose,
not frivolous, have evidentiary support or are likely to after discovery, and denials
or factual contentions are warranted on evidence or based on lack or information
or belief. Otherwise, party liable for sanctions by motion or court‟s initiative.
Note that Rule 11 does not apply to disclosures and discovery requests, responses,
objections, and motions that are subject to the provisions of Rules 26 through 37.
2) What‟s new in 1993 Rule 11?:
a) Safe harbor:
i) Opportunity to withdraw complaint 21 days after motion is served.
ii) Scalia and others say it lets people off easy since before there was
no opportunity to pull out.
iii) On the other hand, some may be willing to take chance and wait
for judge‟s decision.
iv) Safe harbor does not apply if court initiates sanctions.
b) Discretionary sanctions:
i) Moves back from being mandatory.
ii) Usually court will get sanctions and not movant.
iii) Not necessarily financial sanctions.
c) Move back to notice pleading. For first time Rule 11 is connected with
discovery (Rule 11(b)3).
3) Albright v. Upjohn Co.
a) Summary: Albright trying to prove she was using Upjohn‟s medication,
but has no way of knowing. Based on 1983 Rule 11, court decides that
claims by plaintiff against Upjohn cannot stand because they were not
“well grounded in fact” but court also presages 1993 Amendment by
saying that there was little likelihood that additional medical records
would have been found in discovery stage.
b) How would Albright would have been different with 1993 Amendment?:
i) If facts were same she would be home free because she had already
withdrawn her motion at time of Rule 11 motion in 1983.
ii) If timing were different, Albright would have the safe harbor
period to withdraw her motion under 1993 Amendment.
iii) If it was likely Albright could find medical records in discovery,
1993 Amendment would not allow a successful Rule 11 motion. If
not, decision would be the same.
4) Where dust settles, where are we by 1993?
a) Forces of fact pleading in retreat.
b) Notice pleading in good shape, but be careful what that means. When are
enough facts to put other side on notice? Form 9 provides a standard.
Gillipsie, with notice pleading, probably would go on, but could go any
number of ways.
H. RULE 9(B): PLEADING SPECIAL MATTERS: FRAUD, MISTAKE,
CONDITION OF THE MIND
1) Rule 9(b): In all averments of fraud or mistake, the circumstances constituting
fraud or mistake shall be stated with particularity. Malice, intent, knowledge,
and other condition of mind of a person may be averred generally. (This is an
exception to the exception, relating to element one below).
2) Fraud and Rule 9(b)
a) Procedural Issues
i) Rule 9(b) becomes an exception to Rule 8. Rule 9(b) means that
fact pleading standing is being stuck with in cases of fraud.
ii) Use a 12(b)6 motion as vehicle to raise a Rule 9(b) argument.
iii) Rule 11 still applies to everything.
b) Four elements of fraud:
i) Intentional misrepresentation of a
ii) Material fact that somebody
iii) Reasonably relies on to their
c) Why exception for fraud?
i) Allegation of fraud so heinous that mere allegations will cause
ii) Prevention of erroneous claims.
iii) Fraud claims may stop investment in securities.
iv) Not entirely sure. Based on rough empirical judgment that fraud is
used most often for groundless claims.
3) Ross v. A.H. Robins (U.S. Ct. App., 2nd Cir., 1979)
a) Summary: Class action suit against Robins for fraud regarding pregnancy
product (Dalkon Shield). Plaintiffs demonstrate that contradictory
information to that supplied by Robins existed, but they don‟t fix time
when stocks dropped relative to the information, don‟t fix time when
defendants knew of contradictory information and didn‟t say if defendants
were aware of the report. Thus, court decides that plea should be
dismissed because it is not with particularity, but what about second
sentence in Rule 9(b) saying knowledge may be pleaded generally?
b) Distinction with Rabbi Klein: Ross avers knowledge generally by showing
that conflicting report existed. Rabbi Klein doesn‟t aver knowledge at all.
People lose money on the stock market every day, he doesn‟t show why
different. Although not show all “facts,” at least need to demonstrate
c) Why have exception for knowledge?:
i) By its nature fraud is a secretive process.
ii) Need discovery.
iii) May turn on jury‟s perception of credibility of witness.
I. THE SPECIFICITY DEBATE: EXTENDING 9(B) BEYOND FRAUD
1) Cash Energy v. Weiner (U.S. Dis. Ct., Dist. of Mass., 1991)
a) Summary: Question of whether higher standards of pleading extend to a case
where individual defendants are charged simply with knowledge of their
corporations‟ environmental contamination. Does due process require
heightened particularity for drastic nature of penalties?
b) Judge Keeton‟s decision extends Rule 9(b) from fraud to other areas, arguing:
i) 9(b) already exists and has been extended to civil rights, RICO and
other types of cases.
ii) Rule 8(f) gives judges discretion in quest for “substantial justice.”
iii) Rule 12(e) Motion for More Definite Statement is underutilized.
iv) Judicial administration problems demand such a solution.
c) Redish‟s arguments against Keeton
i) Rule 9(b) only sets out one exception, which is fraud. What is not
named is not covered.
ii) Rule 8(f) is to prevent dismissing a justifiable claim on a technicality.
“Pleading is not a game of skill.” 8(f) is used by Keeton to use rules
for substantial justice, but its purpose is for substantial justice in
iii) Rule 12(e) is for cases of ambiguity and is an anachronism.
2) Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit
(Sup. Ct. 1993).
a) Summary: §1983 claim against municipality regarding the actions of its law
enforcement officers in executing search warrants. Municipalities are free
from respondeat superior liability (when one of its officers commits an illegal
action) but is not immune from suits where the municipality is responsible.
Here, question of how much detail is required in a pleading against
municipality. All that is stated is illegal actions of officers, but not why
municipality is responsible.
b) Rehnquist‟s interpretation and aftermath:
i) Rehnquist‟s opinion: Expressio unius est exclusio alterius—There is
only one exception, which is for fraud. Heightened pleading standard
is not required here.
ii) Half courts say Leatherman decides fact pleading should not occur
only in civil rights cases against municipality. Others, like Redish,
read the decision broadly, applying it to all cases except fraud.
J. RULE 12(C): MOTION FOR JUDGMENT ON THE PLEADINGS
1) Rule 12(c): After the pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the pleadings. Thus, a litigant neutral
measure as opposed to defense‟s 12(b)6.
2) Plaintiff‟s perspective: Plaintiff will use 12(c) more often that defendant often to
challenge validity of defendant‟s answer. Example of policeman‟s affirmative
defense that doesn‟t hold weight.
3) Defendant‟s perspective: Defendant uses 12(b)6 more often than 12(c). Often
will file 12(b)6, even admitting what would have been in answer in order to prove
claim and get it dismissed before filing an answer. Example of conscious
parallelism of gas stations which admit setting similar prices, but saying there is
no claim to support it as an antitrust action.
K. DEFENDANT’S RESPONSE
1) Pre-answer motions under Rule 12 affect time periods for filing responsive
Defendant files pre-answer motion within 20-day period following service of
summons and complaint, deadline for filing answer is extended (Rule 12(a)1).
If court denies the motion or postpones its disposition, defendant has until 10
days after notice of court’s action to file an answer.
If court grants the motion, in most cases suit will be dismissed.
If motion for more definite statement is granted, defendant has until 10 days
after service of an amended complaint with more definite statement to file an
2) Pre-answer Motions under Rule 12
a) Seven defenses of Rule 12(b) are all, except failure to state a claim (12(b)6),
objections of a procedural nature:
Court is not empowered to exercise jurisdiction over subject matter of suit
Subject matter jurisdiction over particular type of substantive case, i.e. can’t bring state
antitrust case in traffic court. Restrictions over what court can/cannot hear. Federal courts
in Article III, Section 2 of Constitution, have list of type of cases federal courts can hear,
which can be broken into two: 1) federal subject matter jurisdiction and 2) diversity
Court lacks proper jurisdiction over the defendant (12(b)2)
Talks about geographical reach of court. Pertinent in cases where state courts attempt to
assert jurisdiction over people from other states.
This particular court is not the proper venue for the suit (12(b)3)
District in which case is brought. Special federal statutes to explain which. Some overlap
The circumstances or method for serving process were incorrect (12(b)4&5)
!2(b)4: Served right, but defect in document; 12(b)5: Document fine, but service wrong, ex:
mail instead of delivery.
Suit shouldn‟t go on without a necessary party (12(b)7)
Defendant may say another party should be brought in which may relate to jurisdiction and
12(b)6 different in that it challenges the legal sufficiency of the allegations in
b) 12(e) motion for more definite statement.
c) 12(f) motion: To strike “redundant, immaterial, impertinent, or scandalous
matter” or “any insufficient defense.”
3) Rules 12(g) and (h) set out consolidation and waiver provisions concerning Rule
a) Rule 12(g) provides that if party makes a pre-answer motion, but omits one of
the Rule 12 defenses then available, it cannot make any further pre-answer
b) Rule 12(h)1 provides that four disfavored defenses:
Lack of jurisdiction over the person 12(b)2
Improper venue 12(b)3
Insufficiency of process 12(b)4
Insufficiency of service of process 12(b)5
Will be waived forever if omitted from a pre-answer motion or, if no
motion is made, if omitted from the answer.
c) Rule 12(h)2 provides that three favored defenses:
Failure to state a claim upon which relief may be granted 12(b)6
Failure to join an indispensable party 12(b)7
Failure to state a legal defense to a claim
Can be made in any pleading, or by motion for judgment on the pleadings,
or at trial on the merits.
d) Rule 12(h)3 states that the most favored defense—lack of jurisdiction of the
subject matter 12(b)1—may be made at any time.
4) Why have these rules?
a) 12(g): Anti-delay, anti-harassment, waste of time device.
b) 12(g) and 12(h)3 conflict. Make Rule 12 motion, then make suggestion of
12(b)1, which is allowable.
c) 12(h)2: Raising a 12(b)6 at trial on merits. Redish: This doesn‟t make sense,
but is allowable. BUT don‟t have to give at the trial on the merits. Text is
ambiguous, could go either way.
5) Hierarchy of preferred defenses:
a) 12(h)1: Easier to waive because procedural, divorced from substance of case.
Things you should know early on.
b) 12(h)2: Tougher to waive. Middle ground.
c) 12(h)3: Never waived. Most favored. Exclusively for benefit of defendant. 1)
Rule 12(b)1 ensures protections from federalist friction, state and federal (protect
state courts by ensuring that cases they should hear do not go to federal courts).
2) Lowers burdens, expenses of federal courts.
6) #9 on Waiver Hypothetical sheet
a) If raise 12(b)6 once, shouldn‟t be allowed to do it again, but you can. Could go
either way depending on case and judge.
b) Res Judicata: Issue settled by judicial opinion. Can‟t split cause of action.
c) Merger: Once you win, everything out of claim is merged.
d) Bar: Lose once, everything in claim is barred.
e) Spin-off of this: “Law of case doctrine” (Res Judicata Lite). Doesn‟t come
from rules. When issue has been decided in case, can‟t be relitigated except on
L. AFFIRMATIVE DEFENSES (YES, BUT) (RULES 8(B) AND 8(C))
1) Affirmative Defense/Denial
(David v. Crompton & Knowles Corp., U.S. Dist. Ct., E.D., PA, 1973)
a) Case Summary: Defendant denies that it made paper shredder on basis of lack
of information, although facts relevant to the issue of its connection to the
machine were within its knowledge and control.
b) Relation to Rule 8(b)
i) When defendant files an answer they have three alternatives: 1) admit;
2) deny; 3) deny for lack of sufficient knowledge to form belief.
ii) If allegation is made, defendant denies and they “discover” truth later,
court can either: 1) not admit saying that argument should have been
given in answer because it was in defendant‟s control (treat as an
admission) or 2) decide it is part of denial and admit it.
2) Affirmative Defense/Based on Element of Plaintiff‟s Claim
(Gomez v. Toledo, U.S. Sup. Ct., 1980)
a) Fact Summary: Gomez fired, suing Toledo as police chief under § 1983 claim,
for discharging Gomez after he reported the falsification of evidence by
colleagues. Toledo wants to use government immunity as defense claiming he
acted in good faith, but says that Gomez needs to allege that Toledo acted in
b) Holding: Plaintiff must plead all elements of statute only. Plaintiff does not
need to anticipate defenses of the defendant. This would create “kitchen sink
pleading” which would get away from shorter pleadings.
c) Rehnquist‟s caveat in Gomez: Not saying that defendant has burden of
persuasion at trial, just burden of pleading.
d) Rule 8(c): List of possible affirmative defenses and catch-all for others:
i) accord and satisfaction
ii) arbitration and award
iii) assumption of risk
iv) contributory negligence
v) discharge in bankruptcy
viii) failure of consideration
xi) injury by fellow servant
xvi) res judicata
xvii) statute of frauds
xviii) statute of limitations
xx) any other matter constituting an avoidance or affirmative defense
3) Affirmative Defense/Counterclaim (See II. M.)
M. COUNTERCLAIMS (RULES 13 (A) AND 13(B))
1) Wigglesworth v. Teamsters Local Union No. 592
a) Case Summary: Defendants counterclaim libel and slander and abuse of
process at press conference when complaint was filed. Plaintiff complaint is
violation of rights under Federal Labor Management Disclosures Act which
prevented him right of exercising freedom of speech and union members
being informed of their rights.
b) Holding: Counterclaim does not arise out of same transaction or occurrence
(although Redish disagrees).
2) Rule 13 (a) and (b), Compulsory and Permissive Counterclaims
a) If the defendant‟s claim arises out of the transaction or subject matter of the
opposing party‟s claim, then, if certain other requisites not here pertinent are
met, it is compulsory. Be definition, compulsory claims are “ancillary to the
claim asserted in the complaint and [sic] no independent basis of [f]ederal
jurisdiction is required.” Alternatively, if the counterclaim is unconnected
with the transaction out of which the primary claim arose, it is permissive, and
independent jurisdictional grounds are required.
b) Strategy: File any possible counterclaim at time of pleading, otherwise may
lose that right if filed as a separate claim at a later date. Only look at
compulsory nature after the after, if it should have been compulsory when the
original claim was filed.
3) Supplemental Jurisdiction
a) This is such a case. When a counterclaim arises out of state law in response to
a federal claim, it can be admitted in federal court if arising out of the same
transaction or occurrence.
b) Strategy: If anything appears to be a counterclaim in a federal court, it is
worth pleading for supplemental jurisdiction.
4) Situations where events can be grouped together as same “transaction or
a) Compulsory counterclaim (Rule 13(a))
b) Relation back to amendment (Rule 15(c))
c) Permissive joinder of parties (Rule 20)
d) Supplemental jurisdiction
e) Res judicata
N. AMENDMENTS (RULE 15)
1) Rule 15 (a)
a) Party may amend once at any time before responsive pleading is served, or if
pleading is one to which no responsive pleading is permitted, party may
amend within 20 days after it is served.
b) Otherwise, party may amend only by leave of court with written consent of
adverse party and “leave shall be freely given when justice so requires.”
c) Plea in response to amended pleading shall occur within time remaining for
response to original pleading or within 10 days after service of amended
pleading, whichever is longer.
2) „Given when justice so requires.” When would injustice to defendant occur?
a) Amendment granted will unduly complicate action and confuse jury.
b) Substantially increase defendant‟s liability.
c) More discovery.
d) Redo discovery. (Most important because not just adding, but start over.)
3) Amendment after discovery: Technically allowed, but shows disrespect to court
and Rule 16(e) is supposed to prevent this from occurring. As a result only
allowed in cases of gross injustice
4) Rule 15(d) Supplemental Pleadings
a) Amendments relate to events that occurred before complaint was filed.
Supplementals are events that occur after filing of complaint.
b) Example: “He was hitting me. He‟s still hitting me.”
5) Rule 15 (c) Relation Back of Amendments (Swartz v. Gold Dust Casino, Inc.,
U.S. Dist. Ct., Nev. Dist., 1981)
a) Case Summary: Woman who fell in casino desires to add additional defendant
(defective construction added to defective maintenance of stairs) after statute
of limitations has run out based on information gathered through discovery.
Defendant Cavanaugh owns company in original claim as well as the
additional company added in amendment.
b) Holding: If arising out of same conduct or transaction and defendant is aware
of litigation, defendant may be added after statute of limitations has run out.
c) Rule 15 (c): Relation back of amendments can occur when:
(1) relation back is permitted by the law that provides the statute of limitations
applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in
the original pleading, or
(3) (This deals with statute of limitations issue)
i) claim asserted in the amended pleading must have arisen from the
conduct, transaction or occurrence set forth in the original
ii) the new defendant must have received notice of the action within
the limitations period and
iii) the new defendant should have known that but for a mistake
concerning the identity of the proper party, the action would have
been brought against him.
d) Policy: Relation back and statutes of limitations
i) Relation back of amendments allows ability to add claims even if
statute of limitations has run out.
ii) Protecting plaintiff to enable adding defendant after learning more
facts through discovery.
iii) Why do statute of limitations exist? 1) Harder to gather reliable
evidence over time and 2) possible defendant doesn‟t have potential
lawsuit hanging over them.
iv) Rule 11 limits lawyers ability to plead right before statute of
limitations expires if had prior awareness.
e) Schiavone v. Fortune
b) Post-1991: New defendant added by amendment must be notified within
120 days after filing suit (whether before end of statute of limitations
period or extending after it).
A. HISTORY CONTINUUM:
BOT 1938 1983 1993
True Adversary System Attorney Control Judicial Intervention Auto. Disclosure
Surprise, technical skill Adversarial system Judges don‟t just stand back
total partnership. Give invites fraud. After ‟38 but get involved, guide law-
no help to anyone else. still have adversarial yers along, club people vio-
Hegelian: Thesis-Anti- system, although modi- lating the rules. Rule 26 (1983
thesis-Synthesis (Truth). fied. Idea of advocates Amendment), courts have to
Different from continen- assisting clients, promo- get involved. Rule 26 is en-
tal system with fact- ting private self-interest acted at same time as Rule 11.
gathering by neutral to maximize societal wel- Redish: Doesn‟t make sense.
government. fare. Courts have very
little control. Attorneys
on honor system, control-
ling discovery completely.
2) Importance of Discovery after Shift to Notice Pleading
a) Prior federal practice: Pre-trial functions of notice-giving, issue-formation,
and fact-revelation performed primarily and inadequately by pleadings.
b) New rules: Restrict pleadings to the task of general notice-giving and invest
the deposition-discovery process with a vital role in the preparation for trial:
i) As a device, along with pretrial hearing under Rule 16, to narrow and
clarify the basic issues between the parties and
ii) As a device for ascertaining the facts, or information as to the
existence or whereabouts of facts, relative to those issues.
c) Battle of specificity has shifted from pleadings to discovery.
B. RULE 26 (A) REQUIRED DISCLOSURE/AUTOMATIC DISCLOSURE
1) Initial Disclosures: Shall be made without awaiting a discovery request
a) Name and, if known, address and telephone number of each individual likely
to have discoverable information relevant to disputed facts alleged with
particularity in pleadings.
b) Copy or description of all documents, data compilations, and tangible things
in the possession, custody, or control of the party that are relevant to disputed
facts alleged with particularity in pleadings.
c) Computation of any category of damages claimed by disclosing party
d) Insurance agreements.
e) Disclosures shall be made within ten days of Rule 26(f) meeting.
2) Disclosure of Expert Testimony
a) Party shall disclose identity of any person who may be used at trial to present
b) Disclosure shall be accompanied by written report prepared and signed by
c) Timing of disclosure (Rule 26(a)(2)(C))
3) Pretrial Disclosures (In addition to initial disclosures)
a) Name and, if not previously provided, address and telephone number of each
witness whom party expects to present or may call.
b) Designation of witnesses whose testimony is expected to be presented through
c) Appropriate identification of each document or other exhibit parties expects to
offer or may offer.
4) Other Methods to Discover Additional Matter (Rule 26(a)(5))
a) Depositions upon oral examination of written questions
b) Written interrogatories
c) Production of documents or things or permission to enter upon land or other
property for inspection or other purposes
d) Physical and mental examinations
e) Requests for admission
5) Ways for automatic disclosure not to apply (Rule 26(a)(1))
a) Stipulation of parties
b) Trial court order
c) District adopting local rule
a) Under old system lawyers should have brains to ask for things, now have to
do work for opposing counsel, thus strategizing for other side, while in unique
position to know what your own client has or knows about.
b) Know less about client to avoid disclosure, may disrupt defense.
c) If lawyer is not successful in figuring out what to give to opposing counsel,
then possibility of sanctions, thus Scalia‟s dissent: Automatic disclosure may
seem like velvet glove, but velvet glove with iron first underneath. Whole
new level of ability for lawyers to jerk each other around.
d) Worst of both worlds: 1) Expect more out of lawyers in defending client while
2) Whole new layer of possible harassment from opponent.
e) Problems exacerbated by notice pleading, thus give bonus for “pleading with
f) Forum shopping: Local rule decision antithetical to Federal Rules. It destroys
coherence and uniformity of Federal Rules and allows parties to shop not just
between state and federal courts but now between federal and federal courts.
Parties probably better off in district that has opted out.
a) Yearning for civility. Takes out adversarial nature among lawyers.
b) More efficient because requiring disclosure and no opportunity to fight about
it. Accelerates exchange of basic information and eliminates paper work
involved in requesting such information.
c) Bonus for fact pleading, additional disclosure earlier in process. “Time is
C. RULE 26(G)
1) Description of Rule
a) 26(g)(1): Each disclosure must be signed by at least one attorney as
certification that disclosure is complete and correct.
b) 26(g)(2): Each discovery request, response, or objection shall be signed by
attorney certifying that it is:
i) Consistent with the rules and warranted by law or good faith
argument for extension, modification, or reversal of existing law.
ii) Not done for any improper purpose, such as to harass, cause
unnecessary delay or increase cost of litigation.
iii) Not unreasonable or unduly burdensome or expensive, given needs
of the case, the discovery already had in the case, the amount in
controversy, and the importance of the issues at stake in the
Note on Importance of the issues: Big civil rights litigants not in it for
money. Without this phrase seems very bottom line, economic approach.
But how is it possible to measure importance.
c) 26(g)(3): Court, upon motion or upon its own initiative shall impose sanctions
upon person who made certification, the party itself or both. Sanction may
include payment of reasonable expenses incurred before the violation, including
reasonable attorney‟s fee.
2) Rationale and Consequences
a) Concern with messing around on discovery requests (fishing expeditions), that
are costly and time-consuming.
b) But Rule 26(g) creates chilling effect.
c) Fear that litigation may ensue regarding whether discovery was right. Result
of vagaries, subjectivity of standard worse than Rule 11.
3) 1983 Rule 26(g) and Rule 11 Amendments passed at same time with questionable
4) Factors distinguishing Rule 26(g) from Rule 11
a) Vague, subjective standards, more chilling, greater harm. Attorneys do not
know how judges will use their discretion to impose these sanctions.
b) Need for control (sanctions) not as great, claim already worth pursuing.
c) Both can create incredible amount of satellite litigation.
5) Redish‟s Critique
a) Use Rule 26(c) (see below) to prevent discovery abuses.
b) Before 1983, few cases with discovery abuse, so 26(g) with its effects of
chilling and satellite litigation does not seem necessary.
D. RULE 26(B) DISCOVERY SCOPE AND LIMITS
1) In General
Parties may obtain discovery regarding any matter, not privileged that is
Information sought need not be admissible at the trial if the information
sought appears reasonably calculated to lead to the discovery of admissible
By order or local rule, court can limit number of depositions and
interrogatories, length of depositions under Rule 30 and the number of
requests under Rule 36.
Reasons for limitation
i) Discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less
burdensome, or less expensive.
ii) Party seeking discovery has had ample opportunity by discovery in the
action to obtain the information sought
iii) Burden or expense of the proposed discovery outweighs its likely
benefit, taking into account the needs of the case, the amount in
controversy, the parties‟ resources, the importance of the issues at
stake in the litigation, and the importance of the proposed discovery in
resolving the issues.
3) Trial Preparation
Court shall protect against disclosure of mental impressions, conclusions,
opinions, or other legal theories of attorney concerning the litigation.
4) Trial Preparation (Experts)
Party may depose any person who has been identified as an expert whose
opinions may be presented at trial.
5) Claims of Privilege or Protection of Trial Preparation Materials
If withholding information as privileged, party shall make claim expressly and
describe the nature of the material without revealing the information itself in
order to assess the applicability of the privilege or protection.
E. RULE 26(C) PROTECTIVE ORDERS
Motion to protect privileged materials may be made if there is certification that
movant has in good faith conferred or attempted to confer with other affected
parties to resolve the dispute without court action.
Protections from annoyance, embarrassment, oppression or undue burden or
expense may be made by court by one or more of the following:
i) that the disclosure or discovery not be had;
ii) that the disclosure or discovery may be had only on specified terms and
conditions, including designation of time or place;
iii) that discovery only be had by another method of discovery;
iv) that scope of discovery be limited to certain matters;
v) that discovery be conducted with no one present except persons designated
vi) that deposition be sealed and opened only by orders of court;
vii) that trade secret or other confidential research, development or
commercial information not be revealed or only be revealed in designated
viii) that parties simultaneously file specified documents or information in
sealed envelopes to be opened as directed by the court.
If motion is denied, order to provide or permit discovery with Rule 37(a)(4)
applying to award of expenses incurred in relation to the motion.
F. RULE 26 (D) TIMING AND SEQUENCE OF DISCOVERY
Requests for discovery may not be made until Rule 26(f) discovery conference
G. RULE 26 (E) SUPPLEMENTATION OF DISCLOSURES AND RESPONSES
Duty to supplement or correct disclosures
H. RULE 26 (F) MEETING OF PARTIES; PLANNING FOR DISCOVERY
Except where exempted by local rule, parties shall meet as soon as practicable or
at least 14 days before a scheduling conference is held or a scheduling order is
due under Rule 16(b).
Meeting to discuss the nature and basis of their claims and defenses and
possibilities for prompt settlement or resolution of case, to make or arrange for
disclosures required by Rule 26(a)(1), and to develop discovery plan.
Discovery plan shall consist of:
i) What changes should be made in timing, form, or requirement for
disclosures under Rule 26(a)(1) or local rule;
ii) Subjects on which discovery may be needed, when discovery should be
completed, and whether discovery should be conducted in phases or be
limited to or focused upon particular issues;
iii) What changes should be made in limitations on discovery imposed under
these rules or by local rule, and what other limitations should be imposed;
iv) Other orders entered by court under Rule 26(c) or under Rule 16(b) and
Discovery plan shall be submitted to court within 10 days after meeting.
I. DEPOSITIONS UPON ORAL EXAMINATION (RULE 30)
1) Rule 30
a) Anyone can be deposed, including a party. (Rule 30(a)(1))
b) Limit of ten depositions, otherwise leave of court (Rule 30(a)(2)(A)). Leave
of court also for deposition of person already deposed or deposition before
time specified in Rule 26(d).
c) If subpoena duces tecum is served, the designation of materials to be produced
shall be including with notice (Rule 30(b)(1)).
d) If public or private corporation or partnership or association or government
agency is served, matters should be described with reasonable particularity.
Organization shall designate one or more persons to testify on its behalf and
set forth or each the matters on which person will testify. (Rule 30(b)(6)).
e) Examination and cross-examination may occur. Objections may be made and
recorded but the examination shall proceed, with the testimony being taken
subject to the objections. Rule 30(c).
f) Party may instruct deponent not to answer: a) to preserve a privilege; b) to
enforce a limitation on evidence directed by the court; c) to present a motion
under Rule 30(d)(3) (Rule 30(d)(1)).
g) Can make a showing that examination is being conducted in bad faith, court
may stop deposition or limit it under Rule 26(c). Deposition may be stopped
in order to make this order. The provisions of Rule 37(a)(4) apply to the
award of expenses incurred in relation to the motion (Rule 30(d)(3)).
h) If party giving notice of taking of deposition does not appear or if party fails
to subpoena witness and thus that witness does not appear, party is liable for
reasonable expenses of that other party and that party‟s attorney. (Rule 30(e)).
i) Just because it is on the record does not mean it is automatically admissible in
2) Purposes of depositions
a) Information gathering device
b) Preparation for trial/building case.
c) Preservation of testimony. Gather testimony from someone before their death,
use at court.
d) Live testimony allows better determination of credibility.
e) Video testimony being used increasingly since 1995. More interesting to
juries, often entire tape will be shown rather than particular questions of oral
deposition read aloud.
f) Impeachment: Witness changes story, locked in at deposition.
g) Far and away most used discovery device because you can question the
3) Rule 53: Special master, often retired judge appointed by court, to rule on
objections and prevent conflicts which would occur without presence of judge.
J. DEPOSITIONS UPON WRITTEN QUESTIONS (RULE 31)
1) Rule 31
a) Testimony may be taken of any person, including a party by deposition upon
written questions (Rule 31(a)(1)).
b) Limit of ten depositions. Leave of court must be obtained in order to a) take
more than ten depositions; b) take deposition of someone already deposed; c)
take deposition before time specified in Rule 26(d) (Rule 31(a)(2)).
c) Cross-questions may be served (Rule 31(a)(4)).
2) Policy and Consequences
a) Fit in between
b) Useful if witness in remote location
c) Stenographer reads question and witness answers for first time.
d) A lot cheaper because lawyers not present
e) Problem: No chance for follow-ups, although cross-questions may be served.
K. USE OF DEPOSITIONS IN COURT PROCEEDINGS (RULE 32)
1) Rule 32(a): Depositions may be used in court in accordance with the following:
a) For the purpose of contradicting or impeaching the testimony or deponent as a
b) Deposition of party or anyone who at time was an officer, director, or
managing agent, or person designated under Rule 30(b)(6) or 31(a) to testify
on behalf of public or private corporation, partnership or association or
government agency may be used by adverse party for any purposes.
c) Deposition of witness, whether or not a party, may be used by any party if:
i) witness is dead
ii) witness is at greater distance than 100 miles from place of trial or
hearing, or is out of the U.S. for good reason
iii) witness is unable to attend because of age, illness, infirmity, or
iv) party offering the deposition has been unable to procure attendance of
witness by subpoena
v) exceptional circumstances in interest of justice and with due regard to
the importance of presenting the testimony of witnesses orally in open
court to allow deposition to be used.
L. INTERROGATORIES (RULE 33)
1) Rule 33
a) Party may serve up to 25 interrogatories to another party only. Leave of court
is needed to serve more or to serve before time designated in Rule 26(d) (Rule
b) Business records: Where answer may be ascertained in this manner and
burden would be same for either party, it is sufficient to specify records from
which answer may be obtained and afford party serving the interrogatory
reasonable opportunity to examine, audit or inspect such records (Rule 33(d)).
2) Advantages of interrogatories
a) Obtain information that would best be in writing, i.e., statistics, sales figures,
b) A lot less expensive
3) Disadvantages of interrogatories
a) Much clumsier information gathering device
b) Can‟t ask follow-ups, at least not at same time.
c) Cannot make witnesses look bad and force settlement, as with depositions.
d) Interrogatories can be highly rehearsed.
4) Problem with interrogatories: Most abused discovery: Ask in two lines which it
takes forty years to answer. Can object to these requests, but cannot ignore them.
M. PRODUCTION OF DOCUMENTS AND THINGS FOR ENTRY UPON LAND
FOR INSPECTION AND OTHER PURPOSES (RULE 34)
1) Rule 34(a) and (b): Party may request from another party various documents
which shall be produced and if not shall be subject to Rule 37 sanctions.
2) Rule 34(c): Person not a party to action may be compelled to produce documents
and things or to submit to an inspection as provided in Rule 45.
a) Subpoena duces tecum: Deponent may be required to bring documents with
them to deposition (See Rule 30(b)(1)).
b) Problem develops in wanting documents from non-party witness, could
request deposition, make out you want to ask questions just to take documents
c) 1991 Amendment, Rule 34(c): Method for people who are not parties to be
subpoenaed for documents.
d) Civil and Criminal Contempt (Rule 45): Told to do something and don‟t do it,
in civil contempt until it is done. Criminal contempt occurs when sent to jail
for offending court, used as punishment until you comply. Subpoenas for
discovery are not to parties but to non-party witnesses.
3) Societe International v. Rogers
a) Summary: Attempt to take property from SI for their trade with Nazis. SI
sues attorney general. Government wants SI to produce Swiss business
records but SI says it cannot.
b) Influence test is imposed on SI. Does party have “possession, custody or
control of documents? In this case SI does not, but they have influence over
the party that does, which still makes them responsible for obtaining the
c) Highly limited, usually in cases of fraud, often when party claims material is
in hands of third party.
N. PHYSICAL AND MENTAL EXAMINATION OF PERSONS (RULE 35)
1) Rule 35 (a): Two differences between this rule and other discovery devices:
a) Mental, physical examination must be “in controversy” within the case.
b) Only can be made “with good cause shown.”
2) Only discovery device where violation cannot be punished with contempt.
3) Only parties are subject to this Rule.
4) Rationale: Personal privacy.
5) Schlagenhauf v. Holder
a) Case Summary: Judge rules that Schlagenhauf, Greyhound bus driver
involved in vehicle accident, be submitted for nine different examinations by
neurologists, psychiatrists, internal medicine doctors and opthomologists.
Schlagenhauf sues trial court judge forcing him to take exam. Supreme Court
rules that discovery order was improper because it was not supported by
sufficient showing, although it remands for more careful evaluation, leaving
open the possibility of a visual examination.
b) Tension between need to ascertain truth and right to privacy.
c) Supreme Court graduating among the physical and mental tests.
i) Vision meets in controversy and good cause requirements, but problem
is that this is a conclusory allegation, no proof of requirement of vision
test in complaint.
ii) “What may be good cause for one type of examination may not be so
for another.” Sliding scale of good cause:
Tests not as humiliating: Lower bar
Tests more humiliating: Higher bar
More invasive test, the more that is demanded.
All Schlagenhauf should be read for.
O. TANGENT ON SCHLAGENHAUF: FINAL JUDGMENT ORDERS
1) Can only appeal final judgment orders that end case, not interlocutory orders
2) If lose, then appeal interlocutory orders all at once, but if win may moot
3) Consequences of Final Judgment Rule
a) If allow early appeals, perhaps lots of extra suits, but perhaps save time in
some cases. Example: 6 month, $2 million case with motion to dismiss on
statute of limitations and court denies. If allowed to appeal and win, save time
b) By not allowing early appeal, burden everyone equally.
4) Writ of Mandamus: Filing of whole new proceeding against judge. Schlagenhauf
pursues this because he does not want to submit to exams. Schlagenhauf was
high water mark for Mandamus.
5) Interlocutory Appeal Act (§1292(b)): Statutory safety valve to final judgment
rule. Trial judge has to certify that she may be wrong and may save time to allow
appeal at that time. This has not worked well because judges do not want to
admit that they are wrong.
P. MANAGING THE SCOPE AND BURDEN OF DISCOVERY
1) Davis v. Ross
a) Fact Summary: Plaintiff sues for defamation. Through discovery she
requests: 1) information on Ross‟ personal wealth; 2) billable hours of Ross‟
law firm; 3) names of other employees who have complained about defendant,
and nature of their complaints. Judge rules that all of these are not allowable
because private. At same time he grants Ross‟ discovery request for mental
examination on Davis because Davis is suing.
b) Redish‟s response to 1) Information on Ross‟ personal wealth
i) Substantive: Could do discovery and keep it under wraps so that there
is no serious prejudice to jury making redistributive decision.
ii) Procedurally: Discovery is set up to do this, not worth it to redo
discovery after case is decided and have jury wait.
c) For Assessment of Punitive Damages Need to Know How Much Person is
i) Court says need to know worth but not yet.
ii) Under New York law have bifurcated proeceding—first assess liability
then punitive damages:
a) Still why not allow discovery now even if won‟t go to jury until after verdict.
b) Court doesn‟t want every plaintiff to obtain private information.
c) Coca-Cola Case: Bottlers said they have right to obtain any Coke product and
Coca-Cola says they can only get Coke—Ps want to prove same product by
getting ingredients to Coke—Coke not going to give so they settle.
d) Shows how discovery can be used to ask for something very sensitive and get D
e) If judge allowed discovery of Ross‟ assets and net worth he would feel that he is
creating settlement in frivolous case.
d) Response to 2) Billable hours of Ross‟ law firm
i) Davis wants information because Ross‟ lawyer is witness and she is
concerned he may not be telling the truth.
ii) Court decides there is ability to probe for bias by inquiring into
existence and nature of lawyer-client relationship BUT mere fact of
employment does not mean bias.
iii) Redish: No other reason to prohibit discovery here than relevance and
this is relevant.
e) Response to 3) Other employees complaints with Ross
i) Redish: Truth is an absolute defense. If what is said is true than it is not
defamatory. Burden has to be on plaintiff to prove absence of truth, thus this
should be allowed.
f) Ross‟ request for mental examination on Davis: Court said must be permitted
to prove existence of damage on Davis‟ part since she is suing for mental pain
2) What Ross Reveals about Latitude of Application of Discovery (See Rule
26(b)(1) and Rule 26(b)(2)).
a) Relevance can be played with. As long as not privileged, might get us
somewhere, be allowable.
b) Enormous discretion and power of trial court regarding control of discovery
i) Discovery orders not final orders. Hard to appeal.
ii) Even if able appeal: a) appellate courts don‟t want to overrule
district/trial courts because of their access to nuances; b) once they
start reverse some decisions, more people will appeal; c) district judge
has to have respect of litigants.
c) Safety valve for this through Interlocutory Appeal Act for egregious acts like
3) Confidentiality Orders
a) To what extent on discovery orders is it appropriate to have confidentiality
b) Purpose: To protect parties by keep information confidential.
c) Confidentiality encourages settlement, controlling litigation because litigation
is not supposed to be doing these things.
Q. EXEMPTIONS FROM DISCOVERY
1) Hickman v. Taylor
a) Fact Summary: Attorney for tugboat company (defendant) interviews four
survivors of accident. One of decedent‟s representatives files a complaint
against tug owners, individually and as partners and railroad. Decedent‟s
representative (plaintiff) filed interrogatories to defendant, but attorney did not
release them claiming “privileged matter in preparation for litigation.”
District court rules the material should be released. Appellate court reverses,
calling it privileged as “work product of the lawyer.” Supreme Court hears
case. Tension between something prepared in:
Anticipation of litigation------------------------Ordinary course of business
Here, the controversy relates to fact that this was done before the litigation
b) Holding: Information not privileged but not available to plaintiff, not because
it is mental impression, but because they plaintiff not show good cause for
legwork work product. Not substantial need because plaintiff had other means
of obtaining information. Supreme Court says this is not privileged, because
privilege is not absolute, as is attorney-client privilege.
2) Legwork and Mental Impressions Work Products
a) Legwork Work Product: Fruits of attorney‟s labor in anticipation of litigation.
Can be obtained if:
i) denial would unduly prejudice case (substantial need)
ii) other party cannot get it (can‟t be obtained other way)
Why protect legwork product?: No incentive to get interview first if one lawyer
who gets it has to share it with the other.
b) Mental Impressions: Attorney‟s mental impact, reaction to evidence, trial
strategy. Very difficult to obtain mental impressions on their own (though
may be implicit in legwork work product). Problems with mental
i) Taking lawyer away from role as advocate and placing him within
the case itself.
ii) Would not want things written down if allowed to use mental
iii) Chilling and demoralization.
c) Result of this is to maintain some part of adversary system within Federal
Rules, even moving toward openness.
3) Rule 26(b)(3): Court protects against disclosure of mental impressions: “[T]he
court shall protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of an attorney or other representative of a party
concerning the litigation.”
4) Is Rule 33(c) a Caveat?
a) “An interrogatory otherwise proper is not necessarily objectionable merely
because an answer to the interrogatory involves an opinion or contention that
relates to fact or the application of law to fact.”
b) Seems like case of asking attorney, “What are you going to argue in this
c) Result is that attorney may have to give conclusions, but does not have to say
how you got there.
5) Fraud and Adversariness
a) Fine lines between what is part of adversary system of discovery and what is
b) Hypo: Attorney commissions three studies in trademark infringement case.
Two surveys said consumer confusion between products, one says there is no
consumer confusion. Only the third survey is presented. Is this fraud? Not
wrong not to introduce other two. Not wrong only to say one is correct. What
is wrong is to say that no survey showed confusion. It is up to opposing
counsel to ask for the other two surveys.
c) Hypo: Scientific study for companies accused of product liability. Five for
their industry, five against their industry. Only choose given for their
industry. Not fraud. It is plaintiff‟s job to get other five. If there is a bribe or
falsification of results, then fraud.
6) Should Work be Protected for Future Litigation?
a) Courts divided, some say protection only extends to “related” litigation, not
b) Federal Trade Com‟n v. Grolier, Inc.: Supreme Court says that work in
connection with terminated litigation could be withheld from request under
Freedom of Information Act because it was still protected by the doctrine.
Did not hold true that it would be true in civil litigation.
R. RULE 37: FAILURE TO MAKE DISCLOSURE OR COOPERATE IN
1) Rule 37
i) Making motions under Rule 26(a): If party fails to make disclosure as required by
Rule 26(a), any other party may move to compel disclosure and appropriate
sanctions. Motion must include certification that movant has in good faith
conferred or attempted to confer with party not making the disclosure (Rule
ii) Making motions under other Rules: Motions may be made to compel answer if
deponent fails to answer under Rules 30 or 31, corporation or other entity does
not make designation under Rule 30(b)(6) or 31(a), party fails to answer an
interrogatory under Rule 33, or party does not comply with document
inspection order under Rule 34. All must be certified with good faith effort.
In oral deposition situations, the deposition may be completed or adjourned
before applying for the order (Rule 37(a)(2)(B)).
iii) If motion is granted or if disclosure is made after filing of motion, then party in
error is responsible to pay to moving party reasonable expenses incurred in
making motion, including attorney‟s fees unless not done in good faith or
other special circumstances (Rule 37(a)(4)(A)).
iv) If motion is denied, protective order may be enter under Rule 26(c) and moving
party or attorney filing motion or both is required to pay reasonable expenses,
including attorney‟s fees, of other party unless special circumstances (Rule
v) Contempt: If deponent fails to be sworn or to answer question after being directed
by court, failure may be considered contempt of that court.
vi) Sanctions if Order of Court is not Obeyed (Rule 37(b)(2)(A-E)
i) Establishment Order: Matters about which order was made shall be
ii) Preclusionary Order: Prohibition from introducing designated matters
iii) Striking of pleadings or parts thereof, or staying further proceedings
until order is obeyed, or dismissing the action or any part thereof, or
rendering a judgment by default against disobedient party.
iv) Contempt of court, except for failure to submit to physical or mental
v) Expenses, including attorney‟s fees, caused by failure to comply,
except under special circumstances.
vii) Failure to Disclose, Attend, Answer, or Respond: Sanctions may be imposed
without an order (Rules 37(c) and (d)).
viii) Objectionable discovery may not be used as an excuse unless party has
pending motion for protective order (Rule 37(d)).
ix) Failure to participate in framing of discovery plan may require party to pay
expenses, including attorney‟s fees of other party (Rule 37(g)).
2) Cine Forty-second Street Theatre Corp. v. Allied Pictures Corp.
a) Fact Summary: Cine (P) takes action against Allied (D) and others for
conspiracy to cut Cine‟s access to first-run films. It sought treble damages
under antitrust laws and injunctive relief. D proposed interrogatories on issue
of damages, P repeatedly fails to answer. Magistrate held that P acted
willfully in not complying and precluded P from admitting evidence on
damages. District judge believes it is gross negligence and imposes a fine
only. He certified an interlocutory appeal on his own motion.
b) Holding and Rule: A grossly negligent failure to obey an order compelling
discovery is sufficient to justify severest disciplinary measures under Rule 37.
Thus, P cannot admit evidence on damages, leaving only claim for injunctive
c) Due Process Protection—Relation to Societe Internationale: Two parts to this
case. Due process is the other after influence test. SI acts with good faith to
use its influence and still cannot get information, thus due process protects it
d) Purposes of Sanctions
i) Preclusionary orders ensure party won‟t profit from own failure to
iii) Ensure that discovery process is complied with.
IV. SUMMARY JUDGMENT
A. RULE 56
1) For Claimant: Party may move for summary judgment any time after 20 days
from the commencement of the action or after service of motion for summary
judgment, with or without supporting affidavits (Rule 56(a)).
2) For Defending Party: May at any time move, with or without supporting affidavits
3) Motion: Summary judgment shall be rendered if evidence shows that “there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law” (Rule 56(c)).
4) Case Not Fully Adjudicated on Motion: Court may grant summary judgement on
part of case, but rest of case will still have to be adjudicated (Rule 56(d)).
5) Affidavits: “When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations or
denials of the adverse party‟s pleading, but the adverse party‟s response, by
affidavits or as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial. If the adverse party does not so
respond, summary judgment, if appropriate, shall be entered against the adverse
party” (Rule 56(e)).
6) Affidavits are Unavailable: If party opposing motion cannot obtain affidavits,
court may refuse application for judgment or may order a continuance to permit
affidavits to be obtained, depositions to be taken or discovery to be had. (In other
words, summary judgment motion may come before discovery, but may not be
granted until necessary discovery is had.) (Rule 56(f)).
7) Affidavits Made in Bad Faith: If affidavits are made in bad faith or for the
purpose of delay, court shall order the party employing them to pay to the other
party the amount of reasonable expenses which the filing of the affidavits caused
the other party to occur including reasonable attorney‟s fees and may possibly be
guilty of contempt (Rule 56(g)).
B. SUMMARY JUDGMENT IN CONTEXT OF OTHER MOTIONS
1) Pre-Summary Judgment
a) Rule 12(b)(6): Defendant looking at plaintiff‟s claim
b) Rule 12(c): Either party looking at both sides
c) These have nothing to do with truth or falsity of allegations; assume truth of
2) Post-Summary Judgment (Rule 50: Judgment as a Matter of Law)
a) Directed Verdict: Direct jury back with verdict in my favor. Occurs before
case goes to jury. Usually judges don‟t want to do this for fear of being
reversed. Have to a new trial because case never went to a jury if appellate
court overrules decision.
b) Judgment N-O-V: Judge overrules jury decision. Reinstate verdict if judge is
wrong because deliberation has occurred. Jury finding.
c) Can‟t move for judgment N-O-V without judgment for directed verdict.
d) Directed verdict: jury verdict irrational. Motion for new trial: jury verdict
rational, but reason to be wrong.
e) Rule 59: New Trial
3) Summary Judgment v. Judgment as a Matter of Law
a) Summary judgment asks same questions as J.M.O.L but at a different point in
process. Does the party have enough evidence that a reasonable finder of fact
could find for it?
b) Because of this, seems summary judgment would be harder, but Supreme
Court says that it is not.
c) Why have Summary Judgment then?: Don‟t need summary judgment if
J.M.O.L. is there, but use summary judgment to avoid trial. Theoretically
don‟t need J.M.O.L, when have summary judgment; shouldn‟t need to get to
J.M.O.L. Still have the two coexisting because occasionally there are cases
that still ought to go to trial.
C. THE BURDENS DISTRIBUTED IN THE SYSTEM
1) Burden of Pleading: Given to that side which wishes to produce the evidence at
trial. (Rehnquist in Gomez makes this view unclear.)
2) Burden of Proof
a) Burden of Production: One party has this at a time. Burden can shift back and
forth all over the place. Central focus is determining if party has enough
evidence get to trial, i.e. producing enough evidence that a reasonable finder
of fact has enough evidence that you could find for him.
b) Burden of Persuasion: This burden rests with the party that must convince the
trier of fact at trial of the accuracy of his factual assertions. This means that
the party that is not able to convince the judge or jury will lose the case.
Usually plaintiff on main case and defendant on affirmative defenses.
3) The Mechanics of the Burdens:
D. ADICKES V. S.H. KRESS & CO. (1970)
1) Fact Summary: Adickes was refused service at restaurant and was arrested for
vagrancy. Brought action under § 1983, alleging conspiracy between Kress and
the police. Under circumstances, a conspiracy could have existed only if police
had been present in the store. Adickes could not show that police were present so
Kress moved for summary judgment. This was granted and affirmed. Supreme
2) Point of Adickes: In an action based on conspiracy, summary judgment may not
be granted unless a defendant can show that no evidence thereof exists. (In
Adickes, court doesn‟t care if plaintiff‟s evidence enough because Kress did not
shift burden, foreclose possibility policeman was in store.)
a) In this case, Kress needed to prove not only that the court could find for them,
but that they should or must find for them. Thus, no need to bother looking at
Adickes‟ evidence. Kress could not lift the burden to see it. This will change.
b) Effect of Celotex: Court in Celotex liberalized burden on moving party,
holding that such a party on issue the opposing party has the ultimate burden
of proving, could prevail on the basis that the nonmoving party could not
produce evidence on the issue.
c) This has made summary judgment much easier to obtain in federal courts,
although most state courts retain procedures similar to the Adickes ruling.
E. THE THREE VIEWS ON SUMMARY JUDGMENT
1) The traditional view (Adickes standard)
a) Movant who does not have the burden of persuasion at trial must not only
meet burden but shift it (meaning that finder of fact must find for him).
b) Once the burden is shifted, the non-movant must at least meet its burden with
facts (affidavits, interrogatories, etc.). Cannot just rely on pleadings (Rule
2) Louis‟ view
a) The movant who does not have the burden of persuasion at trial must only
meet his burden (meaning that the finder of fact could find for him).
b) This can be done in two ways: 1) show that the non-movant does not have
enough evidence to win at trial (preview his case) or 2) use movant‟s evidence
to show that there is no genuine issue of fact and deserves decision as a matter
3) Currie‟s view (Redish agrees)
a) Currie identifies the point of summary judgment as “to discover whether the
parties have enough evidence to justify the time and expense of trial.”
b) Summary judgment should mirror the analysis made during directed verdict.
c) Movant who does not have the burden of persuasion at trial must simply make
Adickes Louis Currie
Must shift burden Preview non-movant’s case Make motion
or meet own burden
5) The harassment fallacy: Some argue that Currie‟s approach may lead to
harassment, because it would be easy to make summary judgment motions, but
Rule 11 can be used and Rule 56(f) is ultimate safety valve, meaning there is no
way that this can be considered harassment, because non-movant can simply say
it needs more time for discovery.
6) Difference between who has burden
a) These three approaches exist only when movant does not have burden of
persuasion at trial.
b) If the movant has the burden of persuasion at trial, the movant must shift.
Why? Summary judgment avoids unnecessary trials. At trial, movant will
have to meet burden and close off all other arguments as well.
F. CELOTEX CORP. V. CATRETT (1986)
1) Fact Summary: Catrett‟s husband died and she sued several asbestos
manufactures, claiming the death resulted from exposure to their products.
Celotex, one of the manufactures, moved for summary judgment on basis that no
evidence existed that the decedent was exposed to its products. District court
granted, appellate court reversed, Supreme Court granted motion for Celetox.
2) Point of Celetox: Summary judgment must be entered against a party who fails to
make a showing sufficient to establish the existence of an essential element to his
case and on which he bears the burden of proof at trial.
a) Celotex is link of the 1986 summary judgment trilogy. With shift to notice
pleading, summary judgment becomes more important. Courts can‟t afford
luxury not to use summary judgment. Weapon against: 1) waste; 2) inefficiency;
3) undue burdens; 4) harassment.
b) Rehnquist‟s opinion demonstrates two main points by collapsing summary
judgment and directed verdict for question of burden shifting:
i) Move closer to Currie because it‟s simple test, but no lawyer will just
move, they will try to make a “pointing out” argument which is closer to
ii) Sua sponte: Judge can decide without defendant moving.
c) White‟s concurring opinion closer to Louis than Currie. Movant must discharge
burden of rules. At least “pointing out” which means more emphasis on
affirmative action of the movant. “It is not enough to move for summary
judgment without supporting the motion in any way or with a conclusory
assertion that the plaintiff has no evidence to prove his case.”
Currie Louis Adickes
Make motion Preview non-movant’s case Shift burden
or meet burden
Pointing out Discharge burden of rules
At least point out
G. ARNSTEIN V. PORTER (2ND CIR. 1946)
1) Fact Summary: Arnstein appealed summary judgment for Porter, who, Arnstein
alleged, had stolen tunes for several popular songs Porter had written.
2) Point of Arnstein: Where credibility of the parties is crucial, summary judgment is
improper and a trial is indispensible. Only evidence that Arnstein has is Porter‟s
performance at the stand. So Frank and Hand deny summary judgment on basis
that jury may disbelieve Porter.
a) Relates to non-movant‟s burden once the curtain is lifted by the movant
(which is what the earlier cases related to).
b) Hand and Frank‟s opinion is termed the “slightest doubt test”: Can‟t grant
summary judgment if there‟s any chance that non-movant might be right.
Also known as scintilla rule.
c) Clark dissents on basis that he needs summary judgment to maintain notice
pleading system. If not grant summary judgment, impossible to use it
effectively because too many cases would go to jury.
d) Dyer and definitely Celotex decisions bury this rule. In these cases, although
some doubt exists, summary judgment was granted anyway. Thus, court
moving toward Clark‟s opinion, although some still use scintilla rule.
e) Alternative is Substantial Evidence Test that requires party with burden of
production to have substantial evidence. This tougher rule is based on two
rationale: 1) judicial administration, efficiency/burden and 2) juries into
economic redistribution, tougher summary judgment rules stop this.
H. DYER V. MacDOUGAL (2ND CIR. 1952)
1) Fact Summary: Summary judgment in a defamation action was granted in favor of
MacDougal when he produced evidence that everyone to whom the alleged
defamation was published denied receiving such statements.
2) Point of Dyer: Summary judgment is appropriate in a defamation action when all
individuals supposedly receiving the defamatory statements deny such receipt.
a) Although theoretical doubt may still exist, it is doubtful jury would disbelieve
this evidence and, moreover, it is doubtful that this case could get beyond
motion for directed verdict.
b) Without overruling Arnstein, Dyer goes the other way.
c) Frank find flaw in Hand‟s logic: Hand argues from alleged unreviewability of
cases with directed verdict relying on demeanor evidence as reason to grant
summary judgment, but Frank says they are reviewable, for if Hand were
correct any directed verdict cases relying on oral testimony would be
I. HARLOW V. FITZGERALD (U.S. SUP. CT. 1982)
1) In a case of qualified, or “good faith” government immunity, court decides that
objective standard should be used to analyze defendant‟s actions, not subjective
standard. This makes judgment on defendant‟s conduct easier to determine, thus,
making summary judgment easier to determine.
J. MATSUSHITA ELECTRIC INDUSTRIAL CO. V. ZENITH RADIO CORP.
(US. SUP. CT. 1986)
1) Fact Summary: American manufacturers bring antitrust suit against Japanese
manufacturers for predatory pricing, but no evidence that it worked.
2) Court rules in favor of summary judgment
a) Opponents of summary judgment must show more than that there is some
metaphysical doubt as to material facts.
b) If factual context renders a party‟s claim implausible, party must have more
persuasive evidence to support claim than would otherwise be necessary.
a) Court virtually puts an end to slightest doubt test. Mere presence of
metaphysical doubt is not enough to prevent summary judgment.
b) Court goes against dictum in Poller v. CBS, 1962, in which it resisted granting
summary judgment in complex litigation cases. It would seem you would
want to avoid unnecessary big trials, but court in Poller says that when there
is an issue of motive, it should go to the jury. Here, however, court doesn‟t
hesitate to grant summary judgment in a big case.
K. ANDERSON V. LIBERTY LOBBY (US. SUP. CT. 1986)
1) Summary judgment in defamation cases: Summary judgment burden is same as
trial burden—clear and convincing evidence.
2) In N.Y. Times v. Sullivan (1964), Supreme Court establishes that first amendment
rights of free expression prohibited imposition of damages for defamation of
public officials and public figures unless the defamation was published with
“actual malice”—knowledge of falsity or reckless disregard of truth or falsity.
3) Court required that plaintiff prove presence of actual malice by clear and
convincing evidence, a standard much stricter than the usual preponderance of the
4) In Anderson court considered whether this higher burden for plaintiffs meant that
defendants should have a more lenient standard than normal for summary
judgment. Court says that it should.
a) Parallel summary judgment with directed verdict.
b) Thus, standard of proof for summary judgment should be same as that at trial.
c) Must ask in defamation cases, for example, whether reasonable finder of fact
could conclude that plaintiff showed with convincing clarity that defendant
acted with actual malice.
5) Rehnquist in dissent: Clear and convincing evidence is nontranssubstantive, it is
an exception particular to trial. Rule 56 summary judgment means that
defamation is transsubstantive, what‟s good for one action is good for another.
Redish says that Rehnquist‟s anger should be directed to N.Y. Times decision
which gave defamation the clear and convincing standard.
L. WHEN THE DUST SETTLES
1) Summary judgment standard similar to directed verdict.
2) Supreme Court favors Currie standard of merely pointing out or less. This makes
summary judgment easier to obtain. But be aware of White‟s concurrence that
demands a little more than merely pointing out.
3) “The majority of post-Celotex lower courts have read that decision not to impose
a significant triggering burden on a movant who lacks the burden of production at
trial. Indeed, many lower court decisions following Celotex have either reduced
the burden dramatically or ignored it completely.”
4) Judicial administration reasons favor granting summary judgment for efficiency.
5) Clark (and Rehnquist in Celotex) realizes importance of liberalization of summary
judgment with the shift to notice pleading. Open up funnel at top means closing it
at bottom. Thus, tougher standard of substantial evidence on non-movant once
the movant has lifted the curtain. This is demonstrated in Dyer and Matsushita.
6) Defamation standard is clear and convincing evidence that makes it easier for
defendant to obtain summary judgment in such cases.
7) Note that partial summary judgment may be granted, but litigation remains on
other parts of claim.
A. PENNOYER V. NEFF (1877)
1) Fact Summary: Mitchell brought suit in Oregon against Neff (P) for legal fees.
Neff, nonresident served by publication, and Mitchell obtained default judgment
b/c Neff does not show up. Neff‟s obtains property within Oregon which is sold
at auction to satisfy judgment. Pennoyer (D) purchased property. Neff files suit
in Oregon for return of property. Neff (P) alleged that court had never acquired in
personam jurisdiction over him.
2) Point of Pennoyer: State must have:
a) Notice: Where object of action is to determine the personal rights and
obligations of the parties, service by publication against nonresidents is
ineffective to confer jurisdiction on the court.
b) Power: Control of everything within the state. No control of anything without
a) If Neff‟s land was owned at time of suit and had been attached to the suit,
there would have been grounds for quasi-in-rem jurisdiction.
b) Holmes: Essence of jurisdiction is physical power.
c) Court grounds decision in due process laws, but no real basis for this. Due
process should be requirement for fair procedure for citizens. Justice Field
derives postulates governing jurisdiction from international public law. What
they really are discussing is state‟s powers (control rule above) and full faith
and credit clause of Constitution: “Full faith and credit of each state‟s judicial
acts and proceedings.”
d) When it is feasible that more than one state could exercise jurisdiction, the
judgment from the first one that does is binding and all others must recognize
its validity (full faith and credit) (see McGee).
e) Redish has problems with Field‟s analysis. He prefers a focus on the
individual citizen and their relationship to government, analyzing what is
procedurally fair and is not.
f) Exceptions to Field‟s power theory:
i) Marriage: 1) intangible res stays in the state; 2) that state can
determine status, valid marriage, divorce, etc.
ii) Partnerships: If chartered in state, the res stays in that state.
g) Supreme Court struggles to get of out the second principle of Pennoyer, but
never touch the first principle.
B. IN PERSONAM V. IN REM
1) In personam
a) In Pennoyer, court rules that “A court can enter a valid judgment in personam
only, when jurisdiction has been obtained by personal service of process in the
state, although it does not mater that the defendant was in the state only
i) Neff not served in Mitchell‟s case against.
ii) Grace v. MacArthur: reductio ad absurdum, passenger on flight from
Memphis to Dallas served over Pine Bluff, AK.
iii) Grace is a case of “transient jurisdiction” with service while defendant
in state, even for a short period.
iv) Ehrenzweig argues that pre-Pennoyer, services neither essential or
sufficient to jurisdiction, only concern was convenience and
submission of defendant to power of state. Grace shows that the latter
is no longer a concern, put is personal service, by itself, sufficient for
2) In rem
a) In cases of in rem jurisdiction, the physical presence of the property within the
state vests the state with jurisdiction to adjudicate the rights of any
individual—whether in the state or not—in that property. Adjudicate rights of
anyone around world, but only in relation to rights in that particular property.
b) “Pure” in rem
i) State seeks to bind rights of whole world in a piece of property in the
state‟s borders. Do this to preserve uninhibited alienability of
c) In the nature of rem (sometimes inadvertently called quasi in rem)
i) State seeks to bind merely rights in a particular piece of property, only
as to specifically named individuals.
ii) As a result, suit can be in personam (to determine control of
defendant‟s personal rights in property) or in nature of rem (to
adjudicate rights in property located in state).
iii) Practical result: From plaintiff‟s perspective, characterization would be
If property in state but defendant not subject to service, then in the
nature of rem.
If property was beyond state‟s borders, but defendant was subject to
service of process, then in personam.
d) Quasi in rem
i) Action is purely in personam, substance of case has nothing to do with
property. However, state lacks authority to assert in personam
jurisdiction over defendant. As a result, plaintiff allowed to assert
jurisdiction over defendants property within the state by attaching
garnishment, or other process available at the beginning of the suit to
allow seizure of property to secure claim.
ii) Example: A from IL sues B from NY for $50,000 for personal services
contract. B is not subject to in personam jurisdiction in Illinois, but
owns piece of property worth $25,000 in IL. This is attached and if
won, then A can sue B in another jurisdiction for remaining amount.
(Why not use diversity jurisdiction here?).
iii) “Limited appearance” of defendant is allowed in such cases, i.e. to
appear to defend suit up to the value of property without implicitly
consenting by presence to full in personam jurisdiction.
C. SPECIAL APPEARANCE AND LIMITED APPEARANCE
1) Special Appearance (Now unnecessary because of 12(b)(2) motion): Appearance
to contest court‟s jurisdiction as long as nothing is said about merits of case, in
which case in personam jurisdiction may be used.
2) Limited Appearance: Appearance in quasi in rem case where appearance is only
based on amount of property in question. (No longer needed after Shaffer: Court
either has got full jurisdiction or none at all.)
D. HARRIS V. BALK (1905)
1) Fact Summary: Harris (D), a North Carolina resident, owed $180 to Balk (P),
another North Carolina resident. While Harris was in Maryland temporarily,
Epstein brought suit to recover $300 which Balk owed him, attaching the $180
which Harris owed Balk. Epstein recovered the $180, still having the opportunity
to obtain other $120. Balk took action against Harris to recover the $180. Court
held for Harris.
2) Point of Harris: Debt accompanies debtor wherever he goes, being seen as
property that can confer in rem and quasi in rem jurisdiction.
3) Very unfair to creditor
a) He can be hailed into court wherever his debt goes.
b) That includes states with which he has no connection.
4) Court overrules Harris in 1977 with Shaffer. Although debt following debtor is
gone, having a bank account in a state may give jurisdiction.
5) Today, expansion of in personam jurisdiction, so less use of quasi in rem.
E. FACTORS GOVERNING CHOICE OF JURISDICTION
1) Ease of procedure
2) Substantive types of law in certain states beneficial.
3) State courts more sympathetic to residents.
4) Example: This is why Epstein waits for Harris to get to Maryland rather than sue
Balk in North Carolina, which he also has the power to do.
F. HESS V. PAWLOSKI (1927)
1) Fact Summary: MA statute provides that nonresident motorists were deemed to
have appointed a state official as their agent for service of process in cases
growing out of accidents or collisions involving them. Pawloski (P) sues Hess
(D), a nonresident, for damages due to auto accident. Hess claims that statute is a
violation of due process. Supreme Court finds for Pawloski.
2) Point of Hess: In advance of a nonresident‟s use of its highways, a state may
require the nonresident to appoint one of the state‟s officials as his agent on whom
process may be served in proceedings growing out of such highway use.
a) Rationale: Inherent danger of automobile use justifies this implied consent
because states have interest in protection from out of state drivers.
b) Try to get around physical power of Pennoyer, but still tied to Pennoyer,
using legal fiction of consent to get around it, as exception to procedural due
c) The cat is on the roof.
G. JURISDICTION OVER CORPORATIONS AT THIS TIME (PRE IS)
1) Generally a corporation would be under a state‟s jurisdiction either by:
a) Implied consent
b) “Presence”—analogous to person‟s physical presence rationale under transient
2) Test for both was “doing business.”
3) Gradually “doing business” replaced fictions of consent and presence.
a) Doing business was supposed to be a quantitative determination, look to how
business is done there.
b) Random, sporadic deals were not enough to equal doing business, had to be
continuous and systematic (Cardozo test).
4) Suit didn‟t have to have anything to do with the business being done there; doing
business established in personam jurisdiction over all matters.
H. INTERNATIONAL SHOE CO. V. WASHINGTON (1945)
1) Fact Summary: IS (D) had not made unemployment contributions for its
employees in violation of a state statute. IS was a nonresident corporation,
incorporated in DE with its principle place of business in MO. IS had 11-13
salespersons in WA who resided there but did not have authority to enter
contracts or make collections. IS had no office in WA or any contracts there.
Court holds that IS, is subject to in personam jurisdiction.
2) Point of IS: For a state to subject a nonresident defendant to in personam
jurisdiction, due process requires that he have certain minimum contacts with it
such that the maintenance of the suit does not offend traditional notions of fair
play and substantial justice.
a) Court moves for old Pennoyer power theory to fair play and substantial
justice, laying groundwork for substantive changes, at least with second
element of Pennoyer.
b) Establishes “minimum contacts” standard
i) Look to notions of “fair play” and “substantial justice” in addition to
amount of business done.
ii) Look to convenience factors
aa) Where are witnesses, evidence, parties, etc.?
bb) Making considerations of forum nonconveniens, due process.
iii) Still considers amount of business, but to see how much company has
derived benefit from the state.
c) Single act: Under “minimum contacts,” it may be that the cause of action
arises out of a single act. That would never be enough to satisfy jurisdiction
under old “doing business” standard. Note that court cites Hess as example of
a single act.
d) New standard looked to:
i) Connection between suit and corporation‟s in-state activity.
ii) State interest in providing a forum to plaintiff.
iii) Procedural burdens and inconvenience to defendant.
e) Note that in the opinion majority uses previous test of “doing business”—
“continuous and systematic”—which is not what minimum contacts is based
f) Consider hypos on p. 692, Note 3.
I. MULLANE V. CENTRAL HANOVER BANK (1950)
1) Transitionary period
2) This is primarily a notice case and here notice by publication ruled insufficient.
Notice should be sent across state lines.
3) Court does uphold jurisdiction in New York claiming that since this is a case of
common trust fund with beneficiaries across country, but all trusts in New York,
New York is focal point and has interest. Judge Jackson throws out arguments of
in personam (P‟s on basis of negligence) and in rem (D‟s on basis of property)
and says that common trust fund is good idea, need to have an accounting to move
on, and NY has most contacts, thus it is only state that can assert jurisdiction.
4) See this case as moving up ladder from IS, along with McGee. Redish approves
because it clarifies the contacts analysis. Move to forum conveniens, center of
gravity, focal point of case.
5) Redish approves because it moves to state with:
a) strongest interest
b) most parties
c) most evidence
d) consequences have biggest effect
J. McGEE V. INTERNATIONAL LIFE INSURANCE CO. (1957)
1) Fact Summary: McGee (P) was the beneficiary of a life insurance policy for her
son, CA resident. He had purchased policy by mail from International Life (D)
which had solicited in CA, and he was the only CA policyholder. McGee (P)
obtained a judgment for the proceeds in CA which she attempted to enforce in
TX. TX claimed that CA did not have jurisdiction. Supreme Court finds for
McGee. TX has to give full faith and credit.
2) Point of McGee: Due process requires only that in order to subject a nonresident
defendant to the personal jurisdiction of the forum, he have certain minimum
contacts with the forum and that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.
a) By soliciting in CA, International Life passes minimum contacts test. This is
lowest standard for jurisdiction. One contact is enough.
b) McGee represents farthest extension of minimum contacts doctrine.
c) If insured had taken policy out in Texas and moved to CA, where he was sole
policyholder, the foreseeability argument present in McGee would be diluted
(see Hanson v. Denckla).
4) Analyzing McGee from three parts of minimum contacts test
a) Defendant‟s pre-litigation contact with state: Getting benefits from CA
b) State interest in providing a forum: State has strong interest in insurance
issues as they affect residents.
c) Balance of inconveniences: Communication, transportation has developed.
Burden on Texas corporation not as great as one McGee.
5) When dust settles after McGee
a) High water point of socially policy orientated reasonableness test. Gets away
from doing business, continuous and systematic test.
b) Don‟t bother with old concepts of in rem, quasi in rem, in personam. If it is
reasonable, fair, does state have interest?
c) In McGee, get far away from old standards. State interest, little burden arising
out of activity in state means that jurisdiction can arise from one shot deal.
K. HANSON V. DENKLA (1958)
1) “Very hard cases make very bad law.”
2) Woman sets up trust in Delaware and then moves to Florida. Daughters want to
prove trust is not vaild, but need to obtain jurisdiction over trust company.
3) Court holds that jurisdiction in Florida is not present because trustee did not
perform any acts in Florida that bear similar relationship to agreement as the
solicitation in McGee, thus no purposeful availment because no voluntary
affiliation. Redish doesn‟t see this distinction since Wilmington Trust benefits
from woman in Florida.
4) Redish argues Mullane analysis should be used with Florida as the forum
conveniens, but Supreme Court goes back to old in rem and in personam
categories, claiming that Delaware has in rem jurisdiction.
5) Court argues that Florida law may be applied in Delaware, but to Redish this
doesn‟t make sense. It should not be easier to assert body of law in another state
than to win jurisdiction in your own state. Redish argues that jurisdiction should
be easier to obtain and then decide which state law should apply.
6) Developments of Mullane, McGee come down with a THUD.
7) Court kicks Mullane upstairs, example of “jurisdiction by necessity”: if not NY,
8) Court does not overrule McGee, but seems to want to get away from forum
conveniens approach, to quiet any leanings of unimportance of state boundaries.
9) This is the start of purposeful availment.
L. AS THE DUST SETTLES
1) Court gropes toward standard of what minimum contacts should be after IS.
Three elements with one becoming preeminent.
a) Defendant‟s pre-trial contacts with forum state. This takes on form of
purposeful availment, which Hanson holds up as the preeminent element.
b) State interest.
c) Inconvenience to defendant.
M. GRAY V. AMERICAN RADIATOR (ILL. SUP. CT. 1961)
1) Fact Summary: Gray (P) a resident of Illinois, alleged that Titan‟s (D), an Ohio
corporation, negligent construction of a valve which it sold to American (D),
which incorporated the valve into a water heater, caused an explosion which
2) Point of Gray: Whether a nonresident activity within a state is adequate to subject
it to jurisdiction of that state depends upon the facts of each case, and the relevant
inquiry is whether the defendant engaged in some act or conduct by which he
invoked the benefits and protections of the forum.
a) This is preview of specific jurisdiction.
b) Titan is liable on the basis of stream of commerce theory. It placed its valve
in a stream of commerce, knowing that American Radiator did business in
Illinois and that the valve foreseeably could wind up in a radiator sold there.
c) This is an example of long-arm statutes passed by states to provide local for a
for local plaintiffs to bring claims on locally generated causes of action.
d) Note that this is different from McGee, but still jurisdiction. Titan argues that
there is solicitation in McGee that does not occur here, but court says that
Titan derives indirect benefit that is similar to direct benefit in McGee. There
is a quid pro quo in Gray, that exists in McGee and in IS.
e) Note also that there is no purposeful availment, but Illinois Supreme Court
could care less, stream of commerce approach puts manufacturer on notice
that it can be sued anywhere.
N. SHAFFER V. HEITNER (1977)
1) Fact Summary: Heitner (P) brought a derivative suit against Greyhound (D)
directors for antitrust losses it had sustained in Oregon. The suit was brought in
Delaware, Greyhound‟s (D) state of incorporation.
2) Point of Shaffer: Jurisdiction cannot be founded on property within a state unless
there are sufficient contacts within the meaning of the test developed in
a) Suit is against directors and since neither site of wrong or residence of
defendants is in Delaware, court believes there is no basis for jurisdiction.
Only basis is on fact that the directors‟ stock is based in state of incorporation,
which is Delaware, which would allow quasi in rem jurisdiction, but court
considers this analysis outdated.
b) Quasi in rem jurisdiction is dead. (But some judges keep alive, example: New
York where due process would allow assertion of jurisdiction but “gaps” in
long-arm statutes precluded that.)
c) Court says that all assertions of state control must be evaluated according to
the standards of IS and subsequent cases. Everything is minimum contacts
(but is it? (e.g. tag jurisdiction))! Thus, while quasi in rem is dead, permanent
property will be strong factor, not because of state‟s power over individual,
but because of its demonstration of minimum contacts.
d) Redish likes result but not the reasoning: Marshall argues that court has gotten
rid of in personam jurisdiction, but this is wrong because it still exists in tag
jursidiction. Instead, court has gotten rid of second rule of Pennoyer: states
have no control without the state. Subsequent decisions demonstrate control
of corporations, individuals outside of state. Shaffer decision seems to
indicate that in personam will also follow same minimum contacts rule.
While it does in terms of property, it does not in terms of the person. Tag
jurisdiction is still good law, even if no other contact than passing through
state. Thus, while the directors‟ property was not enough of a minimum
contact to grant jurisdiction, if they flew across Delaware and were served that
would be enough.
e) Redish thinks that having stock in Delaware is purposeful availment, but court
wants to prevent strike suit by stockholder, so holds there is no jurisdiction
because no purposeful availment.
f) Tough question after Shaffer: Is summer home enough property to constitute
minimum contact (purposeful availment) in state to grant jurisdiction over
individual resident of other state? Bank account seems to be enough, but
courts take different approach. One N.Y. court used bank account to grant
quasi-in-rem jurisdiction over foreign airline.
g) Delaware later passes state statute that would enforce jurisdiction on basis of
stock present in state on basis of directors consenting to suit there on claims of
malfeasance in that position.
O. KULKO V. SUPERIOR COURT (1978)
1) Fact Summary: Wife in CA, husband in NY, kids sent to CA. Lower court says
sending of kids to CA is enough to grant jurisdiction, but Supreme Court
reverses—children not defendant had invoked protection of CA law.
2) Analysis: State interest, center of gravity, procedural convenience all argue in
favor of jurisdiction, but Kulko did not consciously affiliate himself with CA, thus
no purposeful availment, no minimum contacts. His alleged contact not
economic, but personal. Court does not seem to want to get involved in family
P. WORLD-WIDE VOLKSWAGON CORP. V. WOODSON (1980)
1) Fact Summary: The Robinsons bought a new Audi in New York from Seaway
and while traveling in Oklahoma were involved in a crash allegedly aggravated by
Audi‟s negligent placement of the gas tank. The state district court asserted
personal jurisdiction over Seaway and World-Wide, another New York based
dealer. Oklahoma Supreme Court affirmed. Supreme Court reverses.
2) Point of World-Wide: The sale of an automobile by a corporate defendant is not a
sufficient purposeful availment of the benefits and protections of the laws of a
state where the automobile is fortuitously driven there so as to constitute the
requisite “minimum contacts” with that state for personal jurisdiction purposes.
a) This decision sets up purposeful availment as the test for minimum contacts.
Court says that dealer putting car into stream of commerce is not enough, even
being able to foresee car will get to Oklahoma is not enough.
b) Purposeful availment: If a party purposely avails himself of the privilege of
conducting business within a state, he is subject to jurisdiction in that state.
c) This standard (quid pro quo theory) is not new, but here a huge, new emphasis
is put on it. It used to be one factor, now is a necessary condition, but it is not
true that purposeful availment=jurisdiction.
d) Redish believes that although court attempts to distinguish Volkswagon from
Gray by saying that foreseeability was greater in Gray (Titan knew that
distributor sold in Illinois, whereas in Volkswagon, consumer unilaterally
takes product out of state), it is nearly impossible to do, both are really stream
e) Note that Audi and Volkswagon of America were also part of the original suit.
They would have been subject to suit in Oklahoma, but could have removed to
federal court on grounds of diversity. Robinsons‟ lawyer did not want that so
he added the two New York defendants. Audi and Volkswagon underwrote
costs of their appeals so that case would be removed to federal court, where
jury found for defendants.
f) Volkswagon with three factors that came out of IS
i) Defendant‟s pre-trial contacts with forum state (purposeful availment):
No. This is enough for Supreme Court to say no jurisdiction even
though other two are in the affirmative.
ii) State interest: Yes, Oklahoma roads, hospitals, people may be injured.
iii) Procedural Convenience: Yes, all evidence and witnesses in
g) Court goes back to reinforcing interstate sovereignty as a key to due process,
but Redish asks, “What does state sovereignty have to do with due process?”
Due process has nothing to do with interstate federalism. Redish has problem
with the 1) theory, thus sees the 2) doctrine as mangled.
Q. INSURANCE CORP. OF IRELAND v. COMPAIGNE DES BAUXITES DE
1) Fact Summary: A district court held jurisdiction to exist over nonresident
corporations when they failed to comply with discovery orders.
2) Point of Insurance Corp. of Ireland: A court may declare jurisdiction as a
sanction for failure to comply with discovery.
a) When a defendant specially appears in an action contesting jurisdiction, it is
bound to follow all court orders until the jurisdiction issue is settled. Refusal
to do so can constitute a waiver of jurisdictional objections.
b) Court argues that this is an example of liberty/due process in a jurisdictional
matter, not interstate federalism, but purposeful availment comes out of
interstate federalism, not liberty/due process idea. White concedes he is
wrong on theory, but doesn‟t do anything about doctrine.
R. CALDER V. JONES (1984)
1) Fact Summary: In a defamation action, CA state court asserted jurisdiction over
out-of-state authors from FL, who had not visited state nor had substantial
2) Point of Calder: Publication of a defamatory article in a state may create
jurisdiction over the authors thereof.
a) Special case for intentional torts: Focal point analysis is used (same analysis
that court decided it wouldn‟t use in Hanson). California is focal point for
case because knowingly hurt someone in forum state. Seems a strange
aberration case because courts don‟t use this analysis again. Only way to
reconcile is to say that it is special case for intentional torts.
b) Redish says court could have said that writers knew that the newspaper was
selling lots of copies in California, thus they got benefits and purposefully
availed themselves, but instead court uses focal point analysis. Why? Court
doesn‟t want to use this in individual cases because it opens up all sorts of
people to jurisdiction. Example: Don‟t want to get the welder who was
involved in manufacturing the Titan radiator. This protects him.
c) Court seems to want to set up system so state can provide forum for its
resident who is injured there. This may relate to issue of Internet jurisdiction.
State wanted to protect its citizens then makes purposeful availment
irrelevant. Redish says, “Good. It was wrong to adopt purposeful availment
in the first place.”
d) Other courts have interpreted this decision as relating only to intentional tort
cases, but mere fact resident of state is injured is usually not enough, has to be
e) This sets up rule of nontranssubstantivity for 1st Amendment (different set of
procedure), which gets Rehnquist upset in Anderson.
f) Publisher, National Enquirer, did not contest jurisdiction since it sold over
500,000 issues in jurisdiction.
h) Jurisdiction upheld in cases with even smaller circulation figures, i.e. Keeton
v. Hustler Magazine, Inc., where jurisdiction was upheld in New Hampshire
on basis of circulation of no more than 15,000 issues.
S. HELICOPTEROS NACIONLES DE COLOMBIA V. HALL (1984)
1) Fact Summary: A Texas state court exercised jurisdiction over Helicopteros in a
cause of action related to helicopter crash killing Americans in Peru, on the basis
of its regular purchases in the state, although these purchases were unrelated to
incident in question.
2) Point of Helicopteros: Purchases, even at regular intervals, do not subject a
foreign corporation to state jurisdiction if the purchases are unrelated to the cause
a) This is a case of general jurisdiction, in which jurisdiction is not on basis of
specific actions within the state related to cause of action (specific
jurisdiction). Test for general jurisdiction remains continuous and systematic
b) Specific jurisdiction is claimed when the cause of action arises out of the
activities in the state.
c) General jurisdiction is when cause of action did not arise out of activities in
the state. General jurisdiction very hard to establish. Must prove systematic
and continuous contacts with state. Like old tests.
d) In this case, respondents foolishly concede no specific jurisdiction, tried to
establish general. Here: 1) contract made with Texas company; 2)
Helicopteros accepted checks from Houston bank; 3) Helicopters were bought
in Texas; 4) Pilots were trained in Texas. But suit would have had to say that
negligence in training or in the helicopters that came from Texas.
e) Brennan‟s dissent says that there is middle ground of “related to,” thus he
would grant specific jurisdiction even if plaintiffs did not ask for it.
f) Asbestos and Light Bulb Hypo: NY company sells asbestos and light bulbs.
Sell asbestos only in Tri-State area and light bulbs all over the country. S-O-L
runs out for NY plaintiff on asbestos in NY. S-O-L doesn‟t run in OK, so sue
there because they sell light bulbs there. Can do that on basis of general
jurisdiction. Redish says maybe argue that this is different because of serious
of asbestos, huge lawsuits, perhaps don‟t want to use general jurisdiction as
way to get the asbestos maker in Oklahoma when no asbestos business is
T. BURGER KING CORPORATION V. RUDZEWICZ (1985)
1) Fact Summary: Burger King (P) appealed from decision of court of appeals
finding that the district court erred in asserting personal jurisdiction over
Rudzewicz (D) without reasonable notice of the prospect of franchise litigation in
Florida and thus violated due process fairness concerns.
2) Point of Burger King: Where the circumstances establish a substantial and
continuing relationship with a forum state and indicate there was fair notice that a
nonresident might be subject to suit in the forum state, the assertion of personal
jurisdiction over the nonresident by the forum state, if otherwise fair, does not
offend due process.
a) Case of purposeful availment. Purposeful availment is not only necessary
condition, it‟s a sufficient condition for jurisdiction. Court says that franchise
payments, awareness that this Florida corporation, Florida law resolving
disputes all make defendants subject to jurisdiction, even if Rudzewicz
doesn‟t go there.
b) Convenience and burden factors can be considered for change of venue, but
they don‟t really affect whether state has right to exercise jurisdiction.
c) Issues of choice of law. Brennan says that since parties agreed to use Florida
law in resolution of disputes, defendants should have expected to be hailed
into courts there. Redish asks why not apply Florida law in Michigan? This
is not fair fight, greater burden on defendants going to Florida, plus Michigan
is focal point (this is Stevens‟ dissent argument).
d) Problem with contracts. Is mere factor of contracting between person from
state A to state B enough? Example: Consumer in NY orders something from
Nieman Marcus in TX, then N-M sues in TX. Courts say this is not enough.
Burger King is distinguishable because 1) arms length, businessperson‟s deal;
2) non one-shot, but relational.
U. ASAHI METAL V. SUPERIOR COURT OF CALIFORNIA (1987)
1) Fact Summary: Zurcher, CA resident, seriously injured in motorcycle accident.
Zurcher sues Cheng Shin, Taiwanese company, which made motorcycle tire.
Cheng Shin sought indemnity (through impleader) from Asahi, Japanese
corporation, which made tire valves and sold to Cheng Shin. Zurcher settled with
Cheng Shin. Cheng Shin continues action against Asahi. Asahi appeals from
decision of CA Superior Court allowing jurisdiction. Supreme Court rules no
2) Point of Asahi:
a) O‟Connor‟s Opinion: “Stream of commerce plus”—Minimum contacts
sufficient to sustain jurisdiction are not satisfied simply by the placement of a
product into the stream of commerce coupled with an awareness that its
product would reach the forum state. There must be some action of
purposeful availment of the benefits of the state. This is not binding
precedent, however, because only a plurality of the court.
b) Brennan‟s Opinion: State court rightly concluded that stream of commerce
satisfies minimum contacts and this has been preserved in this decision. Here
stream of commerce, but fair play and substantial justice prevent allowing
c) Stevens‟s Opinion: Minimum contacts analysis unnecessary; jurisdiction here
would be unreasonable and unfair on basis on convenience factors.
3) Analysis: Where does the dust settle after Asahi?:
a) Stream of commerce: Is there a theory at all? O‟Connor says no, Brennan
says yes. Split decision so courts go both ways. At least we have stream of
commerce plus, some say we still have stream of commerce. Inertia is in
favor of stream of commerce.
b) Purposeful availment: Still governing rubric, but why isn‟t stream of
commerce, purposeful availment? Court seems to indicate it is not.
c) Calder: Focal point analysis for intentional torts. Why have special
jurisdictional rules for intentional torts? What is needed to trigger Calder
exception? Knowingly hurt someone is forum state.
d) Procedural burdens: Use sub-constitutional doctrines, such as change of venue
and choice of law, according to Brennan. O‟Connor uses these as alternate
basis of jurisdiction beyond stream of commerce in Asahi. Procedural burdens
not an issue in Burger King, though. Asahi is an exception, showing that
these burdens are looked at few and far between, but when is that the case?
e) Could Asahi be unique because California plaintiff had settled and left suit
between two foreign corporations?
V. BURNHAM V. SUPERIOR COURT OF CALIFORNIA (1990)
1) Fact Summary: Burnham personally served with a summons on basis of wife‟s
divorce petition while visiting San Francisco to see children during CA business
trip. Burnham contended that California lacked personal jurisdiction over him
because his only contacts with the state were a few short visits there to conduct
business and to visit his children.
2) Point of Burnham: Personal jurisdiction based on physical presence alone does
not violate due process.
a) Scalia‟s decision keeps alive tag jurisdiction on basis of Pennoyer‟s control of
all things within the state principle. This is troublesome to Redish and others
because Pennoyer‟s second principle of no control of things outside state was
thrown out with IS.
b) Brennan‟s concurrence is based on fair play and substantial justice using
purposeful availment analysis, but this is problematic.
c) Nonresident fraudulently enticed to enter a state may defeat such jurisdiction.
W. REDISH’S SOLUTION: “PURE DUE PROCESS”
1) Reforms Constitutional inquiry, focusing on individual‟s relation to government
(micro-concerns), not government power over individual and relation to one
another (macro-concerns) that are derived from Pennoyer.
2) Pennoyer: States do have power; Redish “Pure due process”: States may have
3) Revised structure examines three factors
a) Degree of inconvenience defendant would suffer in being forced to litigate in
b) Degree of inconvenience plaintiff would suffer in being forced to proceed in
c) State interest in having its own law to resolve controversy.
4) Revised structure would eliminate two elements of present structure
a) Pre-litigation contacts of defendant and forum state.
b) Defendant‟s awareness of possible suit in that forum.
5) Example: Somebody from Indiana sues Titan in Chicago on matter relating to
radiator in Minnesota. Redish would allow this. Procedural burdens minimal.
Question of what law should be applied.
VI. CHOICE OF LAW IN FEDERAL COURT (ERIE DOCTRINE)
Issue is whether to use a state‟s law or federal law when the two conflict because of
diversity of citizenship in cases in federal court.
B. SWIFT V. TYSON (1842)
1) Story said “laws” referred only to state statutory law, not judge made law. Said
federal courts in diversity cases had to follow the state‟s statutory law if there was
one, but not their common law. If no statutory law, federal court judges could
create their own general common law.
2) Story follows Rules of Decisions Act of 1789
a) When no applicable federal statute, treaty or Constitutional provision
b) Use controlling state statute, but when no state statute
c) Create federal common law (do not use state judge made law).
3) Exceptions (cases in which state judge made law would apply)
a) Decisions on immovable things (such as rights to property).
b) When the state court‟s decision is interpreting a state statute.
4) The problem of vertical disuniformity
a) This ruling creates vertical disuniformity between the decisions of federal
courts and state courts. It allows forum shopping between the two.
b) Example: Black and White Taxicab case. Taxicab company in Kentucky
wants arrangement with railroad station but impossible under Kentucky law,
so company moves to Tennessee, incorporates there, sues under federal
diversity jurisdiction and gets the ruling it wants in federal court, since judges
there are not bound by state judge made law.
C. ERIE RAILROAD CO. V. TOMPKINS (1938)
1) Fact Summary: Tompkins walking down path near railroad tracks. Door hanging
off train hits him. He sues in federal court in New York where the company is
from. He is from PA. Erie issue is: What is duty of railroad to Tompkins?
2) Trial court and court of appeals agreed with plaintiff that PA law was not
controlling because of lack of statute. As result, plaintiff was not a trespasser and
was owed a duty of care as a licensee under general federal common law, thus
plaintiff awarded damages. Supreme Court reverses saying the Pennsylvania case
law governed .
3) Rule: Although the Rules of Decision Act left federal courts to apply their own
rules of procedure in common law actions brought in federal court, state law
governs substantive issues. State law includes not only statutory law but case law
4) Brandeis‟s four attacks on Swift
a) HISTORICAL: Says research of Charles Warren shows that draft of Rules of
Decision Act demonstrates that “laws” was referred to as judge made as well
as statutory law.
b) POLITICAL AND SOCIAL: Forum shopping and uncertainty
i) Brandeis has concern about the lack of equal protection created by
vertical disuniformity in forum shopping.
ii) Horizontal Example: IL A-----sues-----B NY in NY state court as
opposed to IL state court. It is plaintiff‟s choice where he wants to sue
and which body of law would help him the most. Defendant can
remove to federal court only if in state he is not from. Any prejudice
in state court will only help defendant. Courts not concerned about
horizontal forum shopping.
iii) Vertical Example: IL A------sues-----B NY can choose to sue in either
federal or state court. IL C-------sues------D IL. Pre-Erie this means
that first plaintiff can choose between two different types of law. Why
should plaintiff simply, because of fortuity of citizenship have
strategic benefit that other plaintiff does not have?
iv) Story‟s goal was horizontal uniformity among federal common law of
federal courts, but this does not happen. Furthermore, it creates
vertical disuniformity between federal and state courts.
v) This has effect on the regulation of primary conduct—day to day
affairs outside of courtroom. Hart‟s argument is that forum shopping
concern is less consequential than the uncertainty issue. People need
predictability of law in terms of planning their lives. Swift did not
i) Brandeis believes he needs this issue as knockout punch. Reed, in
ii) Brandeis argues that Constitution is counter(simple)majoritarian
document which restricts Congress and gives two basic ways to limit
iii) First, Brandeis said that Article I of Constitution gives laundry list of
Congressional powers and none of them gives Congress the right to
create substantive state law.
iv) Second, enclave is supplement to checklist above. Meeting both are
necessary conditions to satisfying Constitution. Enclave includes
specific affirmatively protected rights, such as the Bill of Rights.
Since Swift fails on first court, does not need to meet second.
v) Some now argue that courts should have power to preempt state law,
but Redish uses federalism (subconstitutional) approach to argue that
preempting state law would subvert the efforts of state judges who
make law on the basis of the assessment of interests of the state.
i) In Swift, Story assumed an overarching higher law, higher
omnipresence that common law interprets.
ii) Brandeis (following Holmes) said this is wrong, there is no law except
that created by the sovereign that includes both statutory and judge
iii) Rule: On matters of substance, federal courts sitting in diversity cannot
supplant state law whether statutory or judge made. THERE IS NO
GENERAL FEDERAL COMMON LAW
iv) There are categories of Specific Federal Common Law, however, such
as in areas of border disputes between two states, admiralty law,
foreign relations law, etc. Redish has a problem with this. All of these
areas of federal common law are unjustifiable under the Rules of
Decision Act. Once you add common law to Rules of Decision Act,
there is no state law. Critics say it‟s a stupid act. There ought to be a
federal common law. Redish says, “If you don‟t like it, change it.”
5) What we will deal with in Erie issues are at the boundary between procedural and
substantive issues. Need to decide what governs.
6) Erie does not take us past substance. There is no procedural element in Erie at all.
All Erie tell us is, on matters of pure substantive law it would be unconstitutional
for federal courts to make up their own common law.
D. NOTE: ADOPTION OF FEDERAL RULES OF CIVIL PROCEDURE IN 1938
1) Brandeis said that rules should be followed for matters of substance, but this is
unclear and matter of interpretation in future cases.
2) Before 1938, federal courts were to follow state procedural practices.
3) Rules Enabling Act of 1934 authorizes Supreme Court to promulgate rules of
procedure for use in all federal courts.
4) FRCP—1938—federal courts to follow these instead of state procedure.
E. GUARANTY TRUST CO. V. YORK (1945)
1) Issue: Whether when no recovery can be had in state court because statute of
limitations has run, a federal court in equity can rule on the suit because there is
diversity of citizenship of the parties.
2) Rule: Outcome Determination Test
a) If different outcome, then it is substantive, then use state law.
b) If not different outcome, then it is procedural, don’t have to use state law.
3) In York, state statute of limitations bars recovery in federal court, thus follow state
law because outcome would be different.
F. APPLYING GUARANTY TRUST V. YORK
1) Cohen v. Beneficial (1949)
a) N.J. statute required plaintiffs in stockholder derivative suits owning less than
specified amount of company‟s stock to post a bond.
b) Suit was brought in federal court. Plaintiff argued that federal court didn‟t
require a bond and that this requirement conflicted with FRCP Rule 23 which
is procedural and therefore, N.J. statute shouldn‟t apply.
c) Supreme Court said there was no conflict. Outcome would be different if we
didn‟t use statute. Federal court must use statute.
2) Ragan v. Merchants Transfer & Warehouse Co. (1944)
a) Kansas state law tolled the statute of limitations when defendant is serviced
while FRCP only requires that suit be filed for statute to be tolled.
b) In case, suit was filed before Kansas statute ran, but service wasn‟t made until
c) Although plaintiff argued that matters of filing and serving were procedure
and here a procedure of FRCP, Court said that since recovery is barred in state
court it should be barred in federal court.
G. BERNHARDT V. POLYGRAPHIC CO. OF AMERICA (1956)
a) Case relating to whether or not arbitration could affect outcome of case. States
would not use arbitration, federal court likes it.
b) Gloss on York: If outcome may be different, that’s enough to be outcome
c) Note that in this case, the effect would be on both parties, not just the plaintiff.
d) Fear of effect on Federal rules. Will they be gutted?
i) Fact pleading in state, notice pleading in federal court. May be outcome
ii) Rule 15(c): May states don‟t allow “relation back” of amendments to
pleadings. Whether to allow such an amendment may be outcome
iii) Rule 35: Many states have no limits on medical exams. Maybe outcome
H. KLAXON AND THE CONFLICT OF LAWS
1) Klaxon: Accident in MO, plaintiff from TX, defendant from KS, suit in TX.
Which law should be used?
2) Court rules before York decision: use conflict of law rule in state where court sits.
This would come out the same way under York.
3) Supreme Court reaffirms this until present. A.L.I. would like this overturned by
statute. It is a major issue in large class action lawsuits.
4) Hart‟s critique of this: We want uniform choice of law rules around federal court
to give predictability in otherwise chaotic system.
5) Redish‟s response: If allow this, go back to Swift. Klaxon court foresaw this.
Although a lack of uniformity would exist, we should not impose federal standard
because this is a limit on states. This is a cost of the federal system. If allow
Hart‟s critique, plaintiff in diversity suit will choose state or federal conflict of
law rule that it prefers.
6) WE DON‟T MIND HORIZONTAL FORUM SHOPPING (IT‟S A COST OF
FEDERALISM), BUT WE DON‟T WANT VERTICAL FORUM SHOPPING
(TO BENEFIT PEOPLE IN THE FORTUITY OF A DIVERSITY SUIT).
I. BYRD V. BLUE RIDGE RURAL ELECTRIC COOPERATIVE, INC. (1958)
1) Issue of whether contract worker in South Carolina was considered a “statutory”
employee” and thus covered by workers‟ comp. Plaintiff does not want to be
considered statutory employee because he would then get peanuts from workers‟
2) Supreme Court remands saying whether plaintiff was statutory employee was a
factual issue and needed to be decided at trial court.
3) Erie issue is who is to decide whether statutory employee: Judge or jury?
a) Federal court would let jury decide.
b) State law would have judge decide.
4) Under York and Bernhardt would have to follow state law and let judge because it
may be outcome determinative.
5) Brennan develops his own rule
a) “Affirmative countervailing considerations” at work here: Federal system is
an independent system for administering justice.
b) Concern that Fed. Rules were in danger of being overruled, after coming close
in cases like Ragan.
c) Shift in focus from micro-focused, litigant oriented concerns of inequality in
York (ensure that federal court is a carbon copy of state court a block away) to
marco concerns of the impact on the balance of power in the federal system.
J. THE BYRD BALANCING TEST
1) Federal court should balance two factors:
a) State interest (whether procedure is bound up with substantive policy). To
what degree is what goes on in court bound up with what goes on outside?
b) Federal interest. Independent system for administering justice. Macho
c) Outcome determination test.
2) Doesn‟t say how they‟re to be balanced—courts have typically taken one of three
a) Two-step approach
i) First ask if it is bound up. If yes, end of inquiry, follow state.
ii) If no, balance two other questions. These two run counter to each
other. The more likely the outcome will be different, the bigger
federal interest will be because federal interest will want its own way.
b) One-step approach
i) Balance state interest plus outcome determination against federal
ii) Redish thinks this is what Brennan meant.
iii) Two-step will result in state law being used more often than one-step.
c) Half-step: Just balance state interest against federal interest.
3) Lower courts generally adopt one of these but don‟t say that‟s what they‟re doing
and don‟t acknowledge they‟re doing anything different from anyone else.
4) Byrd doesn‟t overrule York, but it definitely changes it.
5) Problems with Byrd
a) No direction in how to balance three factors.
b) Balancing test always susceptible to being unpredictable and subjective.
c) Can be expensive and time consuming.
K. THE REDISH BALANCING TEST
1) Redish thinks that Byrd is a wise move, but has problems with the subjectivity
involved, the lack of guidance and the greater burdens on litigation imposed with
2) Redish and Phillips try to articulate what is “important.”
3) Federal interests
a) Influence of VII Amendment: Jury is a good thing.
b) Burdens: If state procedure would burden operation of federal court, then
legitimate federal interest.
c) “Doing justice”: Interest of federal court. Macho federalism. Independent
system for administering justice.
4) State interests
a) Procedure regulating primary behavior (ex: Illinois rule regarding pleading
being contributorily negligent or not. Illinois values industry over consumer.)
b) Pro plaintiff/Pro defendant.
c) Doing justice: Is rule adopted solely for effect inside courthouse?
d) Housekeeping measures.
L. HANNA V. PLUMER (1965)
1) Before Hanna, Erie cases were all concerned with situations in which federal
judge made law conflicted with state law. None considered conflict between a
FRCP and state law.
2) Here there is such a conflict. Mass. law required that service of process be made
“in hand” to the person to be service. FRCP Rule 4(d)(1) just required person of
suitable age at dwelling of the person. In this case, 4(d)(1) was complied with,
but Mass. law was not.
3) Different ways Hanna could turn out:
a) York test: Follow state law.
b) Byrd balancing test: Who knows?
c) Hanna: Federal Rule prevails.
4) The Lessons of Hanna
a) Enormous difference for Erie purposes where federal standard comes from:
i) Judge made interpretation of federal common law.
iii) Different procedures
b) Irrepressible Myth of Erie: Ely‟s article which argues that Erie is not a
monolith as many make it out to be. By the time of York, Erie is already
c) Hanna goes back to micro-concerns approach and away from macro-concerns
5) Hanna court does not overrule Byrd, but changes it. Warren says in determining
what law should rule we‟re interpreting three legal documents: the Constitution,
the Rules of Decision Act and the Rules Enabling Act.
a) First: Constitutional Inquiry
i) Does the federally created law pass the limits the Constitution put on
the federal government to supplant state substantive law?
ii) Redish says this inquiry is mostly in the background because Congress
hasn‟t gone to the limits of the laundry list yet.
iii) Nothing can supersede Constitution. Scissors cuts paper. Thus,
Federal court cannot supplant purely substantive state law.
b) Next: Ask whether a FRCP. If not, then RDA (U.S. Code §1652) analysis.
i) Must be not a Rule, but still in some sense procedural federal judge
made law that conflicts with state law.
ii) Use rejuvenated (modified) outcome determination or “forum
iii) If outcome would be different using federal law and this would
influence forum shopping, then must use state law.
iv) In Hanna, Warren argues that there is no strategic forum shopping
benefit to plaintiff, outcomes different because of technical procedural
difference, thus using RDA test (which is not the applicable one,
however, because this is a federal rule), use federal law.
c) If FRCP, then REA (U.S. Code §2072 (a) and (b)) analysis.
i) Hanna court really doesn‟t set out what this test entails. Rule 4(d)(1)
passes both Sibbach and Ely tests below.
ii) Cites Sibbach which has simple inquiry: is it procedural? If yes, then
that‟s enough. Use FRCP. Considers all FRCP procedural by
definition. If a Rule is procedural, then it is not substantive. Strict
iii) So, under Sibbach, if FRCP, then end of inquiry, use FRCP.
iv) Sibbach has never been overruled.
d) Ely: Nine years after opinion says that if FRCP, must see if the rule changes a
state substantive right. Ely‟s critique of Sibbach is that it drops second part
of test. Two step inquiry:
i) Is it procedural?
ii) Does it change substantive right? If yes, it‟s unconstitutional to use it.
Example: Notice pleading in everything but civil rights.
e) We don‟t know if we‟re to follow Sibbach or Ely‟s interpretation. We do
know that while Sibbach says FRCP, then procedural, and if procedural, then
constitutional, Hanna is really saying that a person will have a big hill to
climb in saying that a FRCP is invalid because you‟ll have to show that the
Advisory Committee, Congress and Supreme Court were wrong. To use Ely
test would make Federal Rules look like swiss cheese. For example, Rule 35,
which Sibbach contests would be thrown out because of violation of
substantive right. Rules were created before Erie. They did not care about
protecting state substantive rights.
f) If another federal statutory procedure, other than FRCP (for example, §1291
Final Judgment Rule) do a strict Constitutional analysis because RDA drops
out. This is an act of Congress, not judge made law:
i) Does it deal with practice and procedure? Must deal with fairness
and/or efficiency of the judicial process.
ii) Is it purely substantive? If yes, then unconstitutional, use state law. If
not, use federal statute.
iii) §1291 is at least in part procedural so use statute. May lead to forum
shopping, but this is not an issue in rules related tests.
6) Harlan‟s concurrence: Issue is uncertainty, affect on people‟s behavior, not forum
shopping, but since 4(d)(1) doesn‟t have anything to do with planning people‟s
lives, he comes to same conclusion.
M. BURLINGTON NORTHERN RAILROAD CO. V. WOODS (1987)
1) Court figures out a test for REA. Don‟t need to use Sibbach and Ely.
2) Conflict between FRCP Rule 38‟s discretionary allowance for penalties and
Alabama state law‟s mandatory penalties.
3) Justice Marshall is going between Sibbach and Ely saying as long as impact on
substantive right is only “incidental” it‟s all right (whatever that means?). This
rejects Ely by saying that fact rule affects substantive right doesn‟t disqualify it.
4) Redish says this is swimming half-way across the river
a) May matter if affects substantive rights (unlike Sibbach) but won‟t be fatal
b) In reading REA either (b) is redundant or is a separate test.
c) Thus, this decision doesn‟t even derive from REA. At least Sibbach and Ely
came out of REA.
d) Redish also says Court shouldn‟t have even had to get into this because under
both Sibbach and Ely Rule 38 would be procedural.
5) Gloss: Don‟t mess with the Rules. “Presumptive validity of the Rules.”
6) Some courts don‟t follow this including one Circuit court that threw out Rule
13(a) when state of Texas had a contrary rule.
N. TURNING BACK THE CLOCK: WHAT IF COHEN HAPPENED NOW?
1) Under outcome determination test use state law, but what about today?
2) First ask: Is it FRCP?
a) Cohen relates to Rule 23, but we doesn‟t mention anything about bond
b) One argument is that it a Rule is involved. If it wasn‟t put in, the drafters
didn‟t want it in and didn‟t want bond requirement now.
c) Using Burlington Northern test: Federal Rule in direct conflict, use REA
standard, presumptive validity, use federal rule. May have effect on
substantive right, but not substantial.
d) Using Sibbach: This is a procedural matter involving a Federal Rule. Use
e) Using Ely: This is a procedural matter used by the states for judicial
administration purposes, but also a substantive matter, protecting companies
within the state. Thus, use state law, not Rule.
3) Second ask: If not construed as a Rule, what does RDA have to say?
a) Rule agnostic on bond requirement. In neighborhood of Rule, doesn‟t mean
Rule, then judge made law applies, use RDA.
b) Using Hanna: Under modified outcome determination test. People would go
to federal court so use state standard to avoid forum shopping.
c) Using Harlan‟s concurrence: There would be an affect on uncertainty, primary
behavior, so use state standard.
d) Using Byrd: Balance state interest in keeping businesses there and federal
interest in doing justice. Redish says use state rule. Affecting primary
behavior is most important here.
O. WALKER V. ARMCO STEEL CORP. (1980)
1) Facts are just like Ragan, but in Okla. Suit was filed before statute ran but not
served before it ran. Met federal requirements, but not state law.
2) Here plaintiff says that Rule 3 of FRCP should allow suit.
3) Court says that Rule 3 is agnostic to statute of limitations. Has nothing to do with
it. Rule 3 governs the date which various timing requirements of the Fed. Rules
begin to run but does not affect state statutes of limitations. This is just judge
4) Since not in conflict with FRCP, go to RDA analysis
a) Court says that difference in federal and state ways of tolling the statute
wouldn‟t influence forum shopping. (May be right or wrong.)
b) But court says that doesn‟t matter because outcome would be different.
That‟s enough. Have to use state rule. Back to strict outcome determination
test, which is York, even though court said they were following Hanna.
P. CHAMBERS V. NASCO (1991)
1) A federal court judge wanted to exercise power to give sanctions for bad faith—a
purely judge made rule. State law said no.
2) Supreme Court said court can do it because the imposition of sanctions won‟t
really influence forum shopping. (Redish disagrees with this because there will
be a concern about sanctions that will guide decision of which court to choose.)
3) Forum shopping still test for RDA analysis.
Q. DICE V. AKRON, CANTON & YOUNGSTOWN R.R. CO. (1952)
1) The Converse Erie Problem: To what extent must state court apply federal
procedures when different from their own?
2) Dice revolves around a Federal Employee Liability Act claim, which is a pro
plaintiff statute. Plaintiff says he was defrauded. In Ohio, judge decides, in
federal court jury decides. Supreme Court says that state court has to follow
federal procedural. A substantive issue is bound up here, though, because juries
are usually pro-plaintiff and this is a pro-plaintiff statute.
3) If there were no jury trials in Ohio, result may be different because there may be a
state interest here, but also a pro-plaintiff federal interest.
4) Rule: Though federal claims may be adjudicated by state courts, state laws are
never controlling on the question of what the incidents of any federal right may
R. THE OTHER HALF OF THE BATTLE: INTERPRETING STATE LAW
1) What if there is a case based on a state Supreme Court opinion of forty years ago,
which now is rejected and which 47 other states have passed laws rejecting?
2) State Trial court would have to follow it. Binding precedent is an anachronism
but have to follow it. Person can appeal to Supreme Court which may change its
3) Federal District Court can consider what state Supreme Court might do? Why?
To forum shopping because otherwise in federal court the court would be bound
to precedent, but in state court, the case could be appealed to the state Supreme
Court and overruled.
4) This creates intersystemic crosspollinization
a) Federal courts get into dialogue with state courts about what law is about.
b) Sometimes federal court will predict what state Supreme Court would do.
Sometimes right and affects the state court, sometimes wrong, but just live
with difference, federal ruling still holds.
5) Alternative is certification
a) Federal court certifies questions to state Supreme Court
b) U.S. Supreme Court tells federal courts to take advantage of this, but this
would remove cross pollizination and takes time, delays litigation.
6) This demonstrates when state law applies under Erie, this is only half the battle.
Need to then interpret that law.
S. GASPERINI V. CENTER FOR HUMANITIES, INC. (1996)
1) Relates to reexamination clause enabling judges to review awards of damages.
This is a remittitur case where the plaintiff was awarded too much in damages
according to the judge. What standard should the judge use? Reasonable juror
model (if judge was a juror) or deferential to jury standard (only change if
“shocks the conscience”).
2) New York decides that second test was not invasive enough on jury. Want to give
judges a bigger club. Thus, create standard saying that if an award materially
deviated from what a reasonable juror would give, then it could be changed.
3) Erie issue: Must a federal court in New York sitting in diversity apply the
materially deviate standard or the shock the conscience standard?
4) How decide?
a) Is the matter purely substantive? No, also procedural. Get around the
constitutional hurdle. (If purely substantive, Constitution dictates state law.)
b) Is it federal statute or judge made common law or Federal Rule or
i) If Constitution controls then no question.
ii) If statute, just do it. If state law is different, who cares? This is, of
course, assuming issue is in part procedural. (RDA explicitly states
iii) If Federal Rule is involved, use REA standard (Sibbach, Ely, BN: use
Rule as long as effect on state rights is incidental, TX court that says
Rule affects substantive right).
iv) If there is a judge made procedural rule, use RDA standard (York test
(and its comeback in Walker)), Hanna (rejuvenated O.D. test), Byrd
(balancing test), Gasperini (enclave for judge/jury), Redish‟s
clarification to Byrd).
5) Majority‟s argument: This is RDA analysis, judge made common law.
a) Under Hanna: This would encourage forum shopping. Would go to federal
court if plaintiff because better chance of higher damages, so use state rule.
b) Ginsburg uses Byrd however: She argues that a countervailing federal policy
of creating an independent system for administering justice is at work here.
The judge/jury relationship is a Byrd-like enclave in the Hanna influenced
world of forum shopping. Balance forum shopping vs. federal interest in
allocating power between judge and jury.
6) How does Ginsburg split the baby?
a) Federal interest: Systemic concerns vs. State interest: Micro-litigant concerns.
b) NY courts will continue to use materially deviate standard at both trial and
c) Federal courts will use materially deviate at trial level and abuse of discretion
at appellate level.
d) Ginsburg thinks she is satisfying Erie (federal trial court same standard as
state trial court) and Byrd (balancing federal interest in administering justice)
e) Problem: Still have forum shopping problem one level removed. Litigants
know that federal court will be more deferential to jury at appellate level.
f) When the dust settles: In the next Erie case under judge made common law,
use the Hanna standard of forum shopping, but realize there is a Byrd-like
enclave for systemic balancing of allocation of power between judge and jury.
7) Scalia‟s dissent: FRCP Rule 59, motion for new trial, controls here. Use Rule
analysis. Use standard at common law (1789 argument). NY standard would
violate this. Under Rule 59, no new trial could be granted unless “seriously
erroneous result,” thus no new trial here.
VII. JUDGMENT AS A MATTER OF LAW
A. RULE 50: JUDGMENT AS A MATTER OF LAW IN ACTIONS TRIED BY
JURY; ALTERNATIVE MOTION FOR NEW TRIAL; CONDITIONAL
1) If a party has been fully heard with respect to an issue and there is no legally
sufficient evidentiary basis for a reasonable jury to have found for that party with
respect to that issue, the court may grant the motion against any claim that cannot
under the controlling law be maintained without a favorable finding on that issue.
2) JMOL combines old directed verdict and JNOV.
3) Very much like summary judgment with same burden shifting analysis. But
without the business of moving party proving enough to get courts to lift the
4) Asks same question as summary judgment: Could a reasonable finder of fact find
for party with burden of production based on the evidence presented?
5) Judge is not to decide the issues. He is to decide whether there is an issue of fact.
6) Judgment N.O.V. operates just like directed verdict, except it is after verdict.
Directed verdict must be moved first, but judge will deny and let case go to jury.
Two reasons why he may wait:
a) Trial judges don‟t like to stick necks out. If jury comes out same way as
judge would, judge doesn‟t have to stick neck out. Only if they come out
other way, then grant J.N.O.V.
b) Lets jury decide on the issue. If J.N.O.V. gets overruled on appeal, already
have jury verdict, don‟t have to retry.
7) Directed verdict is used when it‟s clear a party doesn‟t have enough evidence—
save time by getting rid of it early.
8) Big problem with directed verdict is knowing when there‟s enough evidence for a
case to go to a jury. Juries aren‟t supposed to guess, but there‟s always some
B. LAVENDER V. KURN (U.S. SUP. CT., 1946)
1) Issue: Hook or crook? If decedent was standing on a mind in just the right way,
he may have been struck by the hook. Evidence that his wallet was found away
from his person leads defendant to believe that hobos in area may have robbed
2) State Supreme Court reversed jury decision in favor of plaintiff because jury
could only have speculated about whether decedent was killed by hook or by
3) U.S. Supreme Court reversed saying jury wouldn‟t be speculating. Says this fits
the window between directed verdict for defendant and for plaintiff and it must be
a jury question. Here there is not physical impossibility for the train to hit
a) Some say that Justice Murphy was using the scintilla rule, where if there is
anything supporting the plaintiff'‟s claim, issue must go the jury. Deferential
b) Most federal courts use “substantial evidence” test that requires that non-
movant have substantial evidence such that a reasonable jury could find for it.
(Big question as to whether Lavender met substantial evidence test). This is
not very deferential to jury.
c) Possible that court made its decision that Lavender‟s action was taken until
the pro-plaintiff FELA statute, thus should protect plaintiff‟s ability to get the
case to a jury. Many courts have limited Lavender decision (scintilla rule
analysis) to pro plaintiff statutes.
C. GOOD CONFUSION ABOUT SCINTILLA AND SUBSTANTIAL EVIDENCE
1) Questions to ask in a summary judgment or directed verdict situation
a) Could a reasonable jury find for the nonmovant?
b) Using substantial evidence test and scintilla rule.
2) Hypo 1: Rainy, foggy night, someone saw driver speeding 5 miles north driving at
excessive speed. Give miles later, accident, everyone killed, car is totaled. Estate
sues defendant‟s estate for negligence. Only evidence is that car ends up on other
side of road, plus witness who saw car 5 miles earlier. Defendant moves for
a) Scintilla rule: Allow this case to get to jury. Jury could reasonably go from
point A to point B here. There seems an even stronger case here than in
b) Substantial evidence: Good confusion about how much more would be
required to get to jury. Real case in MS with these facts won on directed
3) Hypo 2: Scar from piece of broken glass. Skin cancer develops 5 years later. 1 in
100 chance of this occurring.
a) Scintilla rule: Allow this case to get to jury. Even stronger than Lavender and
Hypo 1 because there is medical exam testimony plus scar is in shape of
b) Substantial evidence: In the actual case directed verdict was granted. Redish
thinks there is enough here for a reasonable juror to find for non-movant.
D. GUENTHER V. ARMSTRONG RUBBER CO. (3RD CIR., 1969)
1) Fact Summary: Plaintiff suing for injuries sustained due to negligently
manufactured tire. Didn‟t know what kind of tire it was, but sued Armstrong
because 75-80% of tires sold where plaintiff bought his tires were made by
2) Plaintiff must show by preponderance of the evidence that it was defendant‟s tire.
3) 75-80% tells you nothing about the individual tire. Court says jury would only be
guessing. Redish agrees, but says that if you had statistics for individual tire,
plaintiff would get directed verdict, so where‟s the window? If we allow in cases
like Lavender or conceivably in the scar case, why not here? Seems difference is
that those cases show there is a chance of something specifically occurring,
whereas here is just general statistical possibility.
4) Agent Orange cases at cutting edge of procedure and tort. In individual cases, the
general statistics don‟t have an effect, but if there is a mass tort case and general
statistics say some many people will be affected, it is hard not to grant recovery,
because some in the group would be affected. Judge Weinstein reduces
settlement on basis that statistics don‟t support it. An offshoot of this is damage
provisions in mass tort claims where randomly selected people‟s claims are
litigated and damages then extrapolated to all claimants. Related is Rosenburg‟s
theory of setting up fund to reimburse percentage of population with various
diseases and distribute money to all affected.
5) Difference between these cases and Summers v. Dice and Sindell
a) Summers: 3 guys hunting negligently. One gets shot. If plaintiff has burden
of production case will never get to jury, so shift burden to defendants to
prove they didn‟t do it.
b) Sindell: Class action on hazardous drug. Plaintiff can‟t find identity of
defendant that made hazardous drug, so shift burden to defendants to show
they didn‟t produce.
c) Agent Orange: Burden remains on plaintiffs here. Weinstein‟s decision is
based on fact that plaintiffs could not epistemologically prove the link
between Agent Orange and their physical condition.