Civil Procedure Cases

Front 1

NEFF V PENOYER
(1878)

Back 1

QUASI IN REM JURISDICTION

Issue
Can a state court exercise personal jurisdiction over a non-resident who has not been personally served while within the state and whose property within the state was not attached before the onset of litigation?

Holding and Rule (Field)
No. A court may enter a judgment against a non-resident only if the party 1) is personally served with process while within the state, or 2) has property within the state, and that property is attached before litigation begins (i.e. quasi in rem jurisdiction).

Hint 1

Facts
Mitchell brought suit against Neff to recover unpaid legal fees. Mitchell published notice of the lawsuit in an Oregon newspaper but did not serve Neff personally. Neff failed to appear and a default judgment was entered against him. To satisfy the judgment Mitchell seized land owned by Neff so that it could be sold at a Sheriff’s auction. When the auction was held Mitchell purchased it and later assigned it to Pennoyer.

Neff sued Pennoyer in federal district court in Oregon to recover possession of the property, claiming that the original judgment against him was invalid for lack of personal jurisdiction over both him and the land. The court found that the judgment in the lawsuit between Mitchell and Pennoyer was invalid and that Neff still owned the land. Pennoyer lost on appeal and the Supreme Court granted certiorari.

Since the adoption of the Fourteenth Amendment, the validity of judgments may be directly questioned on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law. Due process demands that legal proceedings be conducted according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights.

To give legal proceedings any validity, there must be a tribunal with legal authority to pass judgment, and a defendant must be brought within its jurisdiction by service of process within the state, or by his voluntary appearance.

The substituted service of process by publication in actions brought against non-residents is valid only where property in the state is brought under the control of the court, and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein; in other words, where the action is in the nature of a proceeding in rem.

The Oregon court did not have personal jurisdiction over Neff because he was not served in Oregon. The court’s judgment would have been valid if Mitchell had attached Neff’s land at the beginning of the suit. Mitchell could not have done this because Neff did not own the land at the time Mitchell initiated the suit. The default judgment was declared invalid. Therefore, the sheriff had no power to auction the real estate and title never passed to Mitchell. Neff was the legal owner.

Disposition
Judgment for Neff affirmed.

Front 2

Shaffer v. Heitner
(1977)

Back 2

MINIMUM CONTACTS (overturned Pennoyer)

Shaffer v. Heitner, , was a case in which the Supreme Court of the United States established that in order for an American state to assert personal jurisdiction, due process under the Fourteenth Amendment requires minimum contacts over and above the mere ownership of stocks in a corporation incorporated in that state.

Front 3

International Shoe Co. v. Washington
(1945)

Back 3

MINIMUM CONTACTS standard

the Court established important rules impacting a number of areas of the law including the participation of corporations involved in interstate commerce in state unemployment compensation funds, the confines imposed upon the power of the States by the Due Process Clause of the Fourteenth Amendment, the sufficiency of service of process, and, especially, personal jurisdiction.

Hint 3

hOLDING
Suit cannot be brought against an individual unless they have minimum contacts with the forum state, and such lawsuit does not offend traditional notions of fair play and substantial justice.

The plaintiff, the State of Washington, established a tax on employers conducting business therein with the stated legislative purpose of providing a fund to be used for financial assistance to newly unemployed workers in the state. The "tax" was in effect a mandatory contribution to the state's Unemployment Compensation Fund. The defendant, International Shoe Co., was an American company that was incorporated in Delaware with its principal place of business ("PPB") in Missouri. The corporation had maintained for some time a staff of 11-13 salesmen in the State of Washington, working on commission. The salesmen were residents of that state and they met with prospective customers in motels and hotels, and occasionally rented space to put up displays. The company thus had no permanent "situs" of business in the State. Each year, the salesmen brought in about $31,000 in compensation. International Shoe's solicitation system allegedly was set up explicitly to avoid establishing the situs of the business in other states insofar as salesman did not have offices, did not negotiate prices, and sent all orders back to Missouri; shipments from the plant to customers were sent f.o.b..

Front 4

McGee v. International Life Insurance Co.
(1957)

Back 4

LONG ARM STATUES (CA)
was a case following in the line of decisions interpreting International Shoe v. Washington.[1] The Court declared that California did not violate the Due Process Clause by entering a judgment upon a Texas insurance company who was engaged in a dispute over a policy it maintained with a California resident. The importance of this finding is highlighted by the facts of the case; mainly that International Life Insurance did no other business within the state of California besides maintaining this single policy, which the company became responsible for by its acquisition of another insurance company which previously had held the policy. However; the case never explicitly stated that no other business was conducted within California and the previous assumption is presumptive by definition.

Hint 4

The plaintiff, Lulu McGee, was the mother of Lowell Franklin who purchased a life insurance policy from Arizona-based Empire Mutual Insurance Company that named McGee as the beneficiary. In 1948, International Life Insurance Co. ("International"), a Texas corporation, agreed to assume Empire's insurance obligations. International mailed a reinsurance certificate to the California policy holder, offering to insure Lowell according to the terms of the Empire policy. Lowell accepted the offer and paid premiums from California until his death in 1950. When Lowell's mother tried to collect on the policy, the insurance company refused to pay, claiming Lowell had committed suicide. International had conducted no other business in California except for this one policy.

Front 5

Capron v. Van Noorden
(1804),

Back 5

DISMISSAL due to lack of DIVERSITY JURISDICTION

allowed a plaintiff to dismiss a case that he had lost at trial because of a lack of diversity jurisdiction, leaving the plaintiff free to bring the case again.

Front 6

Tickle v. Barton
(W.Va. 1956).

Back 6

INDUCEMENT IN TO JURISDICTION FOR SERVICE

Issue: Is service of process valid where a party induces another party by false representation to come within a jurisdiction in order to serve process on that person?

Holding and Rule: If a person is resident outside a jurisdiction, that person may not be induced by false representation to come within the jurisdiction of the court for the purpose of service of process. The law will not lend its sanction or support to an act, otherwise lawful, which is accomplished by unlawful means.

Hint 6

Facts: Tickle (P), an infant, sued Virginia resident Barton (D) in McDowell County, West Virginia for injuries received in an auto accident in that same county. Tickle’s lawyer lured Barton to enter the county under the ruse of a football banquet. Tickle’s lawyer called Barton and did not reveal that he was Tickle’s lawyer or that the real purpose was to serve him with process. Barton accepted the invitation and was served with the complaint. Barton filed a plea in abatement to challenge the service of process (and therefore the court’s exercise of personal jurisdiction over him) without litigating on the merits of the case.

In this case Barton would not have come into that jurisdiction if Tickle’s attorney had disclosed his identity and his real purpose in extending the invitation. Service of process was invalid and the court therefore did not have personal jurisdiction over Barton.

Disposition: For Barton.

Dissent: At most, Tickle’s attorney merely took advantage of a social gathering that was in Barton’s interest to attend. Barton had full knowledge of the action pending against him in this jurisdiction, which is an important consideration when deciding such issues.

Notes: Service of process accomplished by fraud is not valid.

Front 7

Temple v. Synthes Corp., Ltd.,
(1990).

Back 7

JOINDER - PERMISSIVE V COMPULSORY

Issue
Are joint tortfeasors indispensable parties under FRCP 19(a)?

Holding and Rule
No. Joint tortfeasors are not indispensable parties under FRCP 19(a).

Hint 7

Facts
Temple (P) underwent back surgery and a plate and screw were inserted into his spine. The screws broke off inside his spine and Temple sued Synthes (D), the manufacturer of the plate and screw, for products liability in federal court. Temple then sued the doctor and the hospital for negligence and malpractice in state court.

Synthes filed a motion to dismiss under FRCP 19 on the grounds that Temple failed to join all the necessary parties. The trial court gave Temple an additional twenty days to join the doctor and the hospital and dismissed the case with prejudice when he failed to comply.

Temple appealed and the court of appeals affirmed, holding that FRCP 19 calls for mandatory joinder of necessary parties in the interest of judicial efficiency. The court reasoned that the manufacturer might claim that the doctor and the hospital were negligent and the device was not defective. Alternatively, the doctor and the hospital might claim that they were not negligent and that the device was defective. Temple appealed.


The court held that this is a long-standing rule of law and is not changed by Rule 19. Under the Advisory Committee notes to Rule 19(a), a tortfeasor with usual joint and several liability is merely a permissive party to an action against another with like liability.

Disposition
Reversed and remanded.

Notes
Compulsory joinder is required in suits in which joint rights and liabilities are held by more than one party, if granting relief would affect the rights of parties not in the lawsuit. Joint tortfeasors are permissive parties. Permissive parties may be joined in the same suit. Indispensable parties must be joined in the same lawsuit.

Policy issues
All joinder rules are matters of public policy and equitable fairness to the parties before the court. Courts and society are interested in efficiency in the court system and the parties to the lawsuit are interested in fairness.

Front 8

DiMichel v. South Buffalo Ry. Co.,
(N.Y. 1992).

Back 8

DISCOVERY OR SURVEILLANCE FILM

Issue: Are surveillance films considered material prepared for litigation and therefore discoverable only upon a showing of substantial need and undue hardship?

Holding and Rule: Yes. The court stated that P would be harmed by the potential for surprise and abuse arising from D’s use of the films at trial. The court also stated that D would be disadvantaged by releasing the films to P because it would allow P to give testimony after viewing the film evidence; however withholding them from P would run counter to the policy of open pretrial disclosure. To minimize the harm to both parties, the court held that P should be provided access to the films after P had been deposed. The court held that P had established that they could not without undue hardship obtain the substantial equivalent of surveillance materials by other means.

Hint 8

Facts: DiMichel (P) sued his employer, South Buffalo Railroad (D), for injuries he sustained from a fall while at work for the railroad. During pretrial discovery, DiMichel requested surveillance films from D that may have been taken of him and D refused. D claimed that the films were considered work product and therefore D did not have to provide them to P. P moved to compel discovery of the films. The court granted P’s motion and on appeal, the appellate division modified the order and ruled that D must give P any films that it intended to use at trial.


Disposition: Affirmed.

Notes: As a matter of public policy courts tend to dislike any type of privilege that protects evidence from disclosure because privileges tend to hinder the truth seeking process.

Front 9

Alderman v. Baltimore & Ohio R. Co.
(S. Dist. W.Va. 1953).

Back 9

SUMMARY JUDGEMENT IS CANNOT PROVE PRIMA FACIE CASE

Issue: Is summary judgment in favor of the defendant appropriate where the plaintiff cannot meet his burden of proof?

Holding and Rule: Yes. Summary judgment is proper when there are clear and undisputed facts, and when the other party’s complaint or defense fails to establish a legal premise upon which relief could be granted.

Hint 9

Facts: Alderman (P) was traveling the Baltimore & Ohio Railroad (D) using a free pass when he was injured in a train derailment. Alderman’s pass stated that D was free from all liability arising from injury to non-fare paying passengers. P sued D for wanton or willful conduct. D moved for summary judgment under Rule 56. The defect which caused the track to break would not have been visible upon inspection.


The court stated that release protects a railroad against ordinary negligence, but a railroad is always liable for wanton or willful acts. In order that one may be held liable for willful or wanton conduct, it must be shown that he was conscious of his conduct, and conscious, from his knowledge of existing conditions, that injury would likely or probably result from his conduct, and that with reckless indifference to consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result.

The court held that the affidavits of D showed that P could not establish this part of his case. To prevail, P must show that D knew of the defect in the rail, knew that the defect would break if a train went over it, and was recklessly indifferent to the consequences. This type of defect was not discoverable by visual examination. D did make a visual examination the day before the accident. P had no evidence to prove his case.

Disposition: Motion for summary judgment granted.

Notes: In this case, P must show that D was aware of the defect in order to prevail and P had no evidence. If there is any dispute about the material facts of a case, a summary judgment cannot be granted. A judge must construe all evidence in the light most favorable to the nonmoving party.

Front 10

Lavender v. Kurn
(1946)

Back 10

OVERTURNING A JURY

Issue
What showing is required in order to overturn a jury verdict?
Holding and Rule
A jury verdict may only be overturned if there is a complete absence of probative facts to support the verdict.
The court held that if there is any evidentiary basis for a verdict, an appellate court may not overturn a jury verdict. A jury can disregard or disbelieve facts that may be inconsistent with its conclusion and it may speculate and make conjecture to reach a verdict if the facts are disputed. This evidence demonstrates that there was evidence from which it might be inferred that the end of the mail hook struck Haney in the back of the head.

Hint 10

Facts
Lavender (P) sued on behalf of Haney, who had died from head injuries suffered while working as a switch tender for the St Louis-San Francisco Railway and the Illinois Central Railroad, which was represented by Kurn (D). At trial, Lavender tried to prove that the cause of death was a protruding mail hook on a train that struck Haney on the head as the train passed. Haney would have had to have been standing in a particular place and the hook would have hit Haney 63.5 inches above the ground.

The defendant claimed that Haney had been murdered. Haney had been working at night and had opened the switch as the train approached but had not closed it after it passed. Haney was found dead face down near the track. He had been killed by a fast moving round small object. His personal belongings had not been taken.

The jury returned a verdict in favor of Lavender. The Missouri Supreme Court reversed on the grounds that it was mere speculation that Haney had been hit by the mail hook and the plaintiff appealed to the Supreme Court.


The court held that the jury had made its inference and the respondents were not free to relitigate the factual dispute on appeal.

Disposition
Verdict for Lavender reinstated.

Notes
Courts of appeals do not assess the credibility of witnesses or the quality of evidence. That is the sole purview of the jury.

Front 11

Summary of Hess v. Pawloski
(1927).

Back 11

IMPLIED CONSENT FOR JURISDICTION

Issue
Was the Massachusetts law that stated that out of state drivers gave implied consent to the appointment of the Registrar as agent for service of process constitutional?

Holding and Rule
Yes. A state has the power to legislate that non-residents who use its highways consent to the appointment of a third party as agent for the service of process in that state for actions arising from use of the highways.

Hint 11

Facts
Hess (D), a resident of Pennsylvania, negligently struck and injured Pawloski (P) while driving in Massachusetts. Pawloski brought this action against Hess in Massachusetts. The court established personal jurisdiction over Hess under a statute whereby non-resident motorists involved in accidents in Massachusetts consented to the appointment of the Registrar of Motor Vehicles as the driver’s agent for service of process. Process was served on the Registrar of Motor Vehicles as Hess’s agent and Hess received actual notice of the suit. Hess contested jurisdiction.

The trial court and the Supreme Judicial Court on appeal held that the court’s jurisdiction was valid. Pawloski won the case on the merits in a jury trial. Hess appealed to the Supreme Court on the grounds that the Massachusetts court did not have personal jurisdiction over him and the method of service of process used violated his due process rights under the Fourteenth Amendment.



Disposition
Affirmed.

Notes
This decision came twenty years before International Shoe Co. v. Washington and used implied consent rather than minimum contacts to establish jurisdiction over the defendant. By choosing to drive in a state, a non-resident demonstrates that the state is not so inaccessible or remote that it would be unfair to subject him to suit in that state. The Massachusetts statute sought to put out-of-state drivers on the same level as resident drivers and did not discriminate against them.

Front 12

Gray v. American Radiator & Standard Sanitary Corp
Citation.
(1961)

Back 12

LONG ARM STATUTES - ILLINOIS
Synopsis of Rule of Law. In a products liability action, a defendant who sells products that he knows will be used within a given forum may be required to defend an action within that forum state, if the product sold in fact causes injuries within the state.

Issue. Whether the Illinois Long-Arm Statute violates the due process guarantees of the United States Constitution?

Hint 12

Brief Fact Summary. Phyllis Gray (Plaintiff) was injured when a water heater exploded. This took place in Cook County, Illinois. Subsequently, Plaintiff brought suit in Illinois against both Titan Valve Manufacturing Company (Titan) and American Radiator & Standard Sanitary Corporation (Defendant). The suit alleged that the safety valve had been negligently constructed for use in the water heater.

Facts. The water heater, which was the subject of this action was assembled in Pennsylvania by the Defendant. The valve that exploded was manufactured in Cleveland, Ohio by Titan. Titan had no connection to the State of Illinois, except that its valves were used in conjunction with water heaters sold to consumers within the state. Defendant filed a cross-claim against Titan, alleging that Titan made certain warranties to Defendant; and that if a judgment was given against it, it should be indemnified by Titan. The court granted Titan’s Motion to Dismiss both Plaintiff’s complaint and Defendant’s cross-claim.

Front 13

National Equipment Rental, Ltd. v. Szukhent,
(1964).

Back 13

Issue: Is an unknown agent who has not expressly undertaken to transmit notice to a party and who was merely designated by contract to receive notice, authorized to accept service of process?

Holding and Rule (Stewart): Yes. A party to a private contract may appoint an agent to receive service of process, and that service will be valid if that party promptly accepts and transmits notice of service.

D received timely and complete notice. This satisfies the requirements of Rule 4(d)(1). The clause under dispute is a forum selection clause. It is settled law that the parties may freely negotiate such matters and that contracts to agree to submit to the jurisdiction of a court are valid. Weinberg’s prompt acceptance and transmittal of the summons to D was sufficient to validate the agency. Weinberg’s sole role was to receive process and that interest does not conflict with the interests of D. The fact that D did not know Weinberg is irrelevant.

Hint 13

Facts: Szukhent (D), a Michigan resident, leased farm equipment from National Equipment Rental (P), a New York corporation. The lease designated Weinberg, a New York resident, as agent for the service of process in New York. Szukhent did not know Weinberg and the lease did not indicate that Weinberg had to tell Szukhent of notice. National Equipment Rental sued Szukhent for a failure to make payments under the lease. Notice was served on Weinberg, who forwarded it to Szukhent with a letter stating the documents had been served on her as Szukhent’s agent. National Equipment Rental also notified Szukhent of the service of process on Weinberg by certified mail.

The district court quashed service of summons on the grounds that the lease did not specifically require Weinberg to give notice to Szukhent, and the court did not therefore have personal jurisdiction over Szukhent. The court reasoned that this was a failure of the agency agreement. The court of appeals affirmed and certiorari was granted.

Dissent (Black): Today’s holding give a green light to every large company to contrive contracts which declare with force of law that when such a company wants to sue someone with whom it does business, that individual must go and try to defend himself in some place no matter how distant or else suffer a default of judgment. This ruling will allow such clauses to become boiler plate in most contracts. This service of process raises serious questions in Due Process.

Dissent (Brennan): Federal standards and state law must define who is an agent authorized by appointment within the meaning of Rule 4(d)(1). It offends common sense to treat a printed form which closes an installment sale as embodying terms to all of which the individual knowingly assented. There should be an explicit condition that the agent transmit actual notice to the principal and the non-drafting party must be shown to have understood and consented to the appointment.

Notes: Under an adhesion contract, the party who wrote the contract has the burden of proof that a party understood the contract. Private parties may consent in advance to the jurisdiction of a court. Not all courts give such prorogation agreements full effect. The consent to designate a third person to receive process is a consent to jurisdiction and such commercial contracts are valid.

Front 14

Mullane v. Central Hanover Bank & Trust Co.
(1950).

Back 14

Issue
Is notice given to out of state parties by publication in a newspaper, when the parties’ addresses were known, constitutional in light of the Due Process Clause of the Fourteenth Amendment?
Holding and Rule
No. Notice given to out of state parties by publication in a newspaper, when the parties’ addresses were known, is unconstitutional in light of the Due Process Clause of the Fourteenth Amendment.
Notice must be reasonably calculated to inform known parties affected by the proceedings. However, constructive notice by publication was acceptable with regard to missing or unknown parties or for those whose whereabouts could not be ascertained by due diligence or for whom future interests were too conjectural to be known with certainty.

Hint 14

Facts
Central Hanover Bank (P) was the trustee of a common trust fund formed by pooling the assets of a number of smaller trusts. Central Hanover Bank petitioned to the New York Surrogate’s Court for a judicial settlement of the trust. The only notice provided to beneficiaries was via publication in a newspaper. Mullane (D) was appointed attorney and special guardian for a number of beneficiaries who either were unknown or did not appear.

Procedural History
Mullane objected to the statutory provision for notice by publication, arguing that it was unconstitutional for lack of due process under the Fourteenth Amendment. The Surrogate’s Court overruled Mullane’s objection and the ruling was affirmed on appeal to the New York Supreme Court Appellate Division and the New York Court of Appeals. The United States Supreme Court granted cert.


Disposition
Judgment reversed.

Front 15

Summary of Burnham v. Superior Court of California,
(1990).

Back 15

Issue
Can a state gain personal jurisdiction over a nonresident who was personally served with process while temporarily in the state, if his purpose for being in the state is unrelated to the matter before the court?

Holding and Rule (Scalia)
Yes. A state can gain personal jurisdiction over a nonresident who was personally served with process while temporarily in the state, even if his purpose for being in the state is unrelated to the matter before the court.
It is an established principle that States have jurisdiction over persons physically present in the State. Service of process on a party physically present in a state is not a violation of due process. The purpose for the party’s presence within the state is of no concern as long as his presence was voluntary.

Hint 15

Facts
The Burnhams lived in New Jersey prior to their separation. Mrs. Burnham (P) moved to California and filed for divorce in California state court. Mr. Burnham (D) was visiting California on business when he was served with the divorce papers. The defendant’s primary reason for visiting California was for business but while there he visited his daughters. His only contacts with California were occasional brief visits for business and to visit his children.

In a special appearance Burnham moved to quash service, contending that his contacts with California were insufficient to confer personal jurisdiction. The Superior Court of California denied the motion and the state court of appeal denied his petition for mandamus, holding that his physical presence and personal service in the state constituted valid grounds for personal jurisdiction. The Supreme Court granted cert

The court noted that on rare occasions, deviations from the general rule of presence in the state have been permitted. These relate only to suits arising out of an absent defendant’s contacts with the forum state. In International Shoe Co. v. Washington, the court held that minimum contacts are required in order to satisfy the due process requirements of fair play and substantial justice. There court held that there was nothing in International Shoe or its progeny that required extending its holding to transient jurisdiction.

Disposition
Judgment affirmed.

Concurrence (Brennan)

I do not agree with a rule that relies on tradition for supporting forms of jurisdiction. I would undertake an independent inquiry into the fairness of the prevailing in state service rule. The historical approach is foreclosed by our decision in International Shoe and Shaffer v. Heitner. As per Shaffer, all rules of jurisdiction must satisfy contemporary notions of due process under minimum contacts analysis.

Front 16

Summary of Insurance Corp of Ireland v. Compagnie des Bauxites de Guinee

[1982]

Back 16

Legal Issue(s): Whether a ct as a sanction, under FRCP 37, for failure to comply with a discovery order directed at establishing jurisdictional facts,can proceed on the basis that personal jurisdiction over the recalcitrant party has been established?

Court’s Holding: Yes, it is not an abuse of discretion to impose the sanction.

Hint 16

Relevant Facts: Pl/Res CBG (incorp in DE, but from Guinea) arranged to obtain insurance against business interruption. When an interruption occurred, the insurers refused to pay. CBG brought suit in Fed ct. Penn. The insurers are a group of foreign companies who challenged personal jurisdiction. In order the respond to the challenge Pl made discovery requests. The insurers refused to comply on the grounds that the requests were too burdensome. CBG sought an order to comply which was granted. This failed to produce the material. The ct warned Dfs that it would assume jurisdiction, as a sanction under FRCP 37, unless there was compliance. There was no compliance and the ct entered an order finding personal jurisdiction. Meanwhile the insurers filed a suit in England to rescind the policies. The Fed ct enjoined that suit.

Procedure: Dfs appeal injunction; S. Ct. Affirmed.

Law or Rule(s): Sanction of taking certain facts as established may be applied to support a finding of personal jurisdiction over the defendant without violating the due process clause. A defense of lack of jurisdiction over the person is waived if not timely raised in the answer or any responsive pleadings.

Court Rationale: The requirement that a court have personal jurisdiction flows from the Due Process Clause and protects an individual liberty interest. Because it protects an individual interest, it may be intentionally waived, or for various reasons a defendant may be estopped from raising the issue. Due process is violated by a rule establishing legal consequences of a failure to produce evidence only if the defendant’s behavior will not support the presumption that “the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in the asserted defense.” Hammond The expression of legal rights is often subject to certain procedural rules: The failure to follow those rules may well result in curtailment of the rights. A sanction under Rule 37 has that effect. By submitting to the juris of the ct for the limited purpose of challenging jurisdiction, the Df agrees to abide by that ct’s determination on the issues of jurisdiction.

Plaintiff’s Argument: Pet} There is no obligation to obey a judicial order, a sanction cannot be applied for the failure to comply, until the ct has established personal jurisdiction.

Defendant’s Argument: Res} The actions of the Df amounted to a legal submission to the jurisdiction of the court by refusing to comply with the order of the court after challenging P.J.

Front 17

The Bremen v. Zapata Off-Shore Company
(1972)

Back 17

Issue:
Should U.S. court uphold the validity of a CONTRACTUAL FORUM SELECTION CLAUSE?

After the lower courts refused to uphold the forum selection clause, the Supreme Court held that it was enforceable unless the party seeking to avoid it could meet the high burden of showing it to be unreasonable or unjust.

Hint 17

The parties had entered into an agreement for a drilling rig to be towed from Louisiana to Italy, which included a clause stating that disputes would be settled by a court in England. When a storm forced the towing party to make land in Tampa, Florida, the other party sued there.

Front 18

Carnival Cruise Lines, Inc. v. Shute
(1991)

Back 18

held that United States federal courts will enforce forum selection clauses so long as the clause is not unreasonably burdensome to the party seeking to escape it.



The Court, in an opinion by Justice Blackmun, held the Shutes to the contract printed on the back of their ticket. The Court noted that Florida is not a random jurisdiction - Carnival is headquartered there and does much business there, and Washington does not necessarily make sense in the context of an accident off the coast of Mexico on a ship that left from California. The hardship on the plaintiffs mattered little, as they had bought the ticket, and no one forced them to go on a cruise. On the other hand, it made sense for the cruise industry, which carries passengers from all over, to have a single forum for lawsuits. The cruise line will thereby avoid defending itself in many different courts, which will save money, which the Court believes will translate to cheaper tickets.

Hint 18

The plaintiffs, Eulala and Russel Shute, were passengers on a cruise ship operated by the defendant, Carnival Cruise Lines, Inc. The Shutes had bought tickets in Washington and signed a contract, with a forum selection clause mandating that injured parties would sue in Florida, to the exclusion of all other jurisdictions. The plaintiffs boarded the cruise in California, and one was injured in international waters off the coast of Mexico. The plaintiffs then filed a lawsuit in Washington, in violation of the contract clause.
The defendant sought summary judgment based on:
the forum selection clause, and
a lack of minimum contacts between the defendant and the forum state
The trial court dismissed based solely on the lack of sufficient contacts. The United States Court of Appeals for the Ninth Circuit reversed because the cruise line had reached into Washington via advertising, and held that but for the defendant's solicitation, there would be no cause of action. The Court of Appeals also held that forum selection clause was void because of unequal bargaining power between the parties, and because it would be an undue hardship for the Shutes to have to go all the way to Florida to sue. This decision was appealed to the Supreme Court based on that court's Admiralty jurisdiction.
[edit]Question presented

The Supreme Court limited the issue to whether the forum selection clause was enforceable.

Dissent
Opinion of the Court
Justice Stevens filed a dissenting opinion, joined by Justice Marshall. Stevens dissents for several reasons including objections to contracts of adhesion created by parties who have unequal bargaining power, the fact that the notice of the forum selection clause was not made available to the purchaser until after payment was tendered and a lack of an opportunity for refunds at the point when the forum selection clause was disclosed.
Stevens attached a copy of the original ticket to his dissent to show how only the most meticulous passenger would notice the clause and that notice might be in contention.

Front 19

Maryland State Firemen’s Association v. Chaves

Back 19

Plaintiff sued Defendant and mailed the complaint and summons via first class mail to an address taken off of Defendant’s letterhead. Defendant did not respond to the complaint and the clerk entered a judgment of default against Defendant. The clerk sent Plaintiff a notice asking Plaintiff to explain why service is effective.

Synopsis of Rule of Law. Under Rule 4 of the Federal Rules of Civil Procedure, the defendant must either consent to waive service or be personally served. Service be affected by mail only if the defendant does not waive service or accept personal service.

Hint 19

Facts. Maryland State Firemen’s Association, Plaintiff, sued Chaves, Defendant. Plaintiff mailed Defendant the summons by first class mail to an address from Defendant’s letterhead. Defendant did not respond to the complaint and Plaintiff filed motion for judgment by default. The clerk entered the default against Defendant. The court sent Plaintiff a request to explain why they believed service was effective.

Issue. Is service of process effective under Rule 4 of the Federal Rules of Civil Procedure if the plaintiff mails the defendant the complaint and summons via first class mail and the defendant has actual notice of the lawsuit?

Held. No. Judgment of default vacated. Under the old Rule 4, service could be effective only if the complaint was mailed and the defendant replied to the summons. If the defendant did not reply, the plaintiff had to find another way to serve Defendant. The Fourth Circuit held in [Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087 (4th Cir. 1984),] that the validity of service by mail is dependent on an appropriate response from the plaintiff. In addition, the Fourth Circuit has a policy of strict compliance with Rule 4’s requirements. Under the new Rule 4, if the defendant does not reply, there is no basis for defaulted judgment, except that the defendant has to pay for normal service. Although the Fourth Circuit has not interpreted Rule 4 yet, they still follow the strict compliance rule. This rule invalidates the service here, even though the defendant had actual notice. Under Maryland rules, service is effective by certified mail, not first class mail.

Discussion. The mechanics of serving process under Rule 4 of the Federal Rules of Civil Procedure are very strict. As the court illustrates, service is not effective if the complaint is mailed via first class mail. The plaintiff must attempt to have the defendant waive service or accept personal service. Only then should service by mail be attempted.

Front 20

Fuentes v. Shevin,
(1972).

Back 20

Issue
Does due process under the Fourteenth Amendment require that parties facing a replevin action be notified in a timely manner and given an opportunity to be heard prior to a prejudgment seizure?

Holding and Rule
Yes. Due process under the Fourteenth Amendment requires that affected parties in a replevin action must be notified in a timely manner and given an opportunity to be heard prior to a prejudgment seizure.

The court held that if the creditor violates the debtor’s due process rights by seizing property in accordance with statutory procedures, there is little or no reason to deny to the latter a cause of action under the federal statute § 1983 designed to provide judicial redress for such constitutional violations.

The court held that parties have the right to prior notice and a hearing to prevent arbitrary deprivation of property. Any significant property interest is protected by the due process clause, and any temporary, non-final deprivation of property is nonetheless a deprivation in the terms of the Fourteenth Amendment. The court rejected a due process distinction between property for absolute necessities of life and other property.

Hint 20

Facts
Margarita Fuentes (P) purchased a gas stove and service policy and a stereo from the Firestone Tire and Rubber Co. (Shevin, D) on credit for $600. Under the contracts, Fuentes had possession of the merchandise but Firestone retained title to the merchandise and was entitled to recover it if Fuentes defaulted on the monthly payments.

Fuentes owed a balance of $200 on the merchandise when a dispute arose over the servicing agreement under the contract. Firestone instituted an action in a small claims court for repossession of both the stove and the stereo and obtained a writ of replevin ordering a sheriff to repossess the property before providing Fuentes with notice.

Under Florida state procedure, Firestone had merely to fill in the blanks on the appropriate forms and submit them to the clerk of the small claims court. The clerk signed and stamped the documents and issued a writ of replevin. A local deputy sheriff and an agent of Firestone went to Mrs. Fuentes’s home and seized the stove and stereo later the same day.

Fuentes brought this lawsuit in federal district court, asserting that the Florida prejudgment replevin procedures were unconstitutional in light of the Due Process Clause of the Fourteenth Amendment. Fuentes sought injunctive relief and a declaratory judgment against enforcement of the prejudgment replevin statutes.

Disposition
Reversed; judgment for Fuentes.

Front 21

Mitchell v. W.T. Grant Co.
(1974)

Back 21

Facts

Synopsis of Rule of Law. Prejudgment-seizure is proper when a judge reviews the complaint that has specific facts alleging possession, a bond is posted, and a hearing is afforded to the party.




Holding
No. Typically pre-judgment procedures, here sequestration, are found to violate due process. However this statute affords parties the requirements necessary for those rights not to be violated. Here it is a judge that reviews the complaint that must provide specific facts for seizure, and the defendant is awarded a hearing to dispute the complaint. Also the writ states the plaintiff will pay for any fines damages and attorney’s fees if a wrongful writ is made. These protections minimize the risk of error significantly.

Hint 21

Facts. Grant sold a refrigerator, range, stereo and a washing machine to Mitchell. This was done on credit. Mitchell owed $574.00. Grant filed an affidavit of the amount and stated they had reason to believe Mitchell would alienate or destroy the property. Without a hearing, a Judge signed an order of sequestration and directed a constable to take possession after Grant posted a bond for twice that amount that was due.


Issue. Whether a sequestration statute authorizing pre-judgment seizure of property violates the Due Process Clause.

Dissent. This case was not meant to overrule Fuentes that invalidates pre-judgment seizures; this case was constitutionally indistinguishable from Fuentes and the majority pushed that decision upon the whole court.

Discussion. The issue with these cases is that both seller and buyer own an interest in the property that is subject of the claim. However there needs to remain a balance between both parties interest.

Front 22

North Georgia Finishing, Inc. v. Di-Chem, Inc
(1975)

Back 22

Synopsis of Rule of Law. Pre-judgment garnishments are unconstitutional if they do not afford the person an immediate hearing to dispute the claims.

Issue. Whether a garnishment statute allowing a clerk to issue a writ for possession without a hearing is a violation of the possessor’s due process rights.

Held. Yes. Under the Constitution all persons must not be deprived of life, liberty or property without due process of law. Certain types of property rights require certain due process procedures before a plaintiff can claim ownership over someone else’s property. In this particular state, there is a statute which authorizes court clerks to review an affidavit of a plaintiff and to make a decision to issue a writ. Once the clerk issues this writ the plaintiff may take possession of the property. The defendant in this type of action has no opportunity to immediately appeal that decision as no hearing is afforded. The only defense for the defendant is to file a bond to protect the plaintiff. The defendant must wait until the end of trial. All that is required on the affidavit are conclusory allegations that do not need to meet the probable cause standard. This is not acceptable. All proper safeguards are missing from this statute.

Hint 22

Brief Fact Summary. he plaintiff filed for a garnishment writ of Di-Chem’s bank account and was awarded a freeze of those assets pre-judgment.



Facts. Plaintiff filed a garnishment order against defendant for 51,000.00 for goods the defendant bought from plaintiff. To support this order the plaintiff submitted an affidavit stating the amount was due. A court clerk issued the writ and froze the defendant’s bank account. The defendant was not afforded a hearing unless a bond was posted.

Discussion. The defendant argues that there is case law stating not all pre-judgment seizures are unconstitutional; however, this statute falls short of what is required not to violate the defendant’s due process rights.

Front 23

Connecticut v. Doehr
(1991)

Back 23

Issue. Whether a state statute that authorizes prejudgment attachment of real estate without prior notice or the opportunity for a hearing, without extraordinary circumstances, and without the requirement that a person seeking attachment post a bond satisfies the Due Process Clause of the Fourteenth Amendment?

Held. No. The judgment is affirmed and remanded for further proceedings. Prejudgment attachment provisions that fail to provide prior notice or preattachment hearing without some showing of exigent circumstances violates the requirements of due process. In order to determine what process is due when the government seeks to deprive an individual of their property, the following three step analysis must be completed: 1) the private interests that will be affected; 2) the risk of erroneous deprivation;  3) and the government’s interests. Here, however, the inquiry is slightly different because prejudgment remedy statutes deal with disputes between private parties. Therefore, instead of considering the government’s interests, principal attention must be given to the interest of the party seeking the remedy. In the instant case, homeowners’ interests would be significantly affected by attachment even though there is no interference with possession of property because it could cloud title and interfere with borrowing on the property. Second, there is a substantial risk of erroneous deprivation since it is state practice to rely on conclusory affidavits and does not lend itself to documentary proof. Third, the interests of the Petitioner are too minimal, the only interest the Petitioner has in the Respondent’s real estate is to ensure the availability of assets to satisfy the judgment if he prevailed on the merits of the claim. Petitioner’s interest in attaching the property does not justify the burdening of the Respondent’s ownership rights without a hearing to determine the likelihood of recovery. Due process also requires that the Petitioner post a bond in addition to requiring a hearing or showing of some exigency. A danger exists that property rights may be wrongfully deprived without the safeguards of a bond, even with a hearing or exigency requirement. Concurrence. The concurrence is in agreement with the decision of the court that the Connecticut attachment statute fails to satisfy the Due Process Clause of the Fourteenth Amendment. However, the court’s holding requiring the bond requirement is both unnecessary and not useful. The court should wait for more concrete cases, which present issues involving bonds to make such a decision. Agreement with the court that the Connecticut statute’s validity should be determined by applying the test set forth in Matthews v. Eldridge, 424 U.S. 319 (1976). It fails this test.

Discussion. The factors used in the case to determine what process is due when the government seeks to deprive an individual of their property was set forth in Matthews v. Eldridge, 424 U.S. 319 (1976). The factors are as follows: 1) consideration of the private interest that will be affected by the prejudgment measure; 2) an examination of the risk of erroneous deprivation of such interest through the procedures used; 3) the probable value of additional or alternative safeguards; and 4) the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 335. In Connecticut, the same test was used; however, the focus was different. In contrast to Mathews, the court emphasized that principal attention is to be paid to the interest of the party seeking the prejudgment remedy, with due regard for any ancillary interest the government may have in providing the procedure or in reducing its burden by not providing greater protections.

Hint 23

Brief Fact Summary. In conjunction with a civil action for assault and battery against Brian K. Doehr (Respondent), John F. DiGiovanni (Petitioner), submitted an application for an attachment in the amount of $75,000 on Respondent’s home in Meridan, Connecticut. Respondent challenged the constitutionality of the attachment statute, the General Statutes of Connecticut, Section 52-278(e) (1991), under the Due Process Clause of the Fourteenth Amendment. The Supreme Court of the United States granted certiorari to resolve the conflict in authority between the United States Court of Appeals for the Second Circuit’s ruling that the statute was unconstitutional and the District Court’s decision to uphold the statute.
Synopsis of Rule of Law. Prejudgment attachment without prior notice and an opportunity for a hearing violates the Due Process Clause of the Fourteenth Amendment.

Facts. Petitioner submitted an application to the Superior Court of Connecticut for an attachment in the amount of $75,000 on Respondent’s home in Connecticut in connection with a civil action for assault and battery. The suit did not involve the Respondent’s land nor did the Petitioner have any interest in Respondent’s home or property. Connecticut’s prejudgment attachment statute authorizes the attachment of real estate without prior notice or the opportunity for a prior hearing. The statute does not require the posting of a bond. Based upon Petitioner’s affidavit that the Respondent willfully, wantonly and maliciously assaulted the Petitioner, the Superior Court of Connecticut judge found “probable cause to sustain the validity of the Petitioner’s claim” and ordered attachment of the Respondent’s home in the amount of $75,000. Only after the sheriff attached the property was the Respondent given notice of the attachment. Respondent filed suit against Petitioner in Federal District Court claiming that the statute was unconstitutional under the Due Process Clause of the Fourteenth Amendment. The district court upheld the statute. On appeal, the court of appeals reversed the district court’s decision. The Supreme Court of the United States granted certiorari.

Front 24

Lacks v. Lacks
(1976).

Back 24

Issue
If an error is discovered that does not involve jurisdiction but involves substantive elements of a cause for relief, would a final judgment of that court be void for lack of subject matter jurisdiction if that court had mistakenly found that all the elements of a cause of action had been met?

Holding and Rule
No. If an error is discovered that does not involve jurisdiction but involves substantive elements of a cause for relief, a final judgment of that court would not be void for lack of subject matter jurisdiction if that court mistakenly had found that all the elements of a cause of action had been met.

The residency requirements relate to the merits of the case and not to the subject matter jurisdiction. Hence, any error of law or fact which might have been committed in the divorce action did not deprive the court of jurisdiction to adjudicate the case. To rule otherwise would be to eliminate the certainty and finality in the law and in litigation which the doctrine of res judicata is designed to protect.

This court’s subject matter jurisdiction is statutory and there is no jurisdictional question. Mrs. Lacks only raises substantive issues and not issues related to subject matter jurisdiction. The substantive matters are beyond review at this point in time.

Hint 24

Facts
Mr. Lacks (P) filed for separation on grounds of mental cruelty in 1965. He was granted an absolute divorce in New York in 1970 and the divorce was affirmed in 1972. Two years later, Mrs. Lacks (D) contended that the New York court did not have subject matter jurisdiction over the matter because her husband failed to meet the residency requirements. Defendant moved to vacate the judgment. The lower court held that the judgment was invalid and the plaintiff appealed.


Disposition
Reversed.

Front 25

Mas v. Perry
(1974).

Back 25

Issue
What is required in order for a party to change its place of domicile?

Holding and Rule
Domicile requires two things: taking up residence in a different domicile with the intention to remain there. A person remains a domicile of one place until that person has adopted a new domicile through physical presence and intent to remain.

Domicile is determined as a matter of federal law, not state law. The state of a person’s residence is not necessarily the state of domicile for purposes of establishing diversity jurisdiction.

Mr. Mas can establish diversity jurisdiction against Perry in any case because 28 USC 1332(a)(4) does not apply to aliens who are not permanent residents of the United States, regardless of their place of domicile.

Formerly, the domicile of a wife was deemed to be that of her husband. The court abandoned that rule in this case and held that for diversity purposes a woman’s domicile does not change solely by marrying an alien.

Hint 25

Facts
Mr. Mas and Ms. Mas (P) were graduate assistants at Louisiana State University in Baton Rouge. After their wedding at Ms. Mas’s home in Jackson, Mississippi they returned to Baton Rouge and rented an apartment from Perry (D). The plaintiffs later discovered that Perry had been spying on them through two-way mirrors in their bedroom and bathroom during the first few months of their marriage.

The Mases brought this lawsuit against Perry in federal district court in Louisiana. The husband was a citizen of France and did not have permanent resident status in the United States and the wife was a resident of Mississippi. At the time this lawsuit was filed the couple lived in Louisiana but had not decided where they would live after Mr. Mas completed his Ph.D.

Perry moved to dismiss on the grounds that there was no diversity of citizenship between the parties because the Mases and Perry were all domiciled in Louisiana. The district court denied Perry’s motion and the jury found in favor of the plaintiffs. The defendant appealed.


Disposition
Judgment for Mas affirmed.

Front 26

A.F.A. Tours, Inc. v. Whitchurch,
(1991).

Back 26

Issue
What is required for dismissal for lack of subject matter jurisdiction for failure to satisfy the amount-in-controversy requirement for diversity?

Holding and Rule
Unless provided otherwise by law, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. In order to justify dismissal, it must appear to a legal certainty that the claim is for less than the jurisdictional amount.

The Supreme Court of the United States established this test in St. Paul Mercury Indemnity Co. v. Red Cab Co. Federal district courts have jurisdiction over diversity actions where the amount in controversy exceeds $50,000, exclusive of interest and costs. The court can impose costs on the claimant if the claim is later found to be less than $50,000.

In this case A.F.A. Tours was not afforded ample opportunity to prove that its claim could have exceeded $50,000.

Hint 26

Facts
A.F.A. Tours (P) filed a complaint in federal district court against Desmond Whitchurch (D), a former tour guide, for misappropriation of trade secrets.

Procedural History

Whitchurch moved for summary judgment. The district court granted the motion on the grounds that there was no possible way that any fact finder would award damages to T.F.A. Tours and no possible basis for reaching the fifty thousand dollar amount in controversy requirement for diversity jurisdiction. A.F.A. Tours appealed to the Court of Appeals for the Second Circuit. It contended that the dismissal was improper because the trial court failed to provide an opportunity to show that it satisfied the jurisdictional amount, and failed to apply the proper standard to A.F.A. Tours’s requests for damages and injunctive relief.

Disposition
Vacated and remanded.

Front 27

Piper Aircraft v. Reyno,
(1981).

Back 27

Issues
Can Reyno prevail on the defendants’ motion to dismiss on the grounds of forum non conveniens by showing that the substantive law that would be applied in the alternative forum is less favorable to Reyno than that of the chosen forum?
Did the district court act unreasonably in concluding that fewer evidentiary problems would arise if the trial were held in Scotland, and in determining that the public interest factors favored trial in Scotland?
Holding and Rule
1) No. 2) No.

When an alternative forum has jurisdiction to hear a case and when trial in the chosen forum would establish oppressiveness and vexation to a defendant out of proportion to the plaintiff’s convenience, or when the chosen forum is inappropriate because of considerations affecting the court’s own administrative and legal concerns, the court may in the exercise of sound discretion dismiss the case by applying the list of private and public interest factors.

In a motion to dismiss for forum non conveniens, a court should consider both private and public interest factors.

Private factors include the relative ease of access to sources of proof, availability of compulsory process for the attendance of unwilling witnesses, the cost of attendance of witnesses, the possibility of viewing the scene if appropriate to the action, and other practical matters related to making the trial easy, expeditious, and inexpensive.

Public factors include administrative difficulties of the courts, interest in having local controversies adjudicated at home, the interest in having the trial in a forum that is familiar with the law governing the action, the avoidance of unnecessary problems in conflict of laws or the application of foreign law, and the unfairness of burdening citizens in an unrelated forum with jury duty.

The court held that private factors favored Scotland because the wreckage of the plane and witnesses were there. The court also held that public factors favored Scotland because Scotland had a greater interesting in hearing a case that concerned Scottish citizens. The court also held that the fact that Scotland might have been less favorable to Reyno did not provide a reason to dismiss the defendants’ motion.

Hint 27

Facts
A plane manufactured by Piper Aircraft (D1), a Pennsylvania corporation, crashed in Scotland. Parts of the airplane were manufactured by Hartzell (D2), an Ohio corporation. Reyno (P) was appointed administrator for the families of five UK citizens involved in a plane crash in their suit against the defendants for negligence and strict liability. The families of the dead passengers sued Air Navigation, the operator of the plane (McDonald), and the estate of the deceased pilot in a separate action in the UK.

Procedural History
The complaint was filed in California by Reyno. The defendants removed to federal district court in California and then successfully sought transfer to Pennsylvania district court. The defendants’ motion to dismiss on forum non conveniens grounds was granted and Reyno appealed. The court of appeals reversed and remanded.

Disposition
Reversed in favor of the defendants.

Front 28

Erie Railroad Co. v. Tompkins,
(1938).

Back 28

Issue
In actions in diversity, except in matters governed by the Constitution or acts of Congress, must federal courts apply state common law in addition to statutory law?
Holding and Rule (Brandeis)
Yes. In actions in diversity, except in matters governed by the Constitution or acts of Congress, federal courts must apply state common law in addition to statutory law.
In diversity cases, federal courts must apply state law as declared by the highest state court in addition to state statutory law. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State and the Constitution does not confer such a power upon the federal courts.

Hint 28

Facts
Tompkins (P) sustained personal injuries when he was struck by an Erie Railroad Company (D) freight train in Pennsylvania while walking on a footpath adjacent to the tracks. Tompkins was a citizen of Pennsylvania and Erie Railroad Company was incorporated in New York.

Tompkins brought this personal injury lawsuit in diversity in federal district court in New York, asserting that he was lawfully on the property as a licensee, and that the accident occurred as a result of Erie Railroad’s negligence in the operation or maintenance of the train. Erie Railroad Company denied liability and asserted that the rule that had been established in the courts of Pennsylvania should apply. Under that rule, persons using pathways adjacent to railways were deemed trespassers and the railroad would not liable for injuries unless its actions were wanton or willful.

Tompkins denied that such a rule had been established by the Pennsylvania courts. He further contended that since no Pennsylvania statute addressed the issue of liability in such cases, the railroad’s duty and liability should be determined according to the rule established in federal court in light of Swift v. Tyson. Under federal common law Tompkins would be regarded as a licensee. Railroads owed a duty of ordinary care to pedestrians and would be liable upon a showing of ordinary negligence.

At trial, the jury returned a verdict in favor of Tompkins for $30,000. The Circuit Court of Appeals affirmed, holding that in regards to questions of general law that are not covered by state statute, federal courts are free to exercise their judgment as to what the law is. The Circuit Court of Appeals held that railroads owe a duty of ordinary care to those who use permissive pathways adjacent to railroad tracks. The defendant appealed and the Supreme Court granted certiorari.


In disapproving the doctrine of Swift v. Tyson, the Court does not hold section 34 of the Federal Judiciary Act of 1789 unconstitutional. It merely declares that, by applying the doctrine of that case, rights which are reserved by the Constitution to the several States have been invaded.

The ruling in Swift v. Tyson is overruled. It was an unconstitutional assumption of powers by the Courts of the United States. Federal courts do not have the power to create federal common law as this gives federal courts powers not granted in the Constitution. Congress has no power to declare the substantive rules of common law in state actions.

The Swift decision is flawed because it promotes forum shopping. Citizens of one state could move to another state to create diversity and bring suit in federal court to take advantage of a more favorable choice of law. Such a defect is substantial and provides no benefit.

Disposition
Reversed and remanded.

Front 29

Byrd v. Blue Ridge Rural Electric Cooperative, Inc.,
(1958).

Back 29

Issue
Under the Erie doctrine, must state law be applied in determinations of rights, regardless of conflict with federal law and the Constitution?

Holding and Rule (Brennan)
No. The Erie doctrine does not mandate that state law be applied in determinations of rights regardless of conflict with federal law and the Constitution.

Hint 29

Facts
Byrd (P) was injured in South Carolina while connecting power lines in the course of his employment for a subcontractor of Blue Ridge Rural Electric Cooperative, Inc. (D). Byrd, a North Carolina resident, brought a diversity action against Blue Ridge Rural, a South Carolina corporation, for personal injuries. Under South Carolina law, if Blue Ridge were Byrd’s statutory employer, Byrd’s award would be limited to workmen’s compensation and he would not be entitled to sue Blue Ridge for negligence. Blue Ridge raised an affirmative defense based on South Carolina law that it was Byrd’s statutory employer and that Byrd was therefore limited to workmen’s compensation.

After hearing Blue Ridge’s evidence, the judge struck Blue Ridge’s affirmative defense without hearing Byrd’s evidence. The jury returned a verdict for Byrd and Blue Ridge appealed. The court of appeals reversed and directed a verdict for Blue Ridge and the U.S. Supreme Court granted certiorari.

Blue Ridge asserted that under Erie Railroad Co. v. Tompkins the issue of immunity should be decided by the judge according to South Carolina state law. Byrd asserted that the Erie doctrine could not preclude his right to a trial by jury under the Seventh Amendment.


Under the Erie doctrine, federal courts in diversity must respect the definitions of rights and obligations created by state law, but state law cannot alter the essential function of the jury as provided by the Seventh Amendment.

The Court held that South Carolina’s determination that immunity was a question of law to be decided by a judge was merely a determination of the form and mode of enforcing immunity. It did not involve any essential relationship or determination of rights created by state law. The court held that the Erie doctrine can still reach form and mode determinations if there are no affirmative countervailing considerations.

The court held that the right to have the issue decided by a jury was mandated by the Seventh Amendment. The right to a jury trial in federal court is a fundamental and essential right provided for in the Seventh Amendment and that may not be changed by any contrary state law or requirements.

Disposition
Remanded with orders for a jury trial.

Front 30

Hanna v. Plumer,
(1965)

Back 30

Issues
1, Does the Erie doctrine apply to rules of procedure pertaining to service of process?

2, Do the Federal Rules of Civil Procedure apply, irrespective of the source of subject matter jurisdiction, and irrespective of whether state or federal substantive law applies?

Holding and Rule (Warren)
1, No. The Erie doctrine does not apply to rules of procedure pertaining to service of process.

2. Yes. The Federal Rules of Civil Procedure apply irrespective of the source of subject matter jurisdiction, and irrespective of whether state or federal substantive law applies.

Hint 30

Facts
Hanna (P), an Ohio resident, was involved in an automobile accident in South Carolina with Osgood, a resident of Massachusetts. Hanna brought an action in diversity in Massachusetts federal district court against Plumer (D), the executor of the estate of Osgood.

Plumer was served with process according to FRCP 4(d)(1) by leaving copies of the summons with his wife at his residence. Under Massachusetts rules however, service upon an executor must be handed personally to the executor within one year.

Plumer moved for summary judgment on the grounds that the state law rule regarding service should be used. Citing Guaranty Trust Co. v. York, Plumer argued that the Erie doctrine applies when the issue is outcome determinative; in this case if Massachusetts rules applied the case would be dismissed because Plumer had not been served within the statute of limitations and the court would therefore not have personal jurisdiction over him. On the other hand, if the federal rules applied, Hanna would have an opportunity to have the case tried on the merits.

The trial court granted Plumer’s motion and Hanna appealed, arguing that the rule established in Erie Railroad Co. v. Tompkins applies only to issues of substantive law and not procedural rules. The First Circuit affirmed and the United States Supreme Court granted cert.

The court held that the question in this case only goes to procedural requirements. A dismissal for improper service under these facts would not alter the substantive right of Hanna to serve Plumer personally and refile or affect the substantive law of negligence in the case. Article III and the Necessary and Proper Clause provides that the Congress has a right to provide rules for the Federal Court (FRCP 4(d)(1). Plumer’s arguments for the application of state law are flawed. Under Byrd, federal courts must apply federal law in certain situations regardless of whether choice of law would be outcome determinative.

The choice of the federal or state rule have a marked effect upon the outcome of litigation but the difference between the rules would be of scant if any relevance to the choice of forum. A party would not choose a federal court simply because Rule 4(d)(1) has an easier method of service. The Erie rule has never been invoked to void a Federal Rule. This case is differentiated from York and Erie in that they never dealt with a federal rule conflicting with state law. If there is no federal rule, Erie commands the enforcement of state law. The exercise of constitutional authority by Congress in the Rules Enabling Act does not have to take a backseat to state created rights and procedures. The federal rule is valid and controls the case.

Disposition
Judgment reversed.

Concurrence (Harlan)

The test for deciding whether the Erie doctrine applies to a rule of procedure should be a determination of whether the choice of rule would substantially affect those primary decisions respecting human conduct which our constitutional system leaves to state regulation. If so, Erie and the Constitution require that the state rule prevail, even in the face of a conflicting federal rule. Erie wanted to ensure that there were not two conflicting systems of law and the creation of substantive state law by federal courts should be avoided if that creation extends beyond constitutional limits.

Note that in the 1842 case Swift v. Tyson, the Supreme Court had held that the Rules of Decision Act did not call for the application of state decisional law in addition to statutory law.

Front 31

Jeub v. B/G Foods, Inc
(1942)

Back 31

Synopsis of Rule of Law. A defendant may implead a third party that may be liable in a lawsuit under Rule 14 of the Federal Rules of Civil Procedure even though the defendant may not be able to bring an independent action against the third party at the time the third party is impleaded. The policy behind Rule 14 is to have the rights of all parties resolved in one proceeding. If the trial court has means to prevent any prejudice ensued from impleading a third party, then impleader is permitted.

Front 32

New York Life Ins. Co. v. Dunlevy

Back 32

When an interpleader action is instituted, the court only has jurisdiction over those claimants that it could obtain personal jurisdiction over in an ordinary proceeding. Because Plaintiff was absent from the state, not a citizen of the state, and was not served within the state, the judgment against her was void for lack of jurisdiction.

Front 33

Pan American Fire & Cas. Co. v. Revere
(1960)

Back 33

The function of interpleader is to protect the plaintiff from multiple liability from the same fund and the nature of interpleader requirements are designed to further that function. Rule 22 of the Federal Rules of Civil Procedure permits interpleader when the plaintiff “may be” exposed to multiple liability. The plaintiff need only be exposed. Therefore, even though the possibility of multiple liability is remote, it still exists, which satisfies Rule 22.

Front 34

Smuck v. Hobson
(1959)

Back 34

Rule of Law
Under Rule 24(a) of the Federal Rules of Civil Procedure, a party can only intervene as of right if the party has an interest in the case, and the interest is so compelling that disposition would impair or impede the parties’ interest if intervention were not allowed and the prospective intervenor’s interests are not adequately represented by other parties. 

Held - No regarding Hansen and Smuck. Yes regarding the parents only to the extent that the District Court’s order imposes restraints on the Board’s ability to make certain decisions.

Front 35

General Telephone Co. v. Falcon
(1982)

Back 35

The majority of the United States Supreme Court overturned the class certification and remanded back to the district court because Respondent did not offer the proper support. Respondent advanced his own specific claim of intentional discrimination and then tried to blanket his claim over a class. Respondent would be required to allege a pattern in their practices, that their pattern was motivated by discrimination and that the pattern was present in both their hiring and promotion practices.

Front 36

Castano v. American Tobacco Co
(1996)

Back 36

Synopsis of Rule of Law. The District Court is required to consider variations in state law, whether common issues of law and fact predominate over individual issues and the nature and novelty of the claim prior to certifying a class.

Front 37

Hansberry v. Lee
(1940)

Back 37

Synopsis of Rule of Law. There must be adequate representation of the members of a class action in order for the judgment to be binding on the parties not adequately represented.

Front 38

Provident Tradesmens Bank & Trust Co. v. Patterson (1968)

Back 38

Synopsis of Rule of Law. The interests articulated in Rule 19(b) of the Federal Rules of Civil Procedure must be evaluated by the Court prior to disposition of the case in order to determine whether a case should be dismissed for failure to join an indispensable party. The decision rendered should always be consistent with “equity and good conscience.”

Front 39

Snyder v. Harris, 394 U.S. 332
(1969).

Back 39

Facts: A class action suit brought under diversity was filed in federal court. Each individual claim was less than the jurisdictional amount. The circuits were split regarding whether to allow aggregation of claims to meet the amount in controversy requirement for diversity.

Issue: May separate and distinct claims under a class action suit be aggregated to meet diversity jurisdictional amounts?

Holding and Rule – Black: No. Separate and distinct claims under a class action suit may not be aggregated to meet diversity jurisdictional amounts. The court acknowledged that aggregation had been permitted where a single plaintiff sought to aggregate two or more claims against a single defendant, and where two or more plaintiffs united to enforce a single title or right in which they had a common and undivided interest. The court held that the adoption of the 1966 amendment to Rule 23 did not change the doctrine.

Dissent – Fortas: Permitting aggregation in class action suits does not violate the principle expressed in Rule 82 and inherent in the procedure for the promulgation and amendment of the FRCP. FRCP 23 provides that nominally separate and legally several claims of individuals may be so similar that they can be tried together as if they were a single claim. Aggregation should be permitted when that determination is made under the painstaking demands of FRCP 23.

Notes: Note that claims can be aggregated if two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest.

Front 40

Zahn v. International Paper Co., 414 U.S. 291
(1973)

Back 40

Multiple plaintiffs with separate and distinct claims must each satisfy the jurisdictional amount for suits in federal courts, and, in this diversity class action under Fed.Rule Civ.Proc. 23(b)(3) by owners of lakeshore property charging respondent with polluting the lake, where only the named plaintiffs, but not the unnamed plaintiffs, could show damages in the jurisdictional amount, a class action is not maintainable. Each plaintiff in a Rule 23(b)(3) class action must satisfy the jurisdictional amount and any plaintiff who does not must be dismissed from the case. Snyder v. Harris, 394 U. S. 332, followed. Pp. 414 U. S. 292-302.

Front 41

Phillips Petroleum Co. v. Shutts
(1985)

Back 41

Brief Fact Summary. Plaintiffs, royalty owners to gas produced by Defendant, brought a class action in Kansas state court against Defendant to recover interest on royalty payments. The trial court sent notice to all class members, most of whom were located outside of Kansas, notifying them of the litigation, their right to appear and their right to opt out of the litigation. The trial court, applying Kansas law to the transactions, found Defendant liable to all class members, which Defendant appealed.

Synopsis of Rule of Law. In order to bind absent class members to a class action involving monetary judgment, due process requires that all absent class members receive notice describing the litigation, their right to appear, and their right to opt out of the litigation. A state’s law can only be applied if the state has contact or an aggregation of contacts that create state interests in the litigation so that the choice of law is neither arbitrary nor unfair.

Facts. Plaintiffs Shutts and others similarly situated were royalty owners possessing rights to leases from which Defendant produced gas. Defendant produced or purchased gas from lease land located in eleven states. Plaintiffs brought a class action against Defendant in Kansas state court to recover interest on royalty payments. The trial court certified a class of 33,000 royalty owners. All class members were sent notice that described the lawsuit, offered an opportunity to personally appear, and that they could opt out by returning a request for exclusion. The final class was 28,000 that resided in all 50 states, the District of Columbia, and some foreign countries. Class members whose notice was undeliverable were also excluded. 99% of the leases and 97% of the class members had no connection with Kansas except for the lawsuit. The trial court applied Kansas contract and equity law and found Defendant liable to all class members. Defendant appealed arguing the due process clause of the Fourteenth Amendment prevented the Kansas court from adjudicating the claims of all the class members and the full faith and credit clause prohibited application of Kansas law to all of the transactions between Defendant and the class members. The Supreme Court of Kansas affirmed the trial court’s ruling.

Issue. Did the Kansas trial court have jurisdiction to adjudicate the claims of absent class members not residing in Kansas? Should the Kansas trial court have applied to Kansas law to all transactions of the absent class members?
Held. First issue: Yes. Second issue: No. Reversed to the extent the court decided Kansas law applied to all transactions. The “minimum contacts” analysis of whether a court has personal jurisdiction over absent defendants does not apply to a situation with absent Plaintiffs.  The court must first look to the adequacy of representation, the common nature of the named Plaintiffs and absent Plaintiffs, the jurisdictional bases, and any other matters concerning representation of absent class members before the Court can certify the class. Absent Plaintiffs, unlike absent defendants, did not have to hire counsel or appear, are not subject to counterclaims and can opt out of the class action. The due process clause is not violated as to the absent Plaintiffs and if the court wants to bind an absent Plaintiff concerning a claim for money damages it must provide minimal procedural due process protection. Absent Plaintiffs must receive notice and be given an opportunity to be heard. In this situation, the absent class members did have that opportunity. An “opt in” provision would impede the class action and would require revisions of many lawsuits. In order for the law of Kansas to apply, Kansas must have contacts or a “significant aggregation of contacts” that creates Kansas’ interest in the litigation so applying Kansas law would not be arbitrary or unfair. This prevents application of the law from violating the full faith and credit clause and the due process clause of the United States Constitution. There is a conflict between Kansas law and the laws of other states regarding the interest rates owed to Plaintiffs. The parties that do not reside in Kansas had no expectation that Kansas law would apply to the royalty transactions. The Court is permitted to apply the laws of various states and must exercise that authority when applying the law of the forum state would be arbitrary and unfair.

Dissent. Justice Stevens concurred in Parts I and II of the opinion and dissented from Part III. Omitted from casebook.

Discussion. Personal jurisdiction over absent class members in a class action is not evaluated under the “minimum contacts” test governing personal jurisdiction over absent class members. Absent class members in cases involving money judgment must be given notice. However, the decision is binding if the plaintiff is given adequate notice, is adequately represented and does not opt out. The choice of law governing a class action must not violate the full faith and credit clause or the due process clause of the Constitution. The state (not the parties) must have a connection to the litigation so as not to make applying its law unfair or arbitrary

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Cooper v. Federal Reserve Bank of Richmond
(1984)

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Brief Fact Summary. A class action was filed in federal court that certified a class described as all black employees of Defendant employed since January 3, 1974, that were discriminated against because of their race. The court ultimately found that Defendant did not have policies or practices of race discrimination, although it did find some intervenors to have potentially actionable race discrimination claims. When the intervenors brought individual suits, the Court of Appeals reversed the District Court’s denial of Defendant’s motion to dismiss, on the grounds that res judicata precluded the individual lawsuits.

Synopsis of Rule of Law. A District Court’s finding against individual class members regarding a claim that requires establishment of class-wide discrimination does not preclude an individual case based on race discrimination.

Facts. A federal court certified a class described as all black employees of Federal Reserve Bank of Richmond, Defendant employed since January 3, 1974, that were discriminated against because of their race. The District Court found that Defendant engaged in policies and practices of failing to pay black employees the same pay grade as white employees in Grades 4-5. In addition, the District Court found that Defendant did not engage in policies and practices of race discrimination as to other aspects alleged such as to warrant relief. Finally, the District Court found against some intervenors, but not the group of plaintiffs known as the “Baxter petitioners.” The Baxter petitioners subsequently brought individual lawsuits alleging race discrimination. Defendant moved to dismiss on the grounds that Baxter petitioners were not in Grades 4 or 5 and thus were bound by the District Court’s previous determination. The District Court denied the motion to dismiss. On interlocutory appeal, the Court of Appeals reversed, finding that under the doctrine of res judicata, the Baxter petitioners were precluded from bringing individual lawsuits. Baxter petitioners appealed.

Issue. Did the District Court’s order pertaining to its finding of Defendant’s lack of policies and practices of race discrimination such as to warrant relief preclude the Baxter petitioners’ individual lawsuits?

Held. No. Reversed and remanded. Pattern and practice claims do not focus on individual hiring and employment related decisions. It is possible to prove some individual claims of race discrimination without establishing company-wide patterns of discrimination. The judgment in the case is binding to the extent that there is a pattern and practice of race discrimination in pay for Grades 4-5 during the relevant time period and in all other aspects there is not sufficient pattern and practices of race discrimination during the relevant time period.  To bar individual lawsuits in a pattern and practice claim would create a situation where all individuals would have to intervene in the class action in order to ensure that the merits of their individual cases are litigated. This would be contrary to the purpose of Rule 23 of the Federal Rules of Civil Procedure in allowing for many individual claims to be consolidated into a group or groups of claims.

Discussion. This case distinguishes two different kinds of employment discrimination cases: individual vs. “pattern and practice.” “Pattern and practice” requires evidence of company-wide policies and practices that demonstrate race discrimination. Because the burden of proving these elements requires establishing more than a few individual claims, a finding of “no pattern and practice” does not resolve an issue of whether there are individual actionable instances of race discrimination. Thus, it cannot have preclusive effect over an individual claim of race discrimination.

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In re: Petition of Sheila Roberts Ford
(1997)

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(M.D. Ala. 1997)
Brief Fact Summary. The Administratrix, Sheila Roberts Ford, petitioned to depose the commanding officer, Sheriff Bill Franklin, to identify the witnesses and facts surrounding the death of Fred William Roberts.

Synopsis of Rule of Law. Federal Rules of Civil Procedure Rule 27 does not permit pre-complaint discovery and should only be used when it is necessary to preserve testimony that is in danger of not being available at the time of suit.

Facts. Pursuant to Federal Rules of Civil Procedure Rule 27(a)(1), Sheila Roberts Ford filed a petition to perpetuate testimony from Franklin. Sheila Ford satisfied most of the elements of the rule: she stated that she expected to be a party to a federal action but needed further information in order to gather basic facts and identify the parties that would be known by Franklin. She did not identify a federal cause of action, so she amended her petition to specify that it was likely a Fourteenth Amendment violation.

Issue. The issue is whether Sheila Ford’s petition to perpetuate testimony from Franklin should be granted.

Held. The court held that the information sought by Sheila Ford could be gathered through discovery if she would file suit. The purpose of the gathering of Franklin’s testimony is to discover it rather than perpetuate it.

Discussion. The court sympathizes with Ford because she does not have the threshold level of evidence to bring a suit against the officers, but Rule 27 does not provide a method of discovery either. Therefore she has no recourse for justice.

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Kelly v. Nationwide Mut. Ins. Co
(1963)

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Brief Fact Summary. The Plaintiff, Kelly (Plaintiff), sued the Defendant, Nationwide Mutual Insurance Company (Defendant), to recover damages to her motor vehicle under a comprehensive policy during the latter part of April 1961. Defendant denied that such coverage existed at that time in a general denial within its answer and moved to have Plaintiff give more complete answers to Defendant’s interrogatories.

Synopsis of Rule of Law. Interrogatories whether filed with a pleading or separately are proper when: (1) relevant to an issue in the case (not just relevant to an issue in the pleading); (2) privileged information is not sought and (3) the information sought would be admissible evidence in the action. This rule is limited by the further rule that interrogatories may not: (1) seek discovery of the manner in which the opponent’s case is to be established, nor (2) inquire as to what his witnesses will testify.

Facts. Plaintiff contended that a comprehensive insurance policy underwritten by the Defendant existed in late April 1966 when someone had damaged Plaintiff’s car by placing sugar in the fuel tank. Defendant generally denied that such a policy was in place at the time of the damage and attached to its answer 42 interrogatories for Plaintiff to answer. Plaintiff answered the interrogatories and Defendant moved to have Plaintiff answer them more completely.

Issue. Whether the Plaintiff, within the scope of discovery, has to reveal to the Defendant in advance of trial, evidence which the Plaintiff hopes to establish in support of his own case.

Held. No. The court stated the following rules of law and decision. Interrogatories, whether filed with a pleading or separately are proper when: (1) relevant to an issue in the case (not just relevant to an issue in the pleading); (2) privileged information is not sought and (3) the information sought would be admissible evidence in the action. This rule is limited by the further rule that interrogatories may not: (1) seek discovery of the manner in which the opponent’s case is to be established, nor (2) inquire as to what his witnesses will testify. The court held that Plaintiff had to answer whether Plaintiff was a sole proprietor, partner or corporation with regard to the trucking business at the time of the damage – an interrogatory which had direct bearing on the question of the truck’s ownership and policy coverage. All the other interrogatories answered by Plaintiff which Defendant requested to be further answered were deemed complete.

Discussion. The court sided with the more liberal view regarding the scope of discovery. As long as interrogatories go directly to the core issues in the case, courts are willing to  allow a more lenient discovery process. Though the use of discovery to inquire as to how the other side will present its case is barred.

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Marrese v. American Academy of Orthopaedic Surgeons
(1985)

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Brief Fact Summary. The Plaintiffs, two orthopedic surgeons (Plaintiffs), sued the Defendant, the American Academy of Orthopaedic Surgeons (Defendant) alleging they were refused membership in the Academy without a hearing. In the course of discovery, the Plaintiffs asked the Defendant for correspondence and other documents relating to the denial of applications from 1970-1980. Despite a federal court order which would protect the confidentiality of the documents, the Defendant refused to comply and was held in criminal contempt.

Synopsis of Rule of Law. A motion made under Federal Rule of Civil Procedure (FRCP) Rule 26(c) to limit discovery requires the court to use discretion in balancing the nature of the hardships to the parties and the effect of its magnitude. This gives more weight to interests that have more social value than to purely private interests. In doing so, the court must consider the possibility of reconciling the competitive interests through a carefully crafted protective order.

Facts. The Plaintiffs sued in state court alleging they were refused membership to the Defendant’s organization without a hearing. The state court dismissed the complaint finding that membership in the Academy was not an “economic necessity,” and therefore no valid state law claim was made. Plaintiffs then sued in federal court stating violations of antitrust laws. During the course of discovery, Plaintiffs demanded production by Defendant of correspondence and other documents relating to denials of membership from 1970-1980. The federal district court ordered Defendant to produce the documents pursuant to an order protecting their confidentiality. Defendant refused to comply with the order and was held in criminal contempt and fined $10,000. Defendant appealed.

Issue. Whether the files of voluntary organizations are discoverable in appropriate circumstances, subject to appropriate safeguards.

Held. Yes. Here the discovery order issued by the district court judge was erroneous and did not safeguard the confidentiality of Defendant’s files thoroughly.

Dissent. The federal district court did not abuse its discretion with regard to the protective order through reliance on the state court in camera review of the files. The Plaintiffs’ pursuit of the files and plan to seek further discovery using leads from the files were within the bounds of appropriate discovery. Although the discovery order could have been improved, the court’s fashioning of the terms was not an abuse of discretion under the circumstances of this case. The dissent would affirm the district court’s contempt holding, but on remand would direct the court to review Defendant’s files in camera and to consider possible redaction before enforcing the discovery order. 

Discussion. Under FRCP Rule 26, federal district judges have broad powers and correlative responsibilities with respect to managing complex litigation. There were many ways the district court judge could have prevented Plaintiff from abusing the discovery process, without denying them any information essential to developing their case. Citing a few suggestions, the district court could have done an in camera inspection of the files and redacted names and certain information or required Plaintiff to complete other nonsensitive discovery first.

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Polycast Technology Corp. v. Uniroyal, Inc
(S.D.N.Y.1990)

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Brief Fact Summary. Plaintiffs, Polycast Technology Corporation et al., filed a motion prior to the end of discovery to request an expedited trial.

Synopsis of Rule of Law. A party should wait until the end of discovery before requesting stipulations to the timing of the trial.

Facts. Plaintiffs submitted a motion to expedite a trial that they estimate will take ten weeks. If the trial judge’s calendar does not permit an early trial, they asked for the trial to be reassigned to another senior judge. Defendant, Uniroyal, Inc., argue that a motion on the trial timing is premature since they intend on motioning for a summary judgment after discovery is completed.

Issue. The issue is whether Plaintiffs’ motion to expedite the trial is premature as it is filed prior to the close of discovery.
Held. The court agreed with Defendant that the motion was premature. It did not make sense to make a decision on expediting a trial that may not happen depending on the outcome of Defendant’s summary motion. Plaintiffs can move for the expedited trial after discovery and after the judge has determined the merits of Defendant’s summary judgment motion.

Discussion. The court did not consider Plaintiff’s motion ripe

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In re Auction Houses Antitrust Litigation
(S.D.N.Y. 2000)

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Brief Fact Summary. A first Defendant, former Sotheby’s chairman Alfred Taubman, is moving to compel a second Defendant, Christie’s International, to respond to Tauman’s interrogatories concerning notes that were handwritten by Christie’s former CEO, Christopher Davidge.

Synopsis of Rule of Law. Federal Rules of Civil Procedure 33(a) requires that a party served with an interrogatory to respond with all information that is available, which includes information that they could compel from a third party.

Facts. During discovery regarding antitrust litigation, Christie’s turned over handwritten notes from Davidge’s files. The notes were potentially important in proving an alleged conspiracy, but the notes contained many abbreviations, symbols and pronouns lacking an antecedent. Taubman therefore submitted an interrogatory to Christie’s to get Davidge to explain the notes. Davidge was no longer employed with Christie’s, but in his termination agreement, which entitled him to a $5 million payout, he agreed to provide any information to Christie’s concerning his employment. The agreement also indemnified Davidge in future lawsuits regarding his employment. He was still owed $2 million towards that agreement. Taubman argued that Christie’s could use the agreement to compel Davidge to comply. Christie’s argued that this did not fall under the agreement, and that Davidge would not want to do so for fear of incriminating himself.

Issue. The issue is whether Christie’s is obligated to further compel Davidge to respond to the interrogatory.

Held. The court held that per the Federal Rules of Civil Procedure 33(a), Christie’s had an obligation to respond with all information that is available, and that includes information that they could obtain. In the court’s opinion, Christie’s had yet to use all the means at its disposal to force Davidge to comply. They could withhold the $2 million still owed Davidge, or they could refuse to indemnify him since he would be in violation of the agreement. The court analogized it to blocking statutes and explained that there was no countervailing reason to prevent the interrogatory. There was also little concern over Fifth Amendment rights since the court was already granting immunity and it was doubtful that it would protect him from civil litigation.

Discussion. The court noted that Christie’s was motivated to prevent Davidge from responding because they were the party that would be most damaged by his answers, and therefore gave less weight to Christie’s concerns for Davidge’s rights.

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Zubulake v. UBS Warburg LLC
(S.D.N.Y. 2003)

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Brief Fact Summary. Plaintiff, Laura Zubulake, brought gender discrimination and wrongful termination suits against Defendants, UBS Warburg LLC et al., and she sought access to emails that were stored and archived by Defendants.

Synopsis of Rule of Law. A court will weigh the cost of accessing the electronic data using a comprehensive set of factors, and will determine whether the data should be available for discovery, and which party to place the cost of the discovery.

Facts. Plaintiff was hired in 1999 as a senior salesperson for Defendant company. Plaintiff was passed over for a promotion, and the person who ended up with the job, Matthew Chapin, proceeded to harass Plaintiff. Plaintiff filed a charge of gender discrimination with the EEOC, and she was fired shortly thereafter. Plaintiff then filed federal, state and city charges of gender discrimination. Plaintiff requested all of Defendants’ email correspondence concerning Plaintiff as part of discovery, and they initially agreed to a scope of discovery. Defendants did not turn over archived emails because they claim that it would cost $175,000 not including attorney’s fees to gather the data.

Issue. The issue is whether Defendant is required to produce the electronic data to comply with discovery.

Held. The court looked at the proportionality test of Rule 26(b)(2) of the Federal Rules of Civil Procedure and applied it to the electronic communication at issue. Any electronic data that is as accessible as other documentation should have traditional discovery rules applied. For less accessible data, a cost-shifting analysis will be used, and Defendants should take a representative sample to determine the value of the information in that data. The court offered a seven-factor test that is based on traditional discovery rules.

Discussion. The court listed an extensive amount of factors, such as the amount in controversy, the stakes in the litigation, etc., which emphasizes the case-by-case nature of the analysis.

7 Factor Test

1. The extent to which the request is specifically tailored to discover relevant information;

2. The availability of such information from other sources;

3. The total cost of production, compared to the amount in controversy;

4. The total cost of production, compared to the resources available to each party;

5. The relative ability of each party to control costs and its incentive to do so;

6. The importance of the issues at stake in the litigation; and

7. The relative benefits to the parties of obtaining the information.

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Schlagenhauf v. Holder
(1964)

Back 49

Brief Fact Summary. The Petitioner, Schlagenhauf (Petitioner), was one of several named defendants in a negligence lawsuit stemming from a bus and tractor-trailer collision brought by passengers of a Greyhound bus, of which Petitioner was the driver. One of the other defendants, the owner of the trailer, moved to have mental and physical examinations done on Petitioner whose negligence, they claimed, caused the accident.

Synopsis of Rule of Law. Federal Rules of Civil Procedure (FRCP) Rule 35 allows a movant to compel mental and physical examinations for party-opponents as well as persons under their legal control through a showing of good cause and when a person’s physical or mental condition is at issue.

Facts. A Greyhound bus and tractor-trailer were involved in an accident. Petitioner was driving the bus at the time and was consequently sued by the passengers, as were Greyhound and the owners of the tractor (Contract Carriers, Inc.) and the trailer (National Lead Company). Greyhound cross-claimed against Contract Carriers and National Lead for damages sustained to the bus, alleging the accident was caused due to their negligence. In its answer, Contract Carriers asserted the accident was due to the negligence of the Petitioner. Contract Carriers and National Lead petitioned the District Court for an order to have Petitioner submit to physical and mental exams. Nine physicians’ names were submitted to give the District Court a choice of specialists. The petition, based on the allegations in Contract Carriers’ answer, alleged that Petitioner’s mental and physical condition were at issue. National Lead then filed its own answer to Greyhound’s cross-claim. The District Court, on the basis of the petition filed by Contract Carriers, ordered Petitioner to submit to 9 examinations, without a hearing. Petitioner filed a Writ of Mandamus to the Court of Appeals against the Respondent, District Court Judge Holder (Respondent), to set aside the order requiring the mental and physical exams. The Court of Appeals denied mandamus.

Issue. Whether application of FRCP Rule 35 to a defendant would be an unconstitutional invasion of his privacy. Whether Rule 35 should be applied to Petitioner, as he was not a party in relation to Contract Carriers and National Lead at the time the examinations were sought. Whether Petitioner’s mental or physical conditions were “in controversy” and whether Contract Carriers and National Lead made a showing of “good cause”.

Held. Vacated and remanded. FRCP Rule 35 applies to defendants as well as plaintiffs. The court found no basis to apply the doctrine in favor of one class of litigants and not the other.  FRCP Rule 35 only requires that the person to be examined be a party to the “action”, not that he be an opposing party of the movant. Petitioner was clearly a party to the action. Contract Carriers and National Lead failed to show that Petitioner’s physical or mental condition were in controversy and that there was good cause for the examinations requested. The only specific allegation made in support of the four examinations was impairment of Petitioner’s eyes and vision. On remand, the District Judge should reconsider this order in light of the guidelines set forth in the decision.

Dissent. United States Supreme Court Justice Douglas (J. Douglas) dissented and thought FRCP Rule 35 should not be applicable to defendants as the guidelines are unfair to defendants in lawsuits such as this. Concurrence. United States Supreme Court Justice Clark (J. Clark) concurred that in an accident such as this, the mental or physical health that may affect the ability to drive, is of the highest relevance.

Discussion. Petitions made on a showing of good cause in cases where a party’s physical or mental conditions are in controversy are justifiable. The person to be submitted to such examinations may be a plaintiff, defendant, or any other person under the legal control of these parties. The persons who are submitting to physical or mental examinations by movant’s petitions need not be party-opponents, just parties to the action.

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Hickman v. Taylor – Case Brief Summary
(1947).

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Facts
A tugboat sank killing five crew members. Hickman (P) brought this wrongful death lawsuit as representative of one of the deceased against Taylor et al. (Ds). The four survivors testified at a public hearing before the United States Steamboat Inspectors and their testimony was recorded and made available to all of the parties. The defendants conducted their own interviews of the survivors and others having information regarding the accident.

The defendants answered all interrogatories except for a summary of statements obtained in the course of their own interviews. The defendants contended that the requested summary pertained to “privileged matter obtained in preparation for litigation” and was therefore privileged.

Hickman objected and the district court held that the requested information was not privileged and ordered the defendants to produce it. Counsel for the defendants refused to comply and were held in contempt. The Court of Appeals reversed and the Supreme Court granted certiorari.

Issues
Do the Federal Rules of Civil Procedure pertaining to discovery require an attorney to produce oral and written statements or other information obtained in preparation for possible litigation after a claim has arisen?
Is information prepared or obtained by counsel in preparation for litigation after a claim has arisen protected by the attorney-client privilege?
Holding and Rule (Murphy)
No. In these circumstances, Rules 26, 33 and 34 of the Federal Rules of Civil Procedure do not require an attorney to produce oral and written statements or other information obtained in preparation for possible litigation after a claim has arisen.
No. Information prepared or obtained by counsel in preparation for litigation after a claim has arisen is not protected by the attorney-client privilege and is not protected from discovery on that basis.
Discovery of written materials obtained or prepared by opposing counsel in preparation for possible litigation may not be had unless the party seeking discovery can establish that relevant and non-privileged facts remain hidden in an attorney’s file, and where production of those facts is essential to the preparation of the party’s case.

Rule 30(b) gives the trial judge the requisite discretion to make a judgment as to whether discovery should be allowed as to written statements secured from witnesses. In this case however there was no ground for the exercise of that discretion in favor of the plaintiff.

The District Court erred in holding the defendants in contempt for failure to produce that which was in the possession of their counsel, and in holding their counsel in contempt for failure to produce that which he could not be compelled to produce under either Rule 33 or Rule 34.

Public Policy

The general policy against invading the privacy of an attorney’s course of preparation is so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order. There must be some showing of necessity or justification by the party seeking its discovery. If relevant and nonprivileged facts remain hidden in an attorney’s file and the production of those facts is essential to the preparation of a case, discovery may be made.

Under the circumstances of this case, no showing of necessity could be made which would justify requiring the production of oral statements made by witnesses to counsel for the defendants, whether presently in the form of his mental impressions or in the form of memoranda. Hickman had an adequate opportunity to seek discovery of the same facts particularly by the direct interviews of the witnesses and made no attempt to show why production was necessary.

Disposition
Judgment affirmed.

Concurrence (Jackson)

The question is simply whether such a demand is authorized by the rules relating to various aspects of “discovery.” Discovery should provide a party access to anything that is evidence in his case. Discovery should not however nullify the privilege of confidential communication between attorney and client. But those principles give us no real assistance here because what is sought is neither evidence nor a privileged communication between attorney and client.

To consider first the most extreme aspect of the requirement in litigation here, we find it calls upon counsel to “set forth in detail the exact provision of any such oral statements or reports.” Thus, the demand is not for the production of a transcript in existence, but calls for the creation of a written statement not in being. The statement by counsel of what a witness told him is not evidence.

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Upjohn Co. v. United States
(1981)

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Brief Fact Summary. Upjohn Company (Petitioner) contended that certain questionnaires prepared as part of an internal company investigation were protected from disclosure by the attorney-client privilege.

Synopsis of Rule of Law. The attorney-client privilege may be applied to communications between all corporate employees and corporate counsel.

Facts. Respondent, manufacturers and sells pharmaceuticals. Independent accountants discovered that one of Respondent’s foreign subsidiaries made payments to or for the benefit of foreign government officials in order to secure governmental business. After in-house counsel had discussions with outside counsel, it was decided that an internal investigation would be conducted to determine the terms of the payments. Respondent voluntarily submitted a preliminary report to the Securities and Exchange Commission on Form 8-K disclosing certain questionable payments. A subsequent report was filed with the Internal Revenue Service (IRS), which conducted an investigation. The IRS issued a summons demanding the production of files used in the company’s internal investigation. The Respondent declined to produce the documents on the grounds that they were protected from disclosure by the attorney-client privilege and it constituted work product of attorneys prepared in anticipation of litigation. The United States then filed a petition seeking enforcement of the summons and the district court held that the summons should be enforced. Respondents appealed and the court of appeals rejected the district court’s finding that a waiver of the attorney-client privilege occurred, but agreed that the privilege did not apply to the extent the communications were made by officers and employees not responsible for directing the company’s actions in response to legal actions.

Issue. Whether the attorney-client privilege is applicable to communications between corporate employees and corporate counsel?

Held. Yes. Communications by Respondent’s employees to counsel are covered by the attorney-client privilege. The attorney-client privilege applies when the client is a corporation. The privilege must extend beyond those employees who are in the control group because they may possess information needed by the corporation’s lawyers. Thus, the court rejects the control group test as it frustrates the purpose by discouraging the communication of relevant information by employees of the client to the attorney seeing legal advice for the client corporation. The control group test also makes it more difficult to convey full and frank legal advice to the employees who put the corporation’s policy into effect.  The Government fails to demonstrate a sufficient showing of necessity and unavailability by other means in order to justify the production of materials protected by the work product doctrine. No showing of necessity can overcome protection of work product, which is based on oral statement of witnesses. Here, the Government needed to prove a far stronger showing of necessity to overcome the work product doctrine.

Discussion. The purpose of the attorney-client privilege is to encourage full and frank communication between attorneys and their client. It therefore promotes broader public interests in the observance of law and administration of justice.

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Krisa v. Equitable Life Assurance Society
(M.D. Pa. 2000)

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Brief Fact Summary. The Plaintiff, Krista (Plaintiff), sought production of preliminary reports and other documents created by the Defendant, Equitable Life Assurance Society’s (Defendant), expert witnesses in connection to Plaintiff’s insurance disability claim denial lawsuit.

Synopsis of Rule of Law. Preliminary reports and opinions made by expert witnesses who are expected to testify at trial are not protected under the work product doctrine and are therefore discoverable. Communications made by litigant’s counsel to their expert witnesses with regard to matters that are protected by the work product doctrine are not discoverable.

Facts. Defendant denied Plaintiff’s claim of disability benefits under an insurance policy. Plaintiff brought suit and requested the Court to order Defendant to turn over documents generated by or provided to Defendant’s expert witnesses pursuant to Federal Rule of Civil Procedure (FRCP) Rule 26(b)(4). Defendant claimed the documents were protected work product and at an oral hearing the trial judge ordered an in camera inspection of the documents. The documents were mostly draft reports from three expert witnesses: (i) Davison, an attorney; (ii) Geisser, a forensic accountant and (iii) Blum, a doctor. Defendant claimed all of Davison’s documents to be work product. Defendant only claimed the work product privilege on some of Geisser’s documents and asserted the rest were transmittal letters, outside the scope of discovery permitted by FRCP Rule 26(a)(2)(B). Defendant claimed that 18 documents withheld from Dr. Blum’s production were also transmittal letters outside the scope of delivery permitted by FRCP Rule 26(a)(2)(B).

Issue. Whether draft reports prepared by an expert witness designated to testify at trial are covered by the work product doctrine. Whether the data or other information considered by an expert witness in the formation of his opinions under FRCP Rule 26(a)(2) overcomes the protection of protected work product under FRCP Rule 26(b)(3) when it is disclosed to an expert witness. Whether transmittal letters from counsel to an expert witness are subject to discovery.

Held. Defendant will be required to produce all documents it has withheld with the exception of two documents that contain core work product. Draft reports and other documents prepared by expert witnesses are not covered by the work product protection. The disclosure requirements of FRCP Rule 26(a)(2) do not overcome the protection accorded counsel’s mental impressions, conclusions, opinions and legal theories when such core work product is disclosed to an expert witness.  Transmittal letters are subject to discovery.

Discussion. Defendant claimed that the work product protection extended not only to documents prepared in anticipation of trial by a party’s attorney, but also to a party’s consultant or agent. The Defendant insisted that the draft reports were protected work product material under FRCP Rule 26(b)(3). However, the Court noted that Defendant disregarded FRCP Rule 26(b)(4), which authorized the depositions of any person who had been identified as experts and whose opinions may be presented at trial. Further, Defendant asserted that Defendant’s counsel did not write any portion of the final report or make specific suggestions with respect to the content of the report and did not request that the report be prepared in such a way to bring about a predetermined outcome. From this, the Court reasoned that since Defendant’s counsel’s mental processes and opinions were not contained in the experts’ draft reports, the request of production of these documents would not invade the privacy to be accorded Defendant’s trial counsel in developing litigation theories and strategies. The second issue in this case asked whether core attorney work product shared with a party’s expert was discoverable. Citing the Court of Appeals for the Third Circuit, this court reasoned that FRCP Rule 26(b)(3)’s protection of core attorney work product was not trumped by FRCP Rule 26(b)(4). This was further explained to mean that the marginal value on cross-examination that the expert’s view may have originated with an attorney’s opinion or theory did not warrant overriding the strong policy against disclosure of documents consisting of core attorney’s work product. Disclosure of core work product to a testifying expert did not abrogate the protection accorded such information. Accordingly, the documents embodying communications between Defendant’s counsel and Defendant’s expert witnesses were reviewed to ascertain whether they contained core attorney work product. The pertinent question in review of the third issue was not whether Defendant was obligated by FRCP Rule 26(a)(2) to produce voluntarily the transmittal letters in question, but whether the letters in question fell within the broad ambit of discovery afforded by FRCP Rule 26(b)(1). This rule authorized discovery “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” Since Defendant did not claim privilege to these letters, they were discoverable.

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Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp
(2d Cir. 1979)

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Brief Fact Summary. The Plaintiff, Cine Forty-Second Street Theatre Corp (Plaintiff), brought an antitrust lawsuit against a rival theatre. The Plaintiff was extremely negligent with respect to following orders to compel discovery. As a result, the Magistrate Gershon (Magistrate) recommended Plaintiff be precluded from introducing evidence with respect to damages.

Synopsis of Rule of Law. Grossly negligent failure to obey orders compelling discovery justifies the severest disciplinary measures available under the Federal Rules of Civil Procedure Rule 37 (FRCP Rule 37).

Facts. Plaintiff brought an antitrust lawsuit against the Defendant, Allied Artists Pictures Corp. and others (Defendants) claiming that these owners of a neighboring theatre, conspired with certain motion picture distributors to cut off Plaintiff’s access to first-run, quality films. Plaintiff sought $3 million in treble damages and an injunction against Defendant’s alleged anticompetitive prices. After receiving Defendants’ interrogatories in November 1975, Plaintiff secured Defendants’ consent to defer discovery on the issue of damages until Plaintiff could find an expert to review the Defendants’ box office receipts. Four months after the deadline on the damages discovery was set, Plaintiff inadequately answered the remaining interrogatories. Plaintiff then filed equally inadequate supplemental answers to the interrogatories and refused to obey two subsequent orders from the Magistrate to compel discovery. At an October 1977 hearing, the Magistrate fined Plaintiff $500 and warned that further disobedience would result in dismissal. By the summer of 1978, Plaintiff still had not retained the expert it needed to review Defendant’s box office receipts so it could answer the damages interrogatories. The Magistrate asked Plaintiff to produce a plan to answer and when it did not, she directed an answer to the damages interrogatories. Plaintiff then filed two sets of answers that were late and seriously deficient. In October 1978, the Magistrate concluded that the Plaintiff’s non-compliance was willful and recommended to the district court that Plaintiff be precluded from introducing evidence with respect to damages. Judge Goettel, the district judge who had to approve the magistrate’s order agreed that Plaintiff was grossly negligent, however, could not find Plaintiff to be “willfully” noncompliant. The court fined Plaintiff $1000, but certified an interlocutory appeal on his own motion to review his decision.

Issue. Whether a grossly negligent failure to obey an order compelling discovery may justify the severest disciplinary measures available under FRCP Rule 37.

Held. Yes. The judge’s order declining to adopt the magistrate’s recommendation that proof of damages be precluded was reversed. In light of the fact Plaintiff, through its undeniable fault, had frozen this litigation in the discovery phase for nearly 4 years, the Magistrate’s original recommendation stood.  Concurrence. Circuit Court Judge Oakes would not punish the Plaintiff for the sins of its counsel absent the client’s knowledge, condonation, compliance, or causation.

Discussion. FRCP Rule 37 has a threefold purpose: (1) preclusionary orders make sure no party will benefit from its own failure to comply, (2) specific deterrents seek to ensure compliance, and (3) drastic sanctions may not serve as mere penalties. Courts are free to consider the deterrent effect of their orders on the instant case and on other litigation, as long as the party is at fault in some sense. When a party makes a good faith effort to comply and is affected by circumstances out of his control, this is not a good enough reason to impose sanctions. In this case, the court had to decide whether gross negligence amounting to a “total dereliction of professional responsibility,” but not a conscious disregard of court orders, constituted “fault.” Negligence, no less than an intentional wrong, is a fit subject for general deterrence. Where gross professional negligence has been found, the full range of sanctions may be marshaled.

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Adickes v. S.H. Kress & Co
(1970)

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Synopsis of Rule of Law.
In an action based on conspiracy, summary judgment may not be granted unless the nonmoving party can show that there is no genuine issue of fact.

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Facts. Plaintiff sued the Defendant in federal court alleging that there was a conspiracy between the Defendant and the police to arrest the Plaintiff when she entered Defendant’s store because she was in the company of African Americans. Defendant moved for summary judgment on the grounds that Plaintiff could not produce any evidence in support of a conspiracy. The district court granted summary judgment ruling that Plaintiff failed to produce any facts to allege that a conspiracy might be inferred. The Court of Appeals affirmed. On appeal, the Supreme Court held that Plaintiff had to prove state action by showing that Defendant’s employee and a policeman reached an understanding to cause her arrest because she was a white person in the company of African Americans.

Issue. Whether a moving party has the burden of showing the absence of any genuine issue of fact in a motion for summary judgment?

Held. Yes.
Summary judgment was improper here because the moving party, the Defendant failed to carry its burden of showing the absence of any genuine issue of fact. Here, the Defendant failed to negate the possibility that there was a policeman in Defendant’s restaurant while Plaintiff was awaiting service. Further, the Defendant failed to submit affidavits of the waitress in the restaurant. These gaps in the evidence demonstrate that Defendant failed to fulfill its initial burden of demonstrating that there were no police officers in the store at the time of the incident.
Rule 56 of the Federal Rules of Civil Procedure was not intended to modify the burden of the moving party to initially show the absence of a genuine issue of material fact. Furthermore, the rule requires that Defendant do more than simply rely on contrary allegations in its complaint. Thus, in order to concede this fact, Plaintiff would have to file an affidavit explaining why it was impractical to file an affidavit stating that someone saw a policeman in the store.
Concurrence. The existence of a conspiracy is a factual issue for the jury, not the judge to decide.

Discussion. Please note that this decision was subsequently overruled by Celotex v. Catrett, 477 U.S. 317 (1986). That decision held that the moving party has the initial responsibility of informing the court of the basis for its motion, and that party must recognize those portions of the record that demonstrate the absence of a genuine issue of fact.

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Celotex Corp. v. Catrett,
(1986)

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A party moving for summary judgment does not necessarily bear the burden of supplying evidence showing the absence of a genuine dispute regarding a material fact. The moving party merely bears the burden of informing the court of the basis for its motion. The moving party may show the absence of evidence supporting the nonmoving party’s case.

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Facts
Catrett (P) sued Celotex (D) and several asbestos manufacturers in federal district court, claiming that her husband’s death was caused by exposure to their products. Celotex moved for summary judgment on the grounds there was no evidence to prove that Catrett’s husband had been exposed to Celotex’s asbestos products. Catrett then produced three documents as evidence that her husband had been exposed to Celotex products. Celotex objected to the documents on the grounds that they were hearsay. The district court sustained the objection and granted Celotex’s motion for summary judgment.

The Court of Appeals reversed, holding that summary judgment was precluded because Celotex failed to support its motion with affidavits or other evidence tending to show that the decedent had not been exposed to its products, as required by Federal Rule of Civil Procedure 56(e). The Supreme Court granted certiorari.

Issues
When is summary judgment under Rule 56(c) proper?
When is the grant of summary judgment under Rule 56(c) mandated?
Must the party moving for summary judgment support its motion with affidavits?
Should the Court of Appeals determine whether a showing by a party opposing summary judgment, if reduced to admissible evidence, would be sufficient to carry that party’s burden of proof at trial?
Holding and Rule (Rehnquist)
Summary judgment under Rule 56(c) is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Rule 56(c) mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.
No. There is no express or implied requirement in Rule 56 that the moving party support its motion with affidavits.
Yes. Whether a showing by a party opposing summary judgment, if reduced to admissible evidence, would be sufficient to carry that party’s burden of proof at trial should be determined by the Court of Appeals in the first instance.
A party moving for summary judgment does not necessarily bear the burden of supplying evidence showing the absence of a genuine dispute regarding a material fact. The moving party merely bears the burden of informing the court of the basis for its motion. The moving party may show the absence of evidence supporting the nonmoving party’s case.

Legislative Purpose

The amendment to 56(e) was made solely to broaden the scope of summary judgment motions by precluding the opposing party from referring only to its pleadings. The ruling by the Court of Appeals on the other hand makes summary judgment more difficult to obtain and is in direct contradiction to the standards imposed by FRCP 56(e).

Catrett did not meet her burden to show that the defendant had some level of culpability. The plaintiff did not establish a genuine issue of material fact and the grant of summary judgment was proper.

Disposition
Reversed and remanded.

Concurrence (White)
The party moving for summary judgment need not always support its motion with sufficient rebuttal evidence. Nevertheless, the moving party may not simply discharge its burden by asserting that the other party has no evidence to prove her case. The Court of Appeals must consider if the plaintiff revealed sufficient evidence to defeat the motion.

Dissent (Brennan)
The Court has not clearly explained what must be shown by the party moving for summary judgment on the grounds that the non-moving party cannot prove its case.

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Coulas v. Smith
(1964)

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Synopsis of Rule of Law. Once an answer on the merits is filed and the case is at issue, a default judgment cannot be issued. If the defendant fails to appear at the trial, a judgment on the merits may be entered against him upon proper proof.

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Brief Fact Summary. The Defendant, Coulas (Defendant), failed to appear in court claiming he had no notice that the trial date had been changed. The Defendant, Smith (Defendant), appealed the judgments entered against him at the trial.

Facts. The Plaintiff brought a suit against the Defendant and another Defendant (Cross-Claimant) for an open account and promissory note. The Cross-Claimant answered the Plaintiff’s complaint denying any liability and filed a cross claim against Defendant for any amounts the Plaintiff may have been awarded against him. The Defendant answered the Plaintiff and Cross-Claimant and countersued the Plaintiff. Plaintiff answered the Defendant’s counterclaim. The court clerk notified all parties of the trial date. Before trial, however, the Plaintiff and Cross-Claimant agreed to postpone the trial by two months and the court clerk notified all parties of the new date. Though the Defendant’s attorney did not ask for the postponement and was not present at the courthouse, the court clerk maintained that the Defendant was notified as well. On the new trial date, Defendant was not present and a judgment was entered against him. The Plaintiff received judgment against the Defendant on both count
s and against the Cross-Claimant on the promissory note. The Cross-Claimant in turn obtained judgment against the Defendant on the promissory note. Nearly two years later, the Defendant filed a motion to vacate the judgment and was denied by the trial court.

Issue. Whether a defendant, who has not defaulted in pleading, but fails to be present at trial, may have a judgment entered against him.

Held. Yes. A Defendant who has not failed to plead, yet fails to show up at trial, may not have a default judgment entered against him. Rather, a judgment that is based on the merits of the case as presented by the plaintiff, who is present at trial may be entered. Judgment affirmed.

Discussion. The court differentiates between a default judgment and a judgment that is entered in the defendant’s absence. In the former, the defendant does not partake in the pleadings process; in the latter, the defendant has pleaded. A default judgment may not be entered upon a party who has not evaded the pleadings process. A Defendant’s absence at trial does not warrant a judgment against him by default; a trial or hearing on the issues is necessary and the judgment that follows is based on the plaintiff’s ability to prove the ca

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Beacon Theatres v. Westover

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Only under the most imperative circumstances can right to jury trial of legal issues be lost through prior determination of equitable claims.

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Beacon Theatres v. Westover, 359 U.S. 500 (1959), was a case decided by the Supreme Court of the United States dealing with jury trials in civil matters. The court held that where legal and equitable claims are joined in the same action, the legal claims must be tried by a jury before the equitable claims can be resolved.

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Ross v. Bernhard
(1970)

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Synopsis of Rule of Law.
The Seventh Amendment guarantees the right to a jury trial in stockholders’ derivative actions in which the corporation would be entitled to a jury trial.

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Brief Fact Summary. Plaintiffs brought this derivative action in federal court against the directors of Lehman Brother (Defendants).

Brief Fact Summary. Plaintiffs brought this derivative action in federal court against the directors of Lehman Brother (Defendants).

Held. Yes. Judgment is reversed. Right to a jury trial extends to those issues in derivative actions when the corporation would be entitled to a jury trial. The Seventh Amendment preserves the right to a jury trial in all suits, which had a right to a jury trial at common law. The Seventh Amendment entitled the parties to a jury trial in actions for damages to a person or property, for libel and slander, for recovery of land, and for conversion of personal property. Common law, however, refused to permit stockholders to call corporate managers to account in actions at law. The Seventh Amendment question of the right to a jury trial depends on the nature of the issue to be tried rather than the character of the overall action. A derivative action has two aspects: the stockholders right to sue on behalf of the corporation, and the claim of the corporation against directors or third parties on which the company could demand a jury trial. The corporation is a necessary party to the action and is the real party in interest. Derivative suits have been described as true class actions. Therefore, the Seventh Amendment preserves the parties’ right to a jury trial in a stockholder derivative suit when the corporations and those  against who a corporation pressed its legal claims have the same Seventh Amendment right.

Dissent. The majority relies on an ill-defined combination of the Seventh Amendment and the Federal Rules of Civil Procedure. The Seventh Amendment does not extend the right to a jury trial, but preserves the right. There is no constitutional right to a jury trial even where there might have been one had the corporation brought the suit.

Discussion. This case demonstrates that procedural innovation can give rise to a right to a jury trial in a case where it would not have been available at common law. The decision in this case cannot be explained by the Federal Rules or the Constitution. According to the Court, this decision can be explained by the overwhelming bias in favor of jury trials in civil actions.

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Curtis v. Loether
(1974)

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Synopsis of Rule of Law. The Seventh Amendment entitles either party to demand a jury trial in a civil rights action.

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Facts. Petitioner brought a civil action suit against Respondents for refusing to rent an apartment to Petitioner based on her race. Petitioner contends that Respondents’ action constituted a violation of Section 804(a) of the Act. The complaint sought only injunctive relief and punitive damages. A claim for compensatory damages was later added. Respondents filed a demand for a jury trial, which the district court denied. The court of appeals reversed the decision based on the jury trial issue.

Issue. Whether the Civil Rights Act of 1968 or the Seventh Amendment requires a jury trial upon demand of one of the parties in an action for damages and injunctive relief?

Facts. Petitioner brought a civil action suit against Respondents for refusing to rent an apartment to Petitioner based on her race. Petitioner contends that Respondents’ action constituted a violation of Section 804(a) of the Act. The complaint sought only injunctive relief and punitive damages. A claim for compensatory damages was later added. Respondents filed a demand for a jury trial, which the district court denied. The court of appeals reversed the decision based on the jury trial issue.

Issue. Whether the Civil Rights Act of 1968 or the Seventh Amendment requires a jury trial upon demand of one of the parties in an action for damages and injunctive relief?

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Tull v. United States
(1987)

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Holding and Rule (Brennan): The Seventh Amendment preserves the right to a jury trial on the merits in actions that are analogous to suits at common law. 2) No. For cases in which the Seventh Amendment mandates the right to a trial by jury, the Seventh Amendment does not mandate the right to a jury trial for the determination of civil penalties.

Under the common law, civil penalties could only be enforced in courts of law and the party therefore had the right to a trial by jury. The Clear Water Act authorizes financial penalties for violations and therefore does not merely provide equitable relief via injunction. P’s claims are analogous to common law actions for public nuisance and actions in debt and are therefore entitled to trial by jury. If an equitable claim is joined with a legal claim, the right to a jury trial remains.

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Facts: The United States (P) filed a civil suit against Tull (D) for discharging fill material into wetlands in violation of the Clean Water Act. P sought over $22 million and injunctive relief. The district court denied Tull’s motion for a jury trial and entered judgment for P for $325,000. The court of appeals affirmed the denial of a jury trial and the Supreme Court granted cert.

Issue: 1) What is the test for determining whether the Seventh Amendment preserves the right to a jury trial on the merits? 2) For cases in which the Seventh Amendment preserves the right to a trial by jury, does the Seventh Amendment also mandate the right to a jury trial for the determination of civil penalties?

Holding and Rule (Brennan): The Seventh Amendment preserves the right to a jury trial on the merits in actions that are analogous to suits at common law. 2) No. For cases in which the Seventh Amendment mandates the right to a trial by jury, the Seventh Amendment does not mandate the right to a jury trial for the determination of civil penalties.

Under the common law, civil penalties could only be enforced in courts of law and the party therefore had the right to a trial by jury. The Clear Water Act authorizes financial penalties for violations and therefore does not merely provide equitable relief via injunction. P’s claims are analogous to common law actions for public nuisance and actions in debt and are therefore entitled to trial by jury. If an equitable claim is joined with a legal claim, the right to a jury trial remains. The right to jury trial was improperly denied.

The Seventh Amendment is silent on the issue of whether a jury must determine both the liability and the amount of the remedy. The jury’s role in the assessment of a remedy is not necessary to preserve the common law right of a trial by jury as the assessment of the civil penalty is not a fundamental part of a trial by jury. The jury must determine liability and the trial judge may determine the amount of the penalty.

Disposition: Reversed and remanded.

Concurring and Dissenting (Scalia): The amount of penalty is subject to jury determination. There is no precedent in a civil court for the finding of liability by a jury and the amount of the remedy by a judge.

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Chauffeurs, Teamsters and Helpers Local 391 v. Terry
(1990)

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Synopsis of Rule of Law. Claims based on the duty of fair representation are legal in nature.

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Brief Fact Summary. The Respondents, various unionized workers (Respondents), brought action against the Petitioners, Chauffeurs, Teamster and Helpers Local 391 (Petitioners), their union for violation of the duty of fair representation. Respondents sought compensatory damages in the form of back pay and loss of benefits. Respondents requested and were granted a jury trial by the District and Appellate Courts. The Union appealed.

Facts. The McLean Trucking Company and the Petitioners were parties to a collective bargaining agreement that governed the conditions of employment at McLean’s terminals. The 27 Respondents were unionized workers employed as truck drivers at McLean. Respondents claimed a violation in their seniority rights and filed a grievance with the Union, which in turn, declined to refer the issues to a grievance committee because prior proceedings had determined these issues. The Respondents filed suit in the District Court against the Union for violation of the duty of fair representation and sought compensatory damages for lost wages and health benefits. They requested a jury trial and were granted one by the District Court whose decision was affirmed by the Court of Appeals.

Issue. Whether an employee who seeks relief in the form of back pay for a union’s alleged breach of duty of fair representation has a right to trial by jury.

Held. The nature of Respondents’ duty of fair representation action and the remedy they sought was a legal action. The money damages Respondents sought are of a type traditionally awarded by courts of law. Thus, the Seventh Amendment of the United States Constitution (Constitution), entitled Respondents to a jury trial. Court of Appeals decision affirmed.

Dissent. Supreme Court Justices Anthony Kennedy (J. Kennedy), Sandra Day O’Connor (J. O’Connor) and Antonin Scalia (J. Scalia) asserted that the Seventh Amendment of the Constitution required the Court to determine whether the duty of fair representation action was more similar to cases that were tried in courts of law or in courts of equity. Once the court decided that it was more similar to an equity action (trustee/trust beneficiary), the inquiry should have ended there.
Concurrence. Supreme Court Justice William Brennan (J. Brennan) concurred and said he would rather the test concentrate on the basis of the relief sought rather than looking to see whether historically the action is at law or in equity.
Supreme Court Justice John Paul Stevens (J. Stevens) concurred that the majority made the case difficult by exaggerating the importance of finding a precise common law analogy to the duty of fair representation, which were for the most part in his opinion, ordinary civil actions involving contract and malpractice disputes. He therefore, found no ground for excluding these types of actions from the right to a jury.

Discussion. The Court agreed with the Union’s argument that its duty to the Respondents was analogous to the fiduciary duty that a trustee has to a trust beneficiary