What is Procedure?

3 Aims of Civil Procedure: 1. Disclose the real dispute in a minimum amount of time and with the least expense- avoid wasting time on questions the parties agree upon. 2. Confine the parties to the real dispute. 3. Give neither side a forensic advantage in persuading the court. Some fundamental Relationships: Federal Courts: y §1330-1369- Lay out limited Jurisdiction of Federal Courts. y §1291-92 set out the jurisdiction for the Courts of Appeals. y §1254 sets out Supreme Court writ of certiorari system. Federal Courts in relation to State Courts: y §1257 The Supreme Court may grant certiorari to a case coming from the highest court of a state if is relates to a US statute, a statute of a state that conflicts with the constitution, or a constitutional right. y §1441-53 Concern the removal of cases from state courts to federal courts. There are also federal courts created by Congress under their Article I powers. Decisions from these courts can be appealed to Article III courts. Sibbach v. Wilson & Co. (1941) Federal Rule of Civ. Pro. 35, allowing a federal court to order the physical examination of a party and Rule 37, allowing for the arrest of a party in violation of a rule, regulate procedure and thus are within the power of the Supreme Court to promulgate. y y y y y The Rules Enabling Act (REA) created the Federal Rules of Civil Procedure. Said rules shall neither abridge, enlarge, nor modify the substantive rights of any litigant. Special note to preserve 7th amendment right to trial by jury. Basically, the Supreme Court, under the REA, can enact procedural rules as long as they don t infringe on legal rights. Roberts, writing for the majority writes that all rules dealing with procedure are valid even if they conflict with substantive rights, the exception is right to jury trial. Dissent: Rule 35 is an intrusion into a historic immunity of privacy of person. Contempt- disregard or disobediance of public authority, such as a court order. Contemors carry the keys of their prison in their own pockets In the federal system, the first level of appeal is a matter of right, not judicial discretion. Most common way to SCOTUS Writ of Certiorari- a petition for a writ of certiorari will be granted only for compelling reasons. 1

y y y y

Quick Legal History behind REA y Courts of Law and Equity o Conflict over jurisdiction o Eventually decide that equity will issue remedy only when law courts are inadequate. Admiralty o Questions on maritime commerce o Problems in navigable waters o Lawyers here called proctors & complaint here called libel Federal Rules o Revolution of 1938 unites law and equity o Went with the jury trial precedent established by the courts of law o 1966- same thing for Admiralty they had done for Equity, though admiralty is especially complicated. Preceding the Federal Rules there were 2 pleading systems o Common Law pleading o Code Pleading (1st used in New York)




The Writ System In the old writ system, the complicated pleadings were supposed to narrow the issue down to the essential legal question. a. You got your writ b. You filed your declaration c. Defendant had a choice to file i. A Dilatory Plea ii. A Demurrer 1. General Demurrer 2. Question of Law iii. A Plea in Bar 1. Confessor and Avoidance- replication 2. Traverse- deny 1 question of fact- Question of Fact d. Traverse or Demurrer i. Case is joined & pleadings are closed e. Replication- Plaintiff can file a rejoinder- Question of Law to be heard by judge in Westminster


Pleadings I- The Complaint
Rule 3. A plaintiff commences an action by filing a complaint with the court. Rule 8(a)- A claim shall contain (2) a short and plain statement of the claim showing that the pleader is entitled to relief. Rule 8(d)(2)- A party may set out 2 or more statements of a claim or defense alternatively or hypothetically. Rule 9- Pleading Special Matters (b) Fraud or Mistake; Conditions of the Mind- in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Conditions of a persons mind may be alleged generally. Rule 11- Presenting a pleading constitutes a certification that there is good grounds to support it and that it is not interposed for improper purposes. From 11- Form for the Complaint of Negligence. Sierocinski v. E.I. Du Pont De Nemours & Co. (1939) A claim may not be dismissed where negligence is alleged, even though the plaintiff has failed to allege the specific negligent act. y y y y y y was injured when dynamite exploded while crimping. He sued alleging negligence. motioned for a more definite statement under Rule 12(e). After amendment, Trial Court dismissed plaintiff s claim entirely. Court of Appeals reverses. A plaintiff need not plead evidence. If the defendant needs further information to prepare its defense, it can obtain it by interrogatories (Rule 33). The issue will get sorted out in discovery.

The harder you make it to get from pleading to discovery, the more you limit access to the law. Contrast this case with Iqbal(2009). In that case, the judges used Twombly to hold that now, in order for a plaintiff s complaint to be heard, the complaint needs a high level of plausibility. And it needs this plausibility before discovery. What s more, the court doesn t limit it s rule to specific cases against high-ranking government officials, but holds out a sweeping rule that all pleadings must now be plausible. Conley v. Gibson(1957)-


A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. y This is the high-water mark of the liberal view on pleading. y African-Americans suing unions for not representing them. y You don t have to allege the law here, only the facts.

Kirksey v. R.J. Reynolds Tobacco Co (1999) What plaintiff is required to do at the initial pleading stage is assert a colorable claim that has some factual support. y To require more would be inconsistent with the notice pleading philosophy of the civil rules. y Remember- Rule 8(a)(2) is about the formal aspects of a pleading, not its substance. The rule does not address a complaint s legal merit. y in Kirksey was faulted for refusing to respond to the s motion to dismiss, not inadequacy of complaint. Murphy v. Cuomo (1996)- Police and Pepperspray conspiracy. As no reasonable jury could find that the defendant was involved in the situation, s motion for summary judgment was granted. Because s counsel had failed to make a reasonable inquiry into the legal viability of the complaint and because counsel knew when he signed the complaint that it had no basis in fact for it s allegations, counsel was subject to Rule 11 sanctions. Chambers v. NASCO, Inc.A federal court sittingin diversity has the inherent power to impose a sanction of attorney s fees for bad-faith conduct. y Only pleadings are finable under Rule 11. Chambers. y Court retains inherent power to impose a fine, even though it is not broad and imperial, they may use the power to fine in certain circumstances. Inherent powers must be exercised with restraint and discretion.


Defenses and Objections Rules 8(b) and (d). 12 Rule 7(a) Coleman v.C but also D 5 .Coleman. Answer i. Admit A.Nineteen Affirmative Defenses (list not exhaustive) 1) Plaintiff Complaint 2) Defendant has two options a. Motion under 12(b) i. appealed. Holding: A motion to strike a demand for attorney s fees may not be granted under Rule 12(f) but it may be granted under Rule 12(b)(6) for failure to state a claim. motions to strike under Rule 12(f). Subject Matter Jurisdiction ii.B. Holding: A default judgment is the equivalent of a trial on the merits. and evidence supporting affirmative defenses following the entry of a default is irrelevant. Insufficient Process v. Personal Jurisdiction iii.Pleadings II. was fired in a cover-up attempt. s request relief for their attorney s fees. City was intentionally delinquent with discovery so the judge imposed a default judgment concerning liability. Frierson. Aetna Casualty & Surety Co. Insufficient Service of Process vi. Named city as . Rule 12(e) Drewett v. Failure to state a claim upon which relief can be granted b. Improper Venue iv. an undercover investigator. y 12(f) is for an insufficient defense y 12(f) is also for immaterial or scandalous allegations Rule 15(a) Rule 8(c).

is there anything left to try? In this case. (5). (4).A cross-defendant must assert. Rule 42(b) Williams v. you waive them entirely. d.personal jurisdiction. You may raise HOT (SMJ) in your answer. Recoupment. e. you must make all your cold suit motions at the same time (2. (3). You may make other motions. Let s suppose instead on answering. Files 2 motions in one Motion to strike under 12 (F) and 12 (C) Motion for Judgment on the Pleadings because actually admitted to everything. The question.when some defenses are waived and preserved. Rule 18(a) Rules 7(a) and 12(a) 6 .c.the motion gets denied. We ll call this HOT. 4. and his failure to then assert those claims bars him forever from doing so. You move under 12 (B)(2).Compulsive counterclaim Setoff.you never waive your right to move for lack of subject matter jurisdiction. Rule 13(c) talks about setoff and recoupment. Replies Rule 13-counterclaim. 12(b) (2). Robinson. the admitted everything. at the time that he answers all claims against the cross-complaint that arise out of the same transaction that was the subject matter of the cross-complaint. Plaintiff thinks D is bogus. f. 12(h). No more 12 (B) motions are allowed and you must answer.if you don t claim these defenses right away. 12 (b) (1) Subject Matter Jurisdiction.Permissive Counterclaim for debt. 1. We ll call them COLD. 5). Cold Defenses are Gone forever. NO. 3. you make a motion.Counterclaims. and motion for judgment on the pleadings for medium 12 (b) (6)(7). If you are going to make a motion under 12 (B). Pleadings III.

A demurrer cannot be granted after the has already answered (he has filled in the gaps for ). Aquaslide N Dive Corp.A motion to amend the pleadings should be granted unless the opposing party can show prejudice. Loew.This is a medical malpractice case dealing with the expert witness rule. Rule 14(a)(3). y Rule 15(b)(2). will not be barred by the statute of limitations.Amendments. The proper procedure would have been [to allow the to amend and] to grant the a 7 . it will be liable directly to the plaintiff if it had knowledge of its possible liability and it know it would be held directly liable. y Relating Back y Rule 15 (c) Variance of pleading and evidence. The court looked at the answer & the original complaint.can file a direct claim against impleaded the original transaction and occurrence. New York Times Co. as long as it concerns Robbins v.An amendment which arises out of the same transaction as the original complaint. Spangler v.Azada v. Manning v. impleades Ford under Rule 14. In a libel case. 28 USC §2415 Gunder v. Pugh.Amended and Supplemental Pleadings Beeck v. Carson. Court of appeals said.Where a judgment is rendered solely against the cross-complaint of a party. y A bad answer is good enough for a bad complaint. Pleadings IV.The half-cent difference on pleading and check.If the statute of limitations has not run on the set-off or counterclaim at the time the action is filed. the issue must be treated in all respects as raised in the pleadings. The sufficiency of all pleadings is tested by the motion. Van Camp Packing. Borg(&Ford) (1970) . there is a variance and a directed verdict may be proper. Holding: The complaint must state a valid cause of action before a motion to strike will be granted. moved to strike all s affirmative defenses as irrelevant. Blair v. Durham. even though the statute may have run by the time the couterclaim or set-off is raised. relating of pleadings to proof Rule 15.was rear-ended by . it will not be barred. Watertown Milk Producers v. Jordan(1950).If both sides consent to litigating the issues. Granting leave to amend in this case would have been prejudicial to doctor so the trial court did not give leave to amend.Where the evidence at trial does not comport with the essential elements of the plaintiff s declaration. Wasik v.

y A pre-trial order can fix the pleadings. y Amendments cannot be granted at a time it would be prejudicial to the other party. Holding: Hiring a substitute is a special damage. y A continuation may be granted. The value of efficiency here outweighs the value of fairness.A final pre-trial order fixed the issues. Man turns out to be ballet instructor who must hire a substitute to fill-in for him. The court should freely grant amendments to the pleadings so as to conform them to proof adduced at trial where the other party will not be unduly prejudiced or surprised. Co v. Rule 9(g)-Pleading Special Damages Niedland v. Cox v. Josephson. y Special damages are the natural but not necessary consequences of s action.Man hit by a post office vehicle is injured. y Burlington Transp. to recover for this special damages it should have been pleaded. United States.Special damages must be specifically pleaded in order to recover for them.continuance in order to meet the new evidence. 8 . y The distinction between special and general damages and the necessity of pleading special damages is well settled. Fremont County Public Building Authority (1969). but once it s set into a pretrial order it cannot be amended further. The court says it s one thing to amend the issues in the pleadings all the way up to the trial.

Prisoner s pro se motion.1 is not required to verify the complaint on the basis of her own personal knowledge if she has been advised by a competent individual that the allegations of the complaint are true.1. Williams. NASCO.Prisoners complaint that he was abused in prison. A federal court sitting in diversity has the inherent power to impose a sanction of attorney s fees for bad-faith conduct. A court may dismiss a claim that is clearly baseless as factually frivolous. also dismissal for failure to state claim is similar to Rule 12(b)(6) but gives courts the power to screen prisoners complaints against the government.courts decisions should be reviewed only for abuse of discretion.Pleadings V. Courts cannot dismiss improbable allegations without any factual development. 27(a). Denton v.fanciful. Inc.Signing and Certification Verification of Pleadings.The party verifying a complaint as required by Rule 23. §1915. and delusional. not de novo. Only pleading are 9 . City & County of San Francisco. y fined $50. 12(b)(6) is not a measure of frivolousness in the judge s opinion.Federal courts may dismiss actions which are entirely unwarranted by existing law or a good faith argument for modification or extension of existing law.Rule 11(a). fantastic. 65(b) Surowitz v. y §1915(d). Chambers v. Hilton Hotels Corp.. 23. Nitchze v. Hernandez. Certification of Pleadings Heimbaugh v.

Discovery Rule 15(a)(2) ± freely given as justice so requires Zone III .Trial 15(b) ± Amendments during and after trial 10 . 12(e). Rule 37. 12(f) ± narrow the pleadings even more during or after pleading PRETRIAL Discovery Old: ReSmipa regarding the subject matter in pending action ±pre 2000 amendments New: ReCad claims and defenses ± NARROWS Pretrial conferences: Judges have become more involved in case management Rule 16(a) ± another way to narrow Summary judgment Rule 56 ± narrow.Sanction by Contempt.Pleadings Stage Amendment (once) as a matter of course Rule 15(a)(1) Zone II. A LOOK AT A SUIT FROM START TO FINISH PLEADING Iqbal line ± has narrowed what you can plead 12(b)(6).covered by Rule 11. which means the court has to rely on other means of sanctioning. technically all or nothing 56(e)(1) ± can pick and choose Final Pretrial conference Rule 16(e) ± give final pretrial order Motion in-limine ± exclude evidence ± part of final PTO TRIAL Motion for JMOL at the end of ¶s case Has not proven something essential to the case Now called JMOL (Rule 50(a)) Reasonable jury would not have enough evidence to decide You haven¶t proven what you said you would Motion for JMOL at end of all evidence ± at end of ¨¶s case Partial judgment can narrow the issue even more Must make this motion to be able to renew it under 50(b) You haven¶t proven what you said you would POST TRIAL 28 days to ask for a new trial Rule 50(b) ± JMOL ± renewal of motion You need to have made the motion before the jury ever gets it Rule 59-New Trial AMENDMENTS Zone I. 12(c) partial.

the 1938 Rules changed everything.Parties may obtain discovery regarding any non-privileged matter that is relevant to any party sclaims or defenses. o An exception here is Experts (26(b)(4)) who are usually prepped by attorneys in preparation for trial. preit/patient y Work Product (26(b)(3)). pretrial conference For Discovery.information gathered in preparation for a potential lawsuit. If advisors. If witnesses. This was seen as a fairly broad sphere of discovery that goes well beyond the pleadings.then 3 layers of Automatic Discovery. husband/wife. The 1938 rules also gave private people investigative power into corporations. They make the development of cases more rational by preventing trial by surprise. you must disclose them. In the 1980s. so they count as work product.Relation back ± 15(c) Amendment relates back to the original filing date of the complaint Affects the statute of limitations Can cure possible prejudice by allowing a continuance ± 15(b)(2) Easier to think of it as ³don¶t want you to lose your whole case because you had a bad theory at the beginning´ Pretrial (I) disclosure and discovery. Rule 26(f) Pretrial Conference. Not Allowed: y Privileged . y Initial Disclosure within 14 days y Expert Testimony 90 days before trial y A party must disclose and file witnesses 30 days before trial Rule 26 used to say ReSMIPA (subject matter in the pending action). Rule 26(b)(1). Allowed: 11 . they are priviledged.attorney/client. a concern grew that people were abusing the rules of discovery and the rules were amended to become more complication and stringent.

if you figure out later that you need it.Rule 26(f) y Connected to Rule 16(b) about scheduling.Interrogatories may have a maximum of 30 subparts.By order. y Dynamic Time. Automatic Disclosure 26(a): y Information you would like yourself if you were the other side.Respond with your information and knowledge at the time. you have an obligation to supplement when you find our something that contradicts or overrules what you said before. y Rule 30(a)(1). y You can ask the court to allow you to obtain ReSMIPA. Rules for Discovery Rule 30. y Supplemental disclosures.Interrogatories y No more than 25 unless you get leave for more than that y Must be a question of fact 12 .Rule 30(b)(6) o They must choose a person to send o Generally they send someone with very little knowledge. y Rule 29 allows you to stipulate to anything that can change some of the rules.Relevant to Claims and Defenses. Pre-Trial Conference. y You have a duty within a certain time frame to come up with a discovery plan. Rule 31. the court may alter the limits in these rules (26(b)(2)). y Time y Static Time.Deposition on Oral Examination y Party y Non-Party (Rule 45) o Serve a subpoena on them o Can apply for a protective order y Corporation Party and Non-Party.According to Rule 26(e).Deposition on Written Examination y Not often used y Cheap y Party y Non-Party (Rule 45) o Serve a subpoena on them o Can apply for a protective order y Corporation Party and Non-Party Remaining Rules are only for Parties Rule 33.Reasonably calculated to lead to the admission of discoverable evidence. Limitations. y BUT NOW it has been cut down to ReC&D.Used to have. but the court usually doesn t like granting those orders. y You can be sanctioned for this breach.they want you to play nice.RCTODAE.

You have one shot to make your case. Under 37(a). Schlagenhauf v.Sanctions for Failure to disclose or allow discovery. Erie Lackawanna Railway.You cannot add more witness after your case has already been heard.Can ask about the question of law to a fact.Answers to interrogatories are not absolutely binding upon a responding party at trial.A dismissal based on a party s refusal to follow the trial judge s wishes expressed at the pre-trial conference can be upheld only if that refusal could be characterized as a failure to prosecute. Rule 16.Pre-trial conferences y y y District Courts have many conferences Court cannot compel you to do discovery. HolderShapiro Article: Some Problems of Discovery in an Adversary System.Production of Documents and Things Rule 35.mixed question of law and fact y Cannot ask about a legal conclusion y They are not binding. SS Kresge. International Brotherhood of Electrical Workers. Shell Oil Co. Positive Identification Systems. old lady plaintiff is required to tell British airways what facts led her to bring this claim against them. y Court cannot order discovery Shuber v.(1971). Freed v. Rule 37.you can contradict your own interrogatory.Questions of fact relating to the legal theory of the case are ok. y Umphres v. Brandenberg v.Physical/Mental Examinations Rule 36-Requests for Admission y You are bound by the answer you give y Unless you can show the court a good reason that you were mistaken.Rule 33(b) only excludes those issues which are unrelated to the facts of the case. el al Israel Airplanes(1978). Rule 34. How do you think Shell Oil was involved in a conspiracy? A mixed question of law and fact is ok. 13 . O Brien v.Identiseal You are now required to do disclosure Identiseal Corps v.Rule 37(a) Motion to compel plaintiff to answer questions about his allegation.

Catrett. only say there is no evidence of the fact. y y y Celotex had no affirmative evidence Celotex only needed to show there is no evidence in the record Powerful tool for defendant.Pretrial (II) judgment on pleadings.Summary Judgment must be entered against a party who fails to sufficiently establish the existence of an essential element of to this case and on which he bears the burden of proof at trial. 14 . Willoughby. v. no evidence. y In Ulen. the moved for SJ because the had lots of strong facts and the defendant had no real response.Summary judgment should be granted when no genuine issue as to any material fact of the case exists.Motion for Summary Judgment American Airlines v. summary judgment Rule 12(c).don t need to deny or disprove fact. Inc. Celotex Corp v. Frito-Lay. Ulen.Motion for Judgment on the Pleadings Rule 56.the obligations of the burden of proof cannot be met by mere allegations or denials. but instead require a showing by affirmative evidence.

exceeds the harm done to the defendant if the injunction is granted. Pretrial (III) provisional remedies. multiplied by the probability that the defendant wins. multiplied by the probability that that plaintiff wins. y Helps judge decide if he should grant the pre-judgment attachment Country Floors.Rule 56(a). Gepner and G. Partial Summary Judgment Adjudication.The grant of a preliminary injunction is proper if the harm done to the plaintiff if the injunction is denied. 15 . Inc v.y Put-up or shut-up example of what happens when you don t put up. interpreted narrowly. y This is like a modified BPL analysis. A Partnership Composed of C.Seizing a person or property (Attachment. Garnishment) Rule 65. 2 views on Summary Judgment: Friedenthal (SJ makes justice more efficient). Stempel (SJ is not always a short-cut and is often used by powerful defendants to undermine s cases). Hospital Products Limited.Injunctions and Restraining Orders American Hospital Supply Corp. v. Ford Marc GalanterThe Emergence of the Judge as a Mediator in Civil Cases Carrie Menkel-Meadow For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference. settlement Rule 64.

Jeffrey ParnessImproving Judicial Settlement Conferences Wayne Brazil Effective Lawyering in Judicially Hosted Settlement Conferences Trial (I) the jury Rule 38.Jury must be unanimous but may be as small as 6 6th Amendment.In Suits at common law. Smith. by an impartial jury of the state and district wherein the crime shall have been committed 7th Amendment. where the value in controversy shall exceed twenty dollars. the accused shall enjoy the right to a speedy and public trial. and (2) no fact tried by a jury shall be otherwise reexamined in any court of the united states.Kothe v.Right to Trial by Jury Rule 39. than according to the rules of the common law.In all criminal prosecutions.Trial by Jury or by the Court Rule 47. (1) the right to trial by jury shall be preserved. 16 .A court may not sanction a party for refusing to settle.Selecting Juries Rule 48.

Even with unanimity requirement a 5 person jury is too little. Springville v. Colgrove v. finds a more rule-like definition that appeals to simplicity and tradition more than the substance of the jury. Burch v. Thomas (1897). Louisiana (1979). FRCP 83 said that you can have less than 12 person jury if you stipulate to it. Battin. REA §2072 5.12 person federal jury not unanimous. The dissent in Colgrove is Majority in Dimmick. sued because violated Duty of Due Care in Tort Law 2. The majority here looks at the substance of the jury. 17 . Court finds this constitutional. Georgia (1978). Oregon (1972).12 person jury only needed 9 to render a verdict. 3. But did not stipulate to it. alLaw: It s Nature. Functions & Limits Factors to Consider in Deciding Jury Size y A representative cross-section (12) y Group Discussion y Remember facts of trial accurately y Truth-Finding through Multiple Perspectives (12) y Canceling Biases y Resist Undue Influence of strong and opinionated people y Reach a decision (6) y Reaching a fair and just decision y Cost effective (6) Cases concerning Juries: y y y y y Williams v. 4.In Colgrove. This is why Rule 48 today must be unanimous. unconstitutional. Apodaca v.In criminal case. Ballew v.Federal Rules allow Local Rules permitting 6 person juries. The more conservative minority in Cosgrove. Florida (1970) US Supreme Court sustained 6-member jury in certain criminal cases. 5 of 6 is unconstitutional. Like Russian Nesting Dolls. Hand &VidmarJury Selection Saks & Haste Social Psychology in Court Claremont & Eisenberg Trial by Jury or Judge: Transcending Empiricism Summers et. unconstitutional.A six-man jury in civil cases satisfies the 7th Amendment. They want to limit judicial discretion here and establish a 12-person jury as the rule. 5 Layers of law weigh on this issue of jury trials in MT. Local Rules in MT said that juries could be made of only 6 people. we see a dispute between a strict interpretation of the meaning of jury and more substantive approach. 1. 7th Amendment.

y Additure and Remittitur Remittitur has to do with the size of damages and is most salient in tort cases where the jury may come back with either a small or large number. for any reason which a new trial has heretofore been granted in an action at law in federal court. Before sending the case back to new trial. the judge first gives plaintiff the option to take a more reasonable amount. Before sending the case back to a new trial. burden of proof Rule 50(a)(1). the court looked directly to the methods of courts in 1791 to find a clear rule. 7th Amendment clause II says you can t re-examine a jury verdict. They did not use additur to increase awards. Rule 50(a)(2). Rule 50(b).This is for nonjury cases Rule 59(1)(a). the judge tells he will deny the motion for new trial if will agree to the more reasonable amount. we do not need to look to the purpose of the clause. Remititur is a conditional grant for new trial in which the judge thinks damages were excessive. In this case examining the 7th Amendment Clause II. Remittitur is much more common in the federal courts. Courts in 1791 regularly employed remittitur to shave money off the jury awards. can motion for new trial. But isn t that exactly what the judge is doing here? y y y y Dimick v.A new trial may be granted after a jury trial.Other side must be fully heard on the issue and the court finds that a reasonable jury would not have a legally insufficient evidentiary basis to find for the party on that issue. Schiedt(1935) This contrasts with Colgrave where the majority and minority decisions have switched places. can move for new trial and claim excessiveness of damages. y y If Jury comes back with too much for . Additure is a conditional grant for a new trial in which the judge thinks the reward is too small. Holding: Although the damages awarded by the jury may be inadequate. Here. the court has no power to increase them even if the defendant agrees to such an increase.JMOL can be made at any time before the case is submitted to a jury. Common reasons: y Judge believes error was made y Wrong jury instruction 18 . Trial (II) order and method of proof. If Jury comes back with too little for . only the practice of early courts. Rule 52(c).renewed motion for JMOL can only be renewed after the jury verdict if the motion was made before the jury verdict.Judgment on Partial Findings. The important question here is whether the court has power to do this.

v. Montgomery Ward & Co v. clear on the face) Newly discovered evidence. Discovery.o.Court finds way around Slocum. While amendments have cut the word reserved out of Rule 50(b) altogether.A motion for a new trial may be either joined with a motion for a judgment nov or made in the alternative. Redman show how far courts will go to preserve constitutionality and originalism.y y y Jury didn t follow instructions (compromised verdict. The court found that if a motion for directed verdict was made and denied after the close of evidence. the judge was effectively reserving the motion.must be both relevant and permisive) For JMOL: y y If party with burden of proof had no evidence.Complaint Rule 12(c). New York Life Insurance Co (1913) US.What does the court look at to decide the motions? Rule 12(b)(6).The most that can be done after a verdict is a new trial. Eye witness) y Circumstantial Evidence (Ex.All the Pleadings. The legal fictions in Baltimore v. JMOL should still be granted.All the Pleadings Rule 56. 19 . Duncan(1940) US.Old Case. Permissive Inference. but not enough evidence to support a rational jury conclusion. you still must make the JMOL motion before the case is submitted to the jury. If a little evidence exists. the judge could revive the motion for directed verdict and grant a motion n. Baltimore & Carolina Line v. and the trial court s granting of the jnov does not automatically dismiss the motion for new trial in the event the case is remanded on appeal. How does the law say we can prove a fact? y Direct Evidence (Ex. JNOV not permitted because the re-examination clause of the 7th Amendment prohibits reexamining jury verdicts. JMOL should be granted. Is efficiency a reason to grant JMOL? Rule. If the jury came back with an unreasonable verdict. Redman (1935) US. Affidavits Rule 50Slocum v. Relevant. In 1791 judges in nisi prius could RESERVE questions of law for judges in Westminster.within 28 days Verdict is against the weight of the evidence Policy Questions: y How much do we trust juries? y We can t save all that much time or money with JMOL.

For a permissive inference. JMOL will Lavender v. it is up to the judge to direct a verdict according to the court s view of all the evidence. tiny bit of evidence. unimpeached evidence unfavorable to non-moving party Courts that trust juries more than judges look at only evidence favorable to non-moving party. 3 witnesses offered direct evidence there was no crash. new trial United States Constitution Article III Motions at the Close of All Evidence 20 . (SOFT on ) Trial (III) motions at the close of the evidence. What do we look at when deciding a JMOL motion? y y y Continuum Courts that trust judges more than juries look at all the evidence both positive and negative to the non-moving party. 1 witness for provided circumstantial evidence. Kurn(1946). Holding: Where evidence is so insubstantialthat if the verdict is rendered for one of the parties.Only when there is a complete absence of probative facts to support the conclusion (only when it s absolutely impossible for a rational jury to draw such a conclusion) can a jury verdict be reversed. McCarthy (1949 FELA Case) US.Widow must prove that the nine cars crashed into her husband and that the crash was negligent. Chamberlain(1933). Concurring: the court must look at all the evidence in the light most favorable to the non-moving party. the other would be entitled to a new trial. submission to jury. but it was an uncontradicted fact that s witness had no way of seeing the accident. has only a tiny. the inference must be more probable than not.y If party with burden of proof has overwhelming proof and no rational jury could disagree. y Pennsylvania Railroad v.Majority: In deciding whether there is sufficient evidence to submit a question to the jury or to grant the directed verdict (JMOL) the court needs to look at only the evidence and the reasonable inferences which support the non-moving party. verdict. (SOFT on ) Wilkerson v. motions after verdict. Courts in the middle look at (EXAM) o Evidence favorable to the non-moving party & o Uncontroverted. Alabama has a scintilla rule.even if be denied. (HARD on ). JMOL should be granted.

Granting the Renewed Motion and Conditional Ruling on New trial. Court says has too much uncontradicted evidence for a reasonable jury to rule for . and ragged. gray.has to prove that this suit was not brought in a reasonable amount of time. Martin (1931) US. the appellate court has three options (1) order a new trial.renewed motion for JMOL. Submission to Jury and Return of a Verdict Rule 49 Rule 51 Rule 52 Motions After Verdict Rule 50 Rule 59 Rule 41. (2) direct the trial court to determine whether a new trial should be granted. Rule 60(b). However. Holding: A jury is not entirely at liberty when passing on the credibility of a witness to completely disregard his testimony when it is not open to doubt from any reasonable point of view.a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue. When examining a denial of JMOL. Holding: A directed verdict may be granted where the physical facts are such that a reasonable jury could not find for a specific party.y y y y y y y Rule 50(a). Rule 50(c).Grounds for relief From Judgment Rule 60(c).Right to voluntary dismissal 21 . The must prove the ice has been there for awhile. probably the party who prevailed in the trail court. or (3) directly enter judgment. may request a new trial if the appeals court reverses. so this brings in an expert. There is no counter-evidence at all. Reversal on Appeal. Must be renewed no later than 28 days after the entry of judgment.A 60(b) motion for relief from final judgment must be made within a reasonable time/no more than one year after the entry of judgment. O Connor v. The appealee. Rule 59(1)(1). Pennsylvania Railroad (1963) 2nd Circuit.A new trial motion may be granted for any reason that a new trial has been granted before in a federal court. But negligible snowfall does not absolutely refute .JMOL. said the ice was dirty. said there was a huge weather storm that day and only a negligible amount of snowfall for the entire previous week. Chesapeake & Ohio Railway v. Rule 50(e)-Denying the JMOL. it does overwhelm the s testimony so as to render s inference unreasonable. Rule 50(b).

Illinois (1949) 5th Circuit. from instituting Cooter v. as the party with the burden of proof. Sanderson Plumbing Products. Peoria & Eastern Railroad(1967).In our judgment verdicts ought to be directed and judgments n.(2000) US In entertaining a motion for JMOL. Courts should be very careful when granting these motions.has power to order final judgment. Eby Construction Co (1967) US. y need only make a prima facie case showing discrimination.In evaluating a motion for jnov the court may consider only the evidence which is favorable to the nonmoving party and such unfavorable evidence that is against him as is uncontroverted and unimpeached. so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.Steinberg v. 28 USC §2106. especially because when such a motion comes at the close of all evidence. (1976) 1st Circuit. Inc. they must meet a very high standard. the court should review all of the evidence in the record [and] must draw all reasonable inferences in favor of the non-moving party that is. Service Auto Supply Co v. Martin K.successfully sought bill of peace to enjoin repeated groundless actions for false arrest.v. Maynard (1970) 2nd Circuit. set aside a jury verdict and grant a new trial is it strongly disapproves of the verdict. West VA Pulp and Paper Opportunity to be heard (procedural due process) 22 .A court may.o. Harte & Co. enteredonly in those cases in which all the evidence. Revising Improper verdicts after all renditions Pedrick v.The Court of Appealsconsistent with the 7th Amendment. the court is only saving a few hours of the jury s time. then burden of proof shifts. Simblest v. Neely v. the court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached. Cone v. In order for the to prevail here. Interplay of New Trial Motion with Rule 50 Marsh v. and with the Federal rules. in its discretion. Gell& Hartman. when viewed in its aspect most favorable to the opponent. McKay.the district court could impose a Rule 11 sanction on and lawyers for inadequate pre-filing inquiry even after court granted s request for voluntarily dismissal. Reeves v.

Inc (1975) US. defendants did not receive notice when they were mailed notice at their last known address. WT Grant CO (1974) US.In these three cases. Family Finance Corp (1969) US. the court held it was just like other forms of property and before it could be garnished or frozen. SERVICE OF PROCESS The trend is away from an overly strict approach. unless waived. fair notice of the pendency for the lawsuit must go to any person whose interests are so affected or to his representatives. Dobkin v. Adams (1983) USNotice must be given to a mortgagee because such a mortgagee clearly has a legally protected interest in the property.In a case dealing with a vendorslein where a judge grants the pre-seizure attachment. Fair notice must be suitably formal in tenor and informative in content. North Georgia Finishing Inc v. 23 . Shevin(1972) US. it may be constitutional to seize property without notice. Mennonite Board of Missions v. notice was published. A mortgagee is entitled to notice reasonably calculated to apprise him of pending a tax sale. Holding: When defendants don t receive notice because of their own actions. Di-Chem. Fuentes v.In Garnishment of a corporate bank account. and their insurance companies were notified. service can still be upheld. Chapman (1968) New York. PRE-JUDGMENT SEIZURES OF PROPERTY FOR SECURITY & NOTICE Sniadach v. Mitchell v. y Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition.Mullane v.A Wisconsin procedure violates the 14th Amendment by failure to provide notice and opportunity to be heard before wage garnishment.FL procedure violated 14th Amendment by failure to provide notice and opportunity to be heard before deprivation of a possessory interest in property. PROCEDURAL DUE PROCESS In order to satisfy this constitutional prerequisite for civil adjudication. (1950) USNotice must be reasonably calculated to apprise interested parties of the pendency of the action and afforded them an opportunity to present objections. the was entitled to procedural due process. Central Hanover Bank & Trust Co. with courts now tending to ignore service irregularities where there was actual notice of suitable tenor and content.

y y Weighs on seizures for assertion of In Remand Quasi in Remjurisdiction Impacts seizures of property to enforce judgments. Customized Litigation 24 .The filing of a mechanics lein did not amount to the taking of a significant property interest. SCOPE OF SNIADACH S PROGENY In the context of pre-judgment seizures of property for security.A cognovits clause in a note does not violate per se the 14th Amendment s due process clause.Spielman-Fond v Hanson (1974) US. Frick Co (1972) US. DH Overmyer Co v. the general requirement that fair notice and opportunity to be heard must be given before the government unduly impairs a person s property interest. Connecticut v. Doehr(1991) US.Prejudgment attachment of real estate without affording prior notice or the opportunity for a prior hearing to the individual whose property is subject to attachment does not satisfy procedural due process requirements.

they have been interpreted very differently. Personal Jurisdiction. The federal law must arise in the well-pleaded complaint. States and citizens v. Article III §2. Citizens v. 1.28 USC §1391-1413 Subject Matter Jurisdiction is non-waivable. Consuls 3. US is a party 5. Arising under the constitution and laws of the US 2. 9. The federal courts must always be on guard against subject matter problems because it relates to big questions about the relationship between the federal government and the states.Arising under Louisville & Nashville Railroad Co v.Rule 12(b)(2) 3. Controversies between 2 or more states 6. States and citizens of another state (Chisholm v. foreign states. Citizens of different states. Mottley(1908) US. §1257. Georgia led to the 11th Amendment which qualifies this clause).Certiorari.Alleging an anticipated constitutional defense in the complaint does not give a federal court jurisdiction if there is no diversity of citizenship between the litigants. Subject Matter Jurisdiction.Federal Judicial Power shall extend to nine enumerated cases and controversies . Admiralty and Maritime 4. Public Officials. citizens. other states over land grants. Even though §1331 looks like clause 1 above and §1332(a)(1) looks like clause 7. §1331.Federalism (I) introduction to selection of proper forum 3 Factors must be met to establish proper jurisdiction: 1. From this case we have the Well-Pleaded complaint rule: Arising-under jurisdiction depends on whether can base a complain on federal law not on whether a federal law may be raised as a defense later. Ambassadors. Venue. Because personal jurisdiction and venue are about fairness to the defendant. they can be waived.Rule 12(b)(3).Rule 12(b)(1) 2. 7. 25 .SCOTUS only has power to review if there is a federal question involved. or subjects. 8.

a wife.In defining PPB. states w. §1335 establishes minimum diversity in cases >$500. particularly when she lives apart from her husband.Citizenship of a state is established by evidence of an intent to establish permanent or indefinite domicile in that state and may be proved despite evidence that residence was established partially in order to assert diversity of citizenship. A foreign state as and citizens of a state or different states. (permanent resident alien shall be treated as a citizen of state of domicile). offered the nerve center test. 2. Keck (1936) Illinois. Multiple s can be from the same state as long as the (s) are from another state. but the student who is emancipated or who is not a minor may acquire a domicile of choice. y Citizenship is established by domicile: physical presence with the intent to remain indefinitely. Citizenship of Corporations-By statute since 1958. United States Steel Corp. 4. Citizens of different states Citizens of a state and citizens of foreign state Citizens of diff. In Tashire SCOTUS upheld this section. Curtis it was established that in order for diversity to exist. Domicile of Students. Domicile of Wives. there had to be absolute diversity of citizenship between the parties.Anunemancipated minor normally has the same domicile as the parents. 28 USC §1332(c)(1). Baker v. Under Strawbridge v. a corporation is deemd to be a citizen of any state in which it has been incorporated and of the state in which it has it s PPB.today. while the court adopted place of activity test. Important factors: y Where the board sits y Where is general counsel y Corporate headquarter 26 . 3.(1960) 3rd Circuit.the day-to-day corporate activity and management test . Kelly v. y Citizenship remains in the place of last residence until established elsewhere.Diversity of Citizenship 28 USC §1332 (a) 1. citizens of foreign states as additional parties. may acquire a separate domicile of choice. No jurisdiction between 2 foreign citizens (unless it arises under federal alien tort law).

though federal courts do have exclusive jurisdiction over bankruptcy. may remove when could have brought suit Review of State Court Actions by the Supreme Court.28 USC §1441in federal court originally.28 USC §1391 27 . Removal Provision.28 USC §1257 Venue Requirement as Limitation. District Court Jurisdiction The default understanding of federal jurisdiction is that it is concurrent with state jurisdiction.y y y y y Operations committee Daily functions of business Where the majority of the employees are Where is the tangible property Total productive capacity Citizenship of unincorporated associations. patents. and admiralty and maritime. copyrights.courts treat these organizations as groups of individuals. and so deem them citizens of each and every state and country of which one of its members is a citizen.

Executive Software North America Inc v.This is the most important pendant jurisdiction question. 1(NY). supplemental jurisdiction Collateral attack Bell v. Court granted s 12(b)(6) motion on the federal law claim and dismissed the state issue for. y Under Rule 14(a).looses federal claim and wins state claim. federal questions. the court will likely grant pendant jurisdiction). (But courts consider judicial economy and so if the two claims are of the type that would normally be tried together. United States District Court (1994) 9th Circuit. Oursler (1933) US. Gibbs (1966) US. §1367(a) overrules Finley. the court must first assume jurisdiction to decide is the allegations state a cause of action for which relief may be granted (and determine the issues of fact later). Holding: Pendant jurisdiction exists because the state and federal claims arise from the same cause of action. 28 USC §1367 tries to codify Gibbs. Hood(1948) US. Holding: Where a complaint is drawn seeking recovery under federal law or the Constitution. Court here says that the state and federal law claims must arise from a common nucleus of operative fact. Pendant jurisdiction is a matter of court discretion. A court cannot dismiss simply because its docket is full. 1impleades 2 28 . The question was did the federal district court have jurisdiction. United Mine Workers v. Aetna Casualty & Surety (1970) 5th Circuity (MD) v. Pendent Jurisdiction Hurn v.In this case had both a federal and state law claim. Ancillary Jurisdiction Revere Copper & Brass Inc v.Federalism (II) federal subject matter jurisdiction.Gibbs left a open a lot of reasons to dismiss state claims. but §1367 tightened that up. Supplemental Jurisdiction28 USC §1367 unites pendant and ancillary jurisdiction. not a plaintiff s right.

The US then impleades a Puerto Rican hospital. Holding: A counterclaim that arises from the same aggregate of operative facts is properly covered by the ancillary jurisdiction doctrine. a claim with exclusive federal jurisdiction. When 1 was granted a summary judgment.y y y and moves to dismiss claim for lack of diversity. Owen Equipment & Erection Co v. Court holds that pendant jurisdiction could be excercised over such a claim. diversity was destroyed between and 2.R. attempts to assert a nonfederal claim under Rule 14(a). a plaintiff may not assert a claim against a third-party defendant when there is no independent basis for federal jurisdiction over that claim. y Neither convenience nor judicial economy can extend ancillary jurisdiction to cover this case. Kroger (1978) US. Holding: In an action in which federal jurisdiction is based on diversity.Plaintiffs from P.S. U. 28 USC § 1346(b). Ortiz v. 29 . sue US under Federal Tort Claims Act. finding 2 s claim to be within its ancillary jurisdiction. 2 counterclaims against Court denies motion.Here filed action for negligence against 1 who then impleaded 2 under Rule 14(a). Government (1979) 1st Circuit.

y Brandies says Story s view of §1652 was too narrow and that Laws should be read broadly to include statutes & common law. Dunlap (1939).Federal court disregards KY anti-monopoly law and uses federal common law to decide.Federalism (IV) early development of Erie doctrine. Constitutional Constraints on State Courts y Art. y 28 USC §1738. y Federal courts should be puppets of state law.Although the 1789 Rules of Decision Act left federal courts unfettered to apply their own rules of procedure in common law actions brought in federal court.horizontal choice of law y Most states follow their own procedural law. y This is a vertical choice of law situation. Swift v. State law includes not only statutory law but case law as well. not state common law. complex Erie problems Courts follow state statutes on which laws to apply y Many states apply law of the place of injury y States deciding which state s law to apply. Cities Services Oil Co v. 30 . 4 §1 FF&C y Constitutional constraints on states ability to ignore other states laws.Burden of proof is a substantive law so you should apply the state law concerning burden of proof. state law governs substantive issues. Tompkins (1938).Justice Story wants to preserve the use of federal common law so he read §1652 to apply to statutory law only.Must give judgments from other states the same respect that state would give it. 28 USC §1652. Brown & Yellow Taxi(1928). the Hanna doctrine. Black & White Taxi v. Tyson (1842). Erie v.the laws of several states shall be regarded as rules of decision in civil actions in the courts of the United States. regardless of the place of injury.

again. Ragan v. Zimmerman (1975). Byrd v. Court again reads around federal law and state law and looks at the outcome determination test to arrive at a state law conclusion. As long as the state rule doesn t conflict with state law. Court reads 8(c) so as to avoid conflict. Blue Ridge (1958).In all cases where a federal court is excercising diversity jurisdiction. as it would be if tried in state court.The forum states choice of law rules are substantive and not procedural. York (1945). so far as legal rules determine outcomes. Texas choice of law rules indicate you should use the law of the 31 . Ben Indust. Here is where we see the Outcome determination test first applied. use it. but. y Rule 4(d)(1) y Looks to conflict. Merchants Transfer & Warehouse(1949). where matters fall roughly between the two and are rationally capable of classification as either.About suing foreign corporations. Stentor (1941). Using the outcome determination test and a special interpretation of state and federal law. the court arrives at a state law conclusion. Hoffman (1943). Interstate Realty (1949).The Erie doctrine mandates that federal courts are to apply state substantive law and federal procedural law. and the jury function is such an essential function (provided for in the 7th Amendment).US Army soldiers are injured by poorly manufactured shell in Cambodia. Guaranty Trust Co v.is the federal rule constitutional & established by congress? If so. Loan Corp (1949)Bernhardt v. Cohen v.The Erie doctrine requires that federal courts in diversity cases must respect the defintion of rights and obligations created by state courts. Beech Aircraft (1965) 4th Circuit Day v. the outcome of the case should be substantially the same. state law wins. the Constitution grants the federal court system the power to regulate their practice and pleading procedure. Woods v. then it wins over state law! Szantay v. Plumber (1965). Polygraphic Co (1956). Klaxon v.About Arbitration clauses that might conflict with 9 USC §3. not procedure.Palmer v. so they should be followed.Court reads 8(c) as related to pleadings. Therefore the state law applies.The courts avoid conflict here by reading commenced in Rule 3 as something different than the commenced in the Kansas statute of limitation. but state laws cannot alter the essential characteristics and functions of the federal courts. y Balance state and federal policies y There can be countervailing federal policies Hanna v.

Federal law governs questions involving the rights of the United States arising under nation-wide federal policies.A federal trial court can apply state law governing the excessiveness or inadequacy of compensation awards without running afoul of the 7th Amendment s prohibition of the reexamination of a fact tried by a jury so long as the state standard is applied by the federal trial court judge and the appellate control of the trial court ruling is limited to review for abuse of discretion. Those rights and duties are governed by federal common law. Kimbell Foods. but where state laws are nondiscriminatory and won t affect federal interests too much. not state law. but not in the appellate court. Congress enacted the Federal Water Pollution Control Act making reliance on the federal common law unnecessary. y Reexamination clause.federal common law Clearfield Trust Co v. just like in Klaxon. Walker v.The rules or Eriedo not apply to this situation concerning the rights and duties of the united States on commercial paper which it issues. Gasparini(1996).but isn t this telling us to do exactly what Rule 59(a)(1)(A) tell us not to do? y y Federalism (VI). the court will allow them.has never allowed federal appellate courts to substitute judgments for jury determinations.4 cities polluting lake were sued by the state of Illinois. Burlington Northern Railroad v. we will follow state law. City of Milwaukee (1972).State law on sanction for frivolous appeals does not win in comparison to Rule 38.follow state law. Before the case reached the Supreme Court.(1979).Statute of Limitations. Illinois v. If case is in federal district court. 32 . You must follow it. Court granted Illinois injunctive relief bases upon federal common law of nuisance. Armco (1980). Inc.US as Plaintiff. Federal courts cannot do what NY state law authorizes them to do. Woods(1987). 28 USC §1345. Dissent. State law in this case is a substantive law. United States (1943). United States v.place of injury.

Nexus a. Neff 1. You can t file a tort claim in family court b. In Penoyer v. Traditional ways of establishing personal jurisdiction: i. A subtle transformation over time b. g. f. Purpose in 1848. Presence at the time of service ii.Territorial authority to adjudicate (I) the framework established by Pennoyer v.the actual events took place before 14th Amendment was ratified. Art. but it will change in modern era. Domicile 33 . Consent iii. sense e. Substantive due process c. Neff. This question gets to sovereignty and then gradually attenuates until in the modern era we get to fairness to defendants.P. But that doesn t matter because Pennoyer treats cases as if the amendment had applied. Competence is like subject matter jurisdiction a.purpose of nexus is about sovereignty. III and § 28 2. d. 14th Amendment in substantive D.

Anything besides personal service can be called substitute service.statute in state requiring personal service. Closson v. Applies to Federal Courts Pennoyer v.A statute may give good title. Plaintiff s Interests in Fairness (Smallest Interest here bc brings claim wherever she wants) 3.We have a Ouija Board of Nexus i. Some states restrain their jurisdiction. c. 14th Amendment-Applies to STATES a. service by publication against nonresidents is ineffective to confer jurisdiction on the court. Sister States Interests iv. consent or acts committed Tyler v. good against the world.iv. without notice or a judicial proceeding with jurisdiction secured by power over the property rather than the holder of the right of ownership. State s Interest in adjudicating matter (sovereignty) iii. Judges of the Court of Registration (1900). Notice is about interest of def in receiving procedural due process. domicile. i.The basis of jurisdiction is the presence of land within the sovreign territory. 4. Acts within the state h. Some states extend jurisdiction to the maximum. 5. Holmes makes the distinction.Where the object of the action is to determine the personal rights and obligations of the parties. b. To the extent it imposes a restraint on states. Neff (1878). Territorial authority to adjudicate (II) jurisdiction over things (traditional view) Territorial authority to adjudicate (III) modern theory based on presence. Now. the states are not required to go to the maximum extent of the 14th amendment. y Clearly separates nexus from notice y The presence of land is sufficient to give jurisdiction y The state s interest in sound title y Pure In Rem 34 . Not clearly separated from nexus until J. Notice a. Chase (1914). b. Defendant s Interest in Fairness (Strongest Interest) ii. 5th Amendment a.

Whenever a plaintiff seeks a determination of rights in particular real or personal property located within the forum state. Such a judgment is entitled to Full Faith and Credit. Zelezny (2001). 28 USC §1738. v. MacArthur(1959). That s why airplane service works. must give the FL judgment FF&C if FL had competence.FF&C Grace v. even if that person is in the state only for a few hours. Rule 4(n)(2) Campbell v. the court has no jurisdiction over unidentifiable property.When the contract claim is unrelated to the personal property. Murdock(1950). and notice. Cheshire Nat l Bank v. Watson(1873). Balk (1905). service outside of the state on a nonresident defendant is sufficient to give the forum state jurisdiction binding upon the nonresident. y Because the showed up for a special appearance. can make a limited appearance with no threat of opening himself to personal jurisdiction. NY had to look at 35 .V. was lured into FL by s trickery. not the property. brought this suit based on In Rem jurisdiction but requested monetary damages. In this case.You can t trick people into the state. y Quasi In Rem CME Media Enterprises B. Jaynes(1916).For in rem cases you cannot do discovery beyond the property you are already aware of. Holding:A personal judgment under 28 USC §1655 may be rendered if the personal judgment is closely related to the in rem proceeding. as the enforcing state. In such a situation. y Usually §1655 In Rem actions can only affect the property which is the subject of the action.Garfein v. nexus.A court can acquire jurisdiction over a person. State sovereignty extends from the center of the earth to the edges of the universe. 28 USC §1655.had done substantial work on s property and had never paid him.Flying over Arkansas. y Limited In Rem Harris v. McInnis (1928). Newhouse(1937). the court reasoned that a personal judgment was not inappropriate.A debtors obligation to pay debt accompanies him wherever he goes and the question of jurisdiction is not dependant on either the situs of the debt or the nature of the debtors stay in a state.extended jurisdiction to in rem actions and some quasi in rem actions. NY. Wyman v. Darrah v.

counsel. is subjecting herself to in personam jurisdiction there. Personal Jurisdiction was granted on the theory that an owner is responsible for his property. NY had to side with .a nonresident witness. Hess v. Immunity from Service of Process.if you drive down the road. you are taken to have appointed an agent. Domicile as Basis for JurisdictionMilliken v. you must take the bitter with the sweet. y Guidance for Panel 2 36 . even if you never signed anything. Goodman (1935) NOT MODERN LAW Dubin v. Pawloski(1927) Riverside& Dan Rivers Cotton Mills v.For a state to subject a nonresident defendant to inpersonam jurisdiction. due process requires that he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Territorial authority to adjudicate (III) modern theory based on presence. Menefee (1915)corporate home to sue. Adam v. Because the FL law said fraud invalidated presense.any appearance will subject you to the general jurisdiction of the court. modern statutes International Shoe (1945). Farson(1919) NOT MODERN LAW Doherty & Co. Texas Trap. City of Philaldephia(1938). Saenger (1938) By making use of the court system. Meyer(1940).FL s law concerning service. Flexner v. or party is immune when present in state only for the purposes of litigation.Cause of Action arises from s acts within the state. Pawloski(1927). If voluntarily files suit in a given state. should have gone to s Territorial authority to adjudicate (IV) jurisdiction over corporations (International Shoe and its progeny). domicile.Implied consent.Domicile in the state is grounds for personal jurisdiction. consent or acts committed Hess v. v.

Superior Court. Barnes (1965). y A single contract that is solicited can be enough to subject yourself to jurisdiction Long-Arm Statutes Nelson v. Atkinson v. y DE corporation was not reaching out to purposefully avail itself of FL law. Because the court defines a tortuous act as something that causes injury. Being a trustee is sufficient for establishing .Jurisdiction cannot be founded on property within the state unless there are sufficient contacts within the meaning of the test developed in International Shoe. Gray v. and Credit Hanson v. and the boiler explodes and injures in IL. the fact that was injured in IL gives that state long-arm Jurisdiction over the two s. Cook v.Defendant company is incorporated in Missouri. Shaffer v Hietner (1977). Longines v.Due process requires only that in order to subject a nonresident defendant to the personal jurisdiction of the forum. A representative shows up at a trade show in Chicago and is served by . y Defines Panel 1 for Corporations y Continuous and systematic McGee (1957). American Radiator(1961). that state may subject such a corporation to the jurisdiction of its courts in personam on any transitory cause of action. Perkins (1952) Whenever a foreign corporation carries on continuous and systematic corporate activities within a state.NY long-arm statute did not intend to go to the limit of the 14th Amendment like the statute in Gray did. Lexington(1981). Denkla (1958). therefore FL had no jurisdiction. where its PPB is located. Full.Illinois long-arm statute is intended to go to the very limit of the 14th Amendment.A state court need not give FF&C to another state court s decision if the other state was without jurisdiction over a nonresident defendant. Miller(1957).Service on a NY trustee for a CA case. Faith.The Illinois Long Arm Statute gives that state jurisdiction over tortuous acts committed in Illinois. 2 assembles a boiler in PA. Illinois court says IL can t reach out and grab this defendant. even if such cause of action does not arise within its borders and was not related to the business activities of the corporation within its borders.Mullane(1950). 37 . Applying Minimum Contacts to In Rem and Quasi In Rem actions.A state may determine the rights of nonresident beneficiaries in the settlement of trust accounts if procedural due process protections are afforded. 1 makes a valve in OH. he have certain minimum contacts with that forum and that maintenance of the suit does not offend traditional notions of fair play and substantial justice.

In this case. Helicopteras (1984). SCOTUS holds that California s exercise of jurisdiction violated due process because the defendant had lacked minimum contacts with the state.The constitutional touchstone remains whether the defendant purposefully established minimum contacts with the forum state. Holding: Rush lacked minimum contacts with this state and the marginal reasonableness of s choice was not enough to establish jurisdiction in Minnesota. y Minimum Contacts apply to people. Those purposeful contacts were sufficient. World-Wide VW (1980).A state court may exercise personal jurisdiction over a nonresident defendant only so long as there exists sufficient minimum contacts between him and the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantive justice. Here. According to Indiana s guest statute. Asahi (1987). Burger King (1985).While Personal Jurisdiction here might pass all constitutional tests. Helicopteras did not have contacts with Texan substantial enough to subject it to general jurisdiction.Woman sues former husband for child support in a California court. passenger moves to Minnesota and sues there. it is so unreasonable that it should not be exercised. y Personal jurisdiction requires a sufficient connection between the defendant and the forum state.Kulko (1978). the passenger could not sue in that state. y This applies even if it might be reasonably foreseeable that a car would drive into another state and cause injury there because a dealer would still not foresee that he would be hauled into court there. y Foreseeabilty here is so strange.Split so badly there is no precedential force. the owner of a Burger King Franchise. is VERY high.Two kids in car accident. resense is enough without applying a reasonableness test. Rush (1980). Three days is enough to satisfy minimum contacts. reached out to negotiate with the FL business and agreed to be regulated by the FL business. Territorial authority to adjudicate (VI) still more complexity. Burnham (1990). which would allow suit on any claim whatsoever. actions in federal courts 38 . while never going to FL.The level of activity required to produce general jurisdiction.

Immunity form service of process for a UN invitee does not extend beyond the express terms of the Agreement between the UN and the USA Regarding the Headquarters of the UN. Territorial authority to adjudicate (VII) international litigation Kadic v. Rudolf Wolff & Co (1987) In order to sue. Karadzic (1995). s must be amenable to service of summons.A defendant s national contacts cannot be aggregated to provide the sole basis for a federal courts exercise of personal jurisdiction in the absence of statutory authority for service of process. y Congress has enacted 28 USC §2361 and Rule 4(k)(1) to help extend jurisdiction. 39 . you need statutory authority.. Despite federally created claims and one of the defendants substantial contacts with the U. Absent consent.S. y Court refused to set up a gap-filling method here.De James v. you cannot serve summons on one of these foreign defendants. y They have not extended jurisdiction here! Omni Capital International v. Magnificence Carriers (1980).

Stokes (1980) 6th Circuit. not trespass.The court held that the action could be maintained outside of Idaho because the issue was conversion.Transfer of Good Venue Hoffman v. holding that in cases such as this forum would be inappropriate. Piper Aircraft Co v. §1406(a) Transfer Provision.When may properly find venue in 2 states. United States (1897). Court dismissed. Casey v.Dismissal may not be barred solely because of the possibility of an unfavorable change in law. Ellenwood v. Gulf Oil Corp v. §1404 (a). Marietta Chair Co (1895).Local actions are in rem and should be prosecuted where the thing in question is located.Territorial authority to adjudicate (VIII) venue.Cure for Bad Venue Martin v. Holding: The transferor law applies regardless of who moves to transfer under §1404(a). forum non conveniens Livingston v. Jefferson (1811). Barrack (1964). Stone v. transferor law applies after a §1404(a) transfer.The entire cause of action was local (trespass). 40 . Gilbert (1947) US.On state law questions. splits cause of action to reap the benefit of another states statute of limitations.Brilliant maneuvering here. it should be brought in the state where the trespass occurred. moved for dismissal under the doctrine of forum non conveniens. gathering evidence.Case about burning down a warehouse in VA was brought in NY district court. otherpratical problems. Adams (1880). Plaintiff then moves for transfer of venue to reunite the two claims. it is free to choose the state with the more favorable law. y Courts have discretion here y Factors include convenience of witnesses. Blaski (1960) Van Dusen v. John Deere Co (1990). but transferee law applies after a §1406(a) transfer. Reyno (1981). but is still entitled to the substantive legal advantages of the original forum.Actions for trespass to land (while in personam in nature) are still considered by most courts as local and not transitory and hence maintainable only at the situs of the land. Ferens v. may transfer venue.

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