Civ Pro Q & A
NOTE: These answers do not take into account changes in the law that occurred after the year they were written - some of them may no longer be correct!


2011 Civil Procedure Questions & Answers

Question 1 - about retroactivity of federal rules.


I asked a question during class about changes to the federal rules and how the impact cases that are making their way through court.  My question is as follows:

Assume Sierocinski sends his pleading to the court before December 1, 2011.  DuPont requests more information in the plea, and the court requests Sierocinski for more info.  Sierocinski sends it.  A little legal questions ensue as in the original case.  The court rules on November 30, 2011 that Sierocinski didn't need to plead evidence, his amended complaint is sufficient, and the trial is remanded to the lower court with the amended plea as in the original case.  Then, on the morning of December 1, 2011, the new Federal rule established in Twombly/Iqbal officially takes effect.  Now plaintiffs must plead evidence in their complaint.  The case was remanded to the courts.  The original complaint was filed before the new rule, but the case was remanded and the new trial has not yet started.  Does the case proceed without the influence of the new rule, or because it was remanded and hasn't restarted yet, the new rule applies?

Certainly, it seems more fair to the defendant to enforce the new rules; the rules changed for a reason, and now courts want evidence to be pleaded in the complaint.  Yet, it doesn't seem fair to Sierocinski who initiated the complaint before the new rule.  Furthermore, the new rule takes effect before the retrial, so it's not as if they're in the middle of proceedings.  From an efficiency standpoint, though, it seems easier just to enforce the new rule across the board.  I have no idea what Federal Rule would govern such a case.

A.   This brings up a number of nice issues. The first, which we discussed a bit in class, simply concerns the question of retroactive application of the federal rules or interpretations of the federal rules.  As far as amended rules are concerned, the Rules Enabling Act (28 U.S.C. § 2074) addresses the issue:

"The Supreme Court may fix the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies...."

In determining whether retroactive application is just and practicable, federal courts have been guided by the principle that “to the maximum extent possible, the amended Rules should be given retroactive application....” Skoczylas v. Federal Bureau of Prisons, 961 F.2d 543, 546 (5th Cir.1992).

But you bring up another twist. First of all, the issue is interpretation of a federal rule rather than amendment. Furthermore, there was already litigation in the case about the proper interpretation of the federal rule. It is problematic to reopen an issue that has already been litigated in a case, even if there is an intervening SCt decision. My guess here is that a doctrine called the "law of the case" -- which has been developed to avoid reconsideration of matters once decided during the course of a single continuing lawsuit -- would apply here. On the doctrine see Wright & Miller Federal Practice and Procedure § 4478.

Question 2 - about appeal from state supreme court to US Supreme Court

Quick question (I think): Can a case go from the state supreme court straight to the U.S. Supreme Court or does it have to go through the U.S. Appeals Courts first?  It doesn't ever go from the state Supreme Court to the federal district courts, right?  Since they're just trial courts?

A.  It goes straight to the US SCt, provided that cert is granted. Remember, it has to be on a federal issue though. On questions of state law the state SCt is supreme.

Question 3 - about Twiqbal and 7th Amendment

You commented a few times recently that this Twiqbal stuff we are covering in class presents a constitutional problem in the context of the 7th Amendment. I did not fully think about these implications until after talking to you, but I wanted to explore that a little more.

   If we are going to cover this issue in class, then please disregard everything left in this email. If we aren't going to cover it in class (or at least with notable depth), are you able to conveniently provide a little bit more context for me in terms of research? For example, even though Twiqbal is fairly recent (and thus its implications), I suspect legal/constitutional commentators have already dragged this issue out into daylight and are still kicking the dead horse.Are there any famous federal cases (especially Supreme Court cases) that you know of that have addressed this issue head-on? I'd love to dive into them if you have any of the names handy.

A.  We will not deal with this issue in any detail. (I'll probably say about one sentence about it today.) I am unsure whether anyone has made this criticism in print. You could do a westlaw search to see (do you have westlaw yet?). Also, I do know that someone has criticized summary judgment on 7th A grounds. You might find the arguments there helpful. 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=886363

Question 4 - about Twiqbal and judical idiosyncrasy

If the determination of plausibility/reasonability of whether or not the factual allegations constitute a 'reasonably possible inference of liability' is made by judges on the basis of their judicial experience and common sense, wont this lead to significant variation in the determinations of what facts are sufficient to constitute reasonable? If the federal judiciary is fairly diverse in their experience and common sense frameworks, which they probably are, how would a plaintiff have any way to reconcile the fact that there is a high factual standard with the fact that the facts that they present may not be considered enough to inference liability. It seems like the plaintiff just ends up stuck on top of the monetary requirements and hassle of collecting evidence in the first place.

A. I think that variation among federal judges about whether Twiqbal's plausibility standard is satisfied is indeed a big problem. We'll talk about this in class a bit.

Question 5 - about burden and standard of proof for R 11 sanctions

I had a question about burden of proof, and standard of proof, re: Rule 11 proceedings. I believe you wanted me to email you re: this.

If I understood right, it sounded like the standard of proof was 'a preponderance of evidence'; and likely (certain?) that the person bringing the Rule 11 proceeding (whether court or defendant) would have the burden of proof. 

These questions came to mind when considering Rule 11 study question #11, when someone HAS in mind, at the time of signing a complaint, a non-frivolous argument for reversing/altering existing law - but doesn't mention such. If a Rule 11 proceeding were brought against him/her, which party would have to prove what the plaintiff's counsel actually had in mind, at the time of signing the complaint? It seems likely that the burden for proving this would be on the party bringing the Rule 11 proceeding - but I wasn't sure.

As you indicated in class, Rule 11 proceedings under 11(b)(2) are 'extra'-rare, and if someone subject to a Rule 11 proceeding could, at the time of the proceeding, demonstrate a non-frivolous argument, he/she would probably be fine; i.e., it would be very hard for someone to prove he/she didn't have that argument in mind at an earlier date.

A. It turns out I was right both about the burden (on party - or judge - moving for sanctions) and the standard (preponderance), although as far as the standard is concerned it looked like courts have simply assumed it, without there being any real litigation on the matter. NOTE from 2012: in connection with the same question in 2012, I found a federal court saying the standard was clear and convincing, so the matter seems to be unsettled.

Question 6 - about sanctions outside of R 11 and standard of review for R 11 sanctions

I stumbled across this article from Ars Technica about a court ordered sanction: <http://arstechnica.com/tech-policy/news/2011/09/sanctioned-p2p-lawyer-fined-10000-for-staggering-chutzpah.ars> (the article contains a link to a copy of the ruling).  This doesn't seem to be a Rule 11 issue, and the judge explicitly mentions Rules 26(g) and 45(c), but see footnote 9, where the court uses some factors mentioned in Rule 11 to determine the amount of sanctions appropriate.  I also found Part IV (additional sanctions) interesting, given the brief discussion in class about possible non-monetary sanctions.

Reading this, though, it occurred to me to ask: what is the standard of review for court ordered sanctions?  I would guess the district judge has broad powers, and it is something like a clearly egregious test, at least, perhaps, to the issue of how much sanctions.  Whether sanctions are appropriate might be a tougher standard of review?

A.    Yes - this was not a R 11 case, but one under R 26 (concerning abusive discovery, which I mentioned briefly in class) and a special sanctions rule concerning abusive subpoenas in R 45. Courts of appeals use a deferential "abuse of discretion" standard when reviewing a district court's imposition of R 11 sanctions.

Question 7 – about continuing duty under R 11

I just wanted to clarify the potential for rule 11 to be violated by 'later advocating'. 

 

The notes to rule 11 say:

 

"[A] litigant's obligations with respect to the contents of these papers are not measured solely as of the time they are filed with or submitted to the court, but include reaffirming to the court and advocating positions contained in those pleadings and motions after learning that they cease to have any merit."

 

Does this imply that the reasonable inquiry standard is applied at every step of the advocacy process when referencing certified pleadings, written motions, or other papers?

 

Could you perhaps provide an example, it's all a bit abstract.

 

A.  You’re right that the reasonableness standard is ongoing. Let say that your client gives you a piece of information that you reasonably think provides evidentiary support for the allegations in the complaint. You later learn that you client has forged documents of the sort in the past. You would have to start investigating your client’s evidence more now to be sure to satisfy R 11.

 

Question 8 – about Glannon v Green

 

I had two quick questions from class today:

1) Do you think it is defensible that Glannon's position is that once you employ the state's (more lenient) laws about how you serve, you trigger the state's (more strict) laws about who may serve?

2) Do you know what percent of courts favor Glannon's position?

I was just intrigued that he didn't doesn't raise any arguments about the possible difference of interpretation, and wondered how important the difference was.

A.    I think there is certainly an argument there. Notice that I argued in defense of my position that federal courts in the past held that the independent federal rule about who may serve applied even when one relied upon a state-law method of how to serve. But that was when the federal rule on who may serve was more restrictive than most state law methods. (A federal marshal had to serve under the federal rule.) You are suggesting that the answer might be different if the federal method is more generous than the state’s (which is more likely the case now that the federal rule in 4(c) says that any non-party over 18 may serve).

 

I would still offer in my defense the fact that, as in the past when the federal rule was more restrictive, the current federal rule on who may serve is in a separate section that makes no reference to state law. It states categorically who may serve and nothing about respecting a state’s more restrictive approach is mentioned.

 

No courts have favored either my position or Glannon’s. It has never been litigated. It was litigated back in the day when the federal rule was more restrictive, however, and then my view won – it was held that who may serve is answered for all cases by the federal standard and how to serve is the only issue where the federal or state approach can be used.

Question 9 – on frivolous legal contentions under R 11(b)(2)

I just wanted to clarify some of the elements of rule 11, particularly 11(b) (2).

 

With respect to 11(b)(2)- when we are trying to determine whether or not a legal contention is warranted, it seems like we are giving some measure of consideration to the merit of a claim. I believe you mentioned in class that the Murphy v. Cuomo drug statute argument was probably not a strong one, and it seems like the judge mocks the contention, maybe rightfully so.

 

But wouldn't Brown v. BoE have been mocked to on the ground that a cursory view of case law recognized no such contention? I don't know anything about the quality of the lawyer that represented Murphy, but my guess is that he was no Thurgood Marshall, and that may have gone some distance in determining as to whether or not the claim was 'warranted'. Though that is not a legal ground. 

 

A.    Hi – Concerning 11(b)(2) – it is true that there were probably no nonfrivolous arguments that segregated education was illegal under the 14th Amendment at the time that Brown was argued (given Plessy was still in place). But R 11(b)(2) also allows for nonfrivolous arguments “for extending, modifying, or reversing existing law or for establishing new law.” Those obviously existed in Brown. So the court in Murphy must have thought that no nonfrivolous arguments for extending, modifying, or reversing existing law or for establishing new law existed concerning a private right of action in the drug statute. I think you are right though to wonder whether that’s true. After all, you know nothing about the various arguments for reading a private right of action into a federal statute. Maybe there was a nonfrivolous argument.

 

But I doubt that there would have been sanctions in Murphy if (b)(2) had been the only problem. I think the (b)(3) violation was more important to the court’s decision.

 

Question 10 – about the Mennonite case and due process in service

 

With regard to serving notice, we've kind of specified who has to receive the notice if it's sent by certified mail. So why wasn't the bank (in Mennonite Missions Board v. Adams) able to claim it didn't receive notice because the mortgagor was the recipient of the notice and not the bank itself? Isn't the bank the sole designated recipient of the notice?
Why was it even sent to the former owner of the property?

 

A.    The notice was sent to the former owner because his rights were also going to be affected by the tax sale. But I agree that notice to the former owner does not satisfy notice to the bank, because we have no reason to believe that the owner would look after the bank’s interests.

 

Question 11 – question on claim preclusive effect of dismissals on service grounds

 

 If a case is dismissed for failure of proper service, is that with or without prejudice (at least presumptively, since gross abuse could conceivably change the rule)?

 

A.    W/O prejudice – that is, no claim preclusive effect. The P may sue again.

 

Question 12 – more on Glannon v. Green…

 

I'm going to rehash the state law summons question you mentioned in class, because Glannon seems to have the better argument in my mind.

 

I'll grant you that if a state allows summons to be delivered by persons under 18 years of age, or who are parties to the case, the Federal Rules can and probably should be interpreted to disallow that in federal actions.  But let's imagine Mass. changing its law around slightly: it now allows service of summons under two conditions, (1) personal service by someone not a party to the case, *or* (2) nailed to the door by a sheriff.  The policy behind the state law would clearly be giving a sheriff more leeway than ordinary persons (presumably because the courts trust the affidavit of the sheriff more).  I have a hard time believing that 4(e)(1) is satisfied if a non-sheriff follows the sheriff-specific rule; to me that can't possibly be complying with state law (essential to 4(e)(1)), which clearly (in my hypothetical at least) is allowing the second method of service conditioned on the status of the person delivering the service.

 

So do you agree that my modified Mass. law would not allow a regular person (otherwise qualified) to nail the summons to the door?  If so, do you distinguish this hypo somehow from the disagreement you have with Glannon? If not (you think a non-sheriff could use the second method of service), how do you square that with the sheriff being an essential element of the service under the state system (as opposed to the state system modified by R. 4(c)(2))?

 

A.    This is a nice example, but I think I would dig in my heels and say that the federal court should use the state method on how to serve w/o the state method on who may serve, even if they are both mentioned in the same provision and the state method on who may serve is more restrictive than the federal method in 4(c). Remember, state law does not apply of its own force here. It is being incorporated by reference in 4(e)(1) – If they wanted, the drafters of the federal rules could have made 4(e)(1) refer to the law of Gondor or of Ancient Rome (assuming that 5th A due process was satisfied). Or it could refer to every other word of the Massachusetts service rule or mix parts taken from the Massachusetts rule with parts of the rule of another state (once again, assuming that due process is satisfied and it made sense). It is entirely the drafters of Rule 4’s call. The fact that R 4(e)(1) takes only part of a particular provision in Massachusetts law (namely the part dealing with how to serve and not the part on who may serve) is neither here nor there. Massachusetts may think that they have to be together, but, once again, it is not Massachusetts’s call.

 

Still there is reason to read R 4(e)(1) as also referring to more restrictive state law on who may serve, on the grounds that lenient rules on how to serve may have been crafted with the restrictive rules on who may serve in mind. That’s Glannon’s argument. Your example makes the fact that the two were tailored together even clearer. You may be right, but the point is that the question must be answered by reference to R 4 and the intent of its drafters – NOT Massachusetts law.

 

Question 13 – on actual notice

 

Since I understand the need for defining what proper service entails as serving the purpose of actually notifying the defendant, I don't understand what is wrong with just worrying if actual notice occurred, even though the rules weren't followed.  Why does it matter?  Why don't we just care about actual notice?  For what other reason does the process exist, if not to just ensure actual notice? 

 

A.    The service rules exist in part to give the defendant actual notice, but they also exist to make sure that the plaintiff is not overly burdened by the goal of providing actual notice. If he abides by the rules he will be protected, even if there is no actual notice.  So that is why there is a standard for serving, rather than simply the demand of giving actual notice. Now the question remains why we should be worried that the rules were not abided by if there was actual notice. The idea here is that we should encourage people to abide by the rules that have been created, rather than letting people cut corners with the hope that there will be actual notice. To take an extreme example, assume I throw the summons and complaint on the ground as my means of service on D. But the D happens to find it anyway. If we do not let D challenge the action on service grounds, we will encourage other people to take the same chances I did. I am not saying that the argument is overwhelming, but there is clearly something there.

 

Question 14 – on sovereign immunity

 

I am confused about the footnote on page 232 of F&K.  It looks like the 11th amendment prevents an out-of-state citizen from suing a state regardless if that state consents.  But the footnote says the court has sometimes allowed it (as in Petty v. Tennessee-Missouri Bridge Comm'n).  What is the justification for allowing it?

 

A.    Ah, sovereign immunity. The subject is so complicated, I don’t really see why F&K try to explain even part of it in a footnote. You’ll get it in detail if you take Fed Courts. But the general point is this: The fact that the 11th A was written in response to Chisholm suggests that it was meant to restrict diversity jurisdiction – in particular, to keep the judicial power from extending to suits against a state by citizens of another state. There are two ways of understanding this: that it forecloses a suit in federal court against a state by a citizen of another state only when there is no other source of SMJ (e.g. arising under jurisdiction) or that it forecloses federal jurisdiction for such suits entirely, even when the suit is under federal law. (I strongly prefer the first reading.) But in fact the SCt has adopted neither of these approaches. On the one hand it has gone further than either and held that the 11th A prohibits a suit by a citizen against his own state in federal court, whether under state or federal law. (It then took that back a bit through a number of different doctrines you will get to in fed cts). On the other hand it has not gone as far as either approach, in the following sense. Under either approach the limit is apparently on the judicial power of federal courts and so cannot be waived by the state. But waiver of sovereign immunity has been allowed, at least with respect to federal actions.  I hope that helps. I have changed the syllabus to tell future students not to struggle over that footnote…

 

Question 15 – on the purposes of diversity

 

It seems like one could present the disadvantage that state courts (supposedly) present to out-of-staters not as one of bias by judges, but one of the rules themselves: If I happen to get in a car accident while driving through Oklahoma, then neither I (a Virginian) nor any lawyers I'm likely to know will be familiar with the Okla. state civ pro rules (which I gather from pg. 246 of KSS can be quite wacky: trial by ambush, no interrogatories, etc.)
    So if I hit an Oklahoman and they drag me into state court, where unfamiliarity with the rules could be a distinct disadvantage, I can remove to federal court, where most lawyers would be at least somewhat acquainted with the federal rules.  So it seems like diversity could be viewed as serving as an avenue towards a level playing field in terms of familiarity with the rules and procedures which the courts require... but maybe I'm just a crazy person.

 

A.    This is a nice point, but can’t I simply hire an Oklahoma lawyer to defend me? Also, as a historical matter, until the Fed R Civ Ps became effective in 1938, in actions at law in federal court the forum state’s procedural rules were used. So the non-Oklahoman would have the same problem in federal court as in state court. Even now under Erie lots of forum state procedure gets used in federal court, as we shall see later.

 

Question 16 – on the purposes of diversity

 

I was reading a bit in Friedenthal's hornbook to try to make sense of everything, and stumbled across the following: "However, the real concern of the supporters of diversity at the Constitutional Convention may have focused more on economic advantage than on the avoidance of assumed regional or state prejudice. The federal courts offered a means for protecting commercial groups from class bias on the part of democratically inclined state legislatures, which otherwise might pressure state courts into decisions hostile to commercial, manufacturing, and speculative land interests. According to this view, the problem that diversity addressed was not hostility among the states, but hostility among the classes."  This admittedly contrasts with Marshall's explanation in Bank of U.S. v. Deveaux, so there seems to be a significant range of opinion here.

 

A.    I think there is a lot to this interpretation. Indeed, that would make the diversity statute like the Class Action Fairness Act, which created jurisdiction for minimal diversity class actions, not because of concern about state court bias against out-of-staters, but in order to protect a particular category of defendant. It may be historically more accurate, but it is not the one that the SCt has relied on.

 

Question 17 – on the amount in controversy

 

When 1332 says "exceeds the sum or value of $75,000," does that mean if the damages were for exactly $75,000, it wouldn't be allowed under diversity in federal court?  Would you need at least $75,000.01?

 

A.    You do indeed need an amount in controversy of above $75,000. Exactly $75,000 isn’t enough…

 

Question 18 – on the 21-day safe harbor in R 11

 

Regarding the 21 days that the P has to fix the complaint for Rule 11, if the P fixes it, but the D thinks there is still a problem, can the D go straight to the court and file a motion for a rule 11 violation, or does it have to give the P another 21 days each time the P attempts to fix it?  Does it matter if the reason it isn't fixed is different than what the D initially claimed was wrong with it

 

A.    The discussion of the 21-day safe harbor in Wright & Miller, Federal Practice & Procedure § 1337.2  says that it is up to the lawyer initiating Rule 11 sanctions  to determine whether the problem has been fixed. So that suggests that the lawyer can go right to the court if she thinks that the problem has not been fixed. But they don’t cite any case for this. It makes sense, though – or otherwise the P could put off R 11 sanctions indefinitely though repeated but ineffective efforts to fix the problem.

 

Question 19 - Question about fictitious names

 

In 1441, what does it mean by "fictitious names"?

 

A.    When you don’t know the identity of the D and sue him under “John Doe.” Don’t want to say the action is not removable because John Doe didn’t consent.

 

Question 20 – about PJ in internet cases

 

In the Bensusan case, did the court determine what makes a website "interactive"?  Does the capability of communicating with the people behind the website, through the site, determine it?  For example, what if on a website you could click on someone's email address and your outlook would pop up with their email address in the "to" section, so you could send them an email?  Or does the interaction have to occur all through the site, like Ticketmaster? 

 

A.    Here is one case that found such a feature to be interactive: Hasbro, Inc. v. Clue Computing, Inc., 994 F. Supp. 34 (D. Mass. 1997). But recently a case rejected the idea. SportsChannel New England Limited Partnership d/b/a Comcast SportsNet New England v. Fancaster, Inc., 2010 WL 3895177 (D. Mass. Oct. 1, 2010). If you are interested in the general question of PJ in internet cases you can look at Zippo Manufacturing Co. v. Zippo Dot Com Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), which speaks of a sliding scale (at the far end – where there is PJ – are cases where the site is not merely interactive but also does the very business electronically). Cases or law review articles that cite Zippo would be useful too.

Question 21 – about Congressional regulation of state court procedure

Given your comment in class today about possible federalism concerns if Congress tried to mettle in the working of state courts (talking about limits on personal jurisdiction short of constitutional requirements), you might find this interesting.  I came across a blog post suggesting that certain Republicans in the Senate are claiming that since some state court litigation affects interstate commerce, that federal regulations are appropriate (concerning medical tort reform).  The key quote from the proposed bill is this: "health care liability litigation systems [state courts?] existing throughout the United States are activities that affect interstate commerce..."  The post is here: http://volokh.com/2011/10/18/fino-republicans-federalists-in-name-only/.

 

A.    This is very interesting. We shall later encounter one little provision in which Congress regulates the procedures of state courts (28 USC 1367(d)), but it is to solve what would otherwise be a disincentive to take advantage of federal jurisdiction. The matter is very different if Congress uses the Commerce Clause to regulate state procedure. This sounds very fishy…


Question 22 – about Twiqbal and affirmative defenses

Also, concerning my Twiqbal argument concerning defenses and/or responses: in the middle of p. 45 of the textbook it says "Thus, the [Twiqbal] Court was adding a requirement, just for claimants, above and beyond their having to give notice. The Court had unearthed, in Rule 8(a)(2)'s required 'showing,' the requirement that at the pleading stage and plaintiff must establish by nonconclusory allegations the complaint's plausibility." Thus, since the provisions of rule 8 dealing with defendants' responses don't include the word "showing" in them, the Court would have to tether a universal plausibility test to an additional source of the rules.

A.    I missed this nice point in the book. But I still stand by my view that it would be odd – given the underlying argument in Twiqbal – if the standard were not extended to affirmative defenses. The courts are currently split. For courts that extend Twiqbal to affirmative defenses, see Barnes v. AT&T Pension Ben. Plan-Nonbargained Program, No. C 08-04058, 2010 WL 2507769, at *4 (N.D. Cal. June 22, 2010); Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 649-51 (D. Kan. 2009); Shinew v. Wszola, No. 08-14256, 2009 WL 1076279, at *2-5 (E.D. Mich. Apr. 21, 2009); Holtzman v. B/E Aerospace, Inc., No. 07-80551, 2008 WL 2225668, at *2 (S.D. Fla. May 29, 2008); United States v. Quadrini, No. 2:07-CV-13227, 2007 WL 4303213, at *4 (E.D. Mich. Dec. 6, 2007). For courts that don’t, see Charleswell v. Chase Manhattan Bank, N.A., No. 01-119, 2009 WL 4981730, at *6 (D.V.I. Dec. 8, 2009); Romantine v. CH2M Hill Eng'rs, Inc., No. 09-973, 2009 WL 3417469, at *1 (W.D. Pa. Oct. 23, 2009); First Nat'l Ins. Co. of Am. v. Camps Servs., LLC, No. 08-cv-12805, 2009 WL 22861, at *2 (E.D. Mich. Jan. 5, 2009).

 

Question 23 – about waiver of defenses

Objections to PJ, venue, service, and process are waived if not raised by pre-answer motion or in the responsive pleading (answer).

 

You mentioned two exceptions: 

(1) If the first response was a pre-answer motion, and the defense was unavailable when the first motion was made, a new motion may be made. Rule 12(g)(2) and Rule 12(h)(1)(A).

(2) If the response was in a responsive pleading, by making an amendment as a matter of course. Rule 12(h)(1)(B)

 

If D's first response is in the answer, may he later make a motion to dismiss for improper venue if such defense was unavailable to him when he filed the answer? Rule 12(h) seems to say no. So D should probably use a pre-answer motion because this is the only way to preserve any defenses which may be unavailable to him at the pleasing phase. For example, if during discovery D finds out venue is improper, he cannot do anything about it if he had raised procedural defenses in the answer instead of pre-answer motion?

A.    This is indeed a problem. It seems wrong to consider the defenses waived if they were not available, especially when they would not be waived if they had been omitted from a pre-answer motion instead of an answer. One case that found no waiver because the defense was unavailable despite the first response being an answer is Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir. 1983).

 



Fall 2010

Q1. Assume that Congress has said that there is concurrent jurisdiction for a federal cause of action. Can a state court nevertheless refuse to entertain the federal action, for example, because the federal law is uncertain and would be better decided by a federal court?

A. In class, I noted in response to this question that a federal court sitting in diversity (or alienage) jurisdiction may not refuse to entertain a state law cause of action simply because state law is unsettled. The requirements for federal court abstention (which we will not deal in the class, but are discussed in Fed Courts) require more than simple uncertainty of state law. But I did not know the answer to the reverse situation. I suspected however that the answer was similar. After considerable searching I did find Testa v. Katt, 330 U.S. 386, 394 (1947), which suggests that a state court must entertain a federal cause of action over which it has jurisdiction. See also Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 Colum. L. Rev. 1001, 1025 (1995). Testa did not concern cases in which federal law is uncertain but my guess is that the principle in Testa would apply there as well.

Q2.
This is a somewhat simple question but I think it would help to see it on paper because the terms seemed to be thrown around somewhat interchangeably in class today. Can you describe the interrelationship between and differences of "personal jurisdiction" and "service of process"?

A. I will do this quickly here, because we will spend a good deal of time on this later. Personal jurisdiction is the power that the court has to adjudicate the defendant's rights. There are many sources of personal jurisdiction in state court. For example, one is being domiciled in the state.

Service of process is a means by which the defendant is informed of the suit, by being given a copy of the complaint (and summons). Service of process within the state whose court is entertaining the suit is a source of personal jurisdiction, which is why the two can get confused. But you can have PJ without it arising through service. For example, if I sue you in Virginia state court, there would be PJ over you because you are domiciled in Virginia. I would not need to use service in Virginia in order to establish PJ. There would be nothing wrong, as far as PJ is concerned, if you were served in Maryland. On the other hand, assume that I were to sue you in Alaska state court for something that happened in Virginia. Since there does not appear to be any other source of PJ over you in Alaska, I would have to rely on service on you in Alaska (if you happened to be there). More on all this later.

Q. 3
I was unclear on the' failure to state a claim' aspect of Twombly.  I understood the argument today to be that the correct phrasing of antitrust violations was present in the pleading, but the inclusion of the "in light of..." statement nullified the effectiveness of the claim by incorrectly associating parallel behavior with evidence of antitrust violations.
 
If that is the case, would the same complaint have survived a 'failure to state a claim' argument by simply omitting the parallel behavior phrase, or would it have inevitably been doomed due to a lack of clear facts and the insufficiently specific issue?  I know that the difficulty of specificity in antitrust also has a role.
 
I am just having issues seeing how Twombly was decided as it was without looking at it from the viewpoint of the Supreme CT feeling that it was time to alter interpretations of Rule 8 to obviate a perceived ease in the pleading of frivolous lawsuits.
 
A. Your comments are spot on. If the problem really is failure to state a claim, all the the plaintiffs would have to do is amend the complaint by dropping the parallel behavior language and relying on a straight allegation of an agreement. Since it is hard to believe that Souter thinks such an amendment would solve the problem, he must think there is something wrong with the complaint besides not alleging an agreement. He must think the complaint is deficient because of insufficient specificity or inadequate evidence.

Q.4
Do juries know the amount plaintiff asks for in his complaint? (I asked this thinking that amending pleadings to ask for more money would be unnecessary or redundant if the jury didn't know what was asked for and was also free to award whatever it wanted under 54(c)).

A. From what I can tell, judges are permitted to refuse to tell the jury the amount requested in the complaint, but they may also tell the jury the requested amount and then inform the jury that more may be awarded. E.g. Zuckerman v. Tatarian, 418 F.2d 878 (1st Cir. 1969).


Q. 5

I read American Radiator and I'm a little confused that the Court didn't have a problem with the Illinois statute.  Predicating personal jurisdiction on the commission of a tortious act sounds like lazy legislating, because to do so bases jurisdiction -- which should be determined before trial -- on the outcome of the trial.  Say P sues D, a resident of Ohio, for an act committed in Illinois, and D's defense is that he didn't do it.  I would assume he'd move to dismiss because there's no PJ under the statute if no tortious act was committed, but if the judge decides there is PJ because he finds that a tortious act was committed, then what's the point of the trial?  The mere decision of a procedural issue is based entirely on the judge's finding of fact, which I thought was something only juries were supposed to do.
 
Even if the jury decides later that D was right and he didn't do it, then there shouldn't have been a trial in the first place and D had to spend time and money on unlawful litigation, which seems like a violation of due process.  I don't know...I get the point of long-arm statutes, but this really seems like a poorly formulated statute and case.

A. This is an awesome question. For a recent article devoted to the problem that is bothering you, see Jurisdictional Fact by Kevin Clermont:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=694341.
Because he puts the problem so well, I will crib his abstract:

"What kind of factual showing must the plaintiff make in order to establish, say, personal jurisdiction? While that may seem simple enough, real difficulties in regard to the standard of proof arise when there is a similarity of the facts entailed in the jurisdictional determination and on the merits. Surely the plaintiff has to do more than allege that the defendant is the author of state-directed acts or omissions. Yet just as surely the plaintiff should not have to prove the cause of action in order to establish jurisdiction. The plaintiff thus must have to show something between allegation and proof."

You are worried by just this problem. What happens when a jurisdictional fact (e.g. concerning PJ - but it could also arise with SMJ) overlaps with the merits? You assume that if the jury finds that the jurisdictional fact did not occur when it gets to the merits the court is stripped of jurisdiction. That would indeed be problematic, but that is not how courts go about it. Here is what Clermont concludes:

"From a morass of confused cases on this procedural point of significance, this Article draws a startlingly clear rule that covers jurisdictional fact, and more. On any factual or legal issue of forum-authority, whenever challenged, the proponent of forum-authority must make a showing of more likely than not, subject to this one exception: if that issue overlaps the merits of the claim, the proponent need provide only prima facie proof to establish the forum's authority. Depending on the particular threshold issue's importance, prima facie might mean any of the standards below the more-likely-than-not standard, namely, slightest possibility, reasonable possibility, substantial possibility, or equipoise. That lower standard will allow the judge to decide appropriately whether the forum has authority to decide the merits, without foreclosing the decision on the merits that will invoke the higher standard."

Q. 6

I have a question about International Shoe's implications in relation to long-arm statutes. In the very beginning of the course, we read Tickle v. Barton, which was decided in 1956, 11 years after International Shoe. The case, as you told us, involved quite a lot of work and ingenuity on the plaintiff attorney's part to serve the defendant, a domiciliary of Virginia, for a tort that he had committed in West Virginia. Wouldn't the long-arm statutes resulting from International Shoe have made asserting the plaintiff's personal jurisdiction in West Virginia easier? Or did West Virginia not have a generous long-arm statute in relation to torts? Or was this really a discrepancy in the two state's laws regarding adequate service of process?

A.
Good question. Remember that in Tickle there was initially service on Barton in Va, but it was being challenged on PJ grounds. Although in the light of Int'l Shoe the challenge might have failed, it was a rather tough case, particularly at the time, because Barton's contact with WVa was indirect, through his agent. At any rate, it was because of the inital PJ challenge that the plaintiff sought to rely on tagging in WVa by (allegedly) luring Barton into the state.

Q. 7

I have a question stemming from the hypothetical posed at the end of the Burger King discussion today, about the possibility of the franchisees seeking a declaratory judgment in Michigan before Burger King filed its suit in Florida.

I was reading about a current case where an alleged copyright infringer sought declaratory judgment against rights holders that its activities were non-infringing.  It brought that suit in federal court in Washington state.  The next week, the defendant copyright holders filed a copyright infringement suit in New York federal court.  All of this happened just in the past few weeks, so there has not been a response by either party to the other's complaint.

I was wondering how these two actions proceed from here, logistically.  Are they consolidated in one venue because they're so related as to be the same action?  Or if they move forward simultaneously, what happens if one holding conflicts with the other?  There's probably a lot to unpack there, but was just curious about how two actions like these move forward when they concern the same action, and each complaint essentially makes arguments against the claims in the other's complaint.

A.

Some of this we will deal with later, but it is common for the court where the action was brought later, upon a motion by the defendant, to dismiss or stay the action because there is a prior action pending. Hence the “race to the courthouse”… Sometimes this court does not dismiss however. If it doesn’t then whatever suit comes to a judgment first (which may not be the one filed first) will, under the Full Faith and Credit Clause (or Full Faith and Credit Statute), be binding on the court with the suit still going on. The result could be that the suit still going on is claim precluded (issue preclusion may also apply).

Q. 8
 In class, it seemed like you were formulating a distinction between the traditions eliminated in Shaffer by referring to "wide acceptance" in addition to the duration of the tradition.  I'm having trouble grasping that, as it seems like quasi in rem actions enjoyed much the same broadness of use in the US as in personam ones did.  Based on my reading, it seemed like the traditional distinction Scalia was making was, as he writes on page 110, between present and absent defendants.  "Our tradition has treated the two classes of defendants quite differently, and it is unreasonable to read Shaffer as casually obliterating that distinction.  International Shoe confined its 'minimum contacts' requirement to situations in which the defendant 'be not present within the territory of the forum,' and nothing in Shaffer expands that requirement beyond that."  I don't really know what question to ask here.  I'm just having trouble reconciling your interpretation of Scalia's position with the one I have when I read this case, and I'm wondering if you have any additional comments that might help.

 
A. This is a good question. You are right that S says that the relevant distinction is between present and absent defendants. You suggest, rightly, that this is enough to solve the problem in Burnham. But S is also concerned about traditional forms of PJ over absent defendants that might be struck down under Int'l Shoe. I think he is particularly concerned about quasi in rem actions using real property. If every assertion of PJ over an absent defendant must satisfy Int'l Shoe, then quasi in rem actions using real property (or bank accounts) might be in trouble. I think this is why he says the following, which is what I emphasized in class:

“For new procedures, hitherto unknown, the Due Process clause requires analysis to determine whether ‘traditional notions of fair play and substantial justice’ have been offended. But a doctrine of personal jurisdiction that dates back to the adoption of the Fourteenth Amendment and is still generally observed unquestionably meets that standard.”

Unlike the present/absent distinction, this standard does not merely save tagging – it also saves quasi in rem using real property. What is more, it is able to explain the result in Shaffer, where DE's method was no longer widely used. I think that is why Scalia offers it.

 
Q. 9
You had also mentioned that Brennan's argument for transient jurisdiction seeks to justify tagging in all situations, and does not comport with the International Shoe quid pro quo idea.  It seems to me though like the argument that "A transient would have the full benefit of the power of the forum State's courts as a plaintiff while retaining immunity from their authority as a defendant" implicitly relies on the International Shoe idea that states can assert personal jurisdiction in cases where the state has a legitimate interest in hearing the case.  California wouldn't have jurisdiction under Brennan's quid pro quo in the case of the Munich bar fight, because the authority over the defendant wouldn't be based on any legitimate interest of the California government and thus the "authority over the defendant" clause of the quid pro quo wouldn't be satisfied.

 A.
I think it is clear that Brennan seeks to justify transient jurisdiction (that is tagging) by saying that it satisfies Int'l Shoe standards. That means that he thinks that there is PJ in California even for the Munich bar fight. If he doesn't think that there is PJ in such a case, then he has not justified transient jurisdiction - he has instead justified specific PJ in cases in which the cause of action is related to the activities in the forum that the D engaged in when he was tagged. (It sounds to me like that is what you are speaking of, when you say that there is a quid pro quo.) But if that is what Brennan is speaking of, tagging seems irrelevant. There is specific PJ for such cases even if the defendant is not tagged in the forum state. So I have a problem with your interpretation of Brennan’s opinion.

 
Q. 10

I just have a question that I keep coming back to during our classes.  Isn't it a faulty assumption that federal court is better/more fair than state court?  Since the cases start out in the federal district court that is located in a state that could assert PJ couldn't there still be some state or domestic advantage? 

I understand that the appellate process would or could be more fair, there could also be some unique federal rule that makes federal court necessary or advantageous for a party in a particular case, but is it really more "fair?" 

A. Here is one way of putting your point. Why won't federal courts discriminate against out-of-staters? After all the federal district court judge sitting in California is likely to be a Californian - just like a California state court judge. I agree. The prejudice argument for diversity is pretty weak.

Q. 11

I also have a question about 1441(b).  Is it a possible form of waiver of subject matter jurisdiction?  If the plaintiff brings the suit in state court in a state where one of the defendants is domiciled, is the plaintiff essentially waiving his right to bring the action in federal court?  I know we said waiver wasn't possible, but this seems like a backdoor way of waiving subject matter jurisdiction.  I could also be misunderstanding what waiver means. 

A.
The problem is that the restriction is not on the plaintiff, it is on the defendants. The plaintiff can still get into federal court, although not through removal (plaintiffs can't remove). The plaintiff can simply voluntarily dismiss the state court action and then bring a new action against the defendants in federal court. Voila.


2008 CivPro Q&A

1. Relief in the alternative.


Q. Professor Green,

In Rule 8(a), it states that a complaint must include a demand for relief sought, including relief in the alternative.  What is relief in the alternative??

A. Relief in the alternative is when the plaintiff asks for a second form of relief if the first requested form is deemed inappropriate. For example, in a breach of contract suit I might ask first for injunctive relief ("Make the defendant do what he promised under the contract!"). But if the court deems that to be inappropriate, I might ask as an alternative form of relief compensation for the damages that the defendant's breach of contract caused.

2. Rules Enabling Act and Congress.

Q. You said in class the decision in Twombley was unconstitutional and that if there was in fact a change to the Federal Rules of Civil Procedure that it would need to be go in front of Congress.  I don’t understand why it would need to go before Congress considering the Rules Enabling Act?  Didn’t Congress through such delegate this authority?

A. Congress did delegate its power, but with a number of limitations, one of which is the following:

§ 2074. Rules of procedure and evidence; submission to Congress; effective date

(a) The Supreme Court shall transmit to the Congress not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. ...

As you can see, Congress demanded that proposed rules be presented to them such that they might reject those they don't like. Sort of like a legislative veto.

3.  Murphy v. Cuomo and failure to state a claim.

Q. In the class you mentioned that Murphy filed the suit under two existing statutes:

1)a federal drug statute that creates no private cause of action
2)a federal civil rights statute that was created to allow private persons to sue public officials (Zarc being not a public official)

As we discussed, Murphy had no right to action under both of these statutes. How is it then, the complaint was allowed to be filed and moved forward to discovery? The text within the case mentions that the defendants' council notified this to the plaintiff's counsel, but never moved for dismissal? Why would the court allow this, what possible reason would the defendant want to continue the suit once it is made clear that plaintiff has no "legal viability" under these statutes?

A. This is an excellent question. I am unsure why there was no motion to dismiss the drug statute action for failure to state a claim. The defendants really should have. As for the civil rights action, it is POSSIBLE for a private citizen (or company) to be sued under 42 USC § 1983 as a state actor, although the level of connection between the private actor and the state government must be so high that the former really amounts to an arm of the latter. I don't think that is satisfied even assuming Murphy's allegations to be true, but I guess there was sufficient uncertainty for Zarc to not try a motion to dismiss.

Finally, Murphy's allegations, if true, would certainly add up to valid state law causes of action (e.g. battery?) against Zarc. So there would still be causes of action that could not be dismissed for failure to state a claim. That may be the main reason why the case continued. (We will discuss later the question of federal subject matter jurisdiction for these associated state law claims, assuming that diversity was not satisfied.)

Good question.

4. R. 11 and the Rules Enabling Act

Q.  I had a question about Rule 11, if it would be more appropriate to wait until the next review session, office hours, or class, I will happily wait and talk to you at the next opportunity, if however you don't mind email questions, (I'm fairly sure you said it was fine), here goes:

The Rules Enabling Act, which allowed the Supreme Court to create the Federal Rules of Civil Procedure says that the rules "shall not <>abridge, enlarge or modify any substantive right" and Roberts in Sibbach says that substantive rights are confined to rights conferred by law to be protected and enforced in accordance with the adjective law of judicial procedure.

Rule 11, which nominally is about signing the pleadings, motions and what not, is really "to deter dilatory and abusive tactics in litigation, and to streamline the litigation process by lessening frivolous claims or defenses" at least in part, according to McAvoy in the Murphy v. Cuomo case.

It seems to me that while the goal of Rule 11 certainly makes sense, is it truly good policy to allow procedural law to not simply dismiss a claim, but to punish those who brought it?   Deterring frivolous and abusive litigation, and saving money, are both noble goals, but it seems more the role of substantive law than procedural law.

I suppose the heart of the question is, should procedural law be able to punish beyond the scope of the proceedings (like a monetary fine past costs), and still be called procedural law?

A. So the argument is that R 11 is substantive because it sets up a penalty rather than simply dismissing the action? I don't see why that follows. First of all, dismissal of an action (if it is with prejudice) is one of the most draconian penalties imaginable.  Second, as you will see later, much procedural law is backed up by penalties similar to those in R 11.

But the most important problem with your argument is that you have drifted away from the Sibbach definition of substantive rights. As you correctly put the Sibbach definition, "substantive rights are confined to rights conferred by law to be protected and enforced in accordance with the adjective law of judicial procedure." So imagine I bring a frivolous intentional infliction of emotional distress action against you and am sanctioned under R 11. The substantive right at issue is the right not to be submitted to intentional infliction of emotional distress. How is that substantive right abridged enlarged or modified by my being sanctioned?

It is true that R 11 protects your right not to be submitted to frivolous actions. But you have not explained why this right isn't, in this context, procedural rather than substantive.

Followup Q. I suppose my thinking was that procedural rules should carry only procedural penalties (like dismissing the claim in an extreme case) to remain procedural in nature.  For example, if the penalty for a frivolous claim was jail time, it would seem to violate a substantive right (the eight amendment) for the violation of a procedural rule. It's a matter of degree I realize, but drawing a line between punishments within the scope of procedure and punishments that go outside that scope, like jail time or fines in excess of court costs, seems intuitive for a procedural rule violation.

Followup A.
I see what you are thinking. It seems that your problem with R 11 is not really that it abridges enlarges or modifies a "substantive right" (as that term is used in the Rules Enabling Act). It is that it is punitive, insofar as it seeks to deter conduct by sanctioning it. But I don't see why the punitive nature of R 11 is a problem.


To be sure there might be problems with *excessive* punishment for R 11 violations. The 8th A might be violated. But even then it is not clear why in that context the constitutional right that is violated would be substantive. Remember, substantive is not the same thing as important. In any event, R 11(c)(4) limits sanctions "to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated." And, of course, jail time is not an option under R 11.

Furthermore, in other circumstances a court can jail someone for either civil or criminal contempt. R 37 envisions contempt sanctions as a possible for failure to comply with a discovery order (except for failure to comply with an order to submit to a medical exam). Do you have a problem with R 37 too?

Further followup Q: It is not specifically that R 11 can be punitive, but that it's sanctions can exceed what I would consider procedural sanctions. Contempt, such as is possible for a R 37 violation, has the same issue.

It's not that I don't understand why these sanctions exist, clearly there is a benefit in deterring frivolous action and a benefit to enforcing the law of the court,

To have these sanctions go beyond an effect on the litigation, to go out of the inner workings of the judicial system and effect the life and liberty of people sanctioned in ways not directly related to the process of procedure, seems to require a law stemming from an authority higher than that of judicially created procedure, like the state or federal legislature.

It is true that Congress in the creation of the FRCP delegated some of its power to create law to the Supreme Court, but it also imposed a limitation on that power.  Obviously the court has not interpreted that limitation in the way I'm suggesting, but the reason why seems more practical than principled.

Further followup A:
I think it is implausible that Congress intended the "abridge enlarge or modify any substantive rights" language to limit FRCPs to those that did not impose contempt sanctions of the sort that one finds in R 11 or R 37.  (Do you have any evidence that Congress had this intent?) The power of courts to punish disobedience through both civil and criminal contempt was recognized under English law. It was a power that colonial courts had before the ratification of the Constitution. Indeed it is hard to imagine a court without at least some contempt power. If the relief granted to a plaintiff is an injunction upon the defendant (for example to refrain from polluting the plaintiff's property), how could that injunction be enforced if the court could not punish disobedience? Given the long history and the great importance of the contempt power, it would be bizarre that Congress would limit FRCPs only to those that did not employ this power (leaving the matter of contempt for statutory regulation). After all, as the court put it in Sibbach, the FRCPs are supposed to govern the whole field of federal district court procedure and that could not be true if contempt issues were excluded.


5. Leaving summons and complaint with someone less than 18.

Q. 
In the class yesterday, you have mentioned that there are arguments that can be made to rule that a person of less than 18 years of age can receive a complaint and summons. Specifically, the rule regarding who may serve, which restricts the age to 18 and over does not appear to apply to rule 4(e), which states who may receive the documentation.

However, the rule 4(e)states that a person other than a minor may be served. Is there a federal age guideline for who can be considered to be a minor? Isn't 18 a generally expected age of adulthood? if that's the case, it must be argued that "a person of suitable age" and not a minor is a person who is at least 18 years old.

Please clarify.

A. Some preliminaries first. The person "served" is the person being sued (usually a defendant). R. 4(e)(2)(B) allows an individual to be served by "leaving a copy of [the summons and complaint] at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there." In such a case, the person of suitable age and discretion who gets the summons and complaint is not being served. She, after all, is not being sued. Instead leaving the summons and complaint with this person of suitable age and discretion is the means by which the defendant is served.  Now it seems entirely possible that someone less than 18 could be this person of suitable age and discretion. (Indeed, service through delivery to a defendant's 16 year old daughter has been upheld. See De George v. Mandata Poultry Company, 196 F. Supp. 192 (E.D. Pa. 1961).)

As I mentioned in class, the language in R. 4(c)(2), which says that "[a]ny person who is at least 18 years old and not a party may serve a summons and complaint," is not relevant here, since that language is about who may serve, not about who is a person of suitable age and discretion to receive the summons and complaint for the defendant.

Now let us turn to the passage that you identify at the beginning of R. 4(e). This says, "Unless federal law provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been filed — may be served in a judicial district of the United States by..." This language is also irrelevant to who is a person of suitable age and discretion to receive a summons and complaint for the defendant. It refers to the type of defendant who may be served under R 4(e), not to the type of person to whom the summons and complaint may be given in order to serve a defendant.

There is a different rule, R 4(g), that discusses how to serve a minor if it is a minor who is being sued. (In general this is done by delivering the summons and complaint to the minor's guardian.) I did not discuss R 4(g), because, as I mentioned at the start of my discussion of service, you are responsible only for the service rules 4(e) and 4(h), not for the rules for serving minors and incompetents, the United States, individuals in foreign countries, state officials, etc.


In short, the language about minors is irrelevant to who is a person of suitable age and discretion to receive the summons and complaint under 4(e)(2)(B). It merely says that R 4(e) does not govern cases in which the defendant is a minor. R. 4(g) does that.

6. Question about scope of Art. III diversity and scope of diversity under 28 USC § 1332.

Q. P. 90-91 in Glannon talk about how Congress restricted Art III s. 2 of the Constitution with 28 USC 1332.  It mentions the Strawbridge case as requiring complete diversity (no opposing parties from the same state).  But then it says that State Farm Fire & Casualty v. Tashire changed that rule to require only “some” opposing parties to be diverse.  I read the opinion in that case, and the Court addresses the Strawbridge test, saying  “But Chief Justice Marshall there purported to construe only "The words of the act of congress," not the Constitution itself. 6 And in a variety of contexts this Court and the lower courts have concluded that Article III poses no obstacle to the legislative extension of federal jurisdiction, founded on diversity, so long as any two adverse parties are not co-citizens. 7 Accordingly, we conclude that the present case is properly in the federal courts.”
 
However, in the questions, examples 1d and 5 say that no diversity exists because it fails the Strawbridge test.  Is Glannon wrong here, or is the Strawbridge holding still the law to determine diversity jurisdiction, Tashire notwithstanding?

A. Glannon is not wrong. It is crucial to understand that one cannot talk about "diversity" here without identifying which of the following two things is at issue: 1) the scope of diversity jurisdiction in Art. III of the U.S. Constitution or 2) the scope of diversity jurisdiction in 28 USC § 1332 (the diversity statute). The scope of Art. III diversity concerns the furthest scope of the federal judicial power under the Constitution. It helps delimit the furthest that the federal courts CAN go. But the question of how far Congress has chosen that they WILL go is determined by statute, in particular, 28 USC § 1332. Congress cannot pass a statute that goes beyond the Art. III limits of diversity. But they can choose by statute to give federal courts less jurisdictional power than could constitutionally be exercised.

Now Strawbridge is about the scope of 1332, not the Constitution. As it was put in State Farm Fire & Casualty v. Tashire: In Strawbridge, "Chief Justice Marshall ... purported to construe only 'The words of the act of congress, [1332]' not the Constitution [Art. III] itself." The questions in Glannon you mention are about the scope of diversity under 1332. So Strawbridge applies.

In contrast, State Farm Fire & Casualty v. Tashire is ultimately about the constitutional scope of diversity under Art. III. The suit in that case was under a different statute (28 USC § 1335) that gave federal jurisdiction to certain cases if only minimal diversity (in which
some opposing partioes are diverse) exists. The question was whether 1335 was constitutional . The answer? Yes, because Art. III requires only minimal diversity, even though 1332 requires complete diversity.

7. Question about jurisdiction-stripping statutes,


Q. If Congress were to actually limit SCOTUS's jurisdiction regarding abortion like we talked about in class, couldn't the Court still accept an abortion case and declare the congressional statute limiting abortion jurisdiction unconstitutional?  In class, you suggested that passing such a statute would be a usurpation of judicial power (and I definitely agree), but can't the Court still assert itself, even if doing so is "illegal" under the statute?

A. Yes - the SCt could take an abortion case for the purpose of assessing the constitutionality of the jurisdiction-stripping statute and declare the statute unconstitutional if it thought it was. But under its reading of the exceptions clause it might conclude that it was constitutional and then dismiss the abortion case for lack of jurisdiction.

8. Question about domicile of members of military.

Q. How does diversity jurisdiction apply when considering the domicile of military members stationed throughout the country?  For example, I am (obviously) physically present in Virginia, I own property on which I pay taxes in VA, and my car and dog are both registered in VA.  However, my home of record (residence at the time I joined the military) is in New Hampshire.  I vote in NH, I have a NH driver’s license, and for income tax purposes I am a resident of NH.  My military records also indicate that I am a NH resident.  I am in Virginia for a definite period of time, after which I will move elsewhere, although I do not have a definite intention to return to NH at any specific time (beyond a “floating intention” of maybe moving back there in 15 years or so, similar to the case of Baker v. Keck.).  For purposes of establishing diversity jurisdiction, am I a citizen of NH or of VA? 

A.
Ah yes, each year I get this question. First of all, the general rule is that presence under physical or legal compulsion cannot generate a domicile. This applies to prisoners, members of the military, those who are committed etc. Here is part of section 17 of the Second Restatement on Conflicts on the matter:

§ 17. Presence Under Compulsion

A person does not acquire a domicil of choice by his presence in a place under physical or legal compulsion.

Comment:
a. Rationale. Acquisition of a domicil of choice requires some free exercise of the will on the part of the person involved. An act done by him under physical compulsion or because of criminal or comparable sanctions will be legally ineffective for this purpose...
...
d. Soldiers and sailors. A soldier or sailor, if he is ordered to a station to which he must go and live in quarters assigned to him, will probably not acquire a domicil there though he lives in the assigned quarters with his family. He must obey orders and cannot choose to go elsewhere. On the other hand, if he is allowed to live with his family where he pleases provided it is near enough to his post to enable him to perform his duties, he retains some power of choice over the place of his abode and may acquire a domicil. To do so, however, he must regard the place where he lives as his home. Such an attitude on his part may be difficult to establish in view of the nomadic character of military life and particularly if he intends, upon the termination of his service, to move to some other place.
[end of quotation]

In short, it is difficult to establish a domicile in Va if you are compelled to be here. Furthermore, the fact that you don't intend to return to NH doesn't mean it isn't your domicile. You retain a NH domicile until you establish a new one. So if you haven't established a Va domicile, you still have a NH one.

On the other hand, it sounds as if your presence here might not be due to physical compulsion. You are not, I assume stationed in Va, but are going to school here. If so, the issue of your domicile would be similar to that of other students. I'll discuss that in class.

9. Question about diversity and Alien Tort Claims Act.

Q. I came to the study session today and hearing you discuss diversity examples reminded me of a few questions I had meant to ask when you initially addressed the topic.

When we discuss the "statutory scope" of diversity jurisdiction, does that term only refer to the scope of § 1332?  Does, for example, the Alien Tort Claims Act modify the statutory scope of diversity jurisdiction?  If so, how is that reconciled with the Constitutional scope of diversity jurisdiction? Are there other statutes that do not fall within the Rules of Civil Procedure but nevertheless provide guidance as to diversity jurisdiction?

These questions may well fall into the realm of information we don't need to consider, or simply information that has been misconstrued and doesn't apply to diversity jurisdiction to begin with.

A. This is one sophisticated question. First of all, the Alien Tort Claims Act provides subject matter jurisdiction in district court for actions “by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” (It was very rarely used in the past, but has recently been rediscovered by plaintiffs.) It is true that this statute lets certain cases into federal court that do not fall under 1332. But I wouldn't describe this as an example of diversity jurisdiction in 1332 being modified by the Act. The Act is not generally used for suits between aliens and citizens of states. Most of the time the Act is used for an alien to sue an alien. For this reason the Act's contitutionality cannot depend upon diversity/alienage jurisdiction in Article III, since alien v. alien suits do not fall under Art III diversity/alienage jurisdiction.

The constitutionality of the Act has been held to depend upon "arising under" jurisdiction in Article III. This is clearly true of a plaintiff who sues under a treaty of the US. But what about the law of nations? One court took the law of nations to be part of federal common law as incorporated into the Constitution at the time of its adoption. See Filartiga v. Pena-Irala, 630 F.2d 876, 885–886 (2d Cir. 1980). So such suits too would fall under arising under jurisdiction in Art III.

By the way, you say "Are there other statutes that do not fall within the Rules of Civil Procedure but nevertheless provide guidance as to diversity jurisdiction?" This is misstated. No statute (not even 1332) falls under the Fed R Civ P. The federal rules are not concerned with subject matter jurisdiction. Your real question is whether there are other statutes besides 1332 that provide guidance as to diversity jurisdiction, that is, statutes (besides 1332), the constitutionality of which depends upon diversity/alienage jurisdiction in Article III. T
he answer is yes. One example is 28 USC 1335 (statutory interpleader) which I discussed in class. But the Alien Tort Claims Act is not an example.

10. Diversity involving alien corps.

Q. Say there is a foreign corporation which has citizenship in a U.S. state that sues a U.S. corporation (say in california) with principal place of business overseas, how does diversity work? Would I look at the foreign corporation's principle place of business (which is in a U.S. state say California as well)?  If the foreign corporation's principle place of business is in California and the US corporation's principal place of business is overseas (in say France) would the foreign corporation with citizenship in a U.S. state (CA) have diversity under 1332?  

2nd part of the question-would this be unconstitutional under article 3 since technically its a foreign corporation against a foreign corporation, which is not allowed?

A. I touched upon this question briefly in class. Keep in mind that under 1332(c) "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business..."

Prior to 1332(c)'s enactment corps were treated only as having the citizenship of their state of incorporation. One interpretation of 1332(c) is that it applies only to corporations incorporated in a US state. The argument here is that a 1332(c), by referring to a State (with a capital S) was referring only to corps incorporated in a US state. Only these corps have the citizenship of their US state of incorporation and their PPB. Foreign corps are treated only as citizens of their country of incorporation. So UK corp with its PPB in NY would be only a UK corp. This was the approach taken in Eisenberg v. Commercial Union Assur. Company, 189 F. Supp. 500 (S.D.N.Y. 1960) and some other courts have followed it.

Furthermore, even with respect to corps incorporated in a US state, one looks to their PPB for citizenship only if the PPB is in a US state (since the language about PPB in 1332(c) uses State with a capital S). So a NY corp with PPB in the UK would be only a NY corp.  

So understood, a NY corp with a UK PPB could sue a UK corp with a NY PPB in fed ct, because that would be a case of a NY citizen suing a UK citizen (and so fall under 1332(a)(2)). There is an argument, I suppose, that this is unconstitutional, because this is either an alien v. alien suit or a NYer v. NYer suit (or both) neither of which is allowed under the constitution. But since minimal alienage is allowed under Article III, I would think it is OK. All you need for minimal alienage is a citizen of a state on one side and an alien on the other and we have that here.

Another interpretation would treat 1332(c) as applying to corps incorporated abroad and gives them the citizenship not merely of their country of incorporation but also their PPB, whether that is a country or a US state. (Likewise corps incorporated in a US state are also aliens if they have their PPB abroad.) This approach was taken in Southeast Guaranty Trust Company v. Rodman & Renshaw, Inc., 358 F. Supp. 1001 (N.D. Ill. 1973), and some other courts have followed it too. So understood, a NY corp with a UK PPB could not sue a UK corp with a NY PPB in fed ct, because that would be a case of a NYer and a UK citizen suing a NYer and a UK citizen. That could not fall under any category in 1332(a).

NOTE from 2012: This issue was solved by the Federal Court Jurisdiction and Venue Clarification Act of 2011. I don't always update old answers to take into account change in the law, but I happened to read this and thought I'd mention the Act.

11. Question about limited and special apperanaces.

Q. I have a question about appearance. My question is what is the difference between Limited Appearance and Special Appearance.

To my understanding, the special appearance means D may appear and challenge PJ without submitting himself to PJ by his very presence.

Well, by reading the F&K Page 497-499, I am confused by whether the limited appearance has a similar meaning with the special appearance?

A. Under a special appearance, the defendant may appear for the purpose of challenging the court's PJ over him. His appearance will not itself be taken as consent to PJ (although the court may take any defense on the merits, such as failure to state a claim, to be consent to PJ). In a limited appearance, which occurs in a quasi-in-rem action, the defendant does not appear to challenge PJ. He accepts that the court has PJ, up to the value of the property that is the source of PJ. Instead the defendant appears to argue the case on the merits. But the appearance is limited because the court will not take this appearance itself as consent to in personam PJ (which is not limited by the value of the property).

12. The 100-mile bulge.

Q. I just want to make sure I understand this "bulge state" concept properly.  If a third-party corporation is tagged anywhere within the bulge itself and has sufficient contacts with any state over which that bulge overlaps, there can be PJ under 4(k)(1)(b), at least according to some courts?  I understand the concept of treating the bulge like its own state - if there are sufficient contacts with the bulge itself (and the corp. is tagged within the bulge), there is PJ within the bulge. I can probably illustrate my confusion regarding the bulge state concept through an example.

Let's use the slide from class, showing the 100-mile bulge from the S.D.N.Y.  It slightly overlaps Pennsylvania.  So, let's imagine that the corp.  has extensive contacts with Pittsburgh, well beyond the bounds of the bulge.  Let's say the corp. is tagged in New Hope, PA, which is within the bulge.  It seems there would be PJ over the corp. because it was tagged within the bulge and it has sufficient contacts with the bulge state (in this case, Pennsylvania).  However, if the corp. has extensive contacts with, say, a town in the Southwestern corner of Massachusetts, there would not be PJ, because the bulge does not overlap Mass. at all, even though that town would actually be closer to the S.D.N.Y. than Pittsburgh (let's say that this town is 125 miles away from SDNY, and Pittsburgh is 300 miles away)?

Also, does the corp. have to be tagged in the state in which it has the contacts?  In my example above, the corp. was tagged in New Hope, PA (within the bulge) and had contacts with Pittsburgh, PA.  What if it was tagged in Trenton, NJ, or Greenwich, CT?  Would the contacts in PA still be relevant because the bulge overlaps PA, or does the "bulge state" concept only come into play when the corp. is tagged in that state?

I hope these questions make sense.

A.
Your questions do indeed make sense. For those courts that say the contacts can be with the bulge state, not just the bulge, there would be PJ over the corp as a result of the activities in Pittsburgh and the service in New Hope, as odd as that seems. Other courts require minimum contacts with the bulge itself. As for your second example, in which the service is not in New Hope, but in another state (say NJ) within the bulge, the Pittsburgh, PA contacts would clearly not work, even for those who think that the contacts can be within the bulge state rather than the bulge. Here is a third question: Can the minimum contacts be with a part of the bulge in a state other than the state where the third-party defendant was served? For example, can the contacts be in Newark, NJ (within the bulge), while the service is in Greenwich, Conn. (also within the bulge)? I don't see why not, but after around 45 minutes of searching I was not able to find a case that explicitly states that this is OK.

13.  Domicile of insurance company.

Q. 28 USC 1332 has a clause that states, for purposes of establishing diversity jurisdiction, insurance companies are residents of the same state as the insured.  For your in-class examples 1-6, why isnt the X insurance company considered a domiciliary of NY, and therefore personal jurisdiction established, without having to go through the 100 mile rule, checking minimum contacts with Connecticut, etc.? 

A. First of all, this is what the provision in 1332(c) says: "in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business." A "direct action" is an action where the plaintiff, rather than suing the defendant, simply sues the defendant's insurer, to get the proceeds that the defendant will get from his insurer if the defendant is liable to the plaintiff. Some state law allows direct actions (I know Wisconsin does), other states don't. So the provision simply says that when a plaintiff is suing the insurance co., rather than the insured, in a direct action, one should include as the citizenship of the insurance co. the citizenship of the insured. That makes sense, since the insured is still sort of a defendant in the action, even though the suit is technically against the insurance co. This provision would be irrelevant when the defendant himself brings in his insurer in a third-party complaint. That's not a direct action.

Furthermore, even the provision were applicable, that would only be true for diversity SMJ. That wouldn't make the insurer domiciled in the insured's state for PJ.

14. Challenging state-law venue upon removal.

Q. If an action is brought in state court and venue is improper under that state's laws, can the defendant remove to federal court and still raise the issue of improper venue under state law in that federal court?

A. The general rule is that a defendant does not waive defenses like lack of PJ and improper service by removing (for cases, see 14C Wright & Miller, Federal Practice and Procedure § 3738, footnote 17). But the cases I can find all mention PJ and service. I could not find one mentioning state-law venue. And I don't think it would work. After all, the defendant is now in federal court, where different venue rules apply (and furthermore, as you know, there is always federal venue for the removed action). But I'm not 100% sure of this.

15. Question about venue fallback provision 1391(a)(3).

Q.

Can you use tagging to establish venue under the fallback provision of 1391(a)(3) even though it requires that the Defendant be subject to personal jurisdiction at the time the action is commenced? Let's say the action arose in London and P resides in TX. D1 resides in CA and D2 resides in NY, but you personally serve D1 in KS. Can you bring suit in the District of KS for venue purposes? (I realize there would be a personal jurisdiction problem as to D2.) Technically, neither Defendant is subject to personal jurisdiction there at the time the action is commenced, since we learned that in Federal Court, an action is commenced upon the filing of the summons and complaint with the Court.

A.  This, as it turned out, was a very nice question indeed. I have found one court accepting your argument: U.S. Fidelity and Guar. Co. v. Mayberry, 789 F.Supp. 901 (E.D.Tenn.,1992). To be sure, I have also found a case in which 1391(a)(3) was used when the only source of PJ over a defendant was tagging (which, as you note, technically occurs after commencement). Anchor Glass Container Corp. v. Buschmeier, 426 F.3d 872 (7th Cir. 2005). But the court did not consider your argument.

I also found a court buying your argument in a different context, namely to determine whether a corporation resides in the district for the purposes of 1391(a)(1). The case was Rich Products Corp. v. Floveyor Intern., Ltd., 1995 WL 591134 (W.D.N.Y.). Remember, under 1391(c) a corp resides in a district if it would be subject to PJ in that district at the time the action commenced. The court in Rich Products said the following (in footnote 7): "Thus, assuming that this Court had obtained personal jurisdiction over [the corporate defendant] merely by way of process being served on [its managing director], such did not occur until nearly one month after the action had been commenced. There is no other basis for asserting personal jurisdiction over [the corporate defendant]; thus personal jurisdiction did not exist over it when the action was commenced. [So it does not reside in the district for venue purposes.]” But the very idea that service on the director could establish PJ over the corp is utterly wrong anyway, so it's hard to see how much should be made of this passage.

In the end I think the argument for your reading is strong, for the following two reasons:

1) Venue is supposed to be about convenience, and it is hard to see how a district is convenient simply because a defendant was tagged there. It seems to be better if at least one defendant is subject to PJ in the district for a reason besides tagging (such as domicile).

2) Your interpretation would explain away the following puzzle about 1391(a)(3): Given that, in the end, there must by PJ over all the defendants, what good is 1391(a)(3)? To be sure, if 1391(a)(3) is satisfied, we know that there is venue in the district, but if there is no PJ over all the defendants the action will not be able to proceed anyway. Some of the defendants will have to be dropped. And if they are dropped, it may be the case that 1391(a)(3) isn’t needed anymore, since there will be a district that has venue under 1391(a)(1).

Now it is true that there could be PJ over all the defendants in a state even if there is not PJ over all the defendants in the district of that state where the action is brought. If so, the action would be able to proceed. PJ in the state is what matters for FRCP 4(k)(1)(A) and one defendant being subject to PJ in the district would be enough for venue. But this is a really narrow situation. Your reading makes 1391(a)(3) more useful. There may be PJ over all the defendants through tagging, but the venue requirement of 1391(a)(3) is more stringent. With respect to one defendant there must be PJ at commencement (that is, not through tagging).

A great question.

16. Aliens and venue.

Q. An alien may be sued in any district (for venue). What about illegal aliens? like for example an illegal alien domiciled in California for 12 years, or a German admitted for permanent residency in NY, or a Chinesewoman with pending green card in Wisconsin?

A. Aliens for the purposes of venue includes aliens residing in US (legally or illegally). (Notice the difference with diversity, where an alien admitted for residency and domiciled in a state is considered a citizen of that state.) Also concerning alien corporations, an alien corporation is an alien for venue purposes. And that includes a foreign corp with its principal place of business in the US.  Mizrahi v. Great-West Life Assur. Co., No. Civ. A. 99-819, 1999 WL 398714 at *1 (E.D. Pa. June 17, 1999). I could not find anything about whether a US corp with its principal place of business abroad is also an alien for venue purposes...

17. Question about service.

Q. P files a complaint and serves D immediately but service is improper. D makes a motion to dismiss for improper service. Even though it's still within the 120 days P has to effectuate proper service, why is the motion granted and the action dismissed? I understand that from D's perspective, he would just want the action dismissed. But shouldn't the Court give P another chance to properly serve D since the time to serve had not yet expired? I would have thought that P can "fix" service problems at any time up until the 120 days expires.

A. It is true that the defendant would want the plaintiff's action to be dismissed. Indeed it makes no sense for him to want to have P serve again in accordance with R 4. Since the defendant can waive service as a defense anyway, and must have gotten notice (or he would not know to object to the service), what good would having the plaintiff serve again properly do?


But your question is whether a court might refuse to dismiss under 12(b)(5) even if the defendant wants a dismissal, on the grounds that the plaintiff still has time to serve properly before R 4(m) kicks in. The answer is yes. The court can, at its discretion, retain jurisdiction of the case and simply quash the defective service, allowing the plaintiff to serve again.

18. Question about Crossclaims.

Q. In jurisdictions that do not have joint and several liability, but comparative negligence rather - are crossclaims still filed?  Are there differences in how the procedure for the distribution of damages is handled?
 
A. Technically, you can have joint and several liability WITH comparative negligence, although it is common to move from joint and several to several liability when a jurisdiction moves from contributory to comparative negligence. Joint liability is that one of the joint tortfeasors can be held liable for all of the damages the P sustained due to the joint tortfeasors' actions. It is joint and several if the D that has to pay it all can bring a contribution action against the other joint tortfeasor. Comparative fault, in contrast, is not about dividing liability among joint tortfeasors, it is about dividing liability between the plaintiff and a tortfeasor.

That said, if a jurisdiction did get rid of joint and several liability in favor of several liability (in which each tortfeasor is liable only for the damages that were the result of his own wrongdoing), there still would be crossclaims. Here is an example. P sues D1 and D2 for the damages that each caused P in a car accident. D1 then brings a crossclaim against D2 for the damages that D2 caused D1 in that same accident. D1's action is not for contribution, and yet it is properly joined under 13(g).

19. Question about impleaders.

Q. A is injured by B and C.  B and C are joint tortfeasors, each is negligent and each proximately caused A’s injury (this can be proven by evidence), but it is unclear the proportion of fault for each one (it is somewhere between 50:50 and 1:99).  For reasons unknown, A sues only B and does not sue C.  Assuming that this is a pure comparative negligence jurisdiction, where joint and several liability does not apply and thus there is no right of contribution…
 
1)        Can B still bring a third-party complaint against C under Rule 14(a), even though C is only liable to A and not liable to B at all?  B has no right of contribution, and cannot claim that C “is or may be liable to [B] for all or part of the claim against [him].”
2)        If B cannot bring a third party complaint against C (and obviously couldn’t bring a separate contribution action against C either), must B claim as an affirmative defense at trial that he is only responsible for a certain portion of A’s injuries and should not be forced to pay 100% of the judgment?
3)        In such a case, would the jury have to answer special interrogatories with regard to the amount of A’s damages and the portion of which it is B’s responsibility?

A. First of all, about your assumption ("that this is a pure comparative negligence jurisdiction, where joint and several liability does not apply and thus there is no right of contribution"). As I noted in response to Q 18 above, technically you can have joint and several liability WITH comparative negligence, although it is common to move from joint and several to several liability when a jurisdiction moves from contributory to comparative negligence. Joint liability is that one of the joint tortfeasors can be held liable for all of the damages the P sustained due to the joint tortfeasors' actions. It is joint and several if the D that has to pay it all can bring a contribution action against the other joint tortfeasor. Comparative fault, in contrast, is not about dividing liability among joint tortfeasors, it is about dividing liability between the plaintiff and a tortfeasor. So your question is really about when the relevant tort law allows only several liability (and thus there is no right of contribution).

Another (hypertechnical) point. The question is not whether the jurisdiction (that is, the court system taking the case) is one that allows only several liability. The question is whether, according to the choice-of-law rules of that jurisdiction, the substantive tort law chosen is one that allows only several liability. Assume P sues D in California state court for a tort that happened in Nevada. The jurisdiction is California, but it is likely that California's choice-of-law rules will choose Nevada tort law as the relevant substantive law. So the question will be whether Nevada law allows only several liability.

One final point. We must assume that the relevant jurisdiction is federal court, since you are asking about the effect of R 14(a). (As we will discuss later, a federal court sitting in diversity uses the choice-of-law rules of the state where the federal court is located.)

OK, now for your questions.

1) B cannot bring a third-party complaint against C, for the reason you mentioned. A can ask of B only the damages that B was responsible for, so there is no right of contribution that B could have against C and thus no 14(a) impleader (unless there were some other relationship between B and C besides being joint tortfeasors - such as C being B's insurer).

2) I don't see why this is an affirmative defense. According to your assumption, under the relevant law A can claim of B only the damages that B was responsible for. So if A is claiming damages that B is not responsible for, A is doing one of two things:

a)      A might be saying that even though some of the damages he is asking for were caused by C, he should get them from B anyway. If so, A is asserting a cause of action against B that is not available under the relevant law, in which case the action (at least with respect to the C-caused damages) should be dismissed for failure to state a claim (which is not an affirmative defense).

b)      The other possibility is that A is claiming that all of the damages he is asking for were caused by B. If B disagrees, he should bring a negative defense. He should simply say in his answer that some of them were caused by C, not B. It will then be up to the jury to figure out whether that is true.

3) The jury is going to have to determine the extent of A’s damages that B was responsible for. But it can do that without special interrogatories. We’ll discuss special interrogatories later.

20. Question about removal.

Q.
For some reason I cannot wrap my head around this question.  P from Ohio sues D from Ohio in Ohio state court.  It is a federal question action, but one that the federal court does not have exclusive jurisdiction to hear.  I believe D will be able to remove, but I do not know whether the removal will succeed.  My point is that if D removes to federal court, would the federal court remand the case on the ground that the state court is just as able as they are to hear the case.  Would federal judges be more willing to remand non-exclusive federal question cases back to state courts if the docket is too large?  Is there a rule among federal courts with respect to non-diverse, non-exclusive federal question actions that are originally brought in state court?

A.
A case is removable to federal court by a defendant even if in fact the state court had concurrent subject matter jurisdiction. The federal court may not remand solely because the action was appropriately brought in state court. It must take the case (unless some doctrine of abstention, which we did not discuss, applies). In such a case of removal, the defendant (and not the plaintiff as is usually the case) has been given the power to choose the ultimate forum for the suit.



2007 CivPro Q&A

Q.1  Question about failing to respond, in one's answer, to an allegation in a complaint.
If [an] answer was submitted to the court, would the omission of an answer to [an allegation in a complaint] technically mean that the defendants admitted to [the allegation]?

A. You are right that if an allegation in a complaint is not denied (or the D does not claim a lack of knowledge to answer it) the allegation will be assumed to be admitted. That is true for allegations in complaints, not allegations in answers. The reason is that answers usually are not responded to at all.

See Fed. R. Civ. P. 8(b)(6) (formerly 8(d))
Effect of Failing to Deny. An allegation — other than one relating to the amount of damages — is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

Q. 2 Question about failing 8(a) and stating a claim:

As I am preparing for class tomorrow, I am having trouble with the 8(a) rule vs. 12(b) (6) and I want to make sure that I have the two different parts of a complaint satisfied......I know that we did this in class on Tuesday so I want to make sure that i have it straight:
IF a complaint says "You wronged me, and I am suing you for the tort of battery" that would be satisfying 12 (b) (6) but not 8(a)?? (in very very simple terms). Whereas the Kirksey tobacco case, she satisfied 8(a) but not 12 (b) (6)? If you could let me know if I have those two sections correct i would really appreciate it. Thanks!

A. There is a chance that someone might say that "wronged me" failed to allege all of the elements of battery. So how about this for an extreme example of stating a claim (for negligence) and failing 8(a):

Complaint
1) The defendant had a duty to plaintiff.
2) The defendant breached that duty by failing to exercise due care.
3) As a proximate cause of that failure of duty, plaintiff suffered damages.

Because there is no language on when where or how the negligence occurred, 8(a) is violated. But it sure looks like it states a claim.
(The other example is right.)

Q. 3 Question about Collateral Attacks and Rule 60(b)

Professor Green-
  I had a quick question about collateral attacks.  Does a collateral attack set aside the original judgment or does it simply get the court to say, in essence, that it isn't going to enforce the judgment?  I just was confused why a party wouldn't just pursue a 60(b) motion to get the judgment set aside if a 60(b) motion will still allow the original judgment to stand.
 
Any guidance you could offer would be great.

A.
Here is a way of thinking about your question. P sues D in federal court in the Southern District of New York. Service on D is improper and D gets no notice of the suit. P gets a default judgment against D. Then P sues D in state court in California. P's suit is on the previous judgment, in the sense that he is now seeking to collect the debt created by the earlier judgment. P is suing on the judgment in Calif, we can assume, because D has real property there that can be attached and sold to provide P with his relief. D collaterally attacks the earlier federal judgment, arguing that it is void because of improper service. The California state court agrees and dismisses P's suit.

The judgment in the S.D.N.Y is not thereby vacated or set aside. A California court cannot vacate a federal judgment. So there is still a judgment on the books. BUT the finding that service was inadequate and the federal judgment was therefore void will have ISSUE PRECLUSIVE effect, for example, if D went to the S.D.N.Y. and asked that the judgment be set aside. The S.D.N.Y. would be bound by the California court's decision. (Actually there is a bit more that is required, namely that the decision would have such an issue preclusive effect under California law, but we can ignore that wrinkle for right now).

OK?

Q. 4 Question about Proof of Service

I have a question about service.  Does the plaintiff have to indicate anywhere which rules he is serving notice under (e.g. the federal rules or the rules of a particular state)?  How about in the process server's affidavit?

My reason for asking is, if the defendant wants to show that process was served inadequately, is there somewhere they can go to immediately determine which rules the plaintiff intended to follow for service, or, must the defendant examine all the possibly applicable rules to determine that none were followed appropriately?

Here's an example I had in mind when considering this question:
P files an action against D in the E.D.  of Va for violation of federal law, and serves notice to D at his home in Mass.  Notice is served by an individual over 18 and not a party to the complaint.  So service is proper under the FRCP, but not under Mass. rules.  Can D make a motion to set aside the complaint for inadequate notice?  I assume that the answer is "no" and that, for the example, it's up to D to look at all applicable notice rules and realize the complaint was properly served under the FRCP.

However, if P does have to indicate which rules he is serving notice under, and mistakenly indicates he is serving notice under Mass. rules, would a motion to set aside for inadequate notice succeed?

A.
First just a few terminological points. You use the phrase "serving notice" a number of times. You should say "serving the summons and complaint," "serving process," or just "serving." Serving is about giving the defendant notice of the suit, but "notice" is not served.

One more thing. In your example, you say "service is proper under the FRCP, but not under Mass. rules." That's misleading. You mean service is proper under one FRCP (R. 4(e)(2)) but not under another FRCP - namely R. 4(e)(1), which refers to state law. And, incidentally, we don't really know that service is improper under R. 4(e)(1). It is improper according to Glannon's interpretation of 4(e)(1), which takes it to refer to state standards not merely on how to serve, but also on who may serve. But service is not improper under my interpretation of R. 4(e)(1), which takes it to refer only to how to serve. Under my interpretation, who may serve is governed by 4(c)(2).

Now for your question. To tell you the truth, I can't find anything in R. 4(l), which governs proof of service, on the matter. It may be governed by the rules of the individual district court itself. (The FRCPs are not the only rules you need to be concerned about. Districts have their own rules!) But all proof of service I have seen described the manner of service (and who was served) - or (even more commonly) had the signature of the person served to acknowledged that service was made. But the proofs did not spell out which provision of the FRCP was being relied upon, e.g. R 4(e)(1) or 4(e)(2).

Q.5 Question about Service under FRCP 4(e)(1) and Domicile

Im looking over service rules and we talked about how a person  suing must provide the summons and complaint to the person being sued either under federal or state rules. Now that we are talking about domicile and residence (pertaining to diversity cases)I wanted to clarify ... when serving the person being sued under state rules, of course if it reaches them directly it's fine, but in terms of satisfying the rules of the state in which you are serving, does that just require physical presence (of person being sued) in that state or does it require domicile ? I have read over the notes and I can't seem to find anything ....

A.
Just physical presence. Service under FRCP 4(e)(1) would be satisfied if someone domiciled in California were served in accordance with Mass rules while changing planes at Boston's Logan Airport.

Q. 6 Question about suing God.


http://news.yahoo.com/s/ap/20070921/ap_on_fe_st/odd_suing_god_7;_ylt=AtfOUFKQaVT46l76_.4MIAYE1vAI  

 

What forum would be proper to sue God?  I saw that article and had to forward it on to you.


A.
Federal subject matter jurisdiction? Unlikely. Didn't look like he was suing under federal law and neither diversity nor alienage jurisdiction would apply (God is not a citizen of a State nor is he a citizen or subject of a foreign state). It would probably have to be in state court.

There was a case in which someone sued Satan. Mayo v. Satan and his Staff, 54 F.R.D. 282 (W.D. Pa. 1971). (The opinion is a denial of an application to proceed in forma pauperis.) Federal subject matter jurisdiction in this case was under 28 USC 1331, since Satan was being sued under 42 USC 1983 for violation of the plaintif's constitutional rights. One problem noted by the court was service, although I suppose you could ask it to approve service by publication. Another problem was PJ. Another was failure to state a claim, since Satan is not a state official (that I know of).

In any event, your guy should watch out for Rule 11 (or its Nebraska state law equivalent). Just because you can sue anyone does not mean that you can't be sanctioned for doing so.


Q. 7. Question about Shaffer.

Hi Professor Green,

I have a few questions concerning the material taught today. As I can't attend the review sessions - I thought id put them in an email. Perhaps I can come to your office at some other time.

You mentioned in class that Shaffer, created a fourth theory of jurisdiction, but throughout the Shaffer case the majority judgment appears to be applying the minimum contacts standard of International Shoe, and therefore they find that the necessary contacts were not substantial enough to create jurisdiction. Therefore isn't the idea that this fourth category of jurisdiction, i.e. that D could reasonably have anticipated jurisdiction based on his activities, merely support for the application of International Shoe (i.e. further evidence of connection or not) or alternatively obiter dictum rather that a new theory of PJ on its own?

A.
I agree that there is nothing in Shaffer itself that requires the fourth theory. Their refusal to grant PJ can be understood in terms of the standard Int'l Shoe approach. The problem is future cases. First of all quasi in rem is still allowed in connection with bank accounts and real property and it is hard to see how the contacts in such cases are substantial and continuous enough to allow PJ for unrelated causes of action. Second, there is the problem of tagging, where the contact often is clearly not substantial and continuous. In both these cases this fourth theory starts playing a role. We will see this in Burnham.


Q. 8. Question about PJ over a number of defendants.

Prof. Green,

 

I had a question over something I cannot find in my notes.  It is based off a hypo in tomorrow’s reading.

 

Bob is from Ohio and goes to the circus in Maine.  He gets attacked by a tiger.  Bob sues Kelly, who lives in Florida, for not checking to see if the cage was locked when in Maine.  He also sues Dave, who lives in Vermont, for not locking the cage originally in Vermont.

 

Assume the court held PJ would not be proper for Dave in Maine, because his negligent act took place in Vermont and he had no minimum contacts with Maine.  Where would be a proper forum for the case?

 

A. I guess Dave does not travel with the circus, otherwise he would have been present in Maine later and this presence would be sufficiently related to the cause of action (even though he didn't make the cage-mistake in Maine) for there to be PJ over Dave in Maine. After all, Dave didn't fix his Vermont mistake while he was in Maine.

Furthermore, even if he did not travel to Maine, there still might be PJ over Dave in Maine, since he created a defect in the cage that he knew was going to travel with the circus to Maine. There is at least an argument for PJ here.

But let's assume there is no PJ over Dave in Maine. That means that there is no place where Kelly and Dave can be sued together (unless Bob can tag Dave on a trip to Maine or find some property of Dave's in Maine etc.). That means that there has to be separate lawsuits - one against Dave and one against Kelly. That happens sometimes.

Q. 9. Question about sua sponte dismissal on venue grounds.

A number of you have mentioned an inconsistency between what I said in class a bit back about sua sponte dismissals on venue grounds and what Glannon says on p. 144 (Q. 5).

A
What Glannon primarily says there is that he thinks sua sponte dismissals on venue grounds should be OK, because the purpose of the venue statute is not merely to prevent inconvenience to defendants but also to allocate judicial resources to a federal court with some connection to the case. I agree that the venue statute has this purpose. Glannon fails to note, however, the waivability of venue, as spelled out in FRCP 12(h), which suggests that sua sponte dismissals are not OK.

The real question is how many cases are on Glannon's side. He cites a Supreme Court case (Gulf Oil v. Gilbert), but that case is one in which the court dismissed on forum non conveniens not venue grounds, and in which the defendant requested dismissal. The dismissal was not sua sponte. Glannon merely cites it for the airy proposition that certain private and public interests might make a court an inappropriate place for litigation.

The truth is that Glannon has some cases, and so do I, but that more are on my side. Glannon notes that several cases have said that dismissals sua sponte are not OK. In this connection he cites Wright & Miller, which also largely backs up my view: "Since an objection to venue is a personal privilege of the defendant, the burden is on the defendant to object in a proper and timely fashion if he thinks venue is improper. The failure to raise the objection properly is a waiver of the defense. Because of the waiver principle and the personal nature of the defense, it generally (but not always) is thought inappropriate for the district court to dismiss an action on its own motion for improper venue if there has been no objection from the party for whose benefit the privilege exists. However, some courts occasionally say that the objection may be raised sua sponte under extraordinary circumstances." 15 Wright & Miller 3826.

As Wright & Miller note, some courts of appeals have hedged their bets. Although striking down the trial court's sua sponte dismissal, they have suggested that a sua sponte dismissals on venue grounds might be OK in "exceptional circumstances." Concession Consultants v. Mirisch, 355 F.2d 369 (2d Cir. 1966). They did not say exactly what these extraordinary circumstances might be.

But I was able to find a case in which those exceptional circumstances were held to exist. In Stich v. Rehnquist, 982 F.2d 88 (2d Cir. 1992), the plaintiff filed suit against all nine justices of the United States Supreme Court and others alleging a conspiracy dating back to 1963 to prevent enforcement of air safety laws and alleging that the defendants exploited the plaintiff's marital difficulties in order to deprive him of his property. Without waiting for any of the defendants to assert the defense of improper venue, the trial court simply dismissed sua sponte on venue grounds and this dismissal was upheld on appeal. Christopher v. U.S., 2001 WL 1256915 (N.D. Cal. 2001) is a similar case of a crazy plaintiff (in this case suing the US, the Sect'y of the Navy etc.) in which sua sponte dismissal on venue grounds occurred (basically as a way of getting rid of the case without bothering the VIP defendants)..

But Wright & Miller do cite a few cases that go Glannon's way even though they do not involve crazy plaintiffs suing VIP defendants. Nevertheless, the majority of the cases discussed there reject the sua sponte dismissal.

Finally, it is OK, for the court sua sponte to transfer the case to a better district. This is clear from 28 USC 1404(a).

Q. 10 Questions about Allapattah scenarios

After the discussion of Allapattah in class I had some hypotheticals about Kennedy's "infection" (I wouldn't be surprised if these come up 
 eventually in class).

These would all be state law claims (SMJ through diversity under §1332  and the P2 action would be the same constitutional "case or 
 controversy"):

P1 (NY) sues D (NJ) for $100k. P2 (NJ) joins and sues D for $25k. 
(Joined suit is not diverse and below the jurisdictional minimum).

A. No suppl jur.

P1 (NY) sues D (NJ) for $100k. P2 (NJ) joins and sues D for $100k. 
(Joined suit is not diverse but above the jurisdictional minimum).

A. No suppl. jur.

P1 (NY) sues D (NJ) for $100k. P2 (NY) joins and sues D for $25k.  
(Joined suit is diverse but below the jurisdictional minimum).

A. Suppl. jur. But notice if it was P(NY) sued D1(NJ) for $100K and D2(NJ) for $25K there would be no suppl jur for P's suit against D2!

P1 (NY) sues D (NJ) for $100k. P2 (NY) joins and sues D for $100k. 
(Joined suit is diverse and above the jurisdictional minimum - has 
it's own source of SMJ?)

A. Yes - its own source of SMJ

Q. 11 Question about quasi in rem and general PJ

1.  We discussed in relation to Pennoyer that when litigating quasi-in-rem actions, you could only litigate up to the value of the property.  Anything beyond that would have to be brought in a different suit.  Is this still applicable?

A. There are a couple of questions here. First of all, let us assume that the case is one that would satisfy the concerns expressed in Shaffer. The property would have to be something like real property or a bank account (not stock considered by law to be located in the forum state).

Now one question to ask is whether *under state law* in such cases PJ is asserted only up the value of the property. The answer is yes. This is still common.

The more tricky question is whether as a constitutional matter PJ *must* be limited to the value of the property. That's hard to say. The SCt has never said anything more on this. I could imagine arguments on either side. Someone might say that the only reason that PJ is OK in quasi in rem cases post-Shaffer is that the property is a substantial and continuous contact with the forum state allowing for the D to be sued on any cause of action. This argument appeals to the standard for general jurisdiction spelled out in Int'l Shoe. But if that is true then why should PJ be, as a constitutional matter, limited to the value of the property?

On the other hand, one might say that the real reason that there is quasi in rem PJ through real property or bank accounts is that one can reasonably anticipate PJ (and one couldn't in Shaffer). But if that's true one might say that one can reasonably anticipate PJ only up to the value of the property. that would limit PJ up to the value of the property as a constitutional matter.

2.  Can you get general personal jurisdiction over a person?  In Perkins the court said that there was general personal jurisdiction for the time that the company was located in Ohio.  Therefore any causes of action that occurred during that time period could be brought in Ohio.  If a person was domiciled in a TN for 10 years and then moved, could you sue them in TN for causes of action that occurred during those 10 years?  (assuming the statute of limitations was still in play)

A. This too is a complex question. First of all, the Perkins court did not say that there was general PJ over the company for actions arising during the time it was located in Ohio. The cause of action at issue arose before the war, that is, before there were any Ohio activities at all. But that's not a problem. There is general PJ over a corp if the corp has subst continuous contacts with the state. If there is general PJ, you can sue that corp on any cause of action, whenever it arose. It does not have to arise during the time there were subst continuous contacts.

Let's move on to the question of general PJ over an individual. First of all, there can be general PJ over an individual through tagging. If tagged you can be sued on any cause of action at all. What about domicile? Well if the state is your current domicile, there is also general PJ. You can be sued on any cause of action at all.

Now what if you were domiciled  from 1995-2005 and now have left. Can you be sued for causes of action arising during that period? Let us first set aside cases of specific jurisdiction. You can clearly be sued in that state for activities *in that state* that occurred during the ten year period. But can you be sued concerning causes of action that arose during the ten year period but did not arise in that state? In other words, is there general PJ over you? The answer is...NO - although you are very perceptive to have worries here, since PJ would appear from the language of Int'l Shoe.

The same point applies to corps. If a corp has substantial continuous current contacts with the forum state, there is general PJ and it can be sued on any cause of action. But if all the subst continuous contacts are in the past, there is no general PJ, not even for causes of action that arose during the period that there was subst continuous contacts. The only source of PJ is specific, by arguing that the cause of action is related to one of those past in-state contacts.

Q. 12 Question about Twombly.

I was looking through my notes and wanted to make sure I had the 
distinction between Sierocinski and Twombly correct.

Sierocinski made conclusory allegations that added up to a claim.  
Essentially, he said that DuPont was negligent in manufacturing and 
distributing a blasting cap that would explode when used under normal 
circumstances.  In Bell v. Twombly, the plaintiff made a conclusory 
allegation that did not state a claim because they alleged that 
parallel conduct on its own constituted a violation of the Sherman 
Antitrust Act.  As I understand it, the distinction is that if 
Sierocinski's allegations were correct, DuPont was certainly 
negligent.  Bell's allegations, however, could be true and still not 
be a violation of the Sherman Act b/c parallel conduct could occur 
without the two parties agreeing or conspiring to do it.  Is that 
correct?  If so, it seems that the plaintiffs could have made a very 
broad allegation about when or how the baby bells agreed to their 
alleged non-competition (subject to Rule 11, of course) to cure their 
complaint.  Why didn't the plaintiff's attorneys amend their 
complaint in that way?


A. I pretty much agree with everything you say about Twombly. But you miss out on the following statement from footnote 10 of Souter's opinion: "FN10. If the complaint had not explained that the claim of agreement rested on the parallel conduct described, we doubt that the complaint's references to an agreement among the ILECs would have given the notice required by Rule 8."

So it looks like if there had been a bare allegation of an agreement (and the parallel conduct was just thrown in as some evidence of the agreement), there would have been a failure to satisfy 8(a). That's why the plaintiffs didn't bother to amend. And that's why I said that Twombly is really about 8(a), not failure to state a claim. It looks like the pleading requirements under 8(a) have been increased, at least for antitrust actions.

Q. 13 Question about relation back and compulsory counterclaims

I have a question about relation back for compulsory counterclaims.  
I have in my notes that relation back only applies to amendments.  
Does this mean that if P files a complaint against D for damages in a 
brawl on the last day permitted by the statute of limitations, D 
cannot bring his compulsory counterclaim for his own damages in his 
answer?  I see the arguments on both sides of this, but I wanted to 
make sure I had this correct.  Even compulsory counterclaims are not 
saved by relation back--only amendments to pleadings or motions.

A. The language in 15(c) applies only to amendments. So it looks like one cannot, technically, use that provision to save the compulsory counterclaim. But courts have considered them saved anyway if they satisfy the standards in 15(c). Or rather they consider them saved, provided that the compulsory counterclaim would have been within the statute of limitations had it been brought at the time of the original complaint. (There is an argument that the compulsory counterclaim would be saved even if the statute of limitations for the counterclaim was shorter than the statute of limitations for the plaintiff's original claim, such that the counterclaim would have been outside the statute of limitations if it had been brought at the time of the plaintiff's original complaint. We discussed this is class. But I cannot find a case accepting this.) OK?

Q. 14 Question about waiver and counterclaims.

Dear Prof. Green,

In looking over the questions about counterclaims, I came across something that I have no notes on. You asked the following question:

Assume that P sues D for battery in fed ct. D answers, asserting defense of insuff. service and joins a counterclaim for his own damages in the brawl. P argues that D has waived defense of insuff service by counterclaiming. Result? Is this questions answered by FRCP 12(b): "No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion"?

I know that courts have found that the assertion of even a permissive counterclaim will not defeat a defense like venue or PJ in the same responsive pleading, but I guess I am wondering about the last part of the question, on whether it is answered by R. 12b.

My feeling is that this can be used as analogy, but the better explanation is the "use it or lose it theory," where if you don't use a compulsory counterclaim, you will lose it later, and should not be punished for using it now.

Is this line of reasoning in explanation correct?

A. First of all, 12b does not answer the question because it says there is no waiver by adding another defense or objection. A counterclaim is not a defense or an objection.

But courts have tended to find no waiver here anyway. The reason I gave is not the use it or lose it theory. After all, D could put in his defense of service alone, wait for the defense to be determined, and if it was decided against him, amend his answer to add the compulsory counterclaim. The counterclaim would not be lost. The argument I gave is that there is no good reason to force D to go through such a process. Why not allow him to put the defense and the counterclaim in the answer from the beginning?

But there may be something to your use it or lose it theory, since if D doesn't put the counterclaim in the answer and P's action is dismissed on service grounds, D stands a chance of being precluded if he tries to sue on the counterclaim later. He would be more protected if he put the counterclaim in his answer from the beginning and then when the P's action is dismissed on service grounds, he asked that the court allow him to voluntarily dismiss the counterclaim without prejudice.

Q. 15 Questions about impeachment evidence.

Some quick questions while cleaning up on scope of discovery:

In general the policy is that the surprise of catching a lying witness 
with impeachment evidence in front of the jury is a good thing, but 
indications are still that the evidence is discoverable with some 
qualifications (that mitigate the impact of its discoverability on the 
lie-catching?).

CORRECT

Is evidence that you have impeaching your own witness discoverable by 
the other side (if it is not work-product)?

YES - CLEARLY. IT MAY ALSO BE DISCOVERABLE EVEN IF IT IS WORK PRODUCT, SINCE THE USEFULNESS FOR IMPEACHMENT MIGHT BE USED TO OVERCOME THE QUALIFIED WORK PRODUCT PRIVILEGE.

What qualities of the 
evidence are looked toward in finding out if it is discoverable, or is 
it discoverable in general for its relevance alone?

ITS USEFULNESS FOR IMPEACHMENT MAKES IT RELEVANT, BUT OF COURSE IT MUST REALLY IMPEACH THE WITNESS (THAT IS, SUGGEST THAT HE IS A LIAR) NOT SIMPLY MAKE THE WITNESS LOOK LIKE A BAD PERSON. THERE ARE MANY FIGHTS ABOUT WHETHER MATERIAL IS GENUINELY IMPEACHING RATHER THAN SIMPLY PREJUDICIAL.

Is evidence that you have impeaching the opposing side's witness 
discoverable by the opposing side? What has to be shown about the 
evidence to make it discoverable, or is it discoverable in general on 
relevance alone?

THERE HAS BEEN A MOVEMENT TO MAKE IT DISCOVERABLE, BUT WITH A POSSIBILITY OF DEPOSING THE OTHER SIDE'S WITNESS BEFORE TURNING IT OVER. IF THE MATERIAL IS WORK PRODUCT, HOWEVER, THE PRIVILEGE WILL HAVE TO BE OVERCOME, IF IT CAN BE.

Does the policy of allowing depositions of witnesses before the 
evidence is turned over the compromise to allowing this discovery, in 
that it allows the impeachment evidence to be scrutinized yet allows 
the party to expose them in their lie?

RIGHT.

Sorry that these turned more into statements then questions. A mere 
confirmation that I'm on the right track might suffice. Thanks!

Q. 16 Questions about relation back and new parties.

I have a question about relation back and the addition of new parties.  It seems that the only provision that speaks to this is 15(c) about the changing or renaming of parties.  So from what this says, is it true that the naming of additional parties does not relate back?  For instance in the case of a co-defendant: Say you had a contract issue and there were two defendants that signed it and you only sued one.  Then the statute of limitations runs out.  If you amend to add the second signer, the case against the co-defendant would be dismissed for statute of limitation because the issue did not relate back?
Also, does that work the other way for plaintiffs?  Say the defendant beat up two people at a bar.  You did not know who the other plaintiff was so you filed alone.  The statute of limitations on battery runs out.  Then the other person who was beat up suddenly approaches you and wants to join as co-plaintiff.  This claim would be dismissed for statute of limitations concerns because they do not relate back?

A. You are right that relation back for change of parties is governed by 15(c)  (or, more specifically, 15(c)(1)(C)). You are also right that the adding of additional defendants would not allow for relation back. The only situation in which the defendants are changed and relation back is allowed is when the name of an original defendant  in the complaint is corrected (and the other requirements of 15(c)(1)(C) are met, of course). Adding an entirely new defendant won't work. And it shouldn't work, since that new defendant would not have notice within the statute of limitations period.

Now the question about adding a new plaintiff is a very nice one indeed. Here is what Wright & Miller, 6A Federal Practice and Procedure section 1501 have to say on the matter:

Although Rule 15(c) does not expressly apply to a new pleading adding or dropping plaintiffs, the Advisory Committee Note to the 1966 amendment of the rule indicates that the problem of relation back generally is easier to resolve in this context than when it is presented by a change in defendants and that the approach adopted in Rule 15(c) toward amendments affecting defendants extends by analogy to amendments changing plaintiffs. As long as defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action, his ability to protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense. This seems particularly sound inasmuch as the courts will require the scope of the amended pleading to stay within the ambit of the conduct, transaction, or occurrence set forth in the original pleading.

  Once again, a very nice question.

Q. 17 Question about counterclaims and removal

  If defendant's compulsory counterclaims against plaintiff exceed the jurisdictional minimum for diversity suits, can D use this as basis for removal?  I realize that D cannot aggregate his counterclaim with P's claim to rise above the jurisdictional minimum, but is D unable to bring his causes of action against P in federal court simply because P was able to file his claim first? 

A. Most (although not all) federal courts have held that the defendant's counterclaims, including compulsory counterclaims, are irrelevant in determining removability. The question is answered solely by reference to the plaintiff's complaint. This is true even when the compulsory counterclaim on its own is above the jurisdictional minimum. See e.g. Shaw v. Dow Brands, 994 F.2d 364, 366 (7th Cir.1993); Martin Pet Prod. v. Lawrence, 814 F.Supp. 56, 58 (D.Kan.1993) Video Connection of Am. v. Priority Concepts, Inc., 625 F.Supp. 1549, 1551 (S.D.N.Y.1986). But see, Fenton v. Freedman, 748 F.2d 1358 (9th Cir.1984).

Q. 18 Question about the jurisdictional minimum in diversity and injunctions

        I have in my notes that if a diversity case claim involves only 
injunctive relief, that removal to federal court can be based on 
potential losses of the defendant were he to have to  shut down his 
taxidermy business as a result of the injunction. Is this true? If 
so, I have a second question about this question presented in class:

7) P1 and P2 are suing D. (P1 and P2 each have property adjoining 
D's.) P1 and P2 ask the court to enjoin D from polluting their 
property by shutting down his rendering plant. Assume that the cost 
to D in lost revenue if he shuts down the plant is $140,000. The 
value of the injunction to P1 and P2 is $70,000 each. Is the amount 
in controversy satisfied for diversity?

I understand how this could fall under the Shields v. Thomas 
exception, but couldn't this also be removed by the defendant because 
his losses, if the injunction is given, would be above 75K?

A. There are a couple things going on here. First of all, there is some disagreement in the federal courts about how to measure the value of injunctions for jurisdictional minimum purposes when the value to the plaintiff is different from the cost to the defendant. Some courts say value to the P,  some say either can be used,  other say the cost to the D applies when the D is removing and the value to the P applies when the P is suing originally in federal court. For citations, see Olden v. Lafarge Corp., 383 F.3d 495, 503 n. 1 (6th Cir.2004).

But there is another element to your question. In question 7, one might say that there is a common and undivided right asserted by P1 and P2 because injunctive relief must be given to both of them if it is given to one of them. For this reason, under Shields, aggregation is possible. I think your question is whether we might get the same result, without appealing to the common and undivided right principle of Shields, if one simply looked to the defendant perspective in valuing injunctions.

I think the answer is no. But to see this we need a case in which Shields does not apply. Imagine P1 and P2 are suing D because of flooding from D's property. Each is asking for injunctive relief, but P1 is asking that D dam one part of a stream and P2 is asking that D dam another. Injunctive relief flowing to P1 is possible without it flowing to P2 and visa versa. So Shields does not apply. Now assume that the cost to D of satisfying P1's injunction is 70K and the cost of satisfying P2's injunction is also 70K. There would be no aggregation, even if the court took the defendant perspective when determining the value of injunctions.

Q. 19 Question about Erie in Supplemental Jurisdiction Cases

What if federal procedure applies to a federal question action, Erie analysis says that state procedure applies to a state law action brought in on supplemental jurisdiction, and the state and the federal procedure simply are incompatible in the same case?

A. The answer appears to be that federal procedure applies. Something similar happens with respect to privilege law. Under Fed. R. Evid. 501, state law privileges apply to state law causes of action in federal court. But what if the state privilege law says the material is excluded, federal privilege law says it is included, and both state and federal actions are being entertained by the same jury? The jury can't really consider the evidence with respect the federal action but ignore it with respect to the state law action. Federal courts have concluded that in this case federal privilege law applies. E.g. Hancock v. Dodson, 958 F.2d 1367, 1373 (6th Cir.1992). I believe that the same thing would apply in your example. But keep in mind that it is not always impossible that federal procedure be applied to the federal cause of action and state procedure applied to the state law cause of action.


2006 CivPro Q&A

1) Declaratory judgments.
Q. Prof. Green - I am reviewing the initial "Overview of a Civil Suit" and I have a question about the section on possible relief.  One of the equitable relief options was declaratory, a "binding statement of the court about legal status of parties."  What would this be good for, and why would someone want it?

A. Let's say that I don't want to abide by a contract with you, because I think that it is invalid. If you sue me to get a declaratory judgment saying that the contract is valid, you are pretty much assuring that I'm going to abide by my contractual obligations. After all, if I breach, you can sue me and I will not be able to litigate the invalidity of the contract, since I will be bound by the declaratory judgment.

2) Criteria for the Supreme Court granting cert.
Q. [Y]ou said in class today that the Supreme Court's denial of cert for various cases was not as important as many people make it out to be.  Could you enumerate on this as well?  I was always under the impression that the Court's refusal to grant cert amounted to their upholding of the previous ruling (which it techinically does), but more importantly, that such an action indicated that the Court's ideological or lawful predisposition to abide by the lower Court.  The cert denial of an abortion case, for example, would indicate that the Court either accepted the previous Court's ruling on abortion or was not yet ready to tackle the often sticky issues included in the case (which would come to bear even if they heard the case and affirmed the previous ruling).  To me, this seems legally important.

A. THE SUPREME COURT MAY INDEED DENY CERT BECAUSE IT THINKS THE DECISION OF THE COURT OF APPEALS IS RIGHT. BUT IT CAN DENY CERT EVEN WHEN IT THINKS THE DECISION IS WRONG. IT DOES THAT NOT REALLY BECAUSE IT DOES NOT WANT TO TACKLE STICKY ISSUES. THE REASON IS THAT THE SUPREME COURT WANTS A REASONABLE CASE LOAD AND THEREFORE ONLY CHOOSES CASES WHEN IT FEELS THAT THE MATTER IS NOT GOING TO BE RESOLVED BY THE LOWER COURTS. TRUE, THERE IS ONE COURT OF APPEALS DECISION THAT IT DOES NOT LIKE. BUT MANY OTHER CIRCUITS MAY REACH THE OPPOSITE CONCLUSION, MOTIVATING THE FIRST COURT OF APPEALS TO CHANGE ITS TUNE.

YOU ARE RIGHT THOUGH THAT A DENIAL OF CERT DOES UPHOLD THE LOWER COURT'S RULING. AFTER ALL, THE RULING REMAINS STANDING.

3) Does Rule 11 evidence have to be in a complaint?

Q. I have a quick question regardling Rule 11, and the F&K readings on pages 41-45. Per Rule 11, the attorney must perform a reasonable inquiry to confirm that the complaint has a reasonable basis in fact and law. Does the proof of this (ie, the evidence present to prove the facts and law) need to be included in the complaint? Or does the attorney just need to be confident that there IS evidence to support the alleged facts and law? It seems that if the evidence needed to be included in the complaint, this would be contrary to Rule 8's requirements of "short and plain" statements.

A.  There is no requirement that the evidence be included in the complaint -- that would be in tension with R 8(a). R 11 requires only that one have the evidence. If the other side makes a motion for R 11 sanctions, then one will have to start mentioning it.

...

7. Question about collateral attacks.

Q.
Lawsuit 1:  You do not receive notice and default.
Lawsuit 2:  Plaintiff brings suit on the judgment and defendant brings collateral attack and is successful.
What happens next?  Does Lawsuit 1 pick back up and proceed normally?  Does Lawsuit 2 proceed from there?  Is the lawsuit over, and the plaintiff has to bring another complaint (Lawsuit 3)?

A. The answer is 3. Lawsuit 2 is over - judgment for the defendant. Lawsuit 1 is over too and it has been determined (in lawsuit 2) that its judgment for the plaintiff was invalid. So the plaintiff needs to bring lawsuit 3.

8. Question about Rule 4.

Q. We discussed the two general ways that Federal Rule 4(e)(2) could be read: one, allowing state rules to also substitute for 4(c)(2) [Glannon’s interpretation]; or two, restricting state rules to only be substitutes for the method in which service is effected [4(e)].  Assuming that Glannon’s reading is correct, there does not seem, to me, to be any principle for assuming that 4(e)(2) can then be restricted to just serving as substitute for 4(c)(2) only.

In other words, suppose a state granted that proper service only required the defendant to receive the summons, and not a copy of the complaint. Under Glannon’s reading, it would seem that 4(e)(2) would also then allow the state rule to substitute for 4(c)(1)? Is there some other case or statutory law that suggests otherwise? It would seem that Glannon’s interpretation would allow a state’s service procedures to completely consume Rule 4.

A. First, just a clarification. The issue concerns two ways of reading 4(e)(1), not 4(e)(2), for it is 4(e)(1) that says that service is OK if it is "pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State." The question is whether those 4(e)(1) state standards, when relied upon, also apply to who may serve and so would trump the standard in 4(c)(2).

That said, your question is a good one -- Why draw the line at who may serve? Why not expand it to what should be served? I guess the  argument against such an expansion would be that 4(e)(1) says that "service upon an individual ... may be effected in any judicial district of the United States" pursuant to state law, and it is plausible to understand the law governing what is served not as law about how service may be effected. But that's just a guess.

9. Question about R. 5

Q. I understood what you said in class about Rule 4 applying to service on third parties, but Glannon seems to contradict you starting at the bottom of 307 and continuing on the top of 308. It states that "virtually all such papers may be served under the more flexible provisions of Fed. R. Civ. P. 5...." What does this mean with respect to what you said in class?

A. All I can say is that Glannon takes it back on pp. 315-16, where he says that 3rd part complaints must abide by the standards of R 4. I guess that is why he said "virtually." But the truth is that R 4 standards do not merely apply to 3rd party complaints, but also to all pleadings served on someone who has not yet had any notice of the suit, such as new parties joined to counterclaims.


10.  Question about the Mottley case.

A. I had a hypothetical question about the Mottley case discussed in class today.  You mentioned there were two arguments, one of which was dealing with the taking of property.  You said that if the Supreme Court hadn't said the statute didn't apply after the case went through state courts, then there could be a claim in federal court as to getting compensation from Congress.  The court didn't seem to deal with this issue.  If this case were brought today, would they have subject matter jurisdiction since you can state the claim in the alternative under the current federal rules?  Does stating the claim in the alternative apply to the subject matter jurisdiction?

Q. There is a lot going on in this very sophisticated question, some of which I will not be able to answer fully right now (or indeed ever). Here, in essence, is your question. Why didn't the Mottleys do the following: Sue two defendants-- the Railroad and the United States (or officers of the United States) -- together in the same suit in federal court? The action against the Railroad would be a contract action under state law. But the action against the United States would be under federal law because it would claim that the statute prohibiting free passes was a taking requiring compensation under the 5th Amendment. The Mottleys could argue in the alternative -- either the Railroad should give us the free passes (under state contract law) or the United States should compensate us (under the Constitution). And as you note, such alternative arguments are now possible.

Here are some problems. Is the action against the United States ripe enough to litigate? Is it really, at this point, a case or controversy at all? (We will never discuss this issue in this class.) But let us assume that the action against the United States is a case or controversy. There is little question that there would be federal subject matter jurisdiction for that action. But what is the source of federal subject matter jurisdiction for the joined action against the railroad? This gets into complicated issues of supplemental jurisdiction, which we will deal with later. As you will see later, there would be supplemental jurisdiction. So the bottom line is that you have come up with a very sophisticated way to get both actions into federal court after all. Brava!

...

12. Where's my domicile?

Q. The discussion on domicile makes me question where exactly I am domiciled. There are 4 different states I could be domiciled in--
1) I just switched my driver's license from NC to VA and I intend to live here for 3 yrs of law school-- but not sure where I'll live after that.
2) I went to college in NC and worked for 6 months there and paid NC income taxes. I briefly had a NC drivers license.
3) I am registered to vote in Georgia, where my mother and brother live. I went to high school there, and one year of college, but I do not ever intend to live in GA again.
4) On forms I claim my "permanent home address" with my father, who lives in Las Vegas, NV. I've spent the last 2 summers and all holidays there for the last 2 years. My car is registered in NV and I have NV plates.
Where is my domicile?
If this is too tricky, it's okay. I just thought it was an interesting situation.

A. The domicile of (emancipated) students is always a problem, but your case sounds particularly difficult. Curiously, you cannot have no domicile, so if you were to sue or be sued by a Virginian, North Carolinian, Georgian or Nevadan in federal court (under state law) the issue of your domicile would have to be decided. It certainly is true that you were domiciled in Georgia at one time and you would keep that domicile until you established a new one. My gut tells me that you did  establish a Virginia domicile, but my gut is no better than yours on this matter.

13. Many questions about diversity and alienage jurisdiction.

Q. We discussed in class that 1332 limits the scope of cases federal courts can take to only those with complete diversity.  Am I right in remembering this by saying if a FL resident is on one side of a suit, then no FL resident can be on the other side of the suit (for their to be diversity jurisdiction)?  Is it also ok to phrase it in my mind as "citizens from the same states can NEVER be on opposite sides " for their to be diversity jurisdiction?  I want to make sure it's ok to think in absolutes like this.

A. This is accurate.

Q. For federal question jurisdiction, we said if it was solely a state issue and the only federal matter involved was a defense, then the case would have to go through state courts all the way to the Supreme Court for it to get into the federal court system, and that we didn't mind the SC having appellate jurisdiction because it was fair and logical for them to take cases regarding federal issues.  Was I right in understanding our conversation today to say that completely state issues with partial diversity (a FL resident suing both GA and FL residents) could only go up the same way through state courts to the Supreme Court, BUT that in this case, the Supreme Court would probably not grant cert, because there's no good reason for the federal court system to try cases simply because there was partial diversity?

Correct. The only changes that I would make in what you said is 1) it is "minimal" not "partial" diversity; 2) it is 100% certain (not merely improbable) that the Supreme Court would not grant cert to the appeal of a minimal diversity case from a state court system without any federal issue (basically the reason is because Congress has not passed a statute allowing the SCt to take such cases) and 3) the reason Congress has not passed such a statute is that there is no reason for the Supreme Court to opine about state law issues. It's not right to say it's because there is no good reason for a federal court to TRY a case simply because there is partial diversity. In fact, in a few cases Congress has allowed federal district courts to try cases with minimal diversity. But the SCt would not be trying such cases ­ -- it would be taking legal issues on appeal. And there is no reason for it to take an appeal when the only issues are about state law.

Q. We said that for 1332(a)(1), the definition of citizen is based on Baker v Keck, and that this was different from the definition of 1332(a)(2).  What definition of citizen do we use for a2?

A. In 1332(a)(1) "citizen" almost always means a US national who is domiciled in a particular US state (domicile to be determined according to the Baker v Keck criteria).

That would be it except things are made a bit more complicated by the provision in 1332(a) that says "an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled." As I say in my posting on alienage jurisdiction (question 5) at http://msgre2.people.wm.edu/Alienagescenarios.html , that provision is there to make sure that when a U.S. national who is domiciled in a state sues an alien who is domiciled in that same state (and the suit is for violation of state law), the case will be denied federal jurisdiction. The provision is not there to turn a controversy between an alien domiciled in US state A and an alien domiciled in US state B into a diversity case under 1332(a)(1). Indeed it's probably unconstitutional for a federal court to take such a case.

How about 1332(a)(2)? Actually "citizen" occurs twice in there. 1332(a)(2) gives jurisdiction to controversies between "citizens of a State and citizens or subjects of a foreign state." The first "citizen" again means a U.S. national with a domicile in a U.S. State. You might wonder again about the language saying that "an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled." But that provision is not there to turn a controversy between an alien domiciled in a state in the U.S. and an alien domiciled abroad into an alienage case under 1332(a)(2). (Once again, that would probably be unconstitutional.)

What about the second occurrence of "citizen" (in "citizens or subjects of a foreign state"). There it means a foreign national. It does not mean someone domiciled abroad, because a controversy between a US national who is a citizen of a U.S. state and a U.S. national who is domiciled abroad does not fall under 1332(a)(2). See scenario 6 in http://msgre2.people.wm.edu/Alienagescenarios.html 

Q. I'm trying to practice and understand which scenarios are ok or not and why.  Can you look over these and make sure they're right?  (I just listed the state abbreviations, but for all of them, I mean citizens of that state)
FL sues CA = ok (citizens of different states)

A. Yes

Q. CA sues FL = ok (citizens of different states)

A. Yes

Q. FL sues CA,FL = not ok (construed narrowly by 1332)

A. Yes

Q. FL,CA sue FL = Not ok (construed narrowly by 1332)

A. Yes

Q. FL sues German citizen = ok (citizens of a state and citizens of a foreign state)

A. Yes -- provided the German does not have a green card and is domiciled in Florida.

Q. German sues FL = ok (citizens of a state and citizens of a foreign state)

A. Yes ­ provided the German does not have a green card and is domiciled in Florida.

Q. FL sues German, French = ok (citizens of a state and citizens of a foreign state)

A. Yes - provided neither the German nor Frenchman has a green card and is domiciled in Florida

Q. FL,CA sues German, French = ok (citizens of a state and citizens of a foreign state)

A. Yes - provided neither the German nor Frenchman has a green card and is domiciled in Florida or California.

Q. FL sues CA, French = ok (citizens of different states w/ citizens of foreign states added)

A. Yes - provided the Frenchman does not have a green card and is domiciled in Florida.

Q. FL, French sue CA = ok (citizens of different states w/ citizens of foreign states added)

A. Yes - provided the Frenchman does not have a green card and is domiciled in California.

Q. FL sues French, FL = not ok (construed narrowly by 1332)

A. Yes.

Q. FL, French sue FL = not ok (construed narrowly by 1332)

A. Yes.

Q. FL, French sue German = not ok (not between different states w/ added foreign citizens BUT WHY ISN'T IT OK B/C CITIZENS OF A STATE VS CITIZENS OF A FOREIGN STATE????)

A. Right, that it is not OK ­ I discuss why not in my posting at http://msgre2.people.wm.edu/Alienagescenarios.html  (question 7)

Q. German sues FL, French = not ok (same reasons as above ­ but I still donn't understand why???)

A. Right, that it is not OK Same as above.

Q. Country of Germany sues FL = ok (foreign state as plaintiff and citizens of US)

A. Yes.

Q. FL sues Germany = not ok (specifies foreign state must be a plaintiff, not a defendant)

A. Yes.

...


15.  Question about "fictitious names" and 28 USC 1441.

Q. Someone in the review session asked about the following sentence in 1441: "For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded."

A. I tentatively suggested (after some hemming and hawing) that it was about John Doe defendants. That is indeed what it is about. When John Doe defendants are added, it is hard to determine whether an action is a diversity case. A plaintiff who wants to frustrate removal might therefore plead John Doe defendants. This would be a problem not merely because one can't determine their citizenship but also because they can't consent to removal. To stop this, Congress amended the removal statute in 1988 to include this sentence. Thus, the citizenship of any John Doe defendant may be ignored on removal. It is worth noting however that for plaintiffs suing originally in federal court John Doe defendants are disfavored and a number of federal courts have required that plaintiffs plead and prove that the John Does' citizenships are diverse to that of plaintiff. And some have taken the approach that the inclusion of John Does in a diversity action is a ground for dismissing the complaint for lack of subject matter jurisdiction.

16. Why can't a plaintiff/counterclaim defendant remove when served with a federal question counterclaim?

Q. You gave a pragmatic reason for why a defendant making a counter-claim that had federal jurisdiction could not remove on the basis of that claim. I was wondering if there were any parallel justification for why the plaintiff who has become the counter-claim defendant on a federal jurisdicion claim cannot remove. You have been clear about the arbitrary and nonsensical nature of some of these rules, but since you mentioned that people try to get different rules changed all the time, I wondered what the justification was for keeping that particular rule/application of the rule, which seems
counterintuitive and unfair.

A. The question is about the following scenario: A plaintiff sues a non-diverse defendant on a state law cause of action in state court. The defendant brings a federal question counterclaim against the plaintiff that is related to the plaintiff's action against the defendant. The worry with allowing the defendant to remove is that he could make up a federal counterclaim solely for the purpose of removal. This is probably the reason that defendants have not been allowed to remove in such situations. I think there is not the same pragmatic reason for keeping the plaintiff/counterclaim defendant from removing, for he can't tell the defendant what counterclaims to bring. I honestly think that this is a case where the plaintiff/counterclaim defendant should be allowed to remove, but 1441 speaks of "defendants" removing so it has not been allowed.

17. Question about McGee factors

Q. When you were talking about how the McGee case is a total departure from the Int'l Shoe theory, I was wondering if an argument could be made that we could attach the McGee notions of convenience, etc., to Int'l Shoe's language of "fair play and substantial justice. It's a bit of a strecth, but we've seen the courts do lots of strecthing, and as you've said, Pennoyer came out of thin air! So it seems plausible to me to tie the two together, but I may be wrong...please let me know your thoughts when you get a moment.

A. I very much agree. We can understand McGee as an interpretation of what "fair play and substantial justice" means. In that sense the Court is not diverging from Int'l Shoe. But it appears to be a different interpretation of that phrase from the one offered in Int'l Shoe.

...


19. Question about Harris v. Balk.

Q.
You discussed the case of Harris v. Balk, which held under a Pennoyer framwork that debt followed the debtor. I am curious about the logistics of this type of suit, would the debtor be considered the defendant in the action, or would the debtor be considerd a third party? Today, would there be personal jurisdiction in the following example?

A credit card company is incorporated in Delaware, and issues credit cards to customers on the east coast. One of their customers travels from Virginia to California, and continues to use the credit card there.  Then, Company X commences a quasi in rem action against the credit card company in California state court, attaching the debt of the customer as property of the credit card company.  The credit card company appears specially to challenge personal jurisdiction. 

I would think that there would be no personal jurisdiction, as this would not constitute sufficient "minimum contacts" of the defendant credit card company with the state of California. 

World-Wide Volkswagen also stated that there was no personal jurisdiction over the defendant where "unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State." (On page 565)  However here, instead of talking about unilateral action of the plaintiff, we are talking about unilateral action by the debtor.

A.
I agree that Harris v Balk-style quasi in rem actions would be rejected now as not satisfying Int'l Shoe. Shaffer has at least settled that much.

As for how the actions proceeded in the past, the defendant in the quasi in rem action was the creditor and there had to be notice to him (although it could be by publication) for there to be a binding judgment against him. But in the course of the proceedings against the defendant/creditor there also had to be an action against the debtor, to determine that there was indeed a debt to attach. This action could be brought by the plaintiff if the defendant/creditor did not appear and the plaintiff would stand in the shoes of the defendant/creditor in this suit.

20. Question about quasi-in-rem.

Q.
Suppose a plaintiff (Arizona) brings a suit against a paper company incorporated in Washington with all its business in Washington.  The plaintiff wants to sue the paper company in AZ state courts regarding discriminatory hiring practices, let's say in Washington.  The only connection the paper company has with AZ is a 500 acre parcel of land in the state with no employees or factories on it.  The plaintiff claims there is quasi-in remi PJ, is this the case.

We thought that it failed the graph test that you composed the other day in class, but it did have to do with real estate as Justice Stevens had discussed as a possible exception to the Shaffer case.  Also, since there is undoubtedly some level of control the sovereign has over the property it would seem there would be PJ.  I think essentially we were not certain on how to draw the distinction between a corporation and an individual.  Clearly there's PJ under a Pennoyer framework as it would pertain to an individual, but it doesn't seem that there would be if this is looked at from an International Shoe, activity level- framework.

A.
If the argument is that there is PJ because it is a quasi-in-rem action, then there is really no difference if the defendant is an individual or a corporation. The only question is how viable quasi-in-rem actions are after Shaffer. On the one hand we might say that they are not OK. According to Int'l Shoe, there has to be substantial continuous contacts with the forum for PJ for causes of action unrelated to those contacts. If the property amounts to substantial continuous contacts with the forum, then there will be PJ, but it won't be quasi-in-rem because the judgment will be able to be in excess of the value of the property, since there is no such requirement for general jurisdiction as Int'l Shoe understands it. If it doesn't amount to substantial continuous contacts with the forum, then there won't be PJ period.

On the other hand, we might say that the real issue is whether the defendant can reasonably anticipate PJ as a result of his contacts with the forum state. If so, then one might say quasi-in-rem with respect to real property can be reasonably anticipated (although it can't with respect to stock, as in Shaffer), provided that the judgment is limited to the value of the property.

21. Question about waiver of service.

Q.
Hi Professor Green, just have a quick question. Why is it beneficial to have a rule that allows a waiver of notice if P has to contact D anyway?

A.
It's not waiver of notice, since, as you note, there still is notice. It is waiver of service of process. The reason the waiver rule exists is because the notice that P has to provide D through the waiver method is cheaper and easier than the providing service of porcess. The waiver method allows for notice through the mail, whereas service requires a process server.

22. Question about the fallback provision in the venue statute.

Q.
What good is 28 USC 1391(a)(3) and (b)(3)? Won't cases that satisfy this fallback venue provision still be knocked out on personal jurisdiction grounds?

A.
First some background. 1391(a)(3) applies to actions "wherein jurisdiction is founded only on diversity of citizenship" and allows for venue in "a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought." 1391(b)(3) applies to actions "wherein jurisdiction is not founded solely on diversity of citizenship" and allows for venue in "a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought." But (b)(3)'s reference to "found" is usually taken to mean "subject to personal jurisdiction," so the provisions are usually understood as equvalent.

Let's start with an example of where there is only one defendant (even though that was not the example you were worrying about). For the fallback provisions to apply there can be no venue in any district through the normal two methods (under (a)(1)-(2) or (b)(1)-(2)). That means no substantial part of the events or omissions giving rise to the claim can occur in any district (so it must all be abroad). In addition, the defendant cannot reside within any district (as so must reside abroad). If the defendant resided in a district, then all the defendants would reside in the same state (since there is only one defendant) and so there would be venue in that district. It is worth noting that for venue purposes an alien may be used in any district. So there would be venue in any district for a suit against a sole alien defendant even without the fallback provision. But we can assume that our example is a suit against an American residing abroad.

Now let us assume that this defendant is tagged in a state and the action is brought in the federal district court where the tagging occured. There would be PJ in that state, but without the fallback venue provision, there would be no venue in the district. The fallback provision would allow for venue though, since the defendant is subject to PJ in the district. So this is one example where the fallback provision is useful.

Let us now consider a case where there are two defendants - D1 and D2. Once again, for the fallback provisions to apply there can be no venue in any district through the normal two methods (under (a)(1)-(2) or (b)(1)-(2)). That means no substantial part of the events or omissions giving rise to the claim can occur in any district (so it must all be abroad). In addition, the two defendants cannot reside in the same state. Let's assume that D1 resides in California and D2 resides in Minnesota.

This is the example that you were thinking of. Imagine that D1 is tagged in the S.D.N.Y. That would allow for venue for the actions against both D1 and D2 in the S.D.N.Y. on the basis of the fallback provision. But what good would that do, you thought, since there is no PJ over D2? Good question. But keep in mind that D2 might have been tagged in another district in NY (the E.D.N.Y., the N.D.N.Y. or the W.D.N.Y.). That would be sufficient for PJ over both D1 and D2, but there would be no venue without the fallback provision. As I have said, no substantial part of the events or omissions giving rise to the claim occurred  in any district. Furthermore the defendants do not reside in the same state (D1 resides in California and D2 resides in Minnesota). So the fallback provision is useful here.

23. Question about unrelated actions joined to crossclaims.

Q.
I have a question concerning cross-claims.

A sues B and C.  B wants to file a cross-claim against C unrelated to the original occurrence, but B must first file a claim related to the original occurence.  Suppose B makes a proper Cross-claim and C answers.  B then goes ahead and makes other claims against C (which he is permitted to do under 13B now that he is a "plaintiff").  If 6 months later C figures out that B's original cross-claim fails to state a claim, and the original claim gets dismissed, what happens to the other cross-claims. Are they automatically dismissed?  While you wouldn't want a cross-claimer to be able to tack on claims by a faulty original claim, would the court also not want to throw out 6 months of time spent on these claims?

A.
Good question. Let's set the question up. Say P, D1 and D2 were in a brawl. P sues D1 and D2 for his physical damages. D1 brings a crossclaim against D2 for his emotional damages from D2's punches coming very close to him. This joinder is allowed under Fed. R. Civ. P. 13(g), because D1's cause of action against D2 concerns the same transaction or occurrence as P's claim against D1 and D2 (namely the brawl). D1 joins to this crossclaim an unrelated claim against D2. Let's say it is for breach of contract. He is allowed to do this, not under 13(b) (as you say) but under 18(a). The permissive counterclaim rule (13(b)) is irrelevant because D1 is not bringing an action against someone bringing an action against him. Rather, D1 is joining an action against someone to an action that he is already bringing against that person. This is allowed under Rule 18(a) even if they are unrelated.

Let's say that D2's answer to the crossclaim includes the defense of failure to state a claim, because under the applicable law purely emotional damages are not recognized. D1's crossclaim is dismissed for failure to state a claim. What happens to D1's contract claim you ask? Answer - it remains. There is no problem, as far as the joinder rules are concerned, with that action continuing, even though that action would not have been able to be joined against D2 if there had not already been an action against D2 under 13(g) that concerned the same T/O as P's suit against D1 and D2.

Of course, there must be personal jurisdiction, venue and subject matter jurisdiction for D1's contract claim. I haven't said a word about that!

24. Question about counterclaims to actions dismissed for failure to state a claim.

Q.
Our discussion of counterclaims raised a question in my mind.  You discussed the potential of a plaintiff creating a bogus claim so that  the defendant would have to bring his cause of action as a counterclaim.  I understand that the defendant could avoid this by making a pre-answer motion of failure to state a claim.  However, he could also make a motion for failure to state a claim at any time during the suit.  My question is this: what would happen if the case was not dismissed before trial and instead the defendant brought the counterclaim,  then moved for dismissal under failure to state a claim during the trial?  If the the original claim was dismissed, could the counterclaim stand alone at trial, or would it be dismissed and the defendant would have to bring it in a new suit?
Please respond at your convenience.

A.
The counterclaim could definitely stand alone at trial (assuming there is subject matter jurisdiction, personal jurisdiction and venue for it, which we will talk about later).

Another question, however, is this. Assume that the plaintiff's action is dismissed for failure to state a claim as a result of that defense being introduced in the defendant's answer. What if the defendant does not want to continue with his counterclaim? Will he be obligated to litigate it in the plaintiff's forum, on the ground that it is a compulsory counterclaim to the plaintiff's (now dismissed) claim?

The answer appears to be no. He may voluntarily dismiss his action. This is what Wright & Miller section 1417 say:

"When defendant files a pleading, he automatically becomes subject to Rule 13(a), and since the complaint technically does assert a "claim," even if not a claim on which relief ultimately can be granted, he should interpose his counterclaim. Thus, the cautious practitioner will assert any compulsory counterclaim he may have in the answer. If defendant's Rule 12(b)(6) defense is successful and he does not wish to pursue the counterclaim at that particular time or in the forum chosen by the original plaintiff, he then may seek a voluntary dismissal under Rule 41." (my emphasis)

A voluntary dismissal would mean that it is without prejudice and can be brought again. It bothers me, however, that there is no argument in Wright & Miller about why 13(a) would not bar the counterclaim if it was brought again. They also cite no case for this. Still, it makes sense that the defendant should not be obligated to litigate the compulsory counterclaim in the plaintiff's forum now that the plaintiff's action is gone.

25. Questions about counterclaims to a quasi-in-rem action.

Q.
If P sues D in a quasi in rem action in New York and D counter-claims, does D subject herself to in personam jurisdiction at that point even if her appearance(s) thus far was a "limited appearance?"  It seems D has agreed to subject herself to the discretion of the court.  If so, does it matter if the counter-claim is for more or less than the property value?

What of the following?
P -> D for $20k (property value worth $25k)
D -> P for $1k, $5k, $20k, $25k, $30k

In first case counter claim and original claim in aggregate are less than the value of the property.
In next, they add up to the value of the property
In next, they are both individually under the value of the property
In 4th case, the counter-claim being at the value of the property
In 5th case, the counter-claim being worth more than the value of the propery.

To me, even the simplest counter-claim seems to destroy the "limited" nature of the appearance.  But if not, is there a point where it is destroyed?

A.
Under 13(a) the defendant is not obligated to bring a counterclaim (even a "compulsory" one) in a quasi in rem action. (My understanding is that this is true in state courts that allow limited appearances as well.) But what happens if he does bring a counterclaim?

If he does, the compulsory counterclaim rule now attaches - the defendant is now obligated to bring all causes of action that he has concerning the T/O that the plaintiff is suing him about.

Furthermore, for all of the compulsory counterclaims, the mere fact that the defendant brings a counterclaim is a waiver of the personal jurisdiction rights he previously had when making a limited appearance. The value of the property is now irrelevant. There is PJ for the counterclaims (by virtue of the defendant's appearance in that forum) no matter how big or small the compulsory counterclaim is. I believe that this answers your question.

But it may be that you were interested in the plaintiff. Is he now freed of the limitation on his judgment due to quasi in rem jurisdiction by virtue of the defendant bringing a counterclaim? Is the plaintiff's action now in personam? I could not find anything on this, but my gut tells me yes and furthermore that it does not matter how small the value of the defendant's counterclaim is. After all, it would be pretty weird if the defendant is forced to litigate everything about the T/O but the plaintiff can only litigate up to the value of the attached property.

27. Choice of venue clauses in contracts.

Q.

If you buy a product that comes with some kind of agreement (let's say one of those little warranties in the box) that has a clause that any legal action you take against them must take place in Alaska, is this enforceable in light of what we've learned, and you have NOTHING to do with Alaska and didn't get the product there? I've heard of these, and it sounds like it would allow a defendant to manipulate the system by forcing litigation in its own home state, where it may have favor- even though it shifts the inconvenience to the plaintiff.

A.
This is a great question but it is a very broad one, so I can only say a few things about it. It used to be that choice of venue clauses were not considered enforceable at all. But that started changing from the 1950s to the 1970s. The SCt concluded that such provisions were not per se unenforceable in Bremen v. Zapata Off-Shore Co, 407 US 1 (1972) (see also Carnival Cruise Lines Inc. v. Shute, 499 U.S. 585 (1991)), but it listed a number a circumstances (which I won’t go into in detail) where they would not be enforced. One example is where there is no connection between the forum chosen and the parties at all. I'm not sure from your question what the connection is between the producer and Alaska. If there is a conncetion, it is very likely that, under federal law, the provision would be enforceable, provided it was really accepted by the consumer when contracting. (It is worth noting that some states still accept the view that these provisions are per se invalid.)

But there is another problem in your question. It seems that the parties did not really bargain for the choice of venue provision. Instead the purchaser was simply presented with the provision after having bought the product. The movement for enforcing choice of venue provisions is predicated on the idea that parties’ bargain should be respected. But bargaining seems absent here, which makes enforcement less likely - although one could argue that if the consumer did not like the provision he could have returned the product.

28. Question about the enforcement of federal judgments in federal court.

Q.

Is there a procedural time limit for when P may bring ancillary action against D to enforce judgment?  How soon after judgment is received is a case considered closed?

A.

First of all, an action to enforce a judgment issued by a federal court is a state-law action, even when the judgment issued by the federal court concerned an action under federal law. Indeed Rule 69, which allows for supplementary proceedings to execute a federal judgment, specifies that the applicable law for enforcement shall be the law of the state where the federal court is located. (In truth, there is a bit of federal law on the topic, for example when the United States government has gotten the judgment in its favor, but you don’t need to concern yourself with that.)

What is more, there is no independent ground for federal subject matter jurisdiction for the suit on the federal judgment, unless the parties are diverse. For example, assume that a Nevada plaintiff won a judgment in federal court against a Nevada defendant for a suit brought under federal law. The plaintiff now sues to execute the judgment against that defendant in Nevada state court. The defendant may not remove that action to federal court, for there is no federal subject matter jurisdiction for the action. It is a state law action between non-diverse parties.

BUT there is ancillary jurisdiction for a state law action executing the federal judgment as long as it is understood as a continuation of the suit in federal court that rendered the judgment. How long can the successful plaintiff wait to bring these proceedings before that court? Very long. The only requirement is the limitations on such suits under the applicable state law, and that deadline often does not arise for years. So apparently you can go to a federal court years after it issued a judgment on your behalf and sue on the judgment. It will still be considered a “continuation” of the old federal suit, even though the action would surely have a different file number and a different judge assigned to it.

What is more, it turns out there is a method for the certification of a federal judgment in a federal court other than the one where it was issued and that new federal court too can enforce the judgment (see 28 USC section 1963). So, provided that there is certification, which can be done, once again, well after the issuance of the federal judgment, the suit to enforce the federal judgment can be brought in virtually any federal court. There is still ancillary jurisdiction, because it is still thought to be the continuation of the first federal suit. It is as if that first suit had now been transferred. (Of course there must be personal jurisdiction in that new federal court, for example, though the presence of the defendant’s assets in that state.)

But keep in mind that the fact remains that the suit to execute the federal judgment does not have federal subject matter jurisdiction on its own. It still cannot be successfully removed from state to federal court, for example. It is only allowed in federal court because it is considered the continuation of the prior federal proceedings.

...

31. Question about work-product privilege in Rackers-v.-Siegfried-like example.

Q.

Assume that an insurance claim adjuster for the defendant has taken a measurement of skid marks at the scene of the accident. The police have also taken measurements, which are shorter. The plaintiff believes that the police’s measurements are wrong. The defendant believes, or pretends to believe, that the police’s measurements are right. If the plaintiff asks the defendant for the length of the marks in an interrogatory, the defendant simply provides the police measurements. If the defendant asks for the adjuster’s measurements, the defendant asserts the work-product privilege.

We know that it is very likely that the plaintiff could overcome the work-product privilege because of the usefulness of the adjuster’s measurements for impeachment. That was the main point of the discussion in class. But why can’t the plaintiff simply depose the insurance adjuster and ask him the length of the skid marks? Isn’t that a simple way to get the information without having to overcome the work-product privilege at all? After all, facts are not privileged…right?

A.

It’s best to begin by identifying how this scenario is different from the normal work-product situation. Usually the person creating work product is not a witness to the events being litigated. Instead, he simply interviews those witnesses. As we know, even though the work product is protected, the witnesses themselves can always be deposed by the other side and must state truthfully their view of the facts. This follows from the general notion that facts (or really a person’s views about the facts) are not protected simply because they have been expressed in work product.

But this is a situation where the creator of the work product is himself a witness. This creates a tension. On the one hand the measurement of the skid marks is a fact about the case observed by a witness (the adjuster). It should be discoverable. On the other hand it is also the content of work product and so should be subject to a qualified protection.

What to do? After looking into the matter it has become clear that the adjuster can be deposed as a witness. When deposed, he – like any other witness – must state what he believes the skid marks were. A more problematic situation is if he, under the influence of the defendant, came to the conclusion that his original measurement was wrong and adopted the police report as his view. If so, it might be the case that the original measurement could be gotten only by overcoming the work-product privilege (I’m not sure about this). But it is clear that if the adjuster believes his measurements, the plaintiff can get them simply by asking the adjuster in discovery.

The question was also brought up in class how we would treat the adjuster if we categorized him as a non-testifying expert. After all, their opinions can be found out only given an extraordinary showing. This device did not sound right to me and so I said that courts would refuse to categorize him as an expert. But that still leaves open the question of the witness-observations of a genuine expert. After all, it is conceivable that a genuine expert might observe a case as a witness first-hand. As it turns out, in such a case, the opinions of the expert are discoverable as a normal witness. This was news to me.

32. Question about "facts" not being protected by the work-product privilege.

Q.

Another tension was raised in class that really bothered me regarding interviews with lay-witness. My notes indicate that: (1) On one hand, the underlying facts of the work-product are discoverable. (2) On the other, the content of the work-product is not discoverable. If this is wrong, stop right here.

So let's say plaintiff-counsel P informally interviews lay-witness W. W says "The light was green." However, P does not pass judgment regarding the truth of W's statement -- that is, he does not believe or disbelieve the statement.

If defense-counsel D asks in an interrogatory "Did W tell you the light was green?" It appears that P can refuse to answer because he would divulge the content of the work-product. But let's say D asks in an interrogatory "Does W believe the light was green?" It's not clear to me how this problem should be decided. On one hand, this is an end-run around the work-product rule -- how could P know W believes the light is green unless W told P? On the other hand, W's saying that the light was green presupposes his belief that the light was green, making this an underlying fact. Moreover, this information could be easily discovered through deposition, albeit at a much high cost. So what result?

A.

Your question leads me into a bit of philosophy.

You’re right that requiring P to answer what the witness believes about the light would be an end-run around work-product privilege. It is really no different than asking what the content of the work product is, which, as we have seen, is not allowed under Hickman.

What made this seem like a problem to you is your understanding of the word “fact.” As I noted in class, the idea that facts are not protected by the work-product privilege can be confusing. By “facts” what is really meant is the view about the facts of the person questioned. Why is this so? Well, the best anyone can do when asked something is state his best views about the facts are. For example, assume that the real fact of the matter (eg from God’s perspective) is that the light was red. A witness nevertheless believes that the light was green. The witness is not God and can’t say what the facts are. The best he can do is say what he believes the facts are (namely that the light was green). So he can be required to testify that the light was green, even though the content of his belief is expressed in work product.

Likewise if P is asked whether the light was red, he must answer as he believes. Simply because the content of his belief is expressed in work-product does not mean it is not discoverable. But he cannot be required to answer about what the witness believes, for it is not P’s view about the facts.

33. Question about assignment to create diversity.

Q.
I was working on my outline this morning and I have a question. In looking at the TA's outline, I noticed that she had "one can create diversity by not joining an un-needed party, moving before the claim is filed, or assigning your claim." However, right after that, she has the case of Kramer v. Caribbean Mills which I though established that you could not improperly join a party in order to get federal jurisdiction. Could you please reconcile these 2 things for me? I am a bit confused. Thanks.

A.
Some assignments will be insufficient to create diversity. An example is the assignment in the Kramer case. But the genuine assignment of one's interest in a lawsuit would be able to create diversity. If A(NY) sells his interest in his contract suit against B(NY) to C(NJ) for, say, $200K, with no funny business of the sort that occurred in Kramer (where most of C's recovery was to be returned to A as a "bonus"), then C will be able to sue B in diversity.

On the other hand, if this is done, it will no longer be A's lawsuit that is brought in diversity, so this isn't really a case of A turning his own lawsuit into a diversity case.


34.  Question about direct estoppel.

Q.
What is difference b/n collateral and direct estoppel?

A.
In collateral estoppel the relitigation of an issue is precluded in a case involving a different claim from the one where the issue was originally decided. For example, P sues D for negligence in connection with an accident in which P, D and X participated. D wins because the jury determines that P was contributorily negligent (he was drunk). P now sues X in negligence. This is a different claim from the one in P’s suit against D. But X can get a judgment in his favor because P is precluded from relitigating his contributory negligence.

In direct estoppel, the claim is the same. For example, assume P sues D in federal court in New York. D makes a motion to dismiss for lack of SMJ, but the court determines that diversity exists. Nevertheless the action is dismissed, without prejudice, for failure to state a claim. P then sues D (using a redrafted complaint concerning the same event) in federal court in California. D once again makes a motion to dismiss for lack of SMJ. P can claim that D is bound by the earlier determination that diversity exists.

The following is another example of direct estoppel. P sues D for negligence in a state court system in which the law of claim preclusion does preclude P from first suing for property damages and then suing for personal injury. In the first suit for property damages it is determined that D was negligent. P then sues for personal injury. The claim is the same. But D is issue precluded from relitigating his negligence.


35. Question about claim preclusion in toxic tort cases.

Q.
P sues D for mild asbestosis caused by asbestos exposure. P receives damages. Years later, he develops deadly mesothelioma, a cancer caused by asbestos. P sues D for this harm. Claim precluded?


A.
Let us assume that the statute of limitations problem is solved for the new suit. Compare
VaSalle v. Celotex Corp., 161 Ill.App.3d 808, 113 Ill.Dec. 699, 515 N.E.2d 684 (1987) (claim for lung cancer not barred by earlier diagnosis of asbestosis); Wilber v. Owens-Corning Fiberglas Corp., 476 N.W.2d 74, 78 (Iowa 1991) (claim for mesothelioma did not accrue when plaintiff was diagnosed with asbestosis) with Joyce v. A.C. & S., Inc., 785 F.2d 1200, 1203-05 (4 th Cir.1986) (under Virginia law, diagnosis of pleural thickening triggered statute of limitations for all asbestos-related disease); Matthews v. Celotex Corp., 569 F.Supp. 1539, 1542-43 (D.N.D.1983) (under North Dakota law, claim for lung cancer was dismissed on statute of limitations grounds when plaintiff was diagnosed with asbestos-related pulmonary disease more than six years earlier).

Assuming the action is not barred by the statute of limitations, is P claim precluded? It would appear that he is, since the transaction at issue in the two suits is the same. But this seems very unfair to P. This is particularly true if P is not allowed to recover for the risk of mesothelioma in his first suit.
          

The case law on this issue is unsatisfactory. Many courts have set aside claim preclusion in such asbestos cases. Sometimes they rely upon the very vague
section 26(f) of the Second Restatement of Judgments, which says that splitting of claims should be allowed if:

(f) It is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason, such as the apparent invalidity of a continuing restraint or condition having a vital relation to personal liberty or the failure of the prior litigation to yield a coherent disposition of the controversy.


See, e.g. Sopha v. Owens-Corning Fiberglas Corp., 601 N.W.2d 627, 637 (Wis. 1999), Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 654 (Tex. 2000). But not all courts have accepted such an exception to claim preclusion in asbestos cases, Gideon v. Johns-Manville Sales Corp. 761 F.2d 1129 (5th Cir. 1985) (under Texas law, plaintiff may not split this cause of action by seeking damages for some of his injuries in one suit and for later-developing injuries in another), although usually this is because an action for risk of future harm is allowed in the first suit.

The use of such an exception to claim preclusion outside of asbestos cases is less common. It remains very possible that claim preclusion (not to mention the statute of limitations) will bar a suit for new injuries that the plaintiff could not have known about at the time of the original suit.

...

37. Question about privity, control of litigation, Bernhard and change of capacity

Q.

I'm still not exactly clear on some of the privity issues.  If a parent acts on behalf of her child and then brings her own suit for a car accident the parent would be precluded because she controlled the litigation of her child? she would be issue precluded?  
I understand the executor of the will a little better.  when acting for the decedent the executor is taking over that cause of action and in a sense putting themselves in the other person's shoes.  It seems, however, here that the mother would have her own legitimate claim separate from her child.

A.

A number of people have asked me to clarify the issue of privity that is the result of the control of litigation, especially when there is a change of capacity (eg one sues first as guardian and then as an individual). These issues were brought up in connection with the Bernhard case. As you will see, you were right to ask questions here.

First of all, as I said in class, if P brings an action in the capacity as a representative of X (eg as guardian), it should be obvious that X is subsequently issue (and claim) precluded, because a relationship of privity exists between P when acting in that capacity and X.

Second, as I also said in class, a relationship of privity can exist (allowing for issue preclusion of the nonparty) when the nonparty controlled the earlier litigation. (This incidentally would not necessarily mean that there would be claim preclusion.) Here are some examples (from the Second Restatement of Judgments section 39):

A brings an action against C for damages to A's property allegedly resulting from C's negligence. B, an insurance company that insured C against liability, assumes defense of the action. A judgment in favor of A is preclusive on B as to the issues determined in the action.

 

A brings an action against B, a corporation, in which one of the issues is the value of a certain object of property. C, the principal stockholder of B, controls the defense of the action. The determination of the value of the property is conclusive upon C in a subsequent action between him and A.

Notice that it not enough that the nonparty is represented by the same law firm, helped to finance the litigation, appeared as an amicus curiae, or testified as a witness. The level of control of the previous litigation must be higher than that.

Third, let us consider the Bernhard case. Remember that Bernhard, as a beneficiary of Sather’s estate, first sued Cook. It was determined that the money at issue was a gift from Sather to Cook. Next Bernhard, as administratrix of Sather’s estate, sued Bank of America for the same money. The main issue of the case was whether a nonparty (Bank of America) could use issue preclusion against Bernhard (this was an example of defensive nonmutual issue preclusion). The court concluded that BofA could. But we also briefly discussed the following problem: Even if nonmutual issue preclusion is allowed, the person who is precluded must have been a party or in privity with a party in the earlier litigation. So the question arises: Why was Bernhard, in her capacity as administratrix of Sather’s estate, bound by litigation pursued by Bernhard, in her capacity as a beneficiary of Sather’s estate?

This is what Traynor himself says on this matter (p. 729-30 in the case book):

The plaintiff has brought the present action in the capacity of administratrix of the estate. In this capacity she represents the very same persons and interests that were represented in the earlier hearing on the executor's account. Inthat proceeding plaintiff and the other legatees who objected to the executor's account represented the estate of the decedent. They were seeking not a personal recovery but, like the plaintiff in the present action, as administratrix, a recovery for the benefit of the legatees and creditors of the estate, all of whom were bound by the order settling the account. The plea of res judicata is therefore available against plaintiff as a party to the former proceeding despite her formal change of capacity. 'Where a party though appearing in two suits in different capacities is in fact litigating the same right, the judgment in one estops him in the other.'

The reason that Bernhard as administratrix of Sather’s estate is bound is because, as administratrix, she is representing, among others, Bernhard in her individual capacity, insofar as she is one of the beneficiaries of Sather’s will. The situation is really similar to the following case: I sue X and lose. I then go crazy. My wife, as my guardian, sues Y concerning the same issue that was litigated in my suit against X. My wife, as my guardian, is issue precluded, because she is representing my interest.

So far so good. Now for the law on issue preclusion in cases of change of capacity. Say my wife, as my guardian, sues X and loses. Is she, in her individual capacity, issue precluded?  Consider Alexander v. Pathfinder, Inc., 91 F.3d 59, 63 (8th Cir. 1996). The plaintiff mother took an active role in state administrative proceedings challenging the discharge of her severely retarded son from a care facility. Among other issues, she raised and litigated the argument that the discharge was undertaken in retaliation for her complaints. The administrative judgment established issue preclusion, defeating her subsequent retaliation claim in her individual capacity.

But always assuming issue preclusion when there is a switch in capacity can be problematic because of conflicts of interest. Consider, once again, the example of my wife. She would have a conflict of interest if what she litigates as my guardian would issue preclude her as an individual as well. After all, what is good for me might not be good for her. We should not require her to make the choice between her own interest and mine.

As it turns out, for precisely these reasons, there is not, in general, issue preclusion when there is a change in capacity. The only exceptions, which would explain the Alexander case, is when no conflict of interest problem exists. Here is an example from the Second Restatement of Judgments section 36:

AIn a collision between cars driven by A and B, A is injured, B is killed, and C, who is B's wife, is also injured. A brings an action for his injuries against C as administratrix of B's estate. Judgment is for A. If C subsequently sues for her own injuries, she is not precluded from relitigating the issues determined in the first action.


38. Question about impleaders and interpleaders.

Q.
Somewhere along the lines in my notes and outline I started using impleader and interpleader interchangably.  I was wondering if you could clarify the difference.

A.
An impleader is when defendant brings in a new party under R 14, that is, because the new party is or may be liable to the defendant for all or part of the plaintiff's claim against the defendant. They include claims for indemnification, contribution, etc. Impleaders can also be brought by those being sued in cross-claims, counterclaims and impleaders.

I don't think I ever mentioned an interpleader in class. That is when someone who thinks he might be sued by a number of plaintiffs and exposed to double or multiple liability if separate actions were brought can bring these potential plaintiffs all together in the same action. It solves the problem of P1 suing me claiming ownership of a vase in my possession (with P1 winning and getting the vase), followed by P2 suing me for ownership of the vase (with P2 winning and getting damages worth the value of the vase). I can solve that problem by bringing P1 and P2 together in a single suit concerning ownership of the vase. See R 22.

 39. Question about sanctions in connection with depositions

Q.
Pretty sure I know the answer to this already, but wanted to hear some background I guess: if a witness is just absolutely uncooperative in a deposition, can she be held in contempt? I'm sure the answer is no because the lawyers are not about to make a citizen's arrest in their own office! But in such a case, what options are available to the lawyers. SOMETHING must be available, or else all witnesses would just refuse to testify until trial.

A.
First of all, if a party simply fails to show up for a deposition, that party can be sanctioned under R 37(d). As for non-parties, if they fail to show up, you must make a motion to compel under R 37(a), which requires "a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action." If the motion is granted and ignored by the witness, this will result in sanctions under R 37(b). But what if a party or non-party witness shows up but makes frivolous objections to the questions asked? You must then make a motion to compel, again under R 37(a). If the motion is granted and ignored, then you can get sanctions under R 37(b).

40.  Question about claim preclusion for default judgments.

Q.
For res judicata, if a party defaults on a judgment does res judicata apply?  It doesn't seem like it would for issue preclusion, because that issue hasn't been fully litigated.  But I am not so sure about claim preclusion.

A.
There is claim preclusion for a default judgment (but not issue preclusion). If P sues D and gets a default judgment, P may not sue D again concerning the same transaction or occurence. Likewise D is bound by that judgment, so long as it stands. But D can, of course, get the judgment set aside, if he can show there was no SMJ, PJ etc. If the judgment is set aside, then neither P nor D is claim precluded.

41.   Question about claim preclusion and R. 41(b).

Q.
Is the claim preclusive effect of a default judgment governed by R 41(b)? I still can't clearly understand the relationship between claim preclusion and R41(b).

A.
The question of the claim preclusive effect of a default is not governed by 41(b). First of all, a default judgment is not an involuntary dismissal, and R 41(b) only covers involuntary dismissals. Second, as Semtek states, 41(b) is not about the claim preclusive effect of an involuntary dismissal; it only covers the effect of an involuntary dismissal within the same jurisdiction.

42. Question about state courts deciding issues of federal law.

Q.
Just as the fed courts are merely "predicting" state law in diversity cases (in that they don't bind the state courts) are state cases ruling on federal questions with concurrent jurisdcition merely "predicting" how a federal court would rule on the federal question?

A.
First of all, I assume here that you are asking whether a state court should predict what the US SCt would do, not what a federal court would do. This would make the situation parallel to a federal court deciding an issue of state law, where a federal court decides as it predicts the relevant state SCt would.

This is a great question and the answer is NO.

The reason that federal courts sitting in diversity must predict what the relevant state supreme court would say is that there is no avenue of appeal from the federal court system to the state supreme court. On the other hand, there is an avenue of appeal from the state court system to the US Supreme Court. Therefore state courts, like lower federal courts, are bound by musty US SCt cases, even when they know that the US SCt would now say otherwise. They may not rule as they predict the US SCt would decide.

43.  Question about special appearances.

Q.
I have a question about special appearances. I am going back through the text book, and I am now confused. In class we have discussed the ability to make a special appearance to challenge personal jurisdiction. The F&K book (p.495) appears to say that this is not allowed, but that D can challenge PJ through a pre-answer motion or answer.

When we refer to "special appearances" in class, are we really just referring to filing pre-answer/answer motions to challenge PJ? Or are we saying D personally goes to the state to argue PJ? In both state and federal court?

A.
There are two sense of special appearances (I mentioned this briefly in class). On the one hand a special appearance can mean only that the D may appear and challenge PJ without submitting himself to PJ by his very presence. Special appearances in this sense are allowed in federal court. If special appearances in this sense are not allowed, then the D can never challenge PJ except by defaulting and collaterally attacking when P sues on the judgment in a different forum.

On the other hand, there is another (and more common) sense of special appearance that refers to a situation where the D can appear and challenge PJ, but only when he mentions PJ alone. If he conjoins the defense of PJ with other defenses (eg failure to state a claim), then he will have waived the defense of PJ. This is the sense in which the term is used in F&K. Special appearances in this sense do not exist in federal court.

44.  Question about nonmutual issue preclusion.

Q.
I know the difference b/t offensive and defensive use and the difference b/t direct and collateral, but none of those seem to fit the following scenario:
A, B, and C get into an accident simultaneously. A sues B claiming that B is at fault for the accident. The trial court finds A was really at fault for the entire accident and enters judgment for B. If C were to then sue B claiming that B was a fault for the accident, can B then use the judgment entered in his favor to issue-preclude C from relitigating fault by claiming that 1st trial court found that B was not at fault?

A.
No - issue preclusion is impossible here (unless there is some story about why C was in privity with A). Due process demands that C not be bound by any determination of an issue that he (or his privy) did not participate in.