Civil Procedure Outline (No. 2)

CIVIL PROCEDURE

JURISDICTION

Personal Jurisdiction

I. Origins

A. Pennoyer v. Neff

II. Constitutional Power

A. International Shoe

B. Absorbing In Rem Jurisdiction

1) Shaffer v. Heitner

C. Substantial Justice

1) World-Wide Volkswagen

2) Burger King

3) Asahi

4) Burnham

D. Jurisdiction to determine Jurisdiction

1) Insurance Corp. of Ireland

III. Consent as a Substitute for Power

A. National Equipment Rental

IV. Notice

A. Mullane v. Central Hanover Bank

V. Self-imposed Restraints on Jurisdictional Power

A. Long-arm Statutes

1) Omni Capital

B. Venue

C. Transfer & Forum Non Conveniens

Subject Matter Jurisdiction

I. Idea and Structure

II. Federal Question Jurisdiction

A. Louisville & Nashville RR v. Mottley

III. Diversity Jurisdiction

A. Mas v. Perry

IV. Supplemental Jurisdiction

A. United Mine Workers v. Gibbs

V. Removal

A. Willy v. Coastal Corp.

THE ERIE PROBLEM

I. State Courts as Lawmakers in Federal System

A. Erie Railroad v. Tompkins

II. The Limits of State Power in Federal Courts

A. Guaranty Trust Co. v. New York

B. Byrd v. Blue Ridge Rural Electric Coop.

C. Hanna v. Plumer

D. Stewart Organization, Inc. v. Ricoh

Pleading

I. Historical Background

II. Pleading Under Federal Rules

A. Stating a Claim

i. Campbell v. Laurel

ii. Rannels v. S.E. Nichols, Inc.

B. Ethical Principles and Disfavored Claims

i. Ethical Principles as a Limitation

Business Guides v. Chromatic Communications Enterprises

ii. Disfavored Claims

a. Fraud - DiLeo v. Ernst & Young

b. Civil Rights - Fisher v. Flynn

c. Other

C. Allocating the Elements

Gomez v. Toledo

D. Responding to the Complaint

i. Pre-Answer Motion

ii. Answer

a. Denials - Zielinski v. Philadelphia Piers, Inc.

b. Affirmative Defenses - Layman v. Southwestern Bell Tel Co.

iii. Reply

iv. Amendments

a. Basic Problem: Prejudice - Beeck v. Aquaslide 'N' Dive Corp.

b. Statutes of Limitations and Relation Back-Barnes v. Callaghan & Co.

Discovery

A. Modern Discovery

Blank v. Sullivan & Cromwell

Steffan v. Cheney

B. Discovery in an Adversary System

Hickman v. Taylor

Bunzl Pulp & Paper Sales v. Golder

Coates v. AC&S, Inc.

Schlagenhauf v. Holder

C. Controlling Abuse of Discovery

Refac Intl. v. Hitachi, Ltd.

Pressey v. PattersonI. Pennoyer v. Neff

RULE:

Where the object of the action is to determine the personal rights and obligations of the parties, service by publication against nonresidents is ineffective to confer jurisdiction on the court.

Notions of jurisdiction have from the beginning been tied to the practical concern of NEED FOR A REMEDY.

A. Pennoyer dealt with:

1. Power Two ways to get power over the parties

a. Personal

(1) PRESENCE Personal service in the forum

(2) CONSENT Voluntarily appear

Even if you appear to argue that the case should be dismissed, you consent to the jurisdiction.

(3) STATUS See (b)(2)

b. In rem

(1) PRESENCE Property within the state

(2) INTANGIBLE PROPERTY Status

Marriage

 Quasi in Rem when a person tries to use in-state property owned by non-resident to satisfy claims not related to the property.

2. Notice

Notice is only subsurface in Pennoyer (prejudgment seizure is OK for notice i.e., if N had attached the property before the suit, it would have been OK)

B. Limitations on Jurisdiction

1. Each state has exclusive power within its own territory

2. No state can reach into other states

3. Decisions made without proper jurisdiction are void; other states not bound to enforce it.

4. If the jurisdiction was proper, other states are bound to honor it

Full faith and credit clause

C. Pennoyer provides "escape hatches" from this territorial rigidity:

1. Domicile (still important)

2. Status (In Rem) (still important)

Divorces, adoptions

Marriage is a "thing"

3. In Rem

4. Consent

5. Corporations

6. Doing business

Courts use Incorporation and Doing Business to create fictions of "presence" and "consent"

D. Cases that Modify Pennoyer

1. Harris v. Balk used to get around rigidness of Pennoyer

Harris owed Balk and Balk owed Epstein. H went to My. and was served by E.

Allowed states to acquire Jurisdiction whenever their debtors were present by "attaching the debts.

2. Hess v. Pawloski motorist statute which created fictional implied "consent" for anyone driving in the state.

II. International Shoe

A. International Shoe v. Washington

D employed salesmen in Washington but had no other contacts with the state.

RULE:

For a state to subject not present defendants to in personam jurisdiction, due process requires that the defendants must have sufficient minimum contacts with the state such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."

B. Test:

1. Quality and Nature of Contacts

Contacts must be such as to make the relationship reasonable to require defendant to defend the suit brought there (estimating inconveniences/ problems of trial away from "home" is a factor--but the criteria is not "mechanical" or "quantitative"--the satisfaction of due process depends on the quality and nature of the activity in relation to the fair and orderly administration of the laws.

2. Systematic & Continuous v. Casual & Irregular

3. Purposely Availing

a. D's contacts were sufficient to make it reasonable to permit Wash. to enforce the obligations D incurred there --Reciprocity.

b. Milliken v. Meyer Milliken was permanent resident of Wyo., but was served in Colorado domicile is alone sufficient to bring an absent defendant within the reach of the state's jurisdiction, because the state still accords him privileges and affords protection to him and his property, regardless of his absence from the state. By virtue of his domicile, the state may also exact reciprocal duties, one of which is to bring suit within the state, provided the state has given him reasonable notice of the proceedings against him.

c. Hanson v. Denckla Trustees did not purposely avail themselves of doing business in Florida.

Trustees did not reach out to Florida--grandma just moved there

The activity of those who claim some relationship with the nonresident defendant cannot satisfy the requirement of contact with the forum state. There has to be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws--this never happened with the trustee. (voluntariness and reciprocity)

4. Cause of Action Related to Activities

The obligation to sue arose out of those activities/contacts.

a. Specific v. General

(1) Specific Jurisdiction

If the cause of action is clearly related to D's contacts, don't need to show as many contacts.

(2) General Jurisdiction

If cause of action is unrelated, must have greater showing of contacts.

5. Foreseeability

III. Shaffer v. Heitner

A. Shafer v. Heitner

Heitner brought a derivative shareholder suit against members of Greyhound's Board. Plaintiff alleged Delaware had jurisdiction since the directors happened to own Greyhound stock, and Delaware had a statute which provided for jurisdiction based on the sequestration of stock.

RULE:

Jurisdiction cannot be founded on property within a state unless there are sufficient contacts within the meaning of the test developed in International Shoe.

B. Test

1. There must be a relationship between Defendant--->Forum--->Litigation

D

-

F L

2. The presence of property within the state is not enough if no sufficient contacts.

3. Must not offend fundamental notions of fair play and substantial justice

4. Interests of the party are personal rights--should be based on fair play

5. "We therefore conclude that...all assertions of Jurisdiction held under standard of Int'l Shoe"

Quasi in rem can still be brought if state long arm is involved

C. Court's Analysis

1. Majority does quantitative analysis

Not sufficient quantity of contacts

2. Dissent does qualitative analysis

Forum has interest in litigation, and contacts were of sufficient quality

 Wilkins Brennan doesn't care about minimum contacts; only "is it fair?"

 Wilkins Shaffer too broad; history means nothing in this case.

IV. World-Wide Volkswagen

A. World Wide Volkswagon Corp. v. Woodson

Ds were NY residents and purchased car in NY. Accident in OK. Brought products liability suit in OK against Audi (manufact.), Volkswagen (importer), World-Wide VW (regional distr.), and Seaway (retail dealer). Ps asserted OK lacked jurisdiction.

RULE:

If a corporate defendant does not have minimum contacts, ties, or relations with the forum state such that it purposefully avails itself of the privilege of conducting activities within the forum state, it is not subject to in personam jurisdiction.

The sale of an automobile by a corporate defendant is not a sufficient purposeful availment of the benefits and protections of the laws of a state where the auto is fortuitously driven there so as to constitute the requisite "minimum contacts" with that state for personal jurisdiction purposes.

 Wilkins' Rule: The assertion of personal jurisdiction must be consistent with fair play and substantial justice.

B. Tests:

1. Foreseeability

a. Majority: "if the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there."

b. Brennan: Only have to foresee stream of commerce and be aware of where stream goes.

Brennan thinks if it goes in stream, it's foreseeable.

c. Emphasis is on Predictability and Purposeful Actions.

2. Purposeful Availment

Restrictive reading of purposeful availment is still alive.

WWVW wants a strong factual showing that D approached the forum.

C. Two purposes of minimum contacts

1. Protect D against burden of litigation in another state

2. Limits states' power

Don't have control over things too removed

D. OK Sup.Ct. Argument

The idea that WWVW obtained substantial income from cars used in OK is not valid "financial benefits accruing to the defendant from a collateral relation to the forum state will not support jurisdiction if they do not stem from a constitutionally cognizable contact with that state."

E.

"Forum states would have jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state."

F. Gray v. Amer. Radiator

1. Manufactured valves for water heaters

2. Ct. said putting in stream of commerce = foreseeability

reasonable to think those components will go everywhere.

3. Manufacturers of components should foresee.

4. Policy reason: they get protection from state law in marketing water heaters containing its valves.

V. Burger King

A. Burger King v.

Rudzewicz signed franchise agreement with BK, a Florida corp. Agreement had choice of law clause

RULE:

After deciding that a defendant purposefully established minimum contacts, then consider those contacts in light of the following factors to see if the comport with "fair play and substantial justice"

1) Burden on Defendant

2) Burden on P if suit is not brought

3) Forum State's Interest in the dispute

4) Efficient resolution of disputes (interstate judicial system)

5) Shared interest of the several states in furthering social policies.

B. Rule Application

1. D had no physical ties to Florida but

2. Dispute grew directly out of contract which had substantial ties to forum

3. D deliberately reached out to Florida

4. Quality and nature of his contacts with Florida was not random, fortuitous, or attenuated (Hansen v. Denkla)

Dissent also adds:

5. Established substantial and continuous relationship

6. Received fair notice from contract

7. Failed to demonstrate "unfairness" of Jurisdiction

C. Brennan's two-step analysis:

1. Minimum Contacts

Purposeful availment

2. Fairness

D. Brennan's Analysis Applied

1. State has interest

2. D received benefit

3. No burden on him to go to Floriday b/c of modern transportation

4. Since the ct. must apply Florida law anyway, the most convenient forum is in Florida

V. Asahi

A. Asahi's Only Clear Point:

No need for this litigation to occur in California.

B. Asahi fails fairness and Minimum Contacts mainly due to the foreign D.

1. Even though Asahi could have "foreseen" that its product would end up in the US,

2. It would be manifestly unjust to require Asahi to defend itself in the US.

C. Sup. Ct.'s Analysis

1. Minimum Contacts (according to O'Connor four votes total)

a. Purposeful availment intentionally reached out & made contact with forum.

b. It is undisputed that Asahi could have reasonably foreseen that it would end up in California and it did place product in stream of commerce knowing it would go to California.

O'Connor says more is needed than this (no minimum contacts)

c. Substantial Connection

(1) Didn't design for CA market

(2) Didn't advertise

(3) No office

(4) No established distribution channels/agents

d. Votes

4 justices said no Min Contacts--5 said yes Min. Contacts, even so NOT REASONABLE (not fair)

2. Fairness Factors

a. Burden on D not just travel, but also two different legal systems.

b. State's interest CA has no strong interest in the result of the case.

c. P's interest in relief P doesn't care, he's already settled.

d. Interstate judicial systems interest in most efficient resolution.

e. Shared interests of world states.

VI. Burnham

A. Burnham

Burnham & wife separated in NJ Mrs. Burnham moved to CA with kids, and Mr. Burnham was served while visiting CA. D tried to argue that simple presence was insufficient contacts had to relate to litigation. D was wrong.

RULE:

Physical presence is still sufficient regardless of contacts.

B. Sup. Ct.'s Analysis

1. Brennan said fairness is more important than history

2. Scalia argues for history (presence = enough for jurisdiction). He wants the law to be something outside the judge. As long as law is just what the judge thinks, it is just policy.

 Wilkins agrees if you abandon tradition, you abandon the law.

VII. Insurance Corp. of Ireland

RULE:

Court has jurisdiction long enough to determine if it has jurisdiction

A. Jurisdiction

1. Subject Matter Jurisdiction is not an individual right so it's not subject to waiver.

2. Personal Jurisdiction is an individual right so it is subject to waiver.

B. Ct.'s Analysis

1. Once you come in and challenge Jurisdiction, you submit yourself to the court to decide jurisdiction.

If you do nothing in the beginning, you can wait and attack collaterally

2. Hammond Packing Presumption

If you've been ordered to produce evidence and you don't, court may presume whatever evidence you do have would go against you.

C. Rule 37(b)(2)(a) provides sanctions for not complying with discovery

VIII. National Equipment Rental v. Szukhent

A. National Equipment Rental v. Szukhent

Farmers lived in Michigan and bought farm equipment in NY. The purchase contract contained the clause: "the Lessee hereby designates Florence Weinberg, 47-21 41st Street, Long Island City, as agent for the purpose of accepting service of any process within the State of NY."

RULE:

Consent is a Substitute for Power.

B. Service on an Agent

Under Pennoyer, (combined with Burnham) personal service on an agent who is present is OK.

C. Contract Clauses (Boilerplate)

1. As long as notice is given, contract clause is OK

2. Unenforcable clauses

a. Unconscionability contract is so unfair that we're not going to enforce it.

b. Adhesion bargaining power is so one-sided that we're not going to enforce it.

Notice

Mullane v. Central In 1946, Central Hanover Bank & Trust Co. established a common trust fund. In March, 1947 it petitioned court for its first settlement. There were 113 trusts included, and the beneficiaries resided both in and out of New York. The only notice given was by newspaper publication in strict compliance with the minimum requirements of NY Banking Law 100-c(12). When fund was established, they did mail to all parties notice of the judicial settlement. A special guardian was appointed for all persons known or unknown or otherwise not appearing. Appellant (Mullane) appeared specially and objected that notice was inadequate. The objections were overruled, and the Surrogate entered final decree of settlement. Affirmed by App. Div. Sup Court and COA of NY.

Test: notice must be "reasonably calculated to notify D under circumstances" (w/in limits of practicality)

In rem/in personal distinctions outdated and irrelevant. 14th Amendment applies to both.

Beneficiaries have potential to be deprived of their property rights under this proceeding, so it must measure up to due process standards--notice and hearing.

Have to balance interests of state and individuals--guidelines for fair notice:

must actually inform

publication alone not sufficient

publication was not supplemented here.

In some cases, publication alone has to suffice--if don't know whereabouts of people, or it their interests are future interests, or can not be discovered in due course of business.

The court doesn't expect the unreasonable (expenditures, etc.).

In this case, then, they're excused for not notifying everyone (unknowns), but they should have at least mailed notice. (this notice to most would serve to protect interests of group as a whole).

-Mullane tries to make same argument as Shaffer--court lacks power, and must have in personam

but court didn't decide it on power ground

4 things to know from Mullane

1) have to show party tried to notify

2) are other methods more likely to work?

3) practical limits (is it reasonable)?

4) every case fact-specific

Self-Imposed Restraints on Jurisdiction

Authorization for Service of Process

Omni Capital P, Omni Capital (NY) marketed investment program based on commodity future trading in London. Rudolf Wolff & Co. (D) acted as broker. It and its principals were Britons-only U.S. business was with Omni in NY. The IRS disallowed deductions based on the program and disgruntled investors sued P, which impleaded D. D moved to dismiss for lack of personal jurisdiction. Dist. Ct. dismissed--SC affirmed.

Authorization--fed. courts have no inherent right to exercise jurisdiction--must have authorization. FRCP 4(e) looks to state long arm statutes for authorization.

(Here, P wanted court to create common law rule authorizing service--court said it was not their place to make such rule--they would not)

Bottom line--

If no federal statute authorizing service/If no state long-arm statute no service of process

--many states follow CA--"Court can exercise jurisdiction on any basis not inconsistent with Const."

-Is fed. jurisdictional reach different from that of state court?

Yes--when federal statute specifically authorizes nationwide service of process

No--if no fed. statute--exactly like state jurisdictional reach.

(the underlying premise of the federal statutes authorizing nationwide service of process is that since the defendant's minimum contacts with the nation as a whole, that's sufficient for jurisdiction in any federal court.)

*W--great exam question

Here, LA courts had adopted strict reading of their own long-arm statute--they could interpret it broader (stream of commerce argument) but they hadn't. What if LA had modified their statute--nothing contrary to Const.? Don't know for sure--resembles Asahi. Poss. arguments:

What are impt. differences between this and Asahi?

-character of act different---knew exactly where their transactions were being sold

-more contact purposely directed at NY

-Wolff knows it's act end up in U.S.

-LA has strong interest in protecting its citizens from fraudulent investment schemes

-convenience--Wolff prob. has counsel in NY--less of burden on them than on Asahi.

*W--like Asahi in form, but may different enough to make it come out differently. (on fairness factor)

Venue --- resembles personal jurisdiction

 1391 Venue Generally

(a) Any civil action where jurisdiction is founded solely on diversity of citizenship may be brought only (except as otherwise provided by law):

(1) judicial district where any defendant resides, if all defendants reside in the same state.

(2) judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or

(3) judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced (*W might not apply to single D case).

(b) When Jurisdiction is not founded solely on diversity of citizenship may be brought (except as otherwise provided by law) only in:

(1) judicial district where any defendant resides, if all defendants reside in the same state.

(2) judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or

(3) judicial district in which any defendant may be found, if there is no district in which the action might otherwise be brought.

(c) For venue, a defendant corporation resides in any district in which it is subject to personal jurisdiction at the time the action is commenced.

-if more than one district in a State, corp. is deemed to reside in any dist. in which its contacts would be sufficient to be subject to personal jurisdiction if that district were a separate state. If no such district, corp. resides in district in which it has the most significant contacts.

(d) An alien may be sued in any district.

(e) If defendant is an officer or employee of the United States, or an agency, or the United States, the civil action may be brought in any district in which:

(1) a defendant in the action resides

(2) a substantial part of the events or omissions occurred, or a substantial part of property that is the subject of the action is situated, or

(3) the plaintiff resides if no real property is involved in the action.

(f) A civil action against a foreign state (1603(a)) may be brought:

(1) in any judicial district in which a substantial part of the events occurred or property is located

(2) any district where the vessel or cargo is located (if under 1605(b)

(3) any district where the agency or instrumentality is licensed to do business or is doing business

(4) In the US Dist. Ct. for the District of Columbia, if the action is brought against a foreign state or a political subdivision thereof.

 1392 Defendants or property in different districts in same State

(a) Any civil action, not of a local nature, against Defendants residing in different districts of the same State, may be brought in any of such districts.

(b) Any civil action, of a local nature, involving property located in different districts in the same State, may be brought in any of such districts.

Transfer

 1404 Change of Venue

(a) For the convenience of the parties and witnesses, and in the interests of justice, a district court may transfer any civil action to any other district where it might have been brought.

(b) Upon motion, consent or stipulation of all parties, any civil action may be transferred to other divisions within the same district in which it was brought.

--Proceedings in rem brought by or on behalf of the United States may be transferred without the consent of the United States is all other parties request transfer.

(c) A district court may order any civil action to be tried at any place within the division in which it is pending.

(d) "district court" includes Canal Zone.

 1406 Cure or Waiver of Defects

(a) The district court shall dismiss cases filed in which venue is in the wrong division or district.

--or transfer to any division or district in which it could have been brought, if justice requires.

(b) This chapter does not impair the jurisdiction of courts for parties who don't interpose timely and sufficient objection to venue.

 1631 Transfer to Cure Want of Jurisdiction

When a court notices that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in the original court.

-1631 interpreted as allowing transfer to state courts, if in interests of justice

Might get transfer if

1) Statute of limitations has run

2) Too tough to serve

3) Don't want to lose rulings if substantial litigation

--If moving party (requesting transfer) is opposed by other party, court protects opposing party---court requires a strong showing of inconvenience by moving party.

Forum Non Conveniens

In re Union Carbide

FNC is not appropriate if no other forum is available or provides a remedy

-unless Defendant waives a right that otherwise would not allow it to be brought there (SoL,etc)

Elements:

1) Adequate Alternative forum

-Was India sufficient?--backlog, no discovery rules, etc.

2) Private interests of the litigants

-sources of proof

-easier to litigate

3) Public interests

-Administrative difficulties of court congestion

-Local interest in having local disputes

-Prompt, speedy, efficient administration

Conditions

1) consistent with due process

2) FRCP discovery

3) No Statute of Limitations (always include this one, not necc. in 1404 transfer)

-Never going to get conditions inconsistent with concept of dismissal

1404(a)

FNC

Liberally granted

Restrictive in granting

No change of law

Change of law possible

No problems with Statute of Limitations

Possible SoL problems

Transfer

Dismissal

P may seek

Only on Defendant's motion

Subject Matter Jurisdiction

Mottley--alleging an anticipated constitutional defense in the complaint does not give jurisdiction if there is no diversity of citizenship

Plaintiff's complaint must be based upon the federal laws or the Const. to confer jurisdiction

Well Pleaded Complaint rule:

Original cause of action must arise under the Constitution or statute.

Mas v. Perry-- Plaintiff must prove jurisdiction and defendant is challenging it here; domicile is the basis of jurisdiction and a wife does not automatically take her husband's domicile.

1. domicile is the place of his true, fixed and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent.

2. to change domicile, take up residence in different domicile and have an intent to remain there indefinitely;

3. amount in controversy must exceed $50,000 (amount claimed, not amount finally awarded.)

Supplemental Jurisdiction

United Mine Workers v. Gibbs--P sued D, union, alleging both federal claim that D's conduct violated the Natl. Labor Relations Act and the state law tort of interfering w/ P's contract rights. The federal claim was dismissed--did the court have jurisdiction over the state claim?

1. the state and federal claim came out of the same facts and had to be examined together.

2. the federal claim was substantial enough alone to grant federal question jurisdiction.

Rule: The fed ct. can render a judgment for the P on the state law claim even if it leiminates the fed claim, provided that the state claim arises out of the common nucleus of operative facts.

Court's analysis:

(1) Did the court have power to exercise jurisdiction? (hae to have fed. question, arise out of common nucleus of oeprative facts, etc.)

(2) Will the court use its discretion to exercise that power?

Gibbs Test:

1. Both claims must arise from a common nucleus of opereative facts such that you would expect them to be tried together.

2. Discretionary analysis: court should conisder judicial economy, convenience, and fairness. How close is the action? Is there hegemony of state claims over federal claims.

Policy:

Supplmental jurisdiction has expanded while otehr areas have become more restrictive (e.g. diversity)

Why? Judicial economy--avoid duplication in state court--if same occcurrence--->take care all at once.

old terms--pendent--when P in complaint tried to append case otherwise not w/in fed. jurisdiction

anciallary--court would use to reach any other claim that came in by way of defense/counterclaim/etc.

Gibbs codified in U.S.C.  1367.

(a) codifies "power element"--makes absolutely clear that court does have power to hear

(c) says courts may decline if. . . factors to look at

Removal

Willy v. Coastal Corp Willy (P/Appellant) was employed as in-house lawyer for Coastal States Management Co. (Def./Appellee). He claimed he was fired because he insisted they comply with various state and federal environmental and securities laws and because he would not be a part of violating those laws. He filed action in Texas state court, impliedly under Sabine Pilot case law, which established a common law wrongful discharge action for at-will employees. He named several federal Acts that were at issue (Clean Water/Air, etc.)

Def's removed to U.S. District Court pursuant to 28 U.S.C.  1441 on basis of original federal question jurisdiction, because the federal statutes that Willy claimed he was fired under formed a necessary element of his claim. Willy moved for partial summary judgment and was denied 3 times.

COA held that Willy's motions should not have been denied because his claims did not "arise under" the federal law, and Def's should not have been able to remove it to federal court on that basis.

Dist. Ct. awarded $22,625 in attorney's fees to Coastal as a Rule 11 sanction against Willy.

COA also asked for Rule 11 sanctions to be recalculated.

1441-Actions Removable Generally

1442-Federal Officers sued or prosecuted.

1443-Civil rights cases.

1445-Nonremovable actions.

1446-Procedure for Removal

1447-Procedure After Removal Generally

1448-Process After Removal

The Erie Problem

A. What law does federal court apply in diversity cases?

Choice of Law - horizontal = between states' law

vertical = federal or state law

Rules of Decision Act 1789 - "that the laws of the several states, except where the constitution, treaties, or U.S. statutes otherwise require or provide, shall be regarded as the rules of decision in the trials at common law in the courts of the states where they apply"

B. Swift v. Tyson - in diversity cases,"laws of the several states" interpreted to mean only law passed by legislature and codified into statutes; common law did not count. Fed. courts were free to exercise independent judgment as to what the common law was; theory was to develop general federal law that would be uniform.

Problems it created:

1) forum shopping

2) prevented uniformity in state law administration

-caused inequitable application of the law; discriminated against citizens who are drug into fed. ct. by non-citizens because of diversity.

--it failed at creating uniformity, and it created injustice (Black & White v. Brown & Yellow Taxi Cab case - gross abuse--only had to incorporate in another state so they could get diversity and more favorable decision in fed. court.)

I. State Courts as Lawmakers in Federal System

A. Erie Railroad v. Tompkins

Facts: Thompson injured by passing RR car door. Under PA case law, he would be denied recovery because he was deemed a trespasser. Under general law in fed.ct., he would only have to show ordinary negligence to recover. Reversed Swift v. Tyson.

Holding: In all cases of substantive law not expressly governed by an act of Congress or the Const., state law (legisl. & judicial) must be followed.

Twin Aims of Erie:

1) prevent forum shopping

2) avoid inequitable administration of the laws

a. Actions which arise from state cause of action being tried in federal court must apply federal procedure and state substantive law.

b. S.C. said Rules of Decisions Act had been interpreted incorrectly/unconstitutionally--allowed fed. ct. to act in areas where fed gvmt. couldn't act. *W--not really so; weak unconst. argument

II. The Limits of State Power in Federal Courts

A. Guaranty Trust Co. v. York

Facts: York, barred from filing claim in state court because SoL had run, brought equity action in fed. ct. Problem--whose law to apply? Dispute over whether SoL was a procedural or substantive issue. York expanded Erie from substantive to procedural laws.

Rule: "Outcome Determinative Rule"--if verdicts would differ significantly, then must apply state law.

Why? To comply w/ Erie's twin aims--

1-outcome substantially same

(inequitable administration of law)

2-avoid forum shopping

What is test for inequity? NOT whether it's inequitable to that individual--but whether it would be inequitable to the class of people similarly situated.

Problem with rule: any procedural rule can be construed as "outcome determinative."

B. Byrd v. Blue Ridge Rural Electric Coop.

Facts: Injured P was subcontractor for D. State law provided for judges to decide worker compensation immunity appeals. P went to fed. court, who used jury trials. Ct. held that the 7th Amend. right of jury trial more import. than state policy.

3-step test:

1) if state law is bound up w/ substantive rights and duties of parties then it should be follows.

2) if outcome will be different depending on which is followed, fed. courts should follow state law unless

3) there are countervailing federal considerations that override desire for consistency; balancing test.

balancing test: weighing the policies underlying fed. and state rules--factors to consider:

1-maintain essential character of federal system

2-uniformity of result

In Byrd, how did balancing test work?

1) no clear reason why state law gives it to judge--almost a historical accident; state interest is not that strong

2) it's not necessarily outcome determinative--might not make any difference

3) Factors that support application of fed. rule--strong federal policy embodied in 7th Amend.

Bottom line of Byrd: Notwithstanding that you may have outcome determinative rule, you may nevertheless disregard it in some circumstances if you can show that some important federal policy outweighs state policy.

*W - troubling decision--especially weighing policy part that "our policy is impt. and yours ain't"

C. Hanna v. Plumer

Facts: Auto accident in SC between H (OH), P (MA). Hanna sued P's estate in fed. ct. Def. asked or summary judgement for improper service--Mass. law provides service executor of estate must be in person--not left at house. FRCP 4 allows at house. 2 halves of opinion

1st Ask what are twin aims of Erie?

1- discourage forum shopping

2- avoid inequitable adman. or rules

so . . we will apply state law anytime federal law would encourage forum shopping or inequitable adman. of law

*W--Rules for applying test:

1) Does a federal rule cover the issue in question?

If so, apply it.

2) If not applicable federal rule, is it "outcome determinative?"

If so, we'll ordinarily apply state law, but we can apply federal law if it will not result in forum shopping or inequitable administration of the law, or if it will not affect primary conduct that shapes the decisions people make in ordering their lives.

2nd "The Safe Harbor" - analysis you take anytime you deal with federal rule

Rule: If federal rule is constitutional, it controls (even if using state substantive law).

-Rules Enabling Act gives Court authority to make rules--so if FRCP is passed consistent w/ Act, then it's constitutional and controlling. So if issue is obviously procedural, FRCP controls.

D. Walker v. Armco Steel

Reaffirmed Ragan. Parties thought after Hanna court would reverse it. Dealt with FRCP 3--action commence at time you file in federal court; state rule was that it started when you served defendant. Ragan held that FRCP was narrower than state rule so that state law applied. Court created accordion--squoze it in in Walker to say Rule 3 doesn't apply. Requires state and federal laws to be in direct conflict.

E. Burlington Northern RR

Court held that FR App. Proc. 38 conflicted with state statute limiting amount of sanction for unsuccessful appeal. Court pulled out accordion to say Fed. Rule did apply, so it should be used.

F. Stewart Organization, Inc. v. Ricoh

Facts: Franchise contract containing forum selection clause--NY fed. ct. P brought suit in AL fed ct. D's moved to transfer. Dist. Ct. denied motion to transfer, applying Alabama law that did not enforce forum-selection clauses. Question was whether U.S.C. 1404(a) was sufficiently broad to control issue before court.

2 step analysis:

1) Check and see if federal statute is broad enough to apply (is there conflict between state and federal law?).

2) Is it a valid exercise of authority? (statute must be valid just like FRCP must be valid).

If valid federal statute in conflict w/ state law, federal statue must govern.

Court held that 1404(a) does govern the parties' venue dispute (only in sense that it lays out factors to be considered for transfer, which may include forum-selection clause).

Seems to conflict with Erie. Sounds like Swift v. Tyson on broadest reading. Another one of those bombshell cases like Chambers v. Nasco.

What is conflict w/ Erie? forum sel. clause is bound up in state rights; it would promote forum shopping; 1404 isn't controlling (Scalia's dissent hit it head on).

Like in Burlington RR, the court is construing federal rule broadly to avoid conflicting state party that might penalize parties.

G. Chambers v. Nasco

Court imposed heavy sanctions for conduct (contrary to state law). Supreme Court upheld--even though it was contrary to what state law mandated. They said it wouldn't lead to forum shopping and wasn't inequitable.

*W--wrong. It could very well encourage forum-shopping.

Strange opinion--looks like return to Smith v. Tyson.

S.C. may be honoring Erie in form only.

H. Conclusion - Court taking inconsistent positions. What explains difference?

Stare decisis. You're not likely to get narrow reading of FRCP (allowing state rule to apply) unless there's an older case that gives it precedence--like Ragan or Armco Steel.

--new issues that haven't been looked at before by court are more likely to get Hanna or Burlington approach.

"We're not as in love with Erie as we once were"

Erie & Tort Reform; states have enacted various means of tort law reform--screening panels, cap on damages, etc. Question is whether a federal court must apply these state rules/regulations? Federal courts go both ways--hard to make sense of decisions in this area. Some say they conflict with FRCP--can't require pre-screening, etc. Other take broader reading of FRCP (stretch the accordion).

*W--great exam question--State Tort Reform--should it apply?

Broad reading: Hannah/Ricoh

Narrow reading: Ragan/Armco Steel

Erie begins to look more and more like Swift v. Tyson all the time--especially because many times there's no state law on point (in Utah, for e.g.); then left w/ deciding what state law would be if they had considered it.

Several means of resolving:

certification process--ask state courts to answer question. But these haven't been very useful or helpful, and many states won't do it.

Abstention Doctrines - even though federal court has obligation to hear a case, they will abstain (not proceed) while a separate state lawsuit proceeds to resolve an issue.

Erie can influence abstention doctrine in some circumstances--where you have terribly important issues to the state court; federal court may, in unusual circumstances, say they have to wait.

The abstention doctrine is very difficult, and creates numerous problems.

Pleading

I. Historical Background

A. Historically, pleadings have been used to:

1) Give notice of nature of claim

2) State the relevant facts

3) Narrow the issues

4) Serve a guides for later discovery and trial

5) Expose insubstantial claim

6) Separate factual from legal issues

 Common law provided for all these.

 FRCP pleading only does #1.

#2-6 are now done through discovery,pre-trial conference, filing of Rule 12 motions, etc.

 Wilkins In a fairly clumsy fashion, Rule 11 is attempting to do things in #2-6.

II. Pleading Under Federal Rules

A. Stating a Claim

1. Campbell v. Laurel

P claims that D sexually harassed her (Civil Rights--federal and state) and intentionally inflicted emotional distress. Claimed that county was negligent in training employees. Court held that her claim failed to give facts which were necessary to establish an essential element of her claim.

FRCP Rule 8 requires:

1) JURISDICTION: " a short and plain statement of grounds upon which court's jurisdiction depends . . . "

2) STATEMENT OF THE CLAIM: "a short and plain statement of the claim showing that the pleader is entitled to relief"

3) RELIEF: "a demand for judgment for the relief to which" the pleader seeks

?? What was wrong with P's claim?

She would have to show that under Civil Rights Act  1983 that the acts were regular and were condoned by the county she must show that they were the policy and practice of the county.

P's real defect was that she failed to establish a necessary element of her claim she had no facts which supported a claim against the county under 1983. She could not state why she was entitled to relief.

?? Court said 12(b)(6) motions don't look at case on merits. Is that true?

In very limited sense, yes. While it doesn't look at a case on the merits, the court still requires that the complaint states facts which constitute a valid claim. In this case since facts weren't alleged, it suggests that the case has no legal merit (or they would have stated them).

 Ordinarily, under 12(b)(6) motion, you'll be allowed to amend complaint here she chose not to because there were probably no other facts to allege.

RULE:

In order to state a claim, you must include

1) Jurisdiction

2) Statement of the claim why you are entitled to relief

3) Request for the relief

 This case failed because P wasn't able to state the reasons she was entitled to relief.

She couldn't show that the action was the policy or practice of the county.

2. Rannels v. S.E. Nichols, Inc.

Lady bought jeans for $8 and zipper broke; she had them repaired for $2 and asked store to reimburse her; they refused and she stopped payment on her check. She brings an action for malicious prosecution. She was required to show that

1) she was not guilty of the crime

2) there was no probable cause for the criminal prosecution

3) the store management acted with malice

 Court's approach is similar to Campbell the court looks at the facts.

Trial Court: Found nothing to indicate that D knew her intent when she stopped payment. P must prove that D knew she was still willing to pay before she can meet #2 (no probable cause).

 Court of Appeals found facts that showed D knew or at least should have known her intentions (company president was aware, etc.); D prosecuted P anyway.

?? What's the difference between Rannels and Campbell?

In Campbell, she failed to establish a substantive element of her claim there was nothing to show it was the policy or practice of county.

In Rannels, there were facts which tended to show that all of the substantive elements were in place.

?? What's the real purpose of Rule 8?

To give other party notice of what they're being sued for. Doesn't have to be too specific (usually it's general), but be sure that the essential elements are included.

!! "A plaintiff will not be thrown out of court for failing to plead fact in support of every arcane element of his claim. But when a complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that those facts do not exist.

Shows why Campbell was dismissed

RULE:

1) If important facts exist that back up your claim, you MUST INCLUDE THEM IN YOUR COMPLAINT!

2) Don't just state the conclusion, state the facts.

3) You don't need to state the legal theory behind your claim.

 This case went to trial because P stated adequate facts! B. Ethical Principles and Disfavored Claims

1. Ethical Principles as a Limitation

Business Guides v. Chromatic Communication

BG compiled copyrighted directories. They planted seeds in directory to protect against infringement. They thought they had 10 seeds identified in CCE's publication. It turned out that the company was wrong in identifying seeds--they were actually correct. Company went to Finley Kumble (FK) to seek temporary restraining order against CCE. They were in real hurry to limit competition. FK filed motion w/o doing investigation. Dist. Ct.'s law clerk spent one hour researching the seeds and found they were correct, and denied motion for TRO. District court imposed Rule 11 sanctions on company for failure to adequately investigate the facts alleged in the complaint.

Orig. complaint signed by attorneys filing it and by President of BG. Was that necessary?

Rule 65(b) requires verified complaint for TRO--oath signed by someone who has personal knowledge of the facts, and verifies they are true. It's an earlier, weaker version of same thing that Rule 11 requires (verification--to make sure there's good basis for it).

Three main issues:

1) Whether rule 11 somehow violates Rules Enabling Act; CCE argued that it created a new national tort. (court weakly rebutted--but basically, questioning a FRCP just doesn't create a substantial hurdle--based on strength of Hanna v. Plumer--if it's rationally capable of being characterized as being procedural, it will be)

2) What about argument that Rule 11 doesn't reach client but only attorneys?

 O'Connor's analysis weak:

Implies Rule 11 reaches beyond just attorney to client, whether or not client has signed it. Assumption is, ordinarily you're going to reach the person who signed it. We'll reach represented party in circumstances where it seems appropriate to do so.

Last sentence of Rule 11 suggests that you can reach a represented party when the represented party is somehow directly responsible or intimately involved in conduct that results in violation of Rule 11. You don't need signature.

 Wilkins thinks if another case came up they'd use last sentence's analysis/ approach and find that sanctions could be imposed on client whether or not they'd signed it.

3) What's standard for imposing sanctions under Rule 11? When are we going to do it? Do you have to show black heart/evil intent; pure intent, etc.?

Standard is objective reasonableness in all the circumstances--not a subjective test. Do not have to prove person did so w/ evil motivation.

Kennedy's dissent--Substantive point rather than procedural. Look what doing--not imposing liability on attorneys--on the client, the represented party. That has never happened before in FRCP; unusual development, violates notions of separation of power, and Rules Enabling Act. Congress should do it, not us, if that's what we're after.

*W--Rule 11 is a mess--will cause problems; once Rule 11 motion filed, it puts client and attorney at war--great tactical tool for other side

ii. Disfavored Claims

RULE 9

-Purpose is to abandon fairly strict pleading requirements in some of these areas. Question arises, if we've done it for these things, is it worth it to have special pleading requirements for anything?

Rule 9 specifically sets out two areas where you have to plead quite carefully--9(b), 9(g).

9(g)-items of special damages, must specifically state. (any damages that don't ordinarily flow from a particular claim of harm; e.g., slipping and falling in grocery store--bone disease---> special damages; you wouldn't ordinarily expect them, even though they were caused by the def.)(reason for pleading them is clear--since it's extraordinary, have to specify.)

9(b)-FRAUD - Circumstances constituting fraud shall be stated with particularity.

State of mind (malice, intent, etc.) may be averred to generally.

a. Fraud - DiLeo v. Ernst & Young

Continental Illinois Bank sued accountant for fraud in violation of Securities Exchange Act. Court held that claim was inadmissible because of failure to allege basis for fraud claim--their only claim was that it "must be" fraud.

Easy reading of this case is that this isn't sufficient under Rule 9 and should be dismissed. HARDER ISSUE, why do we demand this from a fraud complaint? Why the differentiation between fraud and regular pleading?

-fraud easy to plead/hard to prove (human nature--point finger)

-breach of contract (big damages)

So this is just a ploy to further limit fraud claims.

Rule 9 open to broad interpretation by judges based on individual cases--if they really do think it's a case of fraud, they're a lot less likely to dismiss on insufficient pleading.

b. Civil Rights - Fisher v. Flynn - P charged professor, dept. college with sex discrimination resulting in her termination as asst. prof. Based claim on Title VII; Court upheld that she failed to allege facts sufficient to state a claim on which relief could be granted (said she should have alleged that prof. making the advances had authority to fire her).

*W--this case perhaps no longer indicative of what would happen. I would guess, after Anita Hill episode, judges going to be very slow to impose heightened pleading requirements on this category of civil rights cases.

These wax and wane with time; now, you could probably easily allege it, but if it becomes too easy to allege and vast majority of cases never prove it, 10 years from now, might go back to stricter pleading requirement.

Civil Rights claims are imposing doosies on another category--prisoners' claims. They're sick of dealing with them--make it very difficult for it to succeed--they want to weed out the majority.

c. Other

-court also imposing heightened pleading requirements in civil RICO cases (trying to discourage/stop claims).

-if court has hostility to particular category of claims--likely to impose strong pleading requirements.

PROBLEM--some meritorious claims will get weeded out. Same question as with any procedural issue--do we set up proc.'s that facilitate resolution of 100% of cases correctly with tremendous burden on system, or we do we come up with system that may make mistake, but will keep things lumbering along generally. It's a value choice. (This notion of extending pleading requirements to certain areas is totally common law--no statutory basis).

 C. Allocating the Elements

Ordinarily, if you have the burden to plead an issue, you have the burden to prove it. There are exceptions, but generally the burdens go in tandem.

3 burdens-

pleading--allocated by law

production--produce evidence (may switch back and forth)

persuasion--persuade factfinder/jury (never shifts--allocated by substantive law)

Factors to consider who has what burden:

1st--look at history/substantive law--how has law treated this type of complaint?

2nd--relative ease of access of proof--who has access to the evidence on the issue?

3rd--fairness

4th--improbability---more improbable occurrence is, more likely we'll require person asserting that it has occurred to have burden to plead, prove, and persuade.

e.g. 1--Rule 8(c) Affirmative defenses must be pled specifically. (historical basis--types of claims);

e.g. 2--in contribu. negl--the Plaintiff has the info.--may want to allocate the burdens (sometimes all 3) on him because he has the best access)

NOT definite test--have to weigh factors; they can point in diff. directions.

Gomez v. Toledo

P fired and brought action against Sup. of Police of Puerto Rico that they violated his civil rights under  1983.

Official immunity 2 elements

1) def. behaved in objectively reasonable manner

2) if you could prove pure in heart, you were will entitled to immunity (court has done away with this subject test--it's only objective part now)

Dist. Ct. held Gomez had to plead in claim that T acted in "bad faith."

(G didn't amend complaint to assert bad faith because then he would have had to prove it--he doesn't have access to information--they do.

History--was very well established at common law; so long as behaving in good faith, immune; traditionally been an affirmative defense

Fairness--probably leans to Def. should plead it.

Improbable--is it most probable that police officer was behaving good, or not? depends on universe--probably most are not corrupt, then P would have burden to plead; but if you're looking at universe of cases that get litigated, probability are corrupt; so who should have to plead? then defendant should have to plead it--since that's improbable event

Rehnquist concurrence has prevailed--if you are asserting a 1983 action and the govt. official raises qual. imm. defense, gvmt. official not required to prove good faith, plaintiff has to prove that it was not objectively reasonable in all circumstances.

(This is where burden of pleading and persuasion have been split.)

D. Responding to the Complaint

i. Pre-Answer Motion--Rule 12

Rule 12(b)(6) (equiv. to common law demurrer--admits facts pleaded, and merely refers to the question of their legal sufficiency to the decision of the court.)

Motion--usually involves 4 pieces of paper

1-Motion itself; caption, civ. #, pretty straightforward

2-Notice of time set to hear motion (sometimes comes after briefing and argument)

3-Memorandum of Points and Authorities

4-If have factual basis, Affidavits (no testimony at this stage--decided on affidavits).

Time to File--20 days after service; gvmt. gets 60 days; 10 days if court denies motion.

6(a) governs computation of time--beginning day, what days excluded, etc.

5(d) requires you to file w/in reasonable time after service

Defenses 12(b)

1) lack of jurisdiction over subject matter

2) lack of jurisdiction over the person

3) improper venue

4) insufficiency of process

5) insufficiency of service of process

6) failure to state a claim upon which relief can be granted

7) failure to join a party

12(e) Motion for More Definite Statement--if motion too vague to frame response; hardly ever granted.

12(f)) Motion to Strike--redundant, offensive, immaterial parts--not granted often.

12(g) If you file a motion, you have to include all defenses, or you waive your rights to use as a defense.

12(b) 2-5--waived; if not presented in original as 12(b) motion or answer, if ans. is 1st thing filed;

12(b) 6&7--can be raised anytime before trial

12(b) 1--can always be raised

ii. Answer

a. Denials

Respond paragraph by paragraph to the complaint--possible responses:

admission

denial

not enough info.(treated as denial)

affirmative defense 8(c)

Rule 8(b)--permits general denials (but subject to Rule 11 sanctions)

8(d)--anything not denied is considered admitted

8(c)--even if alleged facts are true, I prevail because . . .

(the list in 8(c) is not comprehensive--there are others and if you do not plead them promptly they are waived)

Zielinski v. Philadelphia Piers, Inc.--2 forklifts crashed. Def. filed suit against PPI. Carload Contractor sends claim to insurance company; same insurance company insured both. Def's denial was only half-truth; they owned it, but they didn't operate--but they denied the whole thing. If they'd have said that in answer, P would have known he was suing wrong D and could have changed before SoL ran. Court says, I'm sorry, your ineffective denial will operate as an admission.

Qualification, if PPI did not have exact same insurer as Carload, court might have done something different. Relies on traditional notions of equity-relied to his detriment--implies no real injury to PPI--same insurer in both cases. If it had been diff. insurance co., the equitable balance would have different.

If you intend to deny only part of it, you've got to say, you have obligation to say, we admit we own, we deny we operate.

NOTES-

--must admit even if you know other side can't prove it.

--if don't know, say lack specific info--therefore deny; not same thing as straight denying.

--only have to deny/admit things that you know on personal knowledge (not 3rd party's knowledge)

--so long as it was true when it was made, no obligation to amend it if later info comes up. Rule 28(e)--supplementation of responses--essentially, you have an obligation to update new information when it relates to identify of witness who will identify at trial, or identity of people who have discoverable information; you also have duty to supplement response to written interrogatories. SO if you want to impose that obligation on defendant to keep apprised, only thing you can do that is to serve them with interrogatories.

b. Affirmative Defenses - Layman v. Southwestern Bell Telephone Co.--P sued Southwestern Bell for trespass in installing cables/maintaining them on the land. Utility responded by pleading a general denial (not affirmative defense of easement). They just said, We deny.

test of whether it should be an affirmative defense--whether Def. intends to rest his offense on some act not included in complaint

Part of why court ruled this way was that plaintiff never new about it--unfair surprise. The only way she would have known would be if it had been pled affirmatively (since there was no discovery since it was such a small case).

--one of critical factors in whether you can raise matters not pleaded as an affirmative defense is whether or not permitting you to do so will surprise/create unfairness for other party. If you are going to raise something unsuspected/out of the ordinary/prejudicial, we're going to require you to do it affirmatively.

iii. Reply

-you can only reply to an answer

You have to reply if it's compulsive counterclaim situation--even if when the other side brought it in through a permissive counterclaim. If you make any allegations to that counterclaim, it's compulsive requirement for you to do it.

Don't reply unless you have to.

 iv. Amendments

a. Basic Problem: Prejudice - Beeck v. Aquaslide 'N' Dive Corp.

Beeck v. Aquaslide 'N' Dive Corp.

P was severely injured on water slide and sued D, manufacturer. D admitted they manufactured it, but later moved to amend their answer after they discovered they were not the manufacturer. The SoL had run against any other possible claims.

(Shows how acutely and evenly balanced undue delay claims can be. Always involve element of whether it was good/bad faith and resulting prejudice to parties. If you look at it from one perspective grave prejudice, but equally strong argument on other side.)

RULE 15(a)

Under 15(a) you can amend w/o permission for 20 days. After that, by leave of court or written consent of other party and leave shall be given as justice requires==freely given.

Rule 15 is very broad, and you can generally avoid denial only if you can show:

undue delay

prejudice

bad faith

Test is what does justice require? Look at undue delay, prejudice, bad faith. (largely discretionary measure of judge.)

b. Statutes of Limitations and Relation Back

Barnes v. Callaghan--bad case. There, P filed complaint in 1972 where she alleged she'd been improperly discharged. About 4 years later, after SoL runs, she tried to amend to complaint to add allegation of defamation. TC said no, can't amend--orig. complaint didn't talk about malice at all (you're trying to include something not in original case) *W--is that test for relates back? NO--test is whether it arises out of same transaction/occurrence.

Another mistake--furthermore, the D didn't received notice of change w/in period of appropriate statute of limitations--don't apply, because you're changing/adding/changing name of defendant--same parties. Only provisions you have to comply with is 15(c)(1) OR 15(c)(2).

Only when changing names of parties do you have to comply with (1) or (2) & (3). Otherwise, you only have to comply with (1) or (2).

This is new amendment--in some senses it's broader; in other, narrower. But in cases that matter, which version is more liberal--120 days version. (because they file in haste before statute runs, which is the majority of cases; that's reason they're more likely to make the mistake)

Discovery

A. Modern Discovery

Blank v. Sullivan & Cromwell

Steffan v. Cheney

B. Discovery in an Adversary System

Hickman v. Taylor

Bunzl Pulp & Paper Sales v. Golder

Coates v. AC&S, Inc.

Schlagenhauf v. Holder

c. Controlling Abuse of Discovery

Refac Intl. v. Hitachi, Ltd.

Pressey v. Patterson