-

Computer-Aided Exercises in

Civil Procedure
7th edition

Roger C. Park
James Edgar Hervey Professor of Law
University of California Hastings College of the Law

Douglas D. McFarland
Professor of Law and Associate Dean for Teaching & Scholarship
Hamline University School of Law

CALI eLangdell® Press 2012

2

Notices
This work by Roger C. Park and Douglas D.

McFarland is licensed and published by CALI
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CALI eLangdell Press reserve under copyright all rights not
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you do not use this work for commercial purposes; and
you distribute any works derived from this one under the
same licensing terms as this.
Suggested attribution format for original work:
Roger C. Park and Douglas D. McFarland, Computer-Aided
Exercises in Civil Procedure, Published by CALI eLangdell Press.
Available under a Creative Commons BY-NC-SA 3.0 License.
CALI® and eLangdell® are United States federally registered
trademarks owned by the Center for Computer-Assisted Legal
Instruction. The cover art design is a copyrighted work of CALI,
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thereof, to imply endorsement or otherwise without written
permission from CALI.

i

This material does not contain nor is intended to be legal advice.
Users seeking legal advice should consult with a licensed attorney
in their jurisdiction. The editors have endeavored to provide
complete and accurate information in this book. However, CALI
does not warrant that the information provided is complete and
accurate. CALI disclaims all liability to any person for any loss
caused by errors or omissions in this collection of information.

Version 1.1, updated June 21, 2012.

ii

About CALI eLangdell
Press
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iii

Summary of Contents
Notices ......................................................................................... i
About CALI eLangdell Press .................................................... iii
Summary of Contents .................................................................iv
Table of Contents ........................................................................v
Preface ......................................................................................xiv
Exercise One - Holding and Dicta in the Context of a Diversity
Case.............................................................................................. 1
Exercise Two - Jurisdiction ....................................................... 30
Exercise Three - Pleading a Complaint .................................... 90
Exercise Four - Demurrers and Judgments on the Pleadings 127
Exercise Five - Motions to Dismiss and Waiver under Federal
Rule 12 ..................................................................................... 137
Exercise Six - Joinder and Supplemental Jurisdiction .............151
Exercise Seven - Discovery ..................................................... 206
Exercise Eight - Summary Judgment ..................................... 232
Exercise Nine - Judgment as a Matter of Law........................ 249
Exercise Ten - Evidence for Civil Procedure Students ........... 290
Exercise Eleven - Preclusion ................................................... 310

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Table of Contents
Notices ......................................................................................... i
About CALI eLangdell Press .................................................... iii
Summary of Contents .................................................................iv
Table of Contents ........................................................................v
Preface ......................................................................................xiv
Exercise One - Holding and Dicta in the Context of a Diversity
Case.............................................................................................. 1
I. Of Stare Decisis, Holding, and Dicta ....................................................... 1
A. The Law of Stare Decisis......................................................................... 1
B. The Concepts of Holding and Dictum ................................................. 3
1. A Holding Is a Rule of Law Applied by the Court to the Case
Before It ...................................................................................................... 7
2. A Rule of Law Stated in an Opinion is Dictum if the Rule Is Not
Applicable to the Facts Before the Court .............................................. 9
C. Stating the Holding of a Case in Class ................................................ 11
1. Formulate a rule that would be helpful to a lawyer who has not
read the case and wants to know what the case holds. " .................. 12
2. State the holding that is most relevant to the purpose for which
the case is being studied. A case may have multiple holdings. ......... 12
3. State the holding at a level of generality that is useful for the
purpose for which the case is being studied. ...................................... 12
4. Use the court’s own language from the opinion when possible.. 14

II. Written Exercise: Stating the Holding of a Case .............................. 14
Authors' Evaluation of the Statements of the Mottley Holding ............ 22

v

III. Computer–Aided Exercise: Baker v. Keck ...................................... 24

Exercise Two - Jurisdiction ....................................................... 30
I. The law of jurisdiction ........................................................................... 30
A. Types of Jurisdiction .............................................................................. 30
B. Subject Matter Jurisdiction .................................................................... 33
1. State Courts .......................................................................................... 33
2. Federal Courts ..................................................................................... 34
a. Federal Question Jurisdiction ....................................................... 35
b. Diversity Jurisdiction ..................................................................... 36
1. Determining Citizenship of the Parties. ...................................... 39
2. Determining the Amount in Controversy. ................................. 45
c. Removal Jurisdiction ...................................................................... 46
d. Supplemental Jurisdiction ............................................................. 49
C. Personal Jurisdiction ............................................................................... 49
1. Rules of In Personam Jurisdiction.................................................... 49
2. Rules of In Rem Jurisdiction ............................................................. 58
a. Types of in rem jurisdiction. ......................................................... 58
b. Constitutional limits on in rem jurisdiction. ................................ 59
D. Notice and Opportunity to Be Heard ................................................. 60
E. Venue ........................................................................................................ 60
1. State Courts .......................................................................................... 60
2. Federal Courts ..................................................................................... 61
3. Forum Non Conveniens .................................................................... 64

II. Questions on Jurisdiction..................................................................... 65
A. Subject Matter Jurisdiction .................................................................... 65
1. Original Jurisdiction ............................................................................ 65
2. Removal Jurisdiction........................................................................... 73
B. Personal Jurisdiction ............................................................................... 75
C. Notice and Opportunity to Be Heard ................................................. 79

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D. Venue ....................................................................................................... 80

III. Computer Exercises ............................................................................ 82
A. CALI CIV 03: Jurisdiction and Venue ................................................ 82
1. Facts ...................................................................................................... 82
2. Fact Summary ...................................................................................... 84
3. Questions for Computer Exercise.................................................... 85
Q–1. Coffman–Federal Court........................................................... 85
Q–2. Coffman–State Court ............................................................... 85
Q–3. Elliott–Federal Court ............................................................... 86
Q–4. Elliott–State Court .................................................................... 86
Q–5. Northrop–Federal Court ......................................................... 86
Q–6. Northrop–State Court.............................................................. 87
Q–7. Fraser–Federal Court ............................................................... 87
Q–8. Fraser–State Court .................................................................... 88
B. CALI CIV 19: Jurisdiction Over the Person ...................................... 88

Exercise Three - Pleading a Complaint .................................... 90
I. History of pleading ................................................................................. 90
A. Pleading under the Common Law ....................................................... 90
1. The Systems of Law and Equity ....................................................... 90
2. The Writ System in the Common Law Courts............................... 92
3. Problems with Common Law Pleading ........................................... 93
B. Pleading under the Codes ...................................................................... 93
1. Development of Code Pleading........................................................ 93
2. Problems with Code Pleading ........................................................... 94
a. Pleading ultimate facts.................................................................... 94
b. Pleading a cause of action ............................................................. 95
C. Pleading under the Federal Rules of Civil Procedure ....................... 97
1. Development of the Federal Rules................................................... 97
2. Pleading a Claim under the Federal Rules ....................................... 98

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II. Drafting a Complaint under the Federal Rules...............................100
A. Form of the Complaint........................................................................ 100
B. Content of the Complaint ................................................................... 102
1. Jurisdictional Allegations.................................................................. 102
2. The Claim ........................................................................................... 102
3. Federal Rule 11 and Ethical Considerations in Good Faith
Pleading ................................................................................................... 104

III. An Exercise In Drafting A Complaint for Defamation under the
Federal Rules: CALI Civ 01 ....................................................................108
A. Facts of the Case ................................................................................... 108
B. Substantive Law of Defamation ......................................................... 110
1. State Law ............................................................................................ 110
2. Federal Constitutional Law.............................................................. 113
C. Procedural Law: the Burden of Pleading .......................................... 113
D. Preliminary Questions ......................................................................... 116
1. Jurisdictional allegations ................................................................... 117
2. Substantive Allegations .................................................................... 118
Pleading Defects Display ..................................................................... 125

Exercise Four - Demurrers and Judgments on the Pleadings 127
I. Substantive Law ....................................................................................128
II. Procedural law .....................................................................................128
A. Burden of Pleading ............................................................................... 128
B. Sequence of Code Pleadings and Motions ........................................ 129
C. The General Demurrer ........................................................................ 130
D. The Motion for Judgment on the Pleadings .................................... 131

III. Preliminary Questions .......................................................................133
Part One—Demurrer ........................................................................... 133
Part Two—Judgments on the Pleadings ........................................... 134

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Exercise Five - Motions to Dismiss and Waiver under Federal
Rule 12 ..................................................................................... 137
I. Raising, and Waiving, Rule 12 Defenses ...........................................137
A. The Federal Rule 12(b) Defenses ....................................................... 137
1. Abandonment of the Special Appearance..................................... 137
2. Assertion of Rule 12(b) Defenses................................................... 138
3. Waiving Rule 12(b) Defenses .......................................................... 141

II. Written Exercise ..................................................................................143
III. Computer Exercise: CALI Civ 09 ...................................................150

Exercise Six - Joinder and Supplemental Jurisdiction .............151
I. Introduction ...........................................................................................151
A. Joinder Devices Available under the Federal Rules ........................ 151
1. Common Law and Code Practice................................................... 151
2. Federal Rules Joinder........................................................................ 153
B. Supplemental Jurisdiction .................................................................... 155
1. The History of Pendent and Ancillary Jurisdiction. .................... 155
2. Supplemental Jurisdiction ................................................................ 157

II. The Joinder Devices ...........................................................................159
A. Claims ..................................................................................................... 159
1. Joinder of Claims............................................................................... 159
2. Supplemental jurisdiction................................................................. 160
B. Counterclaims ........................................................................................ 161
1. Compulsory Counterclaims ............................................................. 161
2. Permissive Counterclaims ................................................................ 163
3. Supplemental Jurisdiction for Counterclaims ............................... 164
C. Crossclaims ............................................................................................ 165
1. Joinder of Crossclaims ..................................................................... 165
2. Supplemental Jurisdiction for Crossclaims ................................... 166
D. Third-Party Claims [Also Known as Impleader]............................. 166
1. Joinder of Third-Party Claims ......................................................... 166

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2. Supplemental Jurisdiction for Third-party Claims ....................... 171
E. Joinder of Parties .................................................................................. 172
1. Permissive Joinder of Parties .......................................................... 172
2. Compulsory Joinder of Parties ........................................................ 174
3. Supplemental Jurisdiction for Joinder of Parties ......................... 175
F. Intervention............................................................................................ 177
1. Intervention of Right ........................................................................ 178
2. Permissive intervention .................................................................... 180
3. Supplemental Jurisdiction over Intervenors ................................. 180
G. Interpleader ........................................................................................... 181
1. Statutory Interpleader ....................................................................... 183
2. Interpleader under the Rule ............................................................. 183

III. Questions on Joinder ........................................................................184
A. Counterclaims........................................................................................ 184
B. Crossclaims ............................................................................................ 189
C. Third-party claims ................................................................................. 192
D. Joinder of Parties .................................................................................. 195
E. Intervention ........................................................................................... 199
F. Interpleader ............................................................................................ 201

IV. Computer Exercises ..........................................................................203
A. CALI CIV 11: A Review of Joinder Concepts ................................ 204
B. CALI CIV 18: Joinder of Claims and Parties ................................... 204
C. CALI CIV 21: An Interpleader Primer ............................................. 204

Exercise Seven - Discovery ..................................................... 206
I. Discovery under the federal rules .......................................................206
A. Philosophy ............................................................................................. 206
B. Scope of Discovery ............................................................................... 209
1. Privilege .............................................................................................. 210
2. Relevancy ............................................................................................ 211

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3. Trial Preparation: Materials ............................................................. 212
4. Trial Preparation: Experts................................................................ 214
5. Protective Orders .............................................................................. 215
C. Required Disclosures ............................................................................ 215
D. Discovery Devices................................................................................ 216
E. Sanctions for Failure to Make Discovery.......................................... 219

II. Questions on Discovery .....................................................................220
A. Philosophy of Discovery Under the Federal Rules ......................... 220
B. Scope of Discovery ............................................................................... 222
C. Discovery Devices ................................................................................ 227

III. Computer Exercise ............................................................................229

Exercise Eight - Summary Judgment ..................................... 232
I. The law of summary judgment ...........................................................232
A. Federal Rule 56 ..................................................................................... 232
B. Supreme Court Interpretation of Federal Rule 56........................... 234

II. Computer Exercise: CALI CIV 13 ...................................................243
A. The Law of Battery ............................................................................... 244
B. The Facts of the Case ........................................................................... 245
C. Questions ............................................................................................... 247

Exercise Nine - Judgment as a Matter of Law........................ 249
I. Judgment as a matter of law ................................................................249
A. Controlling the Jury .............................................................................. 249
B. Judgment as a Matter of Law .............................................................. 251
1. Directed Verdict and JNOV ........................................................... 251
2. Binding Instructions ......................................................................... 254
3. Burdens of Production and Persuasion ......................................... 255
4. Evidence Considered for Judgment as a Matter of Law............. 260
a. The Favorable–Evidence–Only Test ......................................... 261
b. The Qualified Favorable–Evidence Test .................................. 262

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c. The All-the-Evidence Test .......................................................... 264

II. Computer Exercise: CALI CIV 04 ...................................................265
A. Introductory Note ................................................................................ 265
B. Cases and Questions ............................................................................. 266

Exercise Ten - Evidence for Civil Procedure Students ........... 290
I. Some Basic Evidence Rules.................................................................290
A. The Requirement of Personal Knowledge ....................................... 291
B. The Hearsay Rule and Its Exceptions ............................................... 292
1. The Concept of Hearsay .................................................................. 292
a. Statements Offered to Show Their Effect on the Reader or
Hearer ................................................................................................. 294
b. Legally Operative Language........................................................ 294
c. Statements Used Indirectly .......................................................... 294
2. Exceptions to the Hearsay Rule...................................................... 295
a. Present Sense Impression Exception ........................................ 295
b. Excited Utterance Exception ..................................................... 296
c. Present State of Mind Exception ............................................... 296
d. Dying Declaration Exception ..................................................... 296
e. Declaration Against Interest Exception .................................... 297
f. Admission of a Party Opponent ................................................. 297
g. Former Testimony Exception; Depositions............................. 298
h. Business Records Exception....................................................... 298
i. Other Exceptions .......................................................................... 299
C. Relevancy and Its Counterweights ..................................................... 299
D. The Opinion Rule ................................................................................ 300
E. Lawyer–Client Privilege ....................................................................... 302
F. The Best Evidence Rule ....................................................................... 303
G. Leading Questions ............................................................................... 305

II. Computer Exercise: CALI CIV 06 ...................................................306
A. General Instructions............................................................................. 306

xii

B. Background Facts About the Lawsuit ............................................... 307
C. Display One and Display Two............................................................ 308

Exercise Eleven - Preclusion ................................................... 310
I. Introduction ...........................................................................................310
A. Overview ................................................................................................ 310
B. Policy ....................................................................................................... 312
C. Affirmative Defense ............................................................................. 313

II. The Preclusion Doctrines ..................................................................313
A. Claim Preclusion ................................................................................... 313
1. Final, Valid Judgment on the Merits .............................................. 313
2. Same Parties and Others in Privity................................................. 314
3. Same Claim Barred, Including All Issues That Were or Should
Have Been Litigated .............................................................................. 315
B. Issue Preclusion..................................................................................... 318
1. Final, Valid Judgment on the Merits .............................................. 319
2. Same Parties and Those in Privity .................................................. 320
3. Different Claim; Identical Issue ...................................................... 322
4. Issue Must Have Been Actually Litigated ..................................... 323
5. Necessary ............................................................................................ 323
6. Fairness ............................................................................................... 325
C. Exceptions to Preclusion ..................................................................... 325

III. Questions on Preclusion...................................................................326
A. Claim Preclusion ................................................................................... 326
B. Issue Preclusion..................................................................................... 329

IV. Computer Exercise: CALI CIV 17..................................................334

xiii

Preface
The sixth edition, first published as an ebook, and this seventh
edition carry forward the philosophy and structure of the earlier
editions. This book is not a comprehensive treatise on the subject
of civil procedure, yet it provides a mixture of expository text,
cases, and self-testing questions in nearly all of the major areas of
the subject.
In order to maximize accessibility, flexibility, and compatibility of
the book, the authors have chosen CALI’s eLangdell Press to
publish and distribute the sixth edition (as chapters) and this
revised seventh (as a complete book) electronically with a Creative
Commons license. Publishing a law textbook electronically with far
fewer restrictions than most commercial books and using a
somewhat new, boutique outfit such as eLangdell Press is an
unconventional choice, to say the least. But the authors share the
eLangdell vision of more flexible teaching materials for professors
and more cost-effective books for students. Professors may now
edit and remix this work to match their teaching without worry of
copyright infringement. Students may now adopt this book, read it
using any number of software or devices, and even print it - all for
free. The book’s authors, like its publishers, believe that this new
book model represents an important and long overdue step
forward in the way law school books are published.
All the exercises have been substantially revised for this edition.
The individual exercises also are reorganized and expanded so that
they follow a more standardized pattern: expository text on the
topic area, work-book questions, and introduction to the related
online CALI lessons.
This book, and the accompanying interactive exercises known as
CALI Lessons available online through the Center for Computer-

xiv

Assisted Legal Instruction (CALI) at www.cali.org,1 are intended to
provide a challenging educational experience. For each exercise,
students should read the text in this book and answer the questions
before accessing the rest of the exercise online.
Professors choosing to assign only some of the exercises - or
students looking for additional work only in certain areas of the
subject - may especially want to consider these exercises and
lessons:


Exercise Two: Jurisdiction (Jurisdiction & Venue and
Jurisdiction Over the Person);



Exercise Three: Pleading a Complaint;



Exercise Five: Motions to Dismiss and Waiver under
Federal Rule 12;



Exercise Six: Joinder and Supplemental Jurisdiction (An
Exercise in Civil Procedure, Review of Joinder Concepts,
Joinder of Claims and Parties, and An Interpleader Primer);



Exercise Eight: Summary Judgment; and



Exercise Eleven: Preclusion.

Additionally, Exercise One: Holding and Dicta in the Context of a
Diversity Case is an excellent introduction to legal method.
The first two editions of this book, by Roger Park, included
Exercise One: Holding and Dicta in the Context of a Diversity
Case, Exercise Two: Jurisdiction, Exercise Three: Pleading a
Complaint, Exercise Four: Demurrers and Judgments on the
Pleadings, Exercise Five: Motions to Dismiss and Waiver Under
1 The

Center for Computer-Assisted Legal Instruction (CALI) provides online,
interactive lessons in a broad range of legal subjects to its nearly 200 member law
schools and their students. These lessons are available on the CALI website at
www.cali.org. As of the writing of this seventh edition in 2011, the CALI library
contains over 870 lessons, including 16 in civil procedure. You can find your
organization’s Authorization Code here. The user can also write or call CALI at
565 West Adams Street, Chicago, IL 60661, telephone: 312.906.5307, fax:
312.906.5338, Email: contact@cali.org.

xv

Rule 12, Exercise Nine: Judgment as a Matter of Law, and Exercise
Ten: Evidence for Civil Procedure Students. For the last five
editions of this book, Douglas McFarland has edited the above
exercises and added Exercise Six: Joinder and Supplemental
Jurisdiction, Exercise Seven: Discovery, Exercise Eight: Summary
Judgment, and Exercise Eleven: Preclusion. Accordingly, the book
has become more comprehensive, expanding from seven to eleven
exercises. Of course, each new edition incorporates changes and
updates in procedural law.
All of the information necessary to prepare for an interactive
exercise is contained in this book. Reference to additional materials
may be useful, but is not necessary. Each exercise can be assigned
separately. No exercise is a prerequisite for another. In fact,
students will find the expository material and work-book questions
in each exercise independently valuable even without completing
the CALI lesson for that chapter. The CALI lessons are valuable
either to provide additional understanding and self-testing of
subjects discussed in class or as primary substitutes for areas not
covered in depth in class.
In general, the interactive, online exercises follow a non-linear
branching format. They seek to present challenges and questions
instead of rote learning or leading students through an error-free
educational experience. Although the exercises eventually evaluate
student answers, they sometimes eschew immediate feedback in
favor of the development of a line of questions. The ideal is the
creation of a classroom-like Socratic dialogue. For a description of
general goals and educational theory of the exercises, see Roger C.
Park & Russell Burris, Computer-Aided Legal Instruction in Law:
Theories, Techniques, and Trepidations, 1978 Am. B. Found. Res.
J. 1. This book and accompanying exercises cannot reproduce the
spontaneity and flexibility of the live classroom, but they can be a
useful supplement. They require an active learning process in
which students respond to questions dozens of times during each
hour of instruction, and receive prompt evaluation of their
answers.

xvi

Another benefit of computer-aided instruction—and the phrase
“computer-aided” is used loosely here and in the title of this book;
the exercises are compatible with many non-computer devices such
as tablets and smartphones—is its “individualized” nature. Law
professors and students should not take this literally, however.
Surveys administered at several law schools indicate that an
overwhelming majority of students believe that the exercises are
more valuable when done in pairs or threes instead of alone.
Students who do the exercises with a partner are more likely to
consider their responses carefully and to enjoy the experience.
They also have lively discussions about what their response should
be and why the computer responded as it did.
As with previous editions, we continue to welcome and solicit
comments from professors and students about the book and the
accompanying exercises.
Roger C. Park
Douglas D. McFarland
October, 2011

xvii

Exercise One - Holding and
Dicta in the Context of a
Diversity Case
I. Of Stare Decisis, Holding, and Dicta
A. The Law of Stare Decisis
When presented with a case that requires decision on a controlling
issue of first impression, a court may look to history, custom, logic,
morals, public policy, and justice considerations as guides to
decision. When presented with a case that presents a controlling
issue the court has already decided in a previous case, the court
may look to its previous decision alone. Once a legal question has
been decided by a court, the court will follow its decision in
subsequent cases presenting the same legal question. That is the
legal doctrine known by its Latin name stare decisis (stare decisis et non
quieta movere is translated as stand by precedents and not disturb
settled points) or simply as following precedent.
Stare decisis requires that after a ruling on a question of law
necessary to decision in a case, the ruling becomes a binding
authority in that court and lower courts in future cases in which the
same question of law is presented for decision. The earlier decision
binds lower courts in the same judicial system, e.g., a decision of
the Supreme Court of the United States binds later decisions in
federal courts of appeal and district courts. The decision does not
bind courts in other judicial systems, such as state courts, although
it will be persuasive authority. The court will be bound by its earlier
decision simply because it is an earlier decision, even though the
court may believe a different result would be better.
Certainly important public policies support application of the
doctrine of stare decisis instead of de novo decision of every case. The

doctrine recognizes that law should provide certainty and
definiteness both so that judges decide on principle instead of what
may appear to be personal whims and so that lawyers can predict
the result of future cases. People structure their actions in reliance
on the law. The law treats people equally. The courts are able to
dispose of cases with efficiency. Even when a court decides to
change the law, it will do so only after extended consideration of
the prior decision, which helps to ensure that the new law is sound.
The Supreme Court has expressed these policies in the following
words:
The doctrine of stare decisis imposes a severe
burden on the litigant who asks us to disavow
one of our precedents. For that doctrine not
only plays an important role in orderly
adjudication; it also serves the broader societal
interests in evenhanded, consistent, and
predictable application of legal rules. When
rights have been created or modified in
reliance on established rules of law, the
arguments against their change have special
force.
Thomas v. Washington Gas Light Co., 448 U.S. 261, 272, 100 S. Ct.
2647, 2656, 65 L.Ed.2d 757, 767 (1980).
The doctrine of stare decisis is not as dominating as it might thus far
appear. First, it applies only when the facts of the second case are
sufficiently similar to the facts of the precedent case that the
second court decides the cases should be treated alike. Oftentimes,
the second court will reject the binding effect of the first decision
by distinguishing the case on the facts. Second, stare decisis does not
apply to everything a court might write in a judicial opinion. It
applies only to the actual, narrow “holding” of the earlier case. The
concept of holding is loosely synonymous with the ratio decidendi of
the opinion, i.e., the reason the court gives for its result (although a
careful reader of an opinion might decide the reason the court
gives for its decision is not the actual holding of the case). A
comment the court might express during the course of the opinion
that does not control the actual result is known as a dictum; the

2

plural of such comments is dicta. The stare decisis, or binding effect,
of the decision applies only to the holding, or ratio decidendi, and not
to any dicta the court might have seen fit to mention along the way.
A sound statement of this is the following:
[N]ot every statement made in a judicial
decision is an authoritative source to be
followed in a later case presenting a similar
situation. Only those statements in an earlier
decision which may be said to constitute the
ratio decidendi of that case are held to be
binding, as a matter of general principle, in
subsequent cases. Propositions not partaking
of the character of ratio decidendi may be
disregarded by the judge deciding the later
case. Such nonauthoritative statements are
usually referred to as dicta or (if they are quite
unessential for the determination of the points
at issue) obiter dicta.2
The holding of a case is binding. Dicta may be disregarded. Clearly,
judges and lawyers must be able to separate the holding from a
dictum. Developing that ability to analyze and dissect court
opinions is one of the most important tasks for a law student in the
first year of law school. The remainder of this exercise assists in
that task.
B. The Concepts of Holding and Dictum
We begin with a hypothetical court opinion. Suppose that plaintiff
[P] brings a tort suit in federal district court under diversity of
citizenship jurisdiction. The governing statute, 28 U.S.C. § 1332(a),
requires that the "matter in controversy" must exceed $75,000. P in
the complaint asks for $85,000 in compensatory damages.
Defendant [D] moves under Federal Rule of Civil Procedure
12(b)(1) to dismiss for lack of subject matter jurisdiction on the
ground that P will be unable to convince the jury to award more
than $75,000. The district judge denies the motion, writing "The
2 Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law 432

(Rev. ed. 1974).

3

face of the complaint controls the amount in controversy." The
opinion also notes "Interest and costs cannot be added." Finally,
the judge ruminates about the increasing federal caseload and
concludes "The attorney for any plaintiff who files an inadequate
amount diversity claim should be subject to Federal Rule 11
sanctions."
These three statements are treated differently. Lawyers would
describe the statement about the face of the complaint as the
holding, or the ratio decidendi, of the case. The other two statements
would be classified as dicta; the last statement about Rule 11, since
it is far from the holding of the case–and indeed would be relevant
only had the decision been for D instead of for P–might be called
an obiter dictum.
Sometime later another federal judge is presented with a similar
case. This court distinguishes P's case on its facts and rules that the
face of the complaint does not control when to a legal certainty
plaintiff's recovery cannot exceed $75,000. Then another federal
court interprets P’s case to apply only to pleading in good faith,
and not to a situation where plaintiff has in bad faith claimed in
excess of $75,000. Still another federal court rules that interest can
be considered when it is the basis of the claim, such as interest on a
loan.
All of these cases add qualifications to the rule announced in P's
case without rejecting it on its facts. Does this mean that a lawyer
who reads the holding of the case as "The face of the complaint
controls the amount in controversy" is wrong?
We answer no, because that is an accurate statement of the
decision of the court on the facts of the case before it. Lawyers
describe the court's statement about the face of the complaint as
holding rather than dictum, even though recognizing that the
holding may be qualified in a subsequent case arising in a different
factual context. In that subsequent case, the lawyer will wish to

4

state the holding of the first case broadly or narrowly, depending
on which interpretation will favor the lawyer's client.3
Some other scholars might answer yes. Because of the expanding
and contracting nature of judicial precedent, one scholar has
asserted that every statement of a rule of law in a judicial opinion is
"mere dictum.4 Another has argued that the holding of a case
should be determined from the material facts relied on by the
court, not by the rules of law set forth in its opinion.5 Another has

3 Karl Llewellyn describes the process of extending and narrowing precedent and
advises students as follows:
Applying this two-faced doctrine of precedent to your
work in a case class you get, it seems to me, some such
result as this: You read each case from the angle of its
maximum value as a precedent, at least from the angle of its
maximum value as a precedent of the first water. You will
recall that I recommended taking down the ratio decidendi
in substantially the court's own words. You see now what
I had in mind. Contrariwise, you will also read each case
for its minimum value as a precedent, to set against the
maximum. In doing this you have your eyes out for the
narrow issue in the case, the narrower the better. The first
question is, how much can this case fairly be made to
stand for by a later court to whom the precedent is
welcome? You may well add—though this will be slightly
flawed authority—the dicta which appear to have been
well considered. The second question is, how much is
there in this case that cannot be got around, even by a
later court that wishes to avoid it?

Karl N. Llewellyn, The Bramble Bush 69 (1951).
4 The determination of similarity or difference is the function of each judge. Where

caselaw is considered and there is no statute, he is not bound by the statement of
the rule of law made by the prior judge even in that controlling case. The statement
is mere dictum, and this means that the judge in the present case may find
irrelevant the existence or absence of facts which prior judges find important.
Edward H. Levi, An Introduction to Legal Reasoning 2-3 (1964).
5 See Arthur L. Goodhart, Determining the Ratio Decidendi of a Case, 40 Yale L.J. 161,

182 (1930).

5

said that the true rule of a case is not what the court said, but what
a later court will say the case held.6
These views are possibly misleading. Statements of rules of law in
an opinion are not mere epiphenomena—not mere bothersome
noise that accompanies the business of hammering out facts and a
decision. The rule of law stated in P's case tells us what facts the
court thought important. The court found jurisdiction over P's case
because the complaint demanded a recovery exceeding $75,000,
not because the facts pleaded could be recast into a federal
question, even though such a suggestion might appear in the
court's opinion. A subsequent court looking at the case would
scrutinize the facts and language relating to the jurisdictional
amount, not the facts and language relating to a possible federal
question. And the rule that "The face of the complaint controls the
amount in controversy" might be overruled, modified,
distinguished, or refined, but it cannot be ignored with a clear
conscience.
The court's statement about the face of the complaint is better
described as holding, not dictum, even though we may recognize
that any broad statement of holding may be qualified in a
subsequent case arising in a somewhat different factual context.
The term holding, as used in this exercise, is not meant to describe
a rule of law that will never be qualified or refined in subsequent
cases. Rather, holding is used to describe the result reached by the
court on the facts of the case before it. Such rules are not immune
from subsequent modification, but they are at least partly free from
the infirmities of dicta. Rules stated in dicta have diminished
significance because they concern matters that probably were not
briefed or argued, and so were not carefully considered by the
court. Also, the judges of the court are familiar with the uses of
precedent and the conventions of the legal profession, so they
normally will not expect dicta to be given the same respect as
6 "[T]he distinction [is] between the ratio decidendi, the court's own version of the

rule of the case, and the true rule of the case, to wit, what it will be made to stand for by
another later court." Karl N. Llewellyn, The Bramble Bush 52 (1951).

6

holding. In fact, some of the judges who signed on to the opinion
might have disagreed with its dicta, but refrained from explaining
their position because of an expectation that the dicta would be
lightly treated.
This exercise proceeds on the assumption that a lawyer will
distinguish holding from dicta in a fashion that permits a statement
of a general rule of law to be characterized as holding. At the same
time, you should recognize that whether a rule is a holding or a
dictum is only one of many considerations taken into account by
subsequent courts in deciding on the weight and scope to be given
to the rule. A subsequent court may give full precedential weight to
a welcome dictum of an earlier opinion, or, because a broadly
stated holding shares some of the infirmities of a dictum, a
subsequent court may properly narrow it in factually
distinguishable cases.
The following paragraphs set forth definitions of the terms holding
and dictum. These definitions are consistent with usage in ordinary
discourse among lawyers. You should bear in mind, however, that
no set of definitions could possibly embrace all of the different
meanings that have been given to these concepts by courts,
lawyers, and scholars.
1. A Holding Is a Rule of Law Applied by the Court to
the Case Before It
The rule must have been applied by the court. That is, the rule must
have been applicable to the facts before the court, and the rule
must apparently have influenced the court in reaching its result. If a
rule meets these requirements, it is holding even if the court would
probably have reached the same result had it declined to accept the
rule, and even if the same result could have been reached by
framing a more narrow rule.
Examples:
(1) An appellate opinion reverses a jury verdict for plaintiff on
the ground that the jury instructions were erroneous. The rule
stated in the case is holding, even though the court suggests
that, had it declined to accept the defendant's argument on the

7

instructions, it would have reversed the verdict anyway on the
ground that the evidence was insufficient to support the
verdict.7
(2) A wife confesses in confidence to her husband that she
committed a crime. At trial of the wife, the husband refuses to
testify about the confession. He is held in contempt. The
appellate court reverses, declaring that "No one may be
compelled to testify against a spouse in any criminal
proceeding." The broadly-stated principle is holding, even
though the same result could have been reached by adopting a
narrower rule that excluded compelled testimony only about
confidential communications.
The rule of law need not have been stated by the court. All cases
have holdings, but in some cases the court does not attempt to
state any general rule of law.
Example:
An appellate opinion reviewing a defendant's verdict in a
personal injury case begins with a three-page statement of facts
pointing out that the defendant's lawyer brought improper
evidence to the jury's attention, made an inflammatory closing
argument, and engaged in other inappropriate conduct
throughout the trial. After its statement of facts, the court
closes its opinion by stating simply "In the circumstances of
this case, the defense counsel's conduct was so reprehensible
that we feel compelled to reverse." A lawyer attempting to
summarize the holding of this case in a meaningful fashion
would have to generalize; no particular passage from the court's
opinion could be quoted as the holding.

Cf. Henry Friendly, In Praise of Erie-and of the New Federal Common Law, 39
N.Y.U.L.Rev. 383, 385–86 (1964) ("A court's stated and, on its view, necessary
basis for deciding does not become dictum because a critic would have decided on
another basis").
7

8

2. A Rule of Law Stated in an Opinion is Dictum if the
Rule Is Not Applicable to the Facts Before the Court
Example:
In a slander case, the court upholds a verdict against a
prosecutor who made untrue statements about a criminal
defendant at a press conference. The court opines that the
prosecutor's statements would have been privileged had they
been made during the course of courtroom proceedings instead
of at a press conference. The court's statement about
courtroom privilege is dictum, since it does not apply to the
facts of the case before it.
3. A Rule of Law Stated in an Opinion Is Dictum if the Rule Does
Not Contribute Support to the Result Reached by the Court
This requirement means that an opinion's statement of legal
doctrine must not only apply to the facts but also support the
result. The holding must follow the result in the case. This
requirement is often expressed by saying that the holding must be
"necessary" to the result, but that seems to be too strict a
statement of the requirement, since a person could always
conceive of a way in which the court could have reached the same
result on another ground or endorsed a narrower rule of decision;
no rule of law stated in an opinion is absolutely necessary to the
result.8 The definition set forth here adopts a more permissive test
based upon whether the stated rule "supports" the result. It thus
sweeps into its category of holding broad statements of law that

8 Literal adherence to the necessity principle would lead to the position espoused

by Professor Edward Levi in note 3, supra, that all statements of rules of law in an
opinion are dicta.

9

some lawyers would characterize as dicta on grounds that the
statements were not necessary to the result.9
Examples:
(1) An appellate opinion in one paragraph reverses the trial
court for failure to grant plaintiff the proper number of
peremptory challenges. The opinion then continues for several
pages to analyze the tort doctrine of proximate cause "since
this case will have to be retried," and concludes that the trial
court's application of proximate cause was correct. The holding
of the case cannot pertain to proximate cause because the case
was reversed, and the result of the proximate cause discussion
would have produced an affirmance. The holding lies in the
ruling on peremptory challenges.
(2) In a libel case, a jury returns a verdict against a newspaper
that had printed an untrue story about a movie star. The trial
judge had instructed the jury that since movie stars are public
figures, news stories about them are conditionally privileged;
therefore, the movie star would recover damages only by
establishing that the newspaper either knew the story was false
or acted with reckless disregard of whether the story was true
or false.
The appellate court agrees with the instruction that stories
about movie stars are conditionally privileged, yet it affirms the
judgment against the newspaper on grounds that the movie star
produced sufficient evidence to justify a verdict that the
newspaper knew that the story was false.
9 Under this holding dictum distinction, by designating a statement of a rule of law

as holding, one is merely suggesting that it is entitled to the weight accorded a
proposition that was probably argued before the court and given careful
consideration by the court. Designation as holding does not mean that all of the
particulars of the stated rule will be followed as binding precedent. Even lower
courts, which lack the power to overrule the prior decision, may nevertheless
narrow it or distinguish it. The broader the holding, the more likely this narrowing
will take place. Whether a statement is holding or dictum is only one of many
considerations that subsequent courts will take into account in determining what
precedential message to draw from it.

10

The appellate court's statement that stories about movie stars are
conditionally privileged is dictum; although applicable to the facts
before the court, the statement does not support the result reached.
(Had the court reversed on grounds that the evidence was
insufficient, the court's statement about privilege may have been
holding instead of dictum.)
When a court states more than one ground for its decision, each
may be a holding of the court, so long as each contributes support
to the result. This is so even though any one of the grounds relied
on independently would support the result. Holdings of this nature
are often called “alternative holdings."
Example:
Plaintiff sues the state, claiming benefits provided by state
statute for persons who served in the war in Iraq. Plaintiff had
enlisted in the Army during the war and served at Fort
Benning, Georgia, for five weeks before receiving a medical
discharge. The trial judge grants a defense motion for summary
judgment, and the appellate court affirms, stating that plaintiff
is ineligible for benefits (1) because the statute applies only to
persons who serve their entire enlistment period, and (2)
because the statute applies only to persons actually stationed in
Iraq. Both of the rulings are holdings of the court.
C. Stating the Holding of a Case in Class
A question asking you for the holding of a case requests the
precedential message. To prepare a satisfactory answer, a student
must discard irrelevant facts, separate holding from dicta, and
decide what issues were framed for decision in the procedural
posture of the case. Then you must summarize the essence of the
case. If you cannot do these things, you probably do not really
understand the case. Certainly the holding cannot be extemporized
on the spot in class: it must be carefully crafted, probably in a case
brief, ahead of time.
The following guidelines may be helpful in formulating the holding
of a case:

11

1. Formulate a rule that would be helpful to a lawyer
who has not read the case and wants to know what the
case holds. "
The court held that the plaintiff was entitled to damages" is useless.
It is not a summary of any rule of law established by the case. It is
merely a statement of the procedural result. Even the length of the
supposed holding gives away its inadequacy. A holding will seldom
be so short; it must contain enough detail so that a person who has
not read the case can understand the rule of law the case
establishes as a precedent.
2. State the holding that is most relevant to the
purpose for which the case is being studied. A case
may have multiple holdings.
Suppose that a case has been appealed because plaintiff claims the
trial judge denied a valid jurisdictional defense, denied an
amendment to the complaint, excluded admissible evidence, and
erroneously instructed on the law of products liability. Any of these
grounds would be sufficient for reversal. When the appellate court
determines there was no error, it will necessarily have produced a
holding on each one of these issues.
When asked to state the holding of a case, you are expected to
choose from among these holdings the one that is most germane to
the topic being studied. For example, if you are studying
jurisdiction, then you should state the court's holding on
jurisdiction.
3. State the holding at a level of generality that is
useful for the purpose for which the case is being
studied.
Your goal is to state the holding at a high level of generality so that
the precedent can be applied to other cases. At the same time, the
holding can be no broader than the rule of law established by the
case. Finding the right level of generality/specificity is a skill
learned over time. Beginning students often state holdings at such a
high level of generality that they fail to show how the case has
contributed to the body of precedent being studied.

12

Examples:
(1) Suppose that the general law governing personal
jurisdiction over a defendant served by a long-arm statute
is that the defendant must have minimum contacts so that
maintenance of the suit in the state does not offend
traditional notions of fair play and substantial justice. This
was the holding of a famous Supreme Court decision in
1945.10 Since that year, thousands of cases have
mentioned the minimum contacts language. Your
casebook contains a series of cases interpreting this rule.
Undoubtedly almost every case contains somewhere in the
opinion this language about minimum contacts. Although
this rule is one of the holdings of these cases, stating the
holding at such a high level of generality is pointless. You
do not advance the inquiry at all. You should state a
holding that adds some additional content to the basic
rule. In a case that applies the language to specific facts,
for example, the holding might be "A defendant seller
who solicits and purposefully enters a single contract for
goods to be shipped into the state has sufficient minimum
contacts to support personal jurisdiction by the state over
it in an action to collect damages when the goods shipped
into the state are defective." One can be no more general
without losing the rule of law established by the holding.
(2) In your first torts class, you read a case in which
defendant playfully slaps plaintiff lightly across the face.
The appellate court affirms a verdict for plaintiff for the
intentional tort of battery. To say the holding is “A battery
is an intentional touching of the person that is harmful or
offensive” is worth little. It merely restates the law that
has existed for hundreds of years prior to this case.
Instead the holding should center on what this case adds
to the law. It might be “A playful slap to the face is

10 International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L.Ed. 95 (1945).

13

sufficient to establish an offensive touching of the person
as an element of a battery.”
Although beginning law students tend to err on the side of
excessive generality, they also can state a holding at a level that is
too specific for the purpose for which the case is being studied.
One way of stating a holding is to recite all of the relevant facts and
then describe the result that the court reached on those facts; a
holding so narrowly tied to the facts of the case will not usually be
a useful study aid. You should remember that your first-year
courses are survey courses, covering vast areas of doctrine in a
short period. Your statement of a holding should be general
enough to contribute to a broad doctrinal framework. To achieve a
general statement, you must necessarily omit some possibly
relevant facts.
4. Use the court’s own language from the opinion
when possible.
In your attempt to state a holding at a useful level of generality, you
may find language you can quote directly from the opinion.
Sometimes the court will write “our holding today is” or “we
decide the issue of.” You may be able simply to lift an entire
sentence as your holding, but be careful. Some such statements in
opinions precede excellent holdings; others precede language no
more valuable than “whether the case should be reversed.” Even
when the court does not provide such an obvious guide to its
holding, you will often be able to–and should–seize on a sentence,
phrase, or key words from the opinion that build your holding.
You should construct your holding entirely from your own
language only when you conclude that none of the court’s phrasing
adequately captures its holding. You will be unable to lift language
from the opinion in a surprisingly large number of cases.
II. Written Exercise: Stating the Holding of a Case
You are attending your first civil procedure class. You have been
given an advance assignment to read and brief Louisville & Nashville
R.R. v. Mottley, 211 U.S. 149, 29 S. Ct. 42, 53 L.Ed. 126 (1908). This

14

case is in a section of your casebook entitled "The General
Definition of Federal Question Jurisdiction."
Read the following opinion with an eye to stating the holding. At
the end of the opinion, you will be asked to state the holding.
You will also be asked to evaluate seven possible statements of
the
holding.
Louisville & Nashville Railroad Co. v. Mottley
Supreme Court of the United States, 1908.
211 U.S. 149, 29 S. Ct. 42, 53 L.Ed. 126.
The appellees (husband and wife), being residents
and citizens of Kentucky, brought this suit in equity
in the Circuit Court of the United States for the
Western District of Kentucky against the appellant,
a railroad company and a citizen of the same State.
The object of the suit was to compel the specific
performance of the following contract:
"Louisville, Ky., Oct. 2nd, 1871.
"The Louisville & Nashville Railroad Company in
consideration that E.L. Mottley and wife, Annie E.
Mottley, have this day released Company from all
damages or claims for damages for injuries received
by them on the 7th of September, 1871, in
consequence of a collision of trains on the railroad
of said Company at Randolph's Station, Jefferson
County, Kentucky, hereby agrees to issue free
passes on said Railroad and branches now existing
or to exist, to said E.L. & Annie E. Mottley for the
remainder of the present year, and thereafter to
renew said passes annually during the lives of said
Mottley and wife or either of them."
The bill alleged that in September, 1871, plaintiffs,
while passengers upon the defendant railroad, were
injured by the defendant's negligence, and released

15

their respective claims for damages in consideration
of the agreement for transportation during their
lives, expressed in the contract. It is alleged that the
contract was performed by the defendant up to
January 1, 1907, when the defendant declined to
renew the passes. The bill then alleges that the
refusal to comply with the contract was based solely
upon that part of the act of Congress of June 29,
1906 (34 Stat. at L. 584, Chap. 3591,
U.S.Comp.Stat.Supp.1907, p. 892), which forbids
the giving of free passes or free transportation. The
bill further alleges: First, that the act of Congress
referred to does not prohibit the giving of passes
under the circumstances of this case; and, second,
that, if the law is to be construed as prohibiting
such passes, it is in conflict with the 5th
Amendment of the Constitution, because it
deprives the plaintiffs of their property without due
process of law. The defendant demurred to the bill.
The judge of the circuit court overruled the
demurrer, entered a decree for the relief prayed for,
and the defendant appealed directly to this court....
MR. JUSTICE MOODY, after making the foregoing
statement, delivered the opinion of the court.
Two questions of law were raised by the demurrer
to the bill, were brought here by appeal, and have
been argued before us. They are, first, whether that
part of the act of Congress of June 29, 1906 (34
Stat.
at
L.
584,
Chap.
3591,
U.S.Comp.Stat.Supp.1907, p. 892), which forbids
the giving of free passes or the collection of any
different compensation for transportation of
passengers than that specified in the tariff filed,
makes it unlawful to perform a contract for
transportation of persons who, in good faith,
before the passage of the act, had accepted such

16

contract in satisfaction of a valid cause of action
against the railroad; and, second, whether the
statute, if it should be construed to render such a
contract unlawful, is in violation of the 5th
Amendment of the Constitution of the United
States. We do not deem it necessary, however, to
consider either of these questions, because, in our
opinion, the court below was without jurisdiction of
the cause. Neither party had questioned that
jurisdiction, but it is the duty of this court to see to
it that the jurisdiction of the circuit court, which is
defined and limited by statute, is not exceeded. This
duty we have frequently performed of our own
motion. [Citations omitted.]
There was no diversity of citizenship, and it is not
and cannot be suggested that there was any ground
of jurisdiction, except that the case was a "suit ...
arising under the Constitution or laws of the United
States." Act of August 13, 1888, L. 866, 25 Stat.
433, 434. It is the settled interpretation of these
words, as used in this statute, conferring
jurisdiction, that a suit arises under the Constitution
and laws of the United States only when the
plaintiff's statement of his own cause of action
shows that it is based upon those laws or that
Constitution. It is not enough that the plaintiff
alleges some anticipated defense to his cause of
action, and asserts that the defense is invalidated by
some provision of the Constitution of the United
States. Although such allegations show that very
likely, in the course of the litigation, a question
under the Constitution would arise, they do not
show that the suit, that is, the plaintiff's original
cause of action, arises under the Constitution.... [I]n
Boston & M. Consol. Copper & S. Min. Co. v.
Montana Ore Purchasing Co., 188 U.S. 632, 47

17

L.Ed. 626, 23 Sup. Ct. Rep. 434, the plaintiff
brought suit in the circuit court of the United States
for the conversion of copper ore and for an
injunction against its continuance. The plaintiff
then alleged, for the purpose of showing
jurisdiction, in substance, that the defendant would
set up in defense certain laws of the United States.
The cause was held to be beyond the jurisdiction of
the circuit court, the court saying, by Mr. Justice
Peckham (pp. 638, 639):
"It would be wholly unnecessary
and improper, in order to prove
complainant's cause of action, to
go into any matters of defense
which the defendants might
possibly set up, and then attempt
to reply to such defense, and thus,
if possible, to show that a Federal
question might or probably would
arise in the course of the trial of
the case. To allege such defense
and then make an answer to it
before the defendant has the
opportunity to itself plead or
prove its own defense is
inconsistent with any known rule
of pleading, so far as we are
aware, and is improper.
"The rule is a reasonable and just
one that the complainant in the
first instance shall be confined to
a statement of its cause of action,
leaving to the defendant to set up
in his answer what his defense is,
and, if anything more than a
denial of complainant's cause of
action, imposing upon the

18

defendant the burden of proving
such defense.
"Conforming itself to that rule,
the complainant would not, in the
assertion of proof of its cause of
action, bring up a single Federal
question. The presentation of its
cause of action would not show
that it was one arising under the
Constitution or laws of the United
States.
"The only way in which it might
be claimed that a Federal question
was presented would be in the
complainant's statement of what
the defense of defendants would
be, and complainant's answer to
such defense. Under these
circumstances the case is brought
within the rule laid down in
Tennessee v. Union & Planters'
Bank, supra. That case has been
cited and approved many times
since...."
It is ordered that
the Judgment be reversed and the case remitted to the
Circuit Court with instructions to dismiss the suit for
want of jurisdiction.
You anticipate that in class the professor will ask "What is the
holding of Mottley?" Of course your answer must be prepared
ahead of time in your brief. Before proceeding to evaluate the
following possible statements of the holding, you will benefit by
working out your own statement of the holding in Mottley.
Some mistakes in stating a holding are common. See whether any
of the "Common Mistakes" listed below apply to your statement of
the holding.

19

Common Mistakes in Stating A Holding
1. Inaccurately describing a rule of law applied by the court.
2. Stating a dictum instead of holding.
3. Stating a rule of law that is one of the holdings of the case,
but not the holding most relevant to the purpose for which
the case has been read.
4. Stating a rule of law in terms too general to be useful for
the purpose for which the case has been read.
5. Stating a rule of law in terms too specific to be useful for
the purpose for which the case has been read.
6. Stating the result of the case instead of stating a rule of law.
Assume the professor asks the same question to eight of your
classmates. Consider each of the following answers and decide
whether it would be satisfactory, or whether it is flawed by one of
the above Common Mistakes in Stating a Holding. After making
your own evaluations, you can then compare your answers with the
authors' evaluations that follow.
Answer 1. Where there is no diversity of citizenship or other
basis for federal jurisdiction, a federal court should dismiss
the case before it.
Is this a satisfactory statement of the holding? If no, why not?
Answer with a number from the Common Mistakes in Stating
a Holding.
Answer 2. The Supreme Court may consider an issue of
subject matter jurisdiction on its own motion, even if the
parties did not raise the issue below.
Is this a satisfactory statement of the holding? If no, why not?
Answer with a number from the Common Mistakes in Stating
a Holding.
Answer 3. In a bill demanding specific performance of a
contract, allegations that the defendant has based its refusal to
perform the contract upon federal law are superfluous.

20

Is this a satisfactory statement of the holding? If no, why not?
Answer with a number from the Common Mistakes in Stating
a Holding.
Answer 4. Plaintiffs asking for specific performance of a
contract cannot create federal question jurisdiction by alleging
in the complaint that the defendant has relied on a privilege
created by federal law in refusing to perform the contract.
Is this a satisfactory statement of the holding? If no, why not?
Answer with a number from the Common Mistakes in Stating
a Holding.
Answer 5. Federal question jurisdiction does not exist when
the federal issue appears in the plaintiff's complaint only as an
anticipated defense.
Is this a satisfactory statement of the holding? If no, why not?
Answer with a number or numbers from the Common
Mistakes in Stating a Holding.
Answer 6. A federal question is presented to the court if the
pleadings of the parties show that the case will involve an
important issue of federal law.
Is this a satisfactory statement of the holding? If no, why not?
Answer with a number from the Common Mistakes in Stating
a Holding.
Answer 7. This case must be dismissed for lack of jurisdiction.
Is this a satisfactory statement of the holding? If no, why not?
Answer with a number from the Common Mistakes in Stating
a Holding.
Answer 8. No diversity of citizenship exists between two
plaintiffs and a defendant who are all citizens of the same
state.
Is this a satisfactory statement of the holding? If no, why not?
Answer with a number from the Common Mistakes in Stating
a Holding.

21

Authors' Evaluation of the Statements of the Mottley Holding
1. Where there is no diversity of citizenship or other basis for federal
jurisdiction, a federal court should dismiss the case before it.
This statement is not satisfactory for reason 4. The statement is
accurate and relevant to the purpose for which the case is being
studied, but the statement is so general that it does not usefully
describe the precedent established by the case. More specificity is
needed.
2. The Supreme Court may consider an issue of subject matter jurisdiction on
its own motion, even if the parties did not raise the issue below.
This statement is not satisfactory for reason 3. This rule is certainly
one of the holdings of the case. If a lawyer were arguing a case
presenting the issue whether a defense of subject matter
jurisdiction had been waived, this statement could properly be
described as the holding of the case. On the other hand, the
student should never ignore the casebook Table of Contents. The
editors' placement of Mottley in "The General Definition of Federal
Question Jurisdiction" suggests that the case has been assigned
because of its definition of federal question jurisdiction, not
because of its holding on the waiver issue. Therefore, one might
argue that the waiver rule is not the holding because it is not the
rule of law most relevant to the purpose for which the case has
been read.
3. In a bill demanding specific performance of a contract, allegations that the
defendant has based its refusal to perform the contract upon federal law are
superfluous.
This statement is not satisfactory for reason 3. This rule is one of
the holdings of the case, but it is not the holding most relevant to
the purpose for which the case has been assigned. The placement
of Mottley in the casebook shows that it is meant to be read for its
holding about the nature of federal question jurisdiction, not for its
holding about superfluity in pleading.

22

4. Plaintiffs asking for specific performance of a contract cannot create federal
question jurisdiction by alleging in the complaint that the defendant has relied
on a privilege created by federal law in refusing to perform a contract.
This statement is not satisfactory for reason 5. Even though a
reasonable argument can be made that this statement of the
holding is satisfactory, the statement is probably too specific to be
useful for the purpose for which the case has been read. This might
be an appropriate statement of the holding if the case were being
studied for a more narrow purpose—for example, by a lawyer
doing research for an appellate argument in a contract case in
which the plaintiff sought to base federal jurisdiction upon
allegations that the defendant had relied upon federal law in failing
to perform its promise. The placement of this case in the casebook
indicates that it is meant to convey a general rule about federal
question jurisdiction rather than a specific rule for contract cases.
The holding should be stated with greater generality, so that it
applies to cases other than contract cases.
5. Federal question jurisdiction does not exist when the federal issue appears in
the plaintiff's complaint only as an anticipated defense.
This is a good statement of the holding. It formulates the relevant
holding of the case at the appropriate level of generality. Of course,
this statement is not a magic form of words. Other similar
formulations would also be acceptable, e.g., "There is no federal
question jurisdiction if the facts that give rise to the federal issue
should have been pleaded by the defendant instead of the
plaintiff," or "There is no federal question jurisdiction unless the
facts giving rise to a federal issue are made to appear, without
inserting superfluous language, in the plaintiff's initial pleading."
6. A federal question is presented to the court if the pleadings of the parties
show that the case will involve an important issue of federal law.
This statement is not satisfactory for reason 1. It is an inaccurate
statement of the doctrine of Mottley. The opinion states there is no
federal question jurisdiction unless the facts giving rise to the
federal issue appear, without inserting superfluous language, in the
plaintiff's complaint. The fact that defendant's answer reveals the

23

existence of an important federal issue will not suffice to create
federal question jurisdiction.
7. This case must be dismissed for lack of jurisdiction.
This statement is not satisfactory for reason 6. It merely describes
the result reached, not a rule of law established by the case.
8. No diversity of citizenship exists between two plaintiffs and a defendant who
are all citizens of the same state.
This statement is not satisfactory for reason 2. While the court did
note there was no diversity of citizenship, the case clearly is
decided on the issue of federal question jurisdiction. The discussion
of diversity jurisdiction is a dictum.
III. Computer–Aided Exercise: Baker v. Keck
This written material and the accompanying computer-aided
exercise, CALI CIV 05: Analysis of a Diversity Case, explore the
nature of holding and dictum in the context of an opinion on
diversity of citizenship jurisdiction. The computer will require you
to distinguish holding and dicta so that you can state the holding of
Baker v. Keck, an opinion that appears following this introductory
note. The computer will also ask you other questions to analyze the
meaning of passages in the opinion. The exercise is based on the
following fact scenario.
You are a new associate working for a law firm in the state of
Fraser. One of the firm's partners asks you to do some research on
a personal injury action the firm has brought on behalf of Pam
Pedestrian against David Driver. Pedestrian's tort claim arises
under state law, and the only plausible basis for federal jurisdiction
is diversity of citizenship.
Your firm filed Pedestrian's suit in federal district court for Fraser.
Driver moved under Federal Rule of Civil Procedure 12(b)(1) to
dismiss for lack of subject matter jurisdiction; he asserts that both
Pedestrian and Driver are citizens of the same state, Fraser, so
there is no diversity of citizenship. The motion has been set for
hearing next week and the partner wants to submit to the court a

24

legal memorandum on the issue of diversity of citizenship. She tells
you to work with the following set of facts, which have already
been developed in the case file.
Pam Pedestrian is without question a citizen of Fraser. She suffered
injuries that are serious enough to satisfy the $75,000 jurisdictional
amount requirement.
David Driver is a law student, age 25, single, born and reared at his
parents' home in Fraser. He graduated from college at Fraser State
University, and is now a student at Coffman Law School in the
state of Coffman. Driver is living in an apartment in Coffman
while finishing the last half of his final year in law school. Driver's
parents have continued to support him during his attendance at law
school, and he has frequently returned to his parents' home during
vacation periods. Driver recently accepted a full-time job with a law
firm in a third state, Northrop.
In an affidavit submitted with the motion to dismiss, Driver swore
to the following facts:
I went to high school and college while
living at home in Fraser. Two and a half
years ago I entered law school in Coffman.
I have always had a definite intent to leave
Coffman immediately after graduation. I
voted in Coffman during the last election,
but have never participated in politics here
in any other way. I have never belonged to
any organizations in Coffman or held a job
here. I have now accepted a job with a law
firm in Northrop. I received the offer by
telephone after interviewing in Coffman; I
have never been in Northrop. I am living in
an apartment in Coffman while finishing my
last year of law school. I intend never to
come back to Coffman after I leave. During
law school my parents have paid my
expenses, and I have visited them during
vacations at our family home in Fraser;
however, I do not plan on going back to

25

Fraser. I have always wanted to go to a
populous state like Northrop to practice.
You have started research for the memorandum that will be
submitted to the trial court. You quickly found the relevant
jurisdictional statute, 28 U.S.C. § 1332:
(a) The district courts shall have original
jurisdiction of all civil actions where the
matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and
costs, and is between—
(1) citizens of different states***.
Initial research also revealed that in your federal district, consistent
with all other districts, the following two propositions are generally
accepted:
1. A United States citizen is also a citizen of
the state in which that person is domiciled.
[Both Pedestrian and Driver are United
States citizens.]
2. A domicile once established endures until
a new one is acquired. Consequently, Driver
is still domiciled in Fraser unless he has
acquired a new domicile in Coffman or
Northrup.
Your research also discovered Baker v. Keck, 13 F. Supp. 486 (E.D.
Ill.1936). Even though the opinion is today three-quarters of a
century old, the legal principles it states remain good law. For the
purposes of this computer-aided exercise, treat Baker as a recent
case decided by the district judge who is assigned to your case.
The computer exercise will ask you to participate in a discussion
with other associates in your law firm. Your associates will make
assertions about Baker, and you will be asked to agree or disagree
with them. Please study Baker carefully, and take the opinion with
you to the computer. The opinion is divided into sections, each of
which is numbered. Some questions asked by the computer will
refer to the sections by number.

26

Baker v. Keck
United States District Court, Eastern District of Illinois,
1936.
13 F. Supp. 486.
LINDLEY, DISTRICT JUDGE.
[§ 1]
Plaintiff has filed herein his suit against various
individuals and the Progressive Miners of America
charging a conspiracy, out of which grew certain
events and in the course of which, it is averred, he
was attacked by certain of the defendants and his
arm shot off. This, it is said, resulted from a
controversy between the United States Mine
Workers and the Progressive Miners of America.
[§ 2]
Plaintiff avers that he is a citizen of the state of
Oklahoma. Defendants filed a motion to dismiss,
one ground of which is that plaintiff is not a citizen
of the state of Oklahoma, but has a domicile in the
state of Illinois, and that therefore there is no
diversity of citizenship. To this motion plaintiff
filed a response, with certain affidavits in support
thereof.
[§ 3]
Upon presentation of the motion, the court set the
issue of fact arising upon the averments of the
complaint, the motion to dismiss, and the response
thereto for hearing. A jury was waived. Affidavits
were received and parol evidence offered.
[§ 4]
It appears that plaintiff formerly resided in Saline
County, Ill., that he was not a member of United
Mine Workers, but was in sympathy with their

27

organization. The averment of the declaration is
that he was attacked by members of, or
sympathizers with, the Progressive Mine Workers
of America. He was a farmer, owning about 100
acres of land. After his injury, he removed to the
state of Oklahoma, taking with him his family and
all of his household goods, except two beds and
some other small items. His household furniture
was carried to Oklahoma by truck, and the
truckman was paid $100 for transportation. Near
Ulan, Okl. he rented 20 acres and a house for $150
per year, and began occupancy thereof October,
1934. He testified that he had arrangements with
another party and his own son, living with him, to
cultivate the
[§ 5]
ground, but that farming conditions were not
satisfactory, and that it was impossible, therefore, to
produce a crop in 1935. He produced potatoes,
sweet corn, and other garden products used in the
living of the family. He had no horses or other
livestock in Oklahoma. He was unable to do any
extensive work himself because of the loss of his
arm. In the summer of 1935 he leased for the year
1936 the same 20 acres and an additional 20 acres at
a rental of $150.
[§ 6]
At the first opportunity to register as a qualified
voter in Oklahoma after he went there, he complied
with the statute in that respect and was duly
registered. This was not until after he had been in
the state for over a year, as, under the state statute,
a qualified voter must have resided within the state
for twelve months prior to registration. He has not
voted, but he testified that the only election at

28

which he could have voted after he registered was
on a day when he had to be in Illinois to give
attention to his lawsuit. He has returned to Illinois
for short visits three or four times.
[§ 7]
He testified that he moved to Oklahoma for the
purpose of residing there, with the intention of
making it his home and that he still intends to
reside there. He testified that the family started out
to see if they could find a new location in 1934.
Upon cross-examination it appeared that the funds
for traveling and removal had been paid by the
United Mine Workers or their representative; that
he left his livestock on the Illinois farm, but no
chickens; that he had about 60 chickens on his farm
in Oklahoma; that, when he removed to Oklahoma,
he rented his Illinois farm for a period of five years;
that the tenant has recently defaulted upon the
same.
[§ 8]
In the affidavits it appears that plaintiff's house in
Illinois was completely destroyed by fire shortly
after he left. It was not insured and was a total loss.
Witnesses for the defense testified that he had told
them that he intended to move back to Illinois after
he got his case settled; that he had told one witness
in 1935 that he was going to Oklahoma but did not
know for how long. Plaintiff denies that he told
these witnesses that he expected to return to Illinois
as soon as his litigation was completed.
[§ 9]
I think it is a fair conclusion from all the evidence
that at the time plaintiff removed to Oklahoma one
of his motives was to create diversity of citizenship

29

so that he might maintain a suit in the United States
courts. But that conclusion is not of itself decisive
of the question presented. There remains the
further question of whether there was at the time
this suit was begun an intention upon his part to
become a citizen of Oklahoma. One may change
his citizenship for the purpose of enabling himself
to maintain a suit in the federal court, but the
change must be an actual legal change made with
the intention of bringing about actual citizenship in
the state to which this removal is made.
[§ 10]
Citizenship and domicile are substantially
synonymous. Residency and inhabitance are too
often confused with the terms and have not the
same significance. Citizenship implies more than
residence. It carries with it the idea of identification
with the state and a participation in its functions. As
a citizen, one sustains social, political, and moral
obligation to the state and possesses social and
political rights under the Constitution and laws
thereof. Harding v. Standard Oil Co. et al. (C.C.)
182 F. 421; Baldwin v. Franks, 120 U.S. 678, 7 S.
Ct. 763, 32 L.Ed. 766; Scott v. Sandford, 19 How.
393, 476, 15 L.Ed. 691.
[§ 11]
Accordingly it is commonly held that the exercise
of suffrage by a citizen of the United States is
conclusive evidence of his citizenship. Foster on
Federal Practice, vol. 1 (6th Ed.) p. 159, and cases
there cited. Voting in a party primary and
membership in a local political party are strong
evidence of citizenship. Gaddie v. Mann (C.C.) 147
F. 955. The registration of a man as a voter and the
assessment of a poll tax against him are likewise

30

strong evidence of domicile or citizenship, though
not conclusive. In re Sedgwick (D.C.) 223 F. 655.
[§ 12]
Change of domicile arises when there is a change of
abode with the absence of any present intention not
to reside permanently or indefinitely in the new
abode. This is the holding of the Supreme Court in
Gilbert v. David, 235 U.S. 561, 35 S. Ct. 164, 167,
59 L.Ed. 360, where the court said: "As Judge Story
puts it in his work on 'Conflict of Laws' (7th Ed.) §
46, page 41, 'If a person has actually removed to
another place, with an intention of remaining there
for an indefinite time, and as a place of fixed
present domicile, it is to be deemed his place of
domicile, notwithstanding he may entertain a
floating intention to return at some future period.
The requisite animus is the present intention of
permanent or indefinite residence in a given place
or country, or, negatively expressed, the absence of
any present intention of not residing there
permanently or indefinitely.' "
[§ 13]
It will be observed that, if there is an intention to
remain, even though it be for an indefinite time, but
still with the intention of making the location a
place of present domicile, this latter intention will
control, even though the person entertains a
floating intention to return at some indefinite future
period. In this respect the court in Gilbert v. David,
supra, further said: "Plaintiff may have had, and
probably did have, some floating intention of
returning to Michigan after the determination of
certain litigation.... But, as we have seen, a floating
intention of that kind was not enough to prevent
the new place, under the circumstances shown,

31

from becoming his domicile. It was his place of
abode, which he had no present intention of
changing; that is the essence of domicile."
[§ 14]
In discussing a similar situation, in McHaney v.
Cunningham (D.C.) 4 F.(2d) 725, 726, the court
said: "He says he always intended at some indefinite
future time, ... to return to Arkansas to practice the
legal profession; but, when he registered and voted
in this state, he must have decided to give up that
idea, for I cannot assume that he intended to
commit a fraud upon its laws by claiming and
exercising rights such as were given alone to a bona
fide citizen. I take it, when these things were done,
it was with the intention of identifying himself with
the state in a political sense, which is the basis of
citizenship." See, also, Reckling v. McKinstry (C.C.)
185 F. 842; Philadelphia & R. Ry. Co. v. Skerman
(C.C.A.) 247 F. 269; Collins v. City of Ashland
(D.C.) 112 F. 175.
[§ 15]
In Dale v. Irwin, 78 Ill. 170 (1875), the court said,
referring to a statutory provision: "The legislature,
by this section, sought to establish a criterion of
residence, by declaring that a permanent abode shall
be such criterion. Now, what is 'a permanent
abode?' Must it be held to be an abode which the
party does not intend to abandon at any future
time? This, it seems to us, would be a definition too
stringent for a country whose people and
characteristics are ever on a change. No man in
active life, in this State, can say, wherever he may be
placed, this is and ever shall be my permanent
abode. It would be safe to say a permanent abode,
in the sense of the statute, means nothing more

32

than a domicile, a home, which the party is at
liberty to leave, as interest or whim may dictate, but
without any present intention to change it."
[§ 16]
In Kreitz v. Behrensmeyer, 125 Ill. 141, 195, 17
N.E. 232, 8 Am.St.Rep. 349 (1888), the Court said:
"A man may acquire a domicile ... if he be
personally present in a place and select that as his
home, even though he does not design to remain
there always, but designs at the end of some time to
remove and acquire another."
[§ 17]
The statement of the Restatement of the Law,
Conflict of Laws, § 15, Domicil of Choice, is as
follows:
"(1) A domicil of choice is a domicil acquired,
through the exercise of his own will, by a person
who is legally capable of changing his domicil.
[§ 18]
"(2) To acquire a domicil of choice, a person must
establish a dwelling-place with the intention of
making it his home.
[§ 19]
"(3) The fact of physical presence at a
dwelling-place and the intention to make it a home
must concur; if they do so, even for a moment, the
change of domicil takes place."
[§ 20]
In Holt v. Hendee, 248 Ill. 288, 93 N.E. 749, 752,
21 Ann.Cas. 202, the court said: "The intention is
not necessarily determined from the statements or
declarations of the party but may be inferred from

33

the surrounding circumstances, which may entirely
disprove such statements or declarations. On the
question of domicile less weight will be given to the
party's declaration than to his acts."
[§ 21]
Though it must be confessed that the question is
far from free of doubt, I conclude that, under the
facts as they appear in the record, despite the fact
that one of plaintiff's motives was the establishment
of a citizenship so as to create jurisdiction in the
federal court, there was at the time of his removal a
fixed intention to become a citizen of the state of
Oklahoma. He testified that he worked on a
community project in that state without
compensation. It appears that he registered as a
voter; he thus became a participant in the political
activities of the state. Such action is inconsistent
with any conclusion other than that of citizenship,
and, in view of his sworn testimony that it was his
intention to reside in Oklahoma and to continue to
do so, it follows that the elements constituting the
status of citizenship existed.
[§ 22]
True, there is some evidence that he had said he
might return to Illinois as soon as his case was
settled. The language of the cases above indicates
that such a floating intention is insufficient to bar
citizenship, where active participation in the
obligations and enjoyment of the rights of
citizenship exist.
[§ 23]
Defendants contend that the fact that the cost of
plaintiff's transportation and maintenance were paid
by the United Mine Workers is of decisive weight

34

upon this issue. I cannot agree. It seems to me
immaterial what motives may have inspired the
United Mine Workers to help him, and the court is
not now concerned with their alleged charitable and
philanthropic practices.
[§ 24]
I conclude, therefore, that plaintiff was at the time
of the commencement of the suit, and is now, a
citizen of the state of Oklahoma. The findings
herein embraced will be adopted as findings of fact
of the court and entered as such. It is ordered that
the motion to dismiss because of lack of diversity
of citizenship be, and the same is hereby, denied.
An exception is allowed to defendants.
[§ 25]
If possible, in view of the expense involved in a trial
upon the merits, it is desirable that a review of this
decision be had before such trial.
After writing out your statement of the holding in Baker v. Keck,
you will be ready to do the computer aided exercise, CALI CIV 05:
Analysis of a Diversity Case.

35

Exercise Two - Jurisdiction
I. The law of jurisdiction
A. Types of Jurisdiction
Before suit can be brought in a given forum, the court must have
“jurisdiction,” the power to speak (diction) the law (juris).
Jurisdiction is divided into three components: 1) subject matter
jurisdiction, 2) personal jurisdiction, and 3) notice and opportunity
to be heard. The court needs all three types of jurisdiction to
proceed to adjudicate the lawsuit. In addition, venue must be
properly laid: plaintiff must bring the suit in a proper district.
Subject matter jurisdiction is a question of authority of the court over
the nature of the litigation, i.e., the subject matter presented. The
rules of subject matter jurisdiction ask whether the court has been
given power to decide a certain type of legal controversy. In order
to determine whether a federal court possesses subject matter
jurisdiction, a lawyer will look to the Constitution of the United
States and federal statutes; for a state court, the lawyer will look to
the state constitution and state statutes.
Many state courts are given broad power to hear all types of cases.
They are courts of general subject matter jurisdiction. Other courts
are limited in the types of cases they may hear, and are courts of
limited subject matter jurisdiction. The common limits are the type
of claim or the amount claimed. For example, a state might have a
court of general jurisdiction, plus a specific court to deal with
probate law, another to deal with tax cases, and a third to deal with
workers’ compensation cases. In such a system, a suit on a contract
brought in probate court would be dismissed for lack of subject
matter jurisdiction. Another state might establish a small claims
court to hear cases not exceeding an amount in controversy of
$5,000. A case seeking in excess of $5,000, brought in that court,
would be dismissed for lack of subject matter jurisdiction.
All federal courts–district courts, courts of appeals, and the
Supreme Court of the United States–are courts of limited subject

30

matter jurisdiction. The limits on federal jurisdiction are discussed
in I.B.2, infra. Because federal courts have limited subject matter
jurisdiction, a party seeking to enter federal court must specifically
plead that jurisdiction. See II.B.1, infra.
Because subject matter jurisdiction is conferred by constitution and
statute, it cannot be conferred on a court by the parties. The parties
can neither consent to nor waive subject matter jurisdiction. The
federal court rule that subject matter jurisdiction may be challenged
at any stage of the litigation [see Fed. R. Civ. P. 12(h)(3)] necessarily
follows from this principle.
Personal jurisdiction refers to the court's power over the parties, or
over the parties’ property, in the case. Some writers prefer to call
this type of jurisdiction basis jurisdiction, but the more common
usage is personal jurisdiction, which as we use the term, includes
power over both persons and things. Since a plaintiff who
commences an action consents to the personal jurisdiction of the
court, the question is power over defendants.
When the court possesses power over the person of the defendant,
the court has in personam jurisdiction. The traditional method for a
court to obtain power over the person of a defendant has always
been service on that person within the boundaries of the state. The
human or corporate defendant had to be "present" within the state
for the court to be able to exercise power. As twentieth century
advances in transportation and commerce made commercial
activity far from home common, courts began to shift emphasis
away from physical presence in the state to a consideration of
whether the state was a convenient geographic location for the
lawsuit. States enacted long-arm statutes to reach out beyond state
boundaries to bring defendants into the state from afar. Even
today, however, convenience has not become the sole
consideration for jurisdiction; a state is required to refrain from
exercising jurisdiction over a defendant who has insufficient
"minimum contacts" with the forum state, even though the forum
would be a convenient location for the lawsuit. See I.C.1(d), infra.

31

Personal jurisdiction is broader than in personam jurisdiction, since
the court's power may be based not directly on the person of the
defendant, but on the defendant through property owned. When
the purpose of the litigation is to determine rights in a piece of
property, the res, located in the state, the action is an in rem
proceeding. When the claim in the litigation is unrelated to the
property, and the plaintiff seizes the res for the sole purpose of
obtaining jurisdiction over the defendant within the state, the
jurisdiction is quasi in rem. The court's power over the person of the
defendant will extend only to the limits of the value of the
defendant's interest in the seized property. See I.C.2, infra.
Since personal jurisdiction means power over the person or the
property of the defendant, defendant can confer it on the court by
consent or waiver. A personal jurisdiction defense not raised by
defendant at the first opportunity is waived [see Fed. R. Civ. P.
12(h)(1)]. This possibility of waiver is explored in detail in Exercise
Five: Motions to Dismiss and Waiver Under Federal Rule 12.
Notice and opportunity to be heard form the third part of the
jurisdictional triangle. The defendant must receive notice of the
pending action and a meaningful opportunity to be heard in
defense before defendant’s property is taken. Due process requires
no less. Notice is accomplished by service of a summons on the
defendant, whether by personal service in hand, substituted service
on another for the defendant, or constructive service of publication
of the summons in a newspaper. Of these methods, the
problematical one is service by publication, since that method may
not be reasonably calculated to achieve actual notice to defendant.
See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315,
70 S. Ct. 652, 657, 94 L.Ed. 865, 874 (1950) ("The means employed
must be ... reasonably certain to inform those affected.").
Note that personal service on a defendant out of state cannot raise
an objection to notice: defendant certainly has received proper
notice, even though the defendant might have a valid objection to
personal jurisdiction. Finally, since notice may be received even
through improper procedures, the defendant may consent to
notice.

32

Opportunity to be heard problems arise in two situations. First,
and rarely, defendant is given an inadequate time to respond to the
complaint. Second, more commonly, property of the defendant is
seized prior to judgment; defendant must receive a meaningful
chance to defend the case before, or at least shortly after, the
property is taken.11
Venue is not a jurisdictional requirement, yet it is closely associated
with jurisdiction and the two are sometimes confused. The
difference is that jurisdiction deals with the power of the court,
while venue allocates judicial business among various courts that
have jurisdictional power. Should one federal district court have
subject matter jurisdiction over a case, all 94 federal district courts
will have subject matter jurisdiction. Every one of them will be able
to give proper notice. Perhaps even all of them will have personal
jurisdiction over the defendant. Yet the federal venue statutes (see
section I.E.2) will require that the case be brought only in a small
number, or even only one, of those 94 districts. The rules of venue
are designed to ensure that trials are conducted in a convenient
place.
A case laying venue in the wrong federal district may be dismissed
[Fed. R. Civ. P. 12(b)(3)] or may be transferred to a district "in
which it could have been brought" [28 U.S.C. § 1406]. A defendant
may also consent or waive objection to venue [Fed. R. Civ. P.
12(h)(1); see Exercise Five: Motions to Dismiss and Waiver Under
Federal Rule 12].
B. Subject Matter Jurisdiction
1. State Courts
Even though state court systems do have courts of limited subject
matter jurisdiction, every state has a state court of general subject
matter jurisdiction that is able to hear all types of cases. That court
may be called the superior court, the district court, the supreme
11 See Jack H. Friedenthal, Mary Kay Kane & Arthur R. Miller, Civil Procedure § 3.21

(4th ed. 2005) (discussing the Supreme Court’s series of pre-judgment seizure
cases).

33

court, the circuit court, or some other name. You may assume that
all state courts mentioned in this exercise are courts of general
jurisdiction.
2. Federal Courts
Since subject matter jurisdiction is dependent on the constitution
and statutes that empower the court, we look first to the Judicial
Article of the United States Constitution to determine what types
of cases it permits federal courts to hear:
The judicial power shall extend to all Cases,
in Law and Equity, arising under this
Constitution, the Laws of the United States,
and Treaties made, or which shall be made,
under their Authority;—to all Cases
affecting Ambassadors, other public
Ministers and Consuls;—to all Cases of
admiralty and maritime Jurisdiction;—to
controversies to which the United States
shall be a Party;—to Controversies between
two or more States;—between a State and
Citizens of another State;—between
Citizens of different States;—between
Citizens of the same State claiming Lands
under Grants of different States, and
between a State, or the Citizens thereof, and
foreign States, Citizens or Subjects.
U.S.Const. art. III, § 2. The two most commonly-used types of
federal court subject matter jurisdiction are federal questions [“all
Cases, in Law and Equity, arising under this Constitution, the laws
of the United States, and Treaties made”] and diversity of
citizenship [“between Citizens of different States”].
Even though the Constitution provides the federal judicial power
"shall extend" over these two areas, Congress must pass legislation
to vest such authority in the federal courts. While the matter is not
free from doubt, the Supreme Court has often said that the judicial
power of the United States—within the outer limits of the
Constitution—is dependent on Congress, which may invest the

34

inferior federal courts "with jurisdiction either limited, concurrent,
or exclusive, and [withhold] jurisdiction from them in the exact
degrees and character which to Congress may seem proper for the
public good." Sheldon v. Sill, 49 U.S. (8 How.) 441, 12 L.Ed. 1147
(1850). Indeed, Congress did not grant the federal courts authority
to hear federal question cases until 1875, and proposals to eliminate
diversity jurisdiction are even today introduced.
a. Federal Question Jurisdiction
The statute implementing the Constitutional grant of power over
federal questions reads as follows:
The district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United
States.
28 U.S.C. § 1331.
A case arising under the Constitution, laws, or treaties of the
United States presents a federal question. Even though the key
words of the statute–“arising under”–are identical to the
Constitution, the courts interpret the statute more narrowly than
the Constitution. For example, the famous rule that a federal
question must arise in the well-pleaded complaint and cannot arise
in defense [Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 S.
Ct. 42, 53 L.Ed. 126 (1908), reproduced in Exercise One] is
recognized as an interpretation of § 1331 but not of the
Constitution.
When a federal statute creates the claim, courts have little difficulty
recognizing a federal question. Even here, however, what appears
at first glance to be a claim founded on federal law may not be.
Suppose, for example, that an author assigns a copyright issued
under federal copyright law to an entrepreneur in exchange for an
agreement to share royalties on marketing of the composition.
Some time later, the author sues for failure to pay royalties and
seeks an accounting. Is this a federal question? No, said Judge
Henry Friendly in T.B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2d
Cir.1964): the complaint presents a state law claim of breach of
contract.

35

The most difficult cases have been those in which a federal law
issue arises in a claim created by state law. Despite the best efforts
of some of the best judges of our national history—Chief Justice
John Marshall, Justice Oliver Wendell Holmes, and Justice
Benjamin Cardozo among them—the phrase "arising under" has
remained elusive in these cases. Perhaps the most famous attempt
at definition was offered many years ago by Justice Cardozo.
If we follow the ascent far enough,
countless claims of right can be discovered
to have their source or their operative limits
in the provisions of a federal statute or in
the
Constitution
itself
with
its
circumambient restrictions upon legislative
power. To set bounds to the pursuit, the
courts have formulated the distinction
between controversies that are basic and
those that are collateral, between disputes
that are necessary and those that are merely
possible. We shall be lost in a maze if we
put that compass by.
Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 118, 57 S. Ct. 96,
100, 81 L.Ed. 70, 75 (1936). Most recently, the Court attempted a
new definition in Grable & Sons Prods., Inc. v. Darue Eng. & Mfg.,
545 U.S. 308, 125 S. Ct. 2363, 162 L.Ed.2d 257 (2005).
At the ends of the continuum, cases can easily be classified as
arising under federal law or arising under state law. Near the
middle, the question of whether a case presents a federal question
can be exceedingly difficult.12
b. Diversity Jurisdiction
Diversity cases involve citizens of different states. The statute
implementing the Constitutional grant of power over diversity of
citizenship cases reads as follows:
12 Further discussion of federal questions is beyond the scope of this brief note.

The topic is explored in depth in a course in federal jurisdiction. See generally Charles
A. Wright & Mary Kay Kane, The Law of Federal Courts § 17 (6th ed. 2002).

36

(a) The district courts shall have original
jurisdiction of all civil actions where the
matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and
costs, and is between—
(1) citizens of different States;
(2) citizens of a State and citizens or
subjects of a foreign state;
(3) citizens of different States and in
which citizens or subjects of a foreign
state are additional parties; and
(4) a foreign state, defined in section
1603(a) of this title, as plaintiff and
citizens of a State or of different
States.
For the purposes of this section, section
1335, and section 1441, an alien admitted to
the United States for permanent residence
shall be deemed a citizen of the State in
which such alien is domiciled.
(b) Except when express provision therefor
is otherwise made in a statute of the United
States, where the plaintiff who files the case
originally in the Federal courts is finally
adjudged to be entitled to recover less than
the sum or value of $75,000, computed
without regard to any setoff or counterclaim
to which the defendant may be adjudged to
be entitled, and exclusive of interest and
costs, the district court may deny costs to
the plaintiff and, in addition, may impose
costs on the plaintiff.
(c) For the purposes of this section and
section 1441 of this title—
(1) a corporation shall be deemed a
citizen of any State by which it has been
incorporated and of the State where it

37

has its principal place of business,13
except that 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; and
(2) the legal representative of the estate
of a decedent shall be deemed to be a
citizen only of the same State as the
decedent, and the legal representative of
an infant or incompetent shall be
deemed to be a citizen only of the same
State as the infant or incompetent.
(d) [provisions relating to class actions
omitted]
(e) The word "States", as used in this
section, includes the Territories, the District
of Columbia, and the Commonwealth of
Puerto Rico.
28 U.S.C. § 1332.

13 Under this provision, a corporation is said to have dual citizenship: state(s) of

incorporation and the one state "where it has its principal place of business." Since
the statute offers no definition, different lines of authority emerged in the federal
courts to interpret “principal place of business.” One line looked to the location of
the executive offices or "nerve center" of the corporation. Another line looked to
the state in which the corporation carried on the bulk of its activity. Some decisions
attempted to blend the two lines of authority into a "total activity" test. The
Supreme Court settled this matter by deciding the principal place of business of a
corporation is the nerve center, the place where its high officers direct and control
its activities. The Hertz Corp. v. Friend, 559 U.S. ___, 130 S. Ct. 1181, ___ L.Ed.2d
___ (2010).

38

This statute clearly requires that for a federal court to have diversity
jurisdiction, the case must satisfy two requirements: 1) diversity of
citizenship of the parties and 2) an adequate jurisdictional amount.
1. Determining Citizenship of the Parties.
While 28 U.S.C. § 1332 states at least a partial test for determining
the citizenship of a corporation, it offers no guidance for
determining the citizenship of a natural person–or other entities
such as partnerships or unions. The following two cases exemplify
the law that federal courts have created to determine the
citizenship of a natural person. Please read them carefully, as you
will be called on to apply the principles announced in them, and
you will also be asked questions specifically about the opinions,
when you do the computer exercise.
Baker v. Keck
United States District Court, Eastern District of Illinois,
1936.
13 F. Supp. 486.
[This opinion is reproduced in Exercise One, part III. Please
reread Baker as part of your preparation for this exercise.
Remember that even though the opinion is old, it still states good
law today and you should treat it as a recent decision.]
Scoggins v. Pollock
United States Court of Appeals, Eleventh Circuit, 1984.
727 F.2d 1025.
ALBERT J. HENDERSON, CIRCUIT JUDGE:
The issue presented by this case is whether the
appellant, Kay Scoggins, was domiciled in South
Carolina or Georgia at the time she filed this medical
malpractice suit in the United States District Court
for the Southern District of Georgia. Diversity of
citizenship is alleged as the basis of federal
jurisdiction pursuant to the provisions of 28 U.S.C. §
1332. All of the appellees-defendants are residents of
Georgia. The district court concluded that Mrs.

39

Scoggins was also a citizen of Georgia and dismissed
the case for lack of subject matter jurisdiction.
Finding that the district court was not clearly
erroneous, we affirm.
Mrs. Scoggins and her husband lived in Washington,
Georgia. He was a high school principal and Mrs.
Scoggins worked as a media specialist in a grade
school. As a result of Mr. Scoggins' sudden death in
October, 1979, Mrs. Scoggins filed suit in October,
1981 against the doctors, clinic and hospital that
treated him.
Mrs. Scoggins remained in Washington, Georgia for
over a year after her husband's death. Rev. Robert
Murphy, who counseled with her, stated that he
advised her not to do anything for at least a year
until she overcame her grief. Rev. Murphy
Deposition at 13. Still, Mrs. Scoggins contended that
she decided soon after her husband's death to leave
Washington and start a new life somewhere else.
Mrs. Scoggins Deposition at 131.
In January or February 1981 Mrs. Scoggins applied
for admission to a one year Master in Librarianship
program at the University of South Carolina. After
her acceptance in mid-April, 1981, she notified her
employer, Dr. Fred Dorminy, of her intent to resign
her job in the Wilkes County school system. She
rented an apartment in West Columbia, South
Carolina and began her course of study in August,
1981. Later she accepted a job as a graduate
assistant, a position open only to students. She
neither sold nor rented her house in Washington,
Georgia. She and her two children stayed there
occasionally when they were in Washington. She
claimed that she was holding on to the house until
she graduated and found a permanent job and then

40

would use the proceeds of the sale to purchase a
new home. Mrs. Scoggins Deposition at 132–33.
The district court correctly noted that a change of
domicile requires "[a] concurrent showing of (1)
physical presence at the new location with (2) an
intention to remain there indefinitely...." Opinion at
4. Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir.), cert.
denied, 419 U.S. 842, 95 S. Ct. 74, 42 L.Ed.2d 70
(1974); Stine v. Moore, 213 F.2d 446 (5th Cir.1954).
The plaintiff bears the burden of proving her
domicile by a preponderance of the evidence. Vacca
v. Meetze, 499 F. Supp. 1089 (S.D.Ga.1980).
It is undisputed that Mrs. Scoggins was physically
present in South Carolina when she filed this suit.
She had rented an apartment, registered to vote,
registered her car and obtained a South Carolina
driver's license. After a summer vacation she
apparently was in South Carolina full time once
classes began. The second element of the test, her
intent to remain in South Carolina indefinitely,
however, presents a greater problem. The district
court found that she initially went to South Carolina
to undertake graduate studies and had not positively
decided upon her residence after graduation. Citing
13 Wright, Miller & Cooper, Federal Practice and
Procedure § 3613 (1975), the district court stated that
out-of-state students are usually regarded only as
temporary residents and "[i]t is therefore usually
presumed that they retain their domicile at their
former place of abode." Opinion at 10. Because Mrs.
Scoggins lacked the requisite intent to remain in
South Carolina and was still a Georgia domiciliary,
the district court then dismissed the suit for lack of
jurisdiction.
The district court's finding of domicile will not be
disturbed unless clearly erroneous. Combee v. Shell Oil

41

Co., 615 F.2d 698 (5th Cir.1980). We conclude that,
although there is some conflicting evidence, we are
not "left with the 'definite and firm conviction that a
mistake has been committed.' " Inwood Laboratories v.
Ives Laboratories, 456 U.S. 844, 855, 102 S. Ct. 2182,
2189, 72 L.Ed.2d 606, 616 (1982) (quoting United
States v. United States Gypsum Co., 333 U.S. 364, 395,
68 S. Ct. 525, 542, 92 L.Ed. 746, 766 (1948)). There
is sufficient evidence in the record to support the
district court's finding.
Mrs. Scoggins clearly intended to leave Washington,
Georgia, but her plans after that were more
nebulous. Instead of consistently exhibiting an intent
to remain in South Carolina, there were many
indications that she considered moving to Florida or
even returning to Georgia. Rev. Murphy stated that
he discussed cities like Atlanta with Mrs. Scoggins
and that "[s]he did name to me on more than one
occasion that she was having thoughts of perhaps
teaching in Florida." Rev. Murphy Deposition at 15.
Further,
she never indicated to me that she
had made any plans to settle in
South Carolina, nor did she say she
didn't. The fact is, she didn't
exclude Georgia really in her
conversations to me.
Id. at 24. Dr. Dorminy, the county school
superintendent in Wilkes County, testified by
deposition that Mrs. Scoggins "indicated that when
she finished her work at the University of South
Carolina, that Florida was a possibility." Dorminy
Deposition at 17. Dr. Dorminy additionally
remarked that she told him she was unsure where
she would go after graduation and she did not say
anything to him suggesting that she considered

42

South Carolina as her permanent home. Id. at 13,
17.
Mrs. Scoggins herself testified that her plans at the
time were unsettled. "My intentions were to leave
Georgia. I really didn't know where I was going, but
I intended to leave Washington. I did not intend to
live there any longer. I had options of where to go."
Mrs. Scoggins Deposition at 160. Initially, it appears
that she went to South Carolina solely to pursue her
graduate studies. The University of South Carolina
offered one of the few accredited programs in
which she was interested. When asked when she
decided to move to South Carolina, she replied
"[a]fter I received my acceptance from the
University of South Carolina." Id. at 134. Also,
Q. The only reason you went was
to go to school then—you didn't
go to Columbia for any other
reason, except to go to the
University of South Carolina, is
that correct?
A. That's where I was accepted, so
that's why I am in Columbia, South
Carolina.
Id. at 158.
The former Fifth Circuit Court of Appeals
considered this precise question in Mas v. Perry, 489
F.2d 1396 (5th Cir.), cert. denied, 419 U.S. 842, 95 S.
Ct. 74, 42 L.Ed.2d 70 (1974). [Note: the Eleventh
Circuit Court of Appeals adopts as precedents the
decisions of the Fifth Circuit Court of Appeals
issued prior to the division of that court into the
Fifth and Eleventh Circuits in 1981.] Mr. and Mrs.
Mas were graduate students at Louisiana State
University and worked as graduate assistants. Mrs.
Mas previously lived in Mississippi. The couple

43

moved to Illinois but planned to return to
Louisiana for Mr. Mas to complete his doctorate
degree. They each sued their former landlord who
was a Louisiana resident. He challenged diversity
jurisdiction over Mrs. Mas' claim, alleging that Mrs.
Mas also was domiciled in Louisiana. The court
rejected this argument, stating:
Mrs. Mas' Mississippi domicile was
disturbed neither by her year in
Louisiana prior to her marriage nor
as a result of the time she and her
husband spent at LSU after their
marriage, since for both periods she
was a graduate assistant at LSU.
Though she testified that after her
marriage she had no intention of
returning to her parents' home in
Mississippi, Mrs. Mas did not effect
a change of domicile since she and
Mr. Mas were in Louisiana only as
students and lacked the requisite
intention to remain there.
Id. at 1400.
Mas is directly on point. Although Mrs. Scoggins
may now intend to remain in South Carolina, we
must look to the facts as of the date she filed this
suit. She initially moved to South Carolina as a
student. Even if she did not intend to return to
Georgia, she was undecided about her future plans.
Her domicile before she moved to South Carolina
continued until she obtained a new one. Georgia
remained Mrs. Scoggins' domicile for diversity
purposes. We also note that the Court of Appeals
for the Eighth Circuit, also in a medical malpractice
case, dismissed the diversity suit of a student in
Ohio against a Missouri doctor, holding that the
student retained his Missouri domicile because he

44

lacked the intent to remain in Ohio. Holmes v.
Sopuch, 639 F.2d 431 (8th Cir.1981). The district
court's finding that Mrs. Scoggins was a Georgia
domiciliary is supported by the record and is not
clearly erroneous.
Mrs. Scoggins also asserts that the district court
abused its discretion by denying her motion to
amend her complaint, purportedly to cure any
jurisdictional defects. Such motions usually are
granted liberally. Fed. R. Civ. P. 15(a). See Dussouy v.
Gulf Coast Investment Corp., 660 F.2d 594 (5th
Cir.1981). Yet because the district court found there
was no diversity jurisdiction, granting the motion
would not have affected the outcome of the
case. For the foregoing reasons, the judgment of
the district court dismissing the complaint for lack
of jurisdiction is affirmed.
2. Determining the Amount in Controversy.
The diversity jurisdictional statute, 28 U.S.C. § 1332, requires that
the “matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs.” This means diversity of citizenship
alone is unavailing; the plaintiff must also be seeking to recover in
excess of $75,000.
Since the first Congress, the diversity statute has required a
minimum amount in controversy. The Judiciary Act of 1789 set
that amount at $500. Congress raised the amount in 1887 to $2000;
in 1911 to $3000; in 1958 to $10,000; in 1988 to $50,000, and again
in 1996 to $75,000. In part, this jurisdictional amount has been
raised in response to broader attempts to abolish diversity
jurisdiction. In part, the amount has been raised as Congress
attempts to set it “not so high as to convert the Federal courts into
courts of big business nor so low as to fritter away their time in the
trial of petty controversies.” S. Rep. No. 1830, at 4 (1958), reprinted
in 1958 U.S.C.C.A.N. 3099, 3101.

45

As might be expected, the courts have developed many rules for
determining the amount in controversy. Probably the basic rule is
that the good faith face of the complaint controls:
The rule governing dismissal for want of
jurisdiction in cases brought in the federal
courts is that, unless the law gives a
different rule, the sum claimed by the
plaintiff controls if the claim is apparently
made in good faith. It must appear to a legal
certainty that the claim is really for less than
the jurisdictional amount to justify
dismissal.
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58
S. Ct. 586, 590, 82 L. Ed. 845, 848 (1938). That general rule is
sufficient for purposes of this exercise. This note does not develop
rules that surround such questions as when plaintiff’s claimed
amount is not in good faith, how to value injunctive or declaratory
relief, or when amounts sought in separate claims can be
aggregated.14
c. Removal Jurisdiction
Removal jurisdiction is a question of federal subject matter
jurisdiction. A defendant in an action filed by plaintiff in a state
court may remove the case to federal court, if the federal court
would have had original jurisdiction over it. Removal jurisdiction is
a one-way street, state court to federal court; removal from federal
court to state court does not exist. Also, the federal removal
statute, 28 U.S.C. § 1441, allows removal by “the defendant or the
defendants.” This means a plaintiff cannot remove a case from
state court to federal court, even when the defendant has asserted a
counterclaim.
The statute governing removal reads as follows:

14 See generally Charles A. Wright & Mary Kay Kane, The Law of Federal Courts §§ 32-

37 (6th ed. 2002).

46

(a) Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of
which the district courts of the United States have
original jurisdiction, may be removed by the defendant
or the defendants, to the district court of the United
States for the district and division embracing the place
where such action is pending. For purposes of removal
under this chapter, the citizenship of defendants sued
under fictitious names shall be disregarded.
(b) Any civil action of which the district courts have
original jurisdiction founded on a claim or right arising
under the Constitution, treaties or laws of the United
States shall be removable without regard to the
citizenship or residence of the parties. Any other such
action shall be removable only if none of the parties in
interest properly joined and served as defendants is a
citizen of the State in which such action is brought.
(c) Whenever a separate and independent claim or cause
of action within the jurisdiction conferred by section
1331 of this title is joined with one or more otherwise
nonremovable claims or causes of action, the entire case
may be removed and the district court may determine all
issues therein, or, in its discretion, may remand all
matters in which State law predominates.
***
28 U.S.C. § 1441.
As can be seen, the basic removal provision is § 1441(a). Removal
is limited in diversity cases by § 1441(b). In addition to these
primary provisions, § 1441(c) allows removal when the case
includes a "separate and independent claim" based on federal
question jurisdiction; most state procedures require some
connection, such as being part of the same transaction or
occurrence, between claims for them to be joined together in a
complaint. The connection required to get the defendants together

47

in state court is usually strong enough to prevent the claims from
being separate enough for removal to federal court.15
Removal works in this fashion. Suppose a citizen of Connecticut
sues a citizen of New York in Connecticut state court on a
$150,000 personal injury claim arising from an accident that
occurred in Connecticut. The Connecticut court, as a court of
general subject matter jurisdiction, could try the case and render a
valid judgment. On the other hand, § 1441(a) entitles the defendant
to remove the case to federal court (note that if the action were
filed in New York state court, § 1441(b) would prohibit removal by
the New York defendant). Defendant could file a notice of removal
in federal court within 30 days of “receipt by the defendant,
through service or otherwise, of a copy of the initial pleading
setting forth the claim for relief.” 28 U.S.C. § 1446(b). Upon being
notified of the removal, the state court “shall proceed no further”
with the case. 28 U.S.C. § 1446(d). A plaintiff who believes the case
has been removed improperly, i.e., the federal court lacks subject
matter jurisdiction, must bring a motion in the federal court to
remand the case to state court. 28 U.S.C. § 1447(c).

15 See generally 14B Charles A. Wright, Arthur R. Miller, Edward H. Cooper & Joan

E. Steinman, Federal Practice and Procedure § 3722.3 (4th ed. 2009).
The separate and independent claim statute, § 1441(c), encompasses only federal
question cases (§ 1331). Diversity cases, part removable and part not, must remain
in state court. This treatment has changed several times over the years. Prior to the
most recent amendment in 1990, § 1441(c) included both federal question and
diversity cases. What constitutes a “separate and independent claim” was construed
narrowly in American Fire & Cas. Co. v. Finn, 341 U.S. 5, 71 S. Ct. 534, 95 L.Ed. 702
(1951). Consequently, claims are rarely removable as “separate and independent.”
As it is written today, § 1441(c) may well be unconstitutional. Because a “claim” is
broadly construed to include an entire Constitutional case, which is essentially a
single set of facts, a separate claim must be factually unrelated. Such an unrelated
state law claim, while calling § 1441(c) into operation, would be beyond the scope
of the Constitutional case allowed into federal court under supplemental
jurisdiction under 28 U.S.C. § 1367 and indeed would exceed the judicial power
allowed by Article III, § 2 of the Constitution.

48

The defendant's attorney might have any number of reasons, good
or bad, to want to remove the case to federal court. The attorney
might want to take advantage of federal discovery devices. The
attorney might believe a federal judge or federal jury would be
more favorable to the defendant. The attorney might simply be
seeking an advantage if she has more experience in federal court
than does plaintiff’s attorney.
d. Supplemental Jurisdiction
Supplemental jurisdiction is discussed in Exercise Six: Joinder and
Supplemental Jurisdiction.
C. Personal Jurisdiction
1. Rules of In Personam Jurisdiction
The following paragraphs describe four traditional grounds for
jurisdiction over the person of the defendant–in personam
jurisdiction–that have achieved general acceptance in American
courts.
(a) Consent. A court has personal jurisdiction over a party who
consents to the jurisdiction of the court. This consent may be
express, as by an admission in open court; implied, as by driving on
the roads of a state that has a statute deeming use of the state's
roads to be a submission to jurisdiction; or even inadvertent, as by
waiver of the defense for failure to raise it in the first response to
the complaint [Fed. R. Civ. P. 12(h)(1). See Exercise Five: Motions
to Dismiss and Waiver Under Federal Rule 12].
(b) Domicile. Courts can exercise personal jurisdiction over natural
persons who are domiciled within the state even when they are
temporarily absent. An analogous rule permits jurisdiction to be
asserted over a corporation that is incorporated within the state or
has its principal place of business there. Mostly this doctrine is part
of the common law, but some states have embodied it in statute.
(c) In-state Service. Service on a natural person physically present
within the territorial jurisdiction of a court secures personal
jurisdiction over that defendant. Such “transient jurisdiction” was
firmly established prior to Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 24

49

L.Ed. 565 (1877), and remains good law today. This doctrine came
under attack in the 1980s, but was reaffirmed in Burnham v. Superior
Court, 495 U.S. 604, 110 S. Ct. 2105, 109 L.Ed.2d 631 (1990).
(d) Contacts with the forum state. After Pennoyer, absent consent or
domicile, service on a defendant had to be within the boundaries of
the forum state; service outside the state was unavailing. This rigid
set of rules became more and more difficult to apply as the
twentieth century produced a mobile society, interstate commerce,
and corporate defendants. Courts could easily determine whether a
natural person had been served within a state, but where was an
incorporeal entity such as a corporation located? Under what
circumstances was a corporation “present” or “doing business” in a
state?
Finally, with its 1945 decision in International Shoe Co. v. Washington,
326 U.S. 310, 66 S. Ct. 154, 90 L.Ed. 95 (1945), the Supreme Court
of the United States completely changed the landscape of in
personam jurisdiction. International Shoe decided that the due
process clause of the United States Constitution allowed service on
a defendant outside the state, so long as the defendant "have
certain minimum contacts with [the state] such that the
maintenance of the suit does not offend 'traditional notions of fair
play and substantial justice.' "Id. at 316, 66 S. Ct. At 158, 90 L.Ed.
at 102. This language became known as the minimum contacts test.
While due process allowed service outside the state, it did not
require or implement such service. States had to pass statutes to
assert “long-arm” jurisdiction–reaching out to seize a defendant
beyond the boundaries of the state. Today all 50 states have longarm statutes.
When this basis for personal jurisdiction is employed, the court
must follow a two-step process. First, the defendant's act(s) must
fall within the ambit of the long-arm statute. That is a question of
statutory interpretation. Second, the exercise of jurisdiction under
the long-arm statute must comply with the constitutional
requirements of due process (the minimum contacts test). Only
when both steps are satisfied may the court exercise jurisdiction.

50

(1) The state long-arm statutes. Over the years since International
Shoe, states have enacted two primary types of long-arm statutes.
The first type might be called enumerated acts statutes, in which
the statute enumerates a list of actions by the defendant that will
allow the state to assert jurisdiction over it. The court must decide
whether the statute reaches the actions of the defendant. When the
statute does not reach the defendant, the court need not consider
due process. The second type might be called limits of due process
statutes, which simply assert jurisdiction over any action of
defendant and cast the entire decision of the appropriateness of
jurisdiction on the minimum contacts test. We will discuss both
types of long-arm statutes briefly.
The first state to enact a long-arm statute was Illinois in 1955. The
drafters of the Illinois statute created an enumerated acts statute,
listing four specific actions within the state’s boundaries that would
bring a nonresident defendant within the jurisdiction of the state:
“transaction of any business,” “commission of a tortious act,”
“ownership, use, or possession of any real estate,” or “contracting
to insure.” Because Illinois was the first long-arm statute, its
language was borrowed, at least in part, by a majority of American
states.
Each state drafted its enumerated acts long-arm statute with
different provisions, so we reproduce only one example. Uniform
Interstate and International Procedure Act § 1.03 was promulgated
for adoption by the states by the National Conference of
Commissioners on Uniform State Laws in 1962, and it was adopted
in many states:
(a) A court may exercise personal
jurisdiction over a person, who acts directly
or by an agent, as to a [cause of action]
[claim for relief] arising from the person’s
(1) transacting any business in this state;
(2) contracting to supply services or
things in this state;

51

(3) causing tortious injury by an act or
omission in this state;
(4) causing tortious injury in this state
by an act or omission outside this state
if he regularly does or solicits business,
or engages in any other persistent
course of conduct, or derives substantial
revenue from goods used or consumed
or services rendered, in this state; [or]
(5) having an interest in, using, or
possessing real property in this state [;
or
(6) contracting to insure any person,
property, or risk located within this state
at the time of contracting].
(b) When jurisdiction over a person is based
solely upon this Section, only a [cause of
action] [claim for relief] arising from acts
enumerated in this Section may be asserted
against him.16

16 The categories of the Uniform Interstate and International Procedure Act can be

seen as designed to confer personal jurisdiction over nonresidents in situations in
which the state has a legitimate interest in adjudicating the action and is likely to be
a fair and convenient location for the lawsuit. For example, consider § 1.03(a)(3),
conferring jurisdiction over a person who causes tortious injury by an act or
omission in the state. This provision would apply in a case in which a civil action is
brought against a nonresident who had allegedly committed assault and battery
within the state. The state has a legitimate interest in keeping peace within its
boundaries. Moreover, it is likely to be a convenient place to try the action, since
the witnesses to the incident and to any resultant injury are likely to be located
within the state.

52

Today, a large majority of American states have enumerated acts
long-arm statutes. The situation is complicated, however, by a
development in the law that began in Illinois in 1957. The state
supreme court, in interpreting the nation’s first long-arm statute,
inserted a dictum into its opinion that the statute had a purpose to
assert jurisdiction over nonresidents to the full extent permitted by
the due process clause. See Nelson v. Miller, 11 Ill. 2d 378, 389, 143
N.E.2d 673, 679 (1957). Even though Illinois continued to
interpret its long-arm statute in a limited fashion, many other
states’ courts seized on that dictum and held that their limited,
enumerated acts long-arm statutes were intended to, and so did,
extend to the full limits of due process. Thus, by judicial decision,
those courts converted their state statutes from enumerated acts
statutes into limits of due process statutes.17 Even though such
interpretation of detailed statutory language is highly questionable,
it induced the withdrawal of Uniform Interstate and International
Procedure Act § 1.03 in 1977 as “obsolete.”
The second common type of long-arm statute is the limits of due
process statute, which plainly asserts the power of the state over all
actions of nonresident defendants that the due process clause,
The justification for jurisdiction is weaker in the situation covered by § 1.03(a)(4),
which deals with injury caused within the state by a tort committed outside the
state. This provision would apply to a defendant that manufactured a product
outside the state and shipped it into the state, where it caused injury. The evidence
concerning alleged negligent manufacture of the product is likely to be located
outside of the state. On the other hand, evidence relating to the plaintiff's injury is
likely to be located in the state; the state has a legitimate interest in insuring that
products within its borders are safe; and the requirement that the defendant have
engaged in a persistent course of conduct in the state means that the defendant has
had contacts with the state and should have been able to foresee the possibility of
being sued there.
17 See Douglas D. McFarland, Dictum Run Wild: How Long-arm Statutes Extended to the

Limits of Due Process, 84 Boston U. L. Rev. 491 (2004). This article finds that today
eighteen states have enumerated acts statutes that are interpreted by their limited
language, twelve states have enumerated acts statutes that are interpreted to extend
to the limits of due process, nine states have enumerated acts statutes that have an
additional limits of due process clause, and eleven states have limits of due process
statutes.

53

through the minimum contacts test, will allow. The first state to
enact such a statute was Rhode Island in 1960. It hewed closely to
the International Shoe language by passing a long-arm statute that
reaches nonresidents “that shall have the necessary minimum
contacts with the state of Rhode Island.” California extended this
approach to the ultimate limit in 1969 by passing a statute that
reads only “A court of this state may exercise jurisdiction on any
basis not inconsistent with the Constitution of this state or of the
United States.”
To summarize, long-arm jurisdiction requires the court to consider
two steps: the long-arm statute and the due process clause
(minimum contacts test). A state with an enumerated acts long-arm
statute must first determine whether defendant’s act is
encompassed within the language of the statute, and can proceed
to the second step only after an affirmative answer. A state that has
a limits of due process long-arm statute, or that has interpreted its
enumerated acts statute to reach the limits of due process, can
proceed directly to the second step.
(2) Constitutional limits on in personam jurisdiction (the minimum
contacts test). The long-arm statutes of the states can reach only so
far as the Constitution allows. The constitutional limits of long-arm
jurisdiction are found in the due process clause.
International Shoe established the test of due process to require that
defendant has "certain minimum contacts with [the state] such that
the maintenance of the suit does not offend 'traditional notions of
fair play and substantial justice.' " 326 U.S. at 316, 66 S. Ct. at 158,
90 L.Ed. at 102. Later cases have interpreted, developed, and
expanded this test.
One early case emphasized that these minimum contacts with the
state must be voluntary, or in other words, the defendant must
"purposely avail" itself of the laws of the forum state. Hanson v.
Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L.Ed.2d 1283,
1298 (1958). The contact with the state must have been purposeful.
When a retailer sold an allegedly defectively designed automobile to
a consumer in New York, who then drove the auto to Oklahoma

54

and had an accident there, jurisdiction was not allowed in
Oklahoma even though the retailer could reasonably have foreseen
that some of the cars it sold would be driven nationwide. The
defendant did not purposefully direct its product/activities toward
the forum state. World–Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 100 S. Ct. 559, 62 L.Ed.2d 490 (1980).
Another decision apparently bifurcated the test into a minimum
contacts part and a fair play and substantial justice part. In
evaluating the latter portion of the test, the court can consider such
things as the burden on the defendant, the plaintiff’s interest, the
forum state’s interest, the interstate judicial system’s interest, and
the shared policy interests of the several states. Burger King Corp. v.
Rudzewicz, 471 U.S. 476-77, 105 S. Ct. 2174, 2184, 85 L.Ed.2d 528,
543 (1985).
Accordingly, a state court may not exercise jurisdiction over a
nonresident defendant unless (1) the defendant has had minimum
contacts with the state, (2) those contacts were voluntary, and (3)
the state is a fair and convenient location for the lawsuit. When the
defendant has had no contact with the state, then the state may not
assert jurisdiction even if it is a convenient forum for the litigation.
The third requirement, fair play and substantial justice, invites
courts to consider a number of convenience factors. One is the
probable location of witnesses and evidence. For example, in an
action involving injury allegedly caused by a defective product, the
state in which the injury occurred is likely to be one in which much
of the relevant evidence may be found. The witnesses to the
accident, and perhaps to the diagnosis and treatment of the injury,
are likely to be there. Physical evidence, such as the product itself,
may also be located there.
The forum state's interest in hearing the lawsuit also has a bearing
on whether it can exercise jurisdiction. For example, a state has a
particular interest in regulating insurance companies, and hence
may hear a suit involving a nonresident insurance company that
insured one of its citizens, when perhaps the facts would not justify
permitting jurisdiction over an ordinary corporate defendant. See

55

McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2
L.Ed.2d 223 (1957). Thus, businesses that are especially in need of
regulation to protect the consumer (insurance, stock brokerage), or
companies and individuals that engage in dangerous activities, are
subject to broader jurisdiction than other businesses or individuals.
Another factor that courts will consider is the connection between
the defendant's activity in the state and the claim asserted. The
question is whether the claim against defendant arises out of its
activities within the state. For example, a mail order company may
ship a widget to plaintiff in the forum state. Plaintiff is injured
when the widget proves defective. Plaintiff’s claim arises from
defendant’s contact with the forum state, so this is sometimes
called specific jurisdiction. In contrast, a mail order company may
ship may widgets into the forum state, but plaintiff is injured when
he is struck by one of the company’s delivery vehicles in another
state. Plaintiff’s claim does not arise from defendant’s contacts with
the forum state, so this is sometimes called general jurisdiction.
While due process permits general jurisdiction–power over a
defendant based on a claim unrelated to defendant’s contacts with
the forum state–many courts are reluctant to assert general
jurisdiction over a nonresident defendant and will require a strong
showing of continuous and systematic contacts. One example of a
court reluctant to assert general jurisdiction can be found in
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.
Ct. 1868, 80 L.Ed.2d 404 (1984). This judicial regard for
relatedness between defendant’s activity in the state and the claim
may arise from concern about the foreseeability of the litigation; a
defendant who sells a product within a state should be able to
foresee that it might be haled into court to defend lawsuits there
based upon that product.
One area of continuing controversy is jurisdiction over a company
that puts a product into the stream of commerce, and the stream

56

carries the product into a state where it causes injury. The Supreme
Court has split on the issue.18
An area of emerging controversy is assertion of jurisdiction over a
defendant whose contact with the forum state is through the
internet. While the Supreme Court has not addressed the issue,
lower courts appear to be coalescing around a “sliding scale” test.
That was created in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.
Supp. 1119 (W.D. Pa. 1997). The test results in jurisdiction when
the defendant’s activity over the internet increases. A passive web
site that merely posts information does not create jurisdiction in
any one state; a web site that interacts with visitors, as by answering
questions submitted, may or may not create jurisdiction; and an
active web site that takes orders and sells products into a state does
create jurisdiction.
A student of long-arm jurisdiction should note two interesting
facts. First, from International Shoe in 1945 until 1980, the trend of
the law of personal jurisdiction was decidedly expansionary. The
courts appeared to be moving toward a test of pure fairness and
convenience, and the long arms of the states became ever longer.
With the decision in World-Wide Volkswagen in 1980, the trend
halted abruptly. The courts, following the lead of the Supreme
Court, have become more wary of jurisdictional assertions, and
today closely examine the facts of each individual case to decide
18 In Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 107 S. Ct. 1026, 94

L.Ed.2d 92 (1987), the Court splintered on the stream of commerce theory. Four
Justices concluded that the theory is not constitutionally acceptable because a
defendant by merely putting a product into the stream of commerce does not
purposefully direct its activities at a particular state. Four Justices disagreed and
concluded that the stream of commerce theory is constitutionally valid, but
concurred in dismissal because jurisdiction over the defendant did not meet fair
play and substantial justice. The ninth Justice decided that jurisdiction was not fair,
but expressed an opinion that selling a large number of units annually into a state
would amount to a purposeful availment. Consequently, four Justices rejected the
stream of commerce theory while five accepted it, although the Court was
unanimous for dismissal. Since Asahi, all but one of the nine Justices have been
replaced on the Court, so the constitutional status of the stream of commerce
remains murky.

57

whether the particular assertion of jurisdiction satisfies the
requirements of due process.
Second, nearly all of the Supreme Court opinions interpreting the
requirements of due process over long-arm jurisdiction were
decided in a relatively short span of years. The Court became active
in the area in 1978 and ceased activity entirely in 1987. Since 1987,
the Court has not written an opinion offering additional guidance
in the area. At the beginning of the October, 2010, Term of the
Supreme Court, it announced the granting of certiorari in two
personal jurisdiction cases, both involving the stream of commerce.
These cases will be decided during the 2010 Term, and should
provide additional, welcome guidance on long-arm jurisdiction.
2. Rules of In Rem Jurisdiction
a. Types of in rem jurisdiction.
Courts may exercise jurisdiction over defendants who own
property located within the state. When the action is to determine
rights to property, the action is in rem. An action to quiet title or an
action to probate an estate are examples of in rem jurisdiction.
When the underlying claim is unrelated to the property, and the
property is seized solely to establish jurisdiction in the state, the
action is quasi in rem. The location of the property, whether real or
personal, in the state, gives the state court power over the action.
For example, plaintiff wishes to sue defendant for $100,000
damages incurred in an automobile accident. The accident
happened in Florida, but plaintiff wishes to sue in his home state of
Illinois. Defendant has never been to Illinois, so that state’s courts
cannot assert in personam jurisdiction over her. Defendant’s uncle
dies and leaves her a boat docked in Lake Michigan (Chicago
docks) worth $35,000. The Illinois court can seize the boat to
establish quasi in rem jurisdiction. Should plaintiff prevail in the suit,
he can enforce the judgment against the boat, and will have a
remaining claim of $65,000 to assert against defendant in another
state. Such an assertion of quasi in rem jurisdiction is, however,
limited by a standard of reasonableness required by the United
States Constitution, as discussed in the next section.

58

Both of these types of jurisdiction are well recognized by American
courts. Recently, courts have sometimes grouped both of these
types of jurisdiction together as in rem jurisdiction.
b. Constitutional limits on in rem jurisdiction.
For many years, the International Shoe requirements of fairness and
convenience that restrict the assertion of in personam jurisdiction
were thought to have no application to in rem and quasi in rem
jurisdiction. Under this traditional view, the presence of property
within the state could, without more, serve as a sufficient basis for
jurisdiction. Thus, if the defendant owned property within State A,
that state could take quasi in rem jurisdiction over a case arising
from a factually unrelated automobile accident in State B, even if
none of the evidence or witnesses were to be found in State A and
defendant had never set foot in State A. The theoretical basis for
jurisdiction was the state's power over the property, which would
be seized (actually or symbolically) at the commencement of the
action. While many states refused jurisdiction in such
circumstances, others used their constitutional power to assert such
jurisdiction.
In 1977, the Supreme Court swept away the special status of in rem
and quasi in rem jurisdiction, holding that they too must be
evaluated according to the standard of reasonableness of the
minimum contacts test. See Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct.
2569, 53 L.Ed.2d 683 (1977). Consequently, states may continue to
classify jurisdiction as in rem or quasi in rem if they wish, but
exercises of jurisdiction under those labels are not valid merely
because of the existence of property in the state. A nonresident
defendant, who is not served in the state, must also have minimum
contacts with the state so it is a minimally fair and convenient
location for the lawsuit.
3. Personal Jurisdiction of Federal Courts
Even though Congress could probably, within the bounds of the
Constitution, provide for exercise of nationwide personal
jurisdiction by federal courts, it has not chosen so to extend the
federal judicial power. As a general rule, the process (and therefore

59

the personal jurisdiction) of a federal district court may not extend
beyond the boundaries of the state in which the court sits, absent a
state long-arm statute [Fed. R. Civ. P. 4(k)(1)(A)]. The federal
district courts also exercise in rem jurisdiction to the extent it is
exercised in the state where the federal court sits, at least when
personal jurisdiction in the district cannot otherwise be obtained
with reasonable efforts [Fed. R. Civ. P. 4(n)(2).]. Accordingly,
federal court personal jurisdiction is generally co-extensive with
state court personal jurisdiction: a federal court sitting within a
given state may exercise personal jurisdiction only when a court of
that state could do so. A few expansions to this territorial limit
have been made by the Federal Rules of Civil Procedure or by
statute, but none of these is relevant here.
D. Notice and Opportunity to Be Heard
The requirement of notice and opportunity to be heard is a
jurisdictional prerequisite, but is easily satisfied and uncommonly
disputed. The brief discussion in I.A., supra, is sufficient for
purposes of this exercise.
E. Venue
1. State Courts
While jurisdiction deals with the authority of a court to exercise
judicial power, venue deals with the place where that power should
be exercised. State venue provisions name a county or a few
counties within the state where the suit may be brought. Venue
statutes vary widely from state to state, so the individual state's
statute must be consulted.
Typical bases for venue include where the plaintiff resides, where
the defendant resides, where the plaintiff or the defendant does
business, and where the claim arose. These statutes are written on
an abstract assessment of which courts are likely to be convenient
to one or both parties. The limiting effect of a venue statute is to
preclude the plaintiff from bringing the action in certain counties
within the state that are likely to be inconvenient, particularly to the
defendant.

60

2. Federal Courts
As do state venue statutes, the general federal venue statute divides
judicial business among the federal courts on a basis of predicted
convenience to the parties.
(a) A civil action wherein jurisdiction is
founded only on diversity of citizenship
may, except as otherwise provided by law,
be brought only in (1) a judicial district
where any defendant resides, if all
defendants reside in the same State, (2) a
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) a judicial district in which
the defendants are subject to personal
jurisdiction at the time the action is
commenced, if there is no district in which
the action may otherwise be brought.
(b) A civil action wherein jurisdiction is not
founded solely on diversity of citizenship
may, except as otherwise provided by law,
be brought only in (1) a judicial district
where any defendant resides, if all
defendants reside in the same State, (2) a
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) a judicial district in which
any defendant may be found, if there is no
district in which the action may otherwise
be brought.
(c) For purposes of venue under this
chapter, a defendant that is a corporation
shall be deemed to reside in any judicial
district in which it is subject to personal
jurisdiction at the time the action is

61

commenced. In a State which has more
than one judicial district and in which a
defendant that is a corporation is subject to
personal jurisdiction at the time an action is
commenced, such corporation shall be
deemed to reside in any district in that State
within which its contacts would be
sufficient to subject it to personal
jurisdiction if that district were a separate
State, and, if there is no such district, the
corporation shall be deemed to reside in the
district within which it has the most
significant contacts.
(d) An alien may be sued in any district.
***
28 U.S.C. § 1391.
As can be seen, § 1391(a) governs venue in diversity cases, and §
1391(b) governs venue in all other–typically federal question–cases.
Historically, these two subsections were substantially different. For
example, at one time, the district where all plaintiffs resided was an
appropriate venue in diversity cases, but not in other cases. With
the most recent revision of the venue statute in 1990, the two
provisions are largely identical, and thus mostly redundant.
Congress could revisit the statute and meld the two sections, but as
with many areas of judicial administration, simply has not got
around to it.
Accordingly, 28 U.S.C. §§ 1391(a)(1) and (b)(1) in all cases allow
venue to be laid in a district where a defendant resides so long as all
defendants reside in the same state. The statute does not require all
defendants reside in the same federal district. Many states include
more than one federal district. All defendants must reside in the
same state, not the same district. Federal courts treat residence in
the venue statute as identical to citizenship, which in turn is
determined by domicile. See I.B.2.b., supra. When plaintiff sues
multiple defendants, and not all reside in the same state, this venue
possibility is unavailable.

62

28 U.S.C. §§ 1391(a)(2) and (b)(2) in all cases also allow venue to be
laid in a district where “a substantial part of the events or
omissions giving rise to the claim occurred.” This second option
may be only one state, or it may include several states. At one time,
the statutory language for this option provided “where the claim
arose.” This was properly interpreted to mean a single state, and it
produced much litigation when the claim arose in activities
covering multiple states. Congress amended the statute in 1990 so
that every state in which a substantial part of the claim arose is a
proper venue.
The third options in §§ 1391(a) and 1391(b) are alike in that both
are fallback provisions. They are available only when “there is no
other district in which the action may otherwise be brought.” That
means all defendants do not reside in the same state and a
substantial part of the claim did not arise in any district. This
situation may occur when the claim arose in a foreign country.
Despite this similarity, each of the two provisions does differ. For
diversity cases, § 1391(a)(3) venue is proper in any district where
any defendant is “subject to personal jurisdiction at the time the
action is commenced.” For cases other than diversity, § 1391(b)(3)
venue is proper in any district in which “any defendant may be
found.” These two differing phrases are probably the result of
legislative inadvertence in the Congressional drafting process.
Accordingly, a court will likely interpret either as requiring only that
a court have personal jurisdiction over a defendant. On the other
hand, the language of the two sections is different and could lead
to differing interpretations. For example, § 1391(b)(3) requires a
district where “defendant may be found.” This could mean where a
defendant is present for in-state service. In differing language, §
1391(a)(3) requires personal jurisdiction “at the time the action is
commenced.” This could mean venue does not lie when defendant
was not subject to jurisdiction when the action was commenced by
filing with the court [Fed. R. Civ. P. 3], even though defendant is
later subject to jurisdiction in the state.
The venue provisions over certain types of defendants or actions
are broader. A corporation is deemed by § 1391(c) to reside in any

63

district in which it is subject to personal jurisdiction, which will
almost certainly broaden the proper venues under both §
1391(a)(1) and §1391(b)(1). Venue in a suit against an alien may be
laid in any district by 28 U.S.C. § 1391(d). In addition to the proper
venues in § 1391, many federal statutes have individual venue
provisions, e.g., 28 U.S.C. § 1396 (internal revenue taxes); 28 U.S.C.
§ 1400 (patent or copyright laws). For this exercise, we will limit
our consideration to the general federal venue statute, 28 U.S.C. §
1391.
When a plaintiff lays venue in a wrong federal district, the
defendant may waive objection to venue, either intentionally or
inadvertently [Fed. R. Civ. P. 12(h)(1). See Exercise Five: Motions
to Dismiss and Waiver Under Federal Rule 12]. When the
defendant does object to venue, the court may either dismiss under
Fed. R. Civ. P. 12(b)(3) for improper venue or transfer the action
pursuant to the authority of 28 U.S.C. § 1406(a) to a district “in
which it could have been brought.”
3. Forum Non Conveniens
Sometimes a state trial court may decline to hear a case even when
jurisdiction and venue are proper. Under the doctrine of forum non
conveniens, the court has discretion to dismiss an action if the forum is
so inconvenient that justice requires the action be brought
elsewhere. A state court can only retain the action or dismiss; it
cannot transfer the action to another state.
A federal court has the additional option of transfer of the case to a
more convenient federal district: "For the convenience of parties
and witnesses, in the interest of justice, a district court may transfer
any civil action to any other district or division where it might have
been brought." 28 U.S.C. § 1404(a). In deciding whether to grant
transfer under § 1404(a), federal courts generally take into account
the same factors as do state courts in ruling on forum non conveniens
motions, including availability of evidence, possibility of view,
location of the parties, and location of witnesses.
A federal court may also dismiss on forum non conveniens when the
more convenient court is in a foreign country. In making its

64

decision whether to retain the case or to dismiss and hence require
plaintiff to recommence in the foreign court, the federal court will
consider “private interest factors,” including convenience to parties
and witnesses, and “public interest factors,” including familiarity
with the governing law. See Piper Aircraft Co. v. Reyno, 454 U.S. 235,
102 S. Ct. 252, 70 L.Ed.2d 419 (1981).
II. Questions on Jurisdiction
This section contains questions for you to answer to test and
strengthen your knowledge of the law of jurisdiction. Use your
scrolling feature so that the screen shows only the question.
Answer the question, then scroll down to compare your answer to
the authors’ answer. P represents plaintiff and D represents
defendant.
A. Subject Matter Jurisdiction
1. Original Jurisdiction
Q–1. P1, an individual, and P2, a corporation, file a joint complaint
in state X's court of general jurisdiction against defendants D1, D2,
and D3. The complaint alleges several counts: violation of federal
civil rights law, breach of contract, wrongful interference with
business, and trespass to land. Is there subject matter jurisdiction?
Answer to Q–1
Yes. A court of general subject matter jurisdiction has power to
hear cases involving all types of parties and all types of claims.
There is no jurisdiction problem here, although there may be a
joinder problem (depending on the state's joinder provisions).
The fact that one of the theories presents a federal question
may allow, but does not require, the case to be brought in federal
court. This would be an example of concurrent jurisdiction
(although some federal questions, such as bankruptcy, are
exclusive federal jurisdiction).
Note: The remaining questions in this section place the action in federal
court.

65

Q–2. P enters a contract with D Mint to provide 1000
commemorative coins for a festival P is promoting. D Mint is later
informed by a Treasury agent that the coin would be too close to
U.S. currency, and D Mint refuses to perform the contract. P
pleads breach of contract, and that the defense of violation of
federal coinage laws is ineffective. Is this a federal question?
Answer to Q–2.
No. A federal question cannot arise in defense. See Louisville &
Nashville R.R. v. Mottley, 211 U.S. 149, 29 S. Ct. 42, 53 L.Ed. 126
(1908), reproduced in Exercise One, part II. This question
presents a variation on the same theme: the federal question is
raised in an anticipated defense, which the defendant may or
may not choose to assert. The federal question must arise in
the well-pleaded complaint.
Q–3. P is employed by D Corporation, which operates nationally.
On P's 50th birthday, a supervisor fires her because “we do not
want people above a certain age working for us." P sues in federal
court for breach of the employment contract. Is this a federal
question?
Answer to Q–3.
No. Although plaintiff would appear to be able to assert a
claim under the federal Age Discrimination in Employment
Act on these facts, she has not done so. She pleaded only
breach of contract, a state law theory. As a general proposition,
plaintiff is master of her own complaint. This case is not within
28 U.S.C. § 1331.
Q–4. P purchases stock from D in reliance on representations that
prove false. P sues D for violation of § 10(b) of the Securities
Exchange Act of 1934, for violation of the state anti-fraud
securities statute, and for common law fraud. Is this a federal
question?
Answer to Q–4.
Yes. P's claim arises under a federal statute, the Securities
Exchange Act of 1934. P's other theories of recovery, the state

66

statute and common law fraud, while state law theories, can
also be heard in federal court under the doctrine of
supplemental jurisdiction. 28 U.S.C. § 1367. See Exercise Six:
Joinder and Supplemental Jurisdiction.
Q–5. P, a citizen of California, sues D, a citizen of Iowa. The
damages sought exceed the jurisdictional amount required. Is there
diversity jurisdiction?
Answer to Q–5.
Yes. Diversity jurisdiction exists because the suit is between
citizens of different states, and the minimum amount in
controversy is satisfied. 28 U.S.C. § 1332(a)(1).
Q–6. P, a citizen of France, sues D, a citizen of Iowa, for damages
exceeding the jurisdictional amount. Is there diversity jurisdiction?
Answer to Q–6.
Yes. Diversity jurisdiction exists because the amount in
controversy is sufficient and the suit is between a citizen of a
state and a citizen or subject of a foreign state. 28 U.S.C. §
1332(a)(2). This is commonly called alienage jurisdiction.
Q–7. Part 1. P, a citizen of Germany, sues D, a citizen of Great
Britain, for damages exceeding the jurisdictional amount. Is there
diversity jurisdiction?
Part 2. Assume Congress amends 28 U.S.C. § 1332(a) to include a
new provision granting the district courts jurisdiction over civil
actions between aliens. Does this confer federal question
jurisdiction in part 1?
Answer to Q–7. Part 1.
No. There is no diversity jurisdiction because the suit is
between citizens of two foreign states and hence does not fall
within 28 U.S.C. § 1332(a)(2).
Part 2. No. Even though the suit between two aliens would, in
this hypothetical, fall within 28 U.S.C. § 1332, the statute would
be unconstitutional. Article III, § 2 of the United States

67

Constitution (reproduced in I.B.2, supra) grants the federal
courts authority over only specific classes of cases, and a suit
between two aliens is not included.
Note that in Q–6 and Q–7, the interpretation of the statute is
consistent with the goal of protecting out-of-state litigants from
actual or perceived bias that they might encounter if forced to
sue in state court. Were a citizen of California or of France
forced to sue an Iowa citizen in Iowa state court, there might
be a real or perceived danger of bias in favor of the Iowa
citizen. On the other hand, the state court would presumably
be neutral in a suit between two aliens. As is often the case, the
somewhat ambiguous language of the statute (conferring
jurisdiction upon suits "between ... citizens of a State and
citizens or subjects of a foreign state") can be illuminated by
reference to its underlying purpose.
Admittedly, the hodge podge of rules about diversity
jurisdiction cannot always be explained in terms of the
supposed goal of preventing local bias. For example, a citizen
of Virginia may institute a diversity suit against a citizen of
Georgia in federal court in Virginia, despite the fact that there
is no a priori reason to believe that a citizen of Virginia would
need to fear bias from a home state court.
Q–8. P, a citizen of Texas, sues D, a citizen of the United States
who is domiciled in Arkansas, for an amount in excess of the
jurisdictional amount. Is there diversity jurisdiction?
Answer to Q–8.
Yes. A natural person who is a citizen of the United States is
also a citizen of the state in which that person is domiciled. See
Scoggins v. Pollock, in I.B.2.a.1, supra. Therefore, diversity of
citizenship jurisdiction exists under 28 U.S.C. § 1332(a)(1).
Q–9. P, a citizen of Illinois, sues D, a citizen of Mexico who has
been admitted to the United States for permanent residence and is
domiciled in Illinois, for an amount in excess of the jurisdictional
amount. Is there diversity jurisdiction?

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Answer to Q–9.
No. Although 28 U.S.C. § 1332(a)(2) would appear to grant
jurisdiction in this situation since the suit is between "citizens
of a State and citizens or subjects of a foreign state," there is no
diversity of citizenship because the same statute also provides
"[A]n alien admitted to the United States for permanent
residence shall be deemed a citizen of the State in which such
alien is domiciled." The intent of this provision is to restrict
diversity jurisdiction. Accordingly, D will be deemed a citizen
of Illinois, and since P is a citizen of Illinois, there is no
diversity.
Q–10. Part 1. P, a citizen of Florida, sues D, an American citizen
who moved to Florida from Michigan three months prior to the
commencement of the action. D was born and reared in Michigan,
and voted there in the last election, but now has an abode in
Florida and intends to remain there permanently. The amount in
controversy exceeds the jurisdictional amount. Is there diversity
jurisdiction?
Part 2. Assume the same facts as Part 1, except D moves to Florida
three months after commencement of the action. Is there diversity
jurisdiction?
Part 3. P and D were both citizens of Michigan at the time the
claim arose. P moved to Florida and became a citizen there for the
avowed purpose of creating diversity jurisdiction, then commenced
the action. Is there diversity jurisdiction?
Answer to Q–10. Part 1.
No. Since D has physically moved to Florida and intends to
remain there permanently, D has become domiciled in Florida.
D is consequently a citizen of Florida.
Part 2. Yes. Citizenship is determined as of the day of the
commencement of the action. Diversity is not destroyed by
later actions of the parties.
Part 3. Yes. Diversity is determined by the citizenship of the
parties as of the day of commencement. P's motive in

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becoming a Florida citizen is not relevant. See Charles A.
Wright & Mary Kay Kane, The Law of Federal Courts § 28 (6th
ed. 2002). D might challenge P’s intent to remain in the new
state indefinitely, as was done in Baker v. Keck [Exercise One,
part III, and part I.B.2.b.1, supra], but this question states P
became a citizen of Florida.
Q–11. P, a citizen of Ohio, sues D, an American citizen who was
born and reared in Ohio, but who left two months ago to work for
the Peace Corps in Costa Rica. D does not know where she will
live after she finishes her two-year stint in the Peace Corps, but she
has a definite intention not to live in either Ohio or Costa Rica.
The amount in controversy exceeds the jurisdictional amount. Is
there diversity jurisdiction?
Answer to Q–11.
No. Since D has not acquired a new domicile, she is deemed to
have retained her old domicile in Ohio despite her intention
not to return there. See Scoggins v. Pollock [part I.B.2.b.1, supra].
Q–12. P, a citizen of Oregon, sues D Corporation, which is
incorporated in Delaware and has its principal place of business in
Oregon, for an amount exceeding the jurisdictional amount. Is
there diversity jurisdiction?
Answer to Q–12.
No. The corporation has dual citizenship: Delaware and
Oregon. 28 U.S.C. § 1332(c)(1) provides "[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." Therefore, the plaintiff and defendant are citizens of
the same state–Oregon–and there is no diversity jurisdiction.
Prior to the enactment of 28 U.S.C. § 1332(c) in 1958, a
corporation was a citizen only of the state in which it was
incorporated. Therefore, a corporation owned and operated in
Oregon by Oregonians could litigate its local disputes in federal
court if it were formally incorporated in another state, even
though it would have no legitimate reason to fear prejudice at

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the hands of Oregon state courts. Section 1332(c) was
amended to correct this anomaly.
Q–13. P, a citizen of North Carolina, sues D, a citizen of New
York, for $200,000 for personal injuries arising out of an
automobile accident in Pennsylvania. Suit is brought in federal
district court in North Carolina. D has never been to North
Carolina and has no connection with it except for this suit. Is there
diversity jurisdiction?
Answer to Q–13.
Yes. Diversity jurisdiction is a form of subject matter jurisdiction. It
is based on the theory that a federal court is particularly
competent, because of its neutrality, to decide cases involving
citizens of different states. Personal jurisdiction is a separate
jurisdictional requirement based upon the connection of the
defendant to the forum state. Requirements of personal
jurisdiction are designed to ensure that the suit is brought in a
state that has power over the defendant and is a geographic
location that is reasonably fair and convenient. Venue is also a
separate requirement, dealing with convenience of the location
of the action. Diversity jurisdiction exists here. The question
does not ask about personal jurisdiction or venue; objection to
either would likely result in dismissal.
Q–14. A, a citizen of Nebraska, sues D1, a citizen of Washington,
and D2, a citizen of Tennessee, for a claim that arose at a luau
while all three parties were vacationing in Hawaii. The claim
exceeds the jurisdictional amount. P files the action in the District
of Hawaii. Is there diversity jurisdiction?
Answer to Q–14.
Yes. Diversity of citizenship exists between the parties. The
fact that the suit was brought in Hawaii does not deprive the
court of diversity jurisdiction. [Personal jurisdiction and venue
are also likely proper here.]
This rule has been criticized on the ground a local state court
would not likely be biased in a suit between two noncitizens.

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For example, there is no reason to believe the state court of
Hawaii would favor one party or the other in a suit between a
plaintiff from Nebraska and defendants from Washington and
Tennessee. Hence, no reason exists to confer federal diversity
jurisdiction upon that case. The purpose of diversity
jurisdiction would seem to be served adequately by a rule that
provided a federal forum for suits brought in a state in which
one of the parties was domiciled; however, 28 U.S.C. § 1332
confers diversity jurisdiction upon all federal courts, regardless
of whether any of the parties is a citizen of the state in which
the suit has been brought. When one federal court has diversity
jurisdiction, then all federal courts have diversity jurisdiction.
Q–15. P, a citizen of Delaware, sues D1, a citizen of New Jersey,
and D Corporation, which is incorporated in Delaware and has its
principal place of business in New Jersey, in the District of New
Jersey. The amount in controversy exceeds the jurisdictional
amount. Is there diversity jurisdiction?
Answer to Q–15.
No. “Complete diversity” does not exist. There is no diversity
of citizenship between P and D Corporation, since both are
citizens of Delaware. There is diversity between P and D1. The
issue, then, is whether minimal diversity, i.e., between one
plaintiff and one defendant, is sufficient to establish jurisdiction
under § 1332. In Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2
L.Ed. 435 (1806), Chief Justice John Marshall interpreted the
language of a predecessor statute to § 1332(a)(1) to mean
diversity of citizenship must exist between each plaintiff and
each defendant. When one plaintiff and one defendant are
citizens of the same state, the federal court has no jurisdiction,
even if there is diversity among all other parties.
This rule of complete diversity has been criticized because it
excludes federal jurisdiction in circumstances in which there
may be a genuine danger of local prejudice. For example, P
might have a genuine reason to fear prejudice in state court in
New Jersey. Chief Justice Marshall himself is said to have

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expressed doubts about the wisdom of Strawbridge, but the rule
of complete diversity remains good law. We do know today
that complete diversity is required only by the statute, and not
by Article III, § 2 of the Constitution. See State Farm Fire & Cas.
Co. v. Tashire, 386 U.S. 523, 87 S. Ct. 1199, 18 L.Ed.2d 270
(1967).
2. Removal Jurisdiction
Q–16. P1, a citizen of New Mexico, and P2, a citizen of Colorado,
sue D1, a citizen of Utah, and D2, a citizen of California, in
Arizona state court. The claim arises under Arizona state law. The
amount in controversy exceeds the jurisdictional amount. May the
defendants remove the action to federal court?
Answer to Q–16.
Yes. The parties are of diverse citizenship and the requirements
of 28 U.S.C. § 1441(a) have been met. The fact that the
Arizona court has concurrent jurisdiction does not prevent
removal of the case to federal court.
Q–17. Part 1. P, a citizen of Kentucky, sues D, a citizen of Indiana,
in state court in the state of Kentucky. The claim arises under state
law and the amount in controversy is $50,000. May D remove the
case to federal court?
Part 2. Assume instead that the amount in controversy is $75,000.
May D remove the case to federal court?
Answer to Q–17. Part 1.
No. An action is removable only if the federal district court has
original jurisdiction. 28 U.S.C. § 1441(a). This action could not
have been brought in federal court because the amount in
controversy does not satisfy the jurisdictional amount.
Part 2. No, for the same reason. The jurisdictional amount is
satisfied only when "the matter in controversy exceeds the sum
or value of $75,000***." 28 U.S.C. § 1332(a).
Q–18. Part 1. P sues D in state court in Connecticut. The claim
arises under state law and the amount in controversy is $200,000. P

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was born and raised in Vermont, but moved to Connecticut shortly
before the commencement of the action and intends to remain
there permanently. D is domiciled in Connecticut. May D remove
the action to federal court?
Part 2. P remains domiciled in Vermont until after she commences
the action in Connecticut state court. D is domiciled in
Connecticut. May D remove the action to federal court?
Answer to Q–18. Part 1.
No. The district court does not have original jurisdiction
because both parties are citizens of Connecticut. P has acquired
a domicile in Connecticut because the two elements of physical
presence and intent to remain indefinitely are satisfied.
Note that the technically correct answer to the question posed
is yes, D may remove the case to federal court because a notice
of removal operates automatically to remove the case from
state to federal court. 28 U.S.C. § 1446(d). Since the case would
not have properly been removed, however, plaintiff will
succeed in a motion to remand the case to state court. 28
U.S.C. § 1447(c).
Part 2. No. Although the district court would have original
jurisdiction over the action since the parties are of diverse
citizenship, and plaintiff could have sued originally in federal
court, the removal statute does not allow a defendant who is a
citizen of the state in which the action was brought to remove.
28 U.S.C. § 1441(b). The rationale is that a defendant who is a
citizen of the state need not fear local prejudice.
Q–19. P Corporation, which is incorporated and has its principal
place of business in Massachusetts, sues X Corporation, which is
incorporated and has its principal place of business in California,
and Y Corporation, which is incorporated in Delaware and has its
principal place of business in New York. The action is commenced
in state court in New York. The claim is breach of a contract in
which X Corporation promised to deliver widgets to P Corporation
and Y Corporation issued a surety bond for performance. The

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amount in controversy is one million dollars and the claim arises
under state law. May the defendants remove the case to federal
court?
Answer to Q–19.
No. Although the parties are of diverse citizenship and the
district court would have original jurisdiction, Y Corporation is
a citizen of New York because it has its principal place of
business there [28 U.S.C. § 1332(c)(1) ], so as in Q–18, part 2,
the action is not removable because one of the defendants is a
citizen of the state in which the action was brought.
The claim against the California corporation does not fit within
28 U.S.C. § 1441(c) for two reasons: no federal question is
involved, and there is no "separate and independent claim or
cause of action." See Charles A. Wright & Mary Kay Kane, The
Law of Federal Courts § 39 (6th ed. 2002).
Q–20. P, a citizen of Alabama, sues D, a citizen of Louisiana, in
state court of Louisiana. The action arises under a federal statute
that confers concurrent jurisdiction upon state and federal courts.
The amount in controversy exceeds the jurisdictional amount. May
D remove the action to federal court?
Answer to Q–20.
Yes. The subject matter jurisdiction of the federal court is
based upon the existence of a federal question and therefore
the action is removable "without regard to the citizenship or
residence of the parties." 28 U.S.C. § 1441(b). Federal question
cases are treated differently from diversity cases because federal
question jurisdiction is not based upon fear of prejudice in state
courts against non-citizens, but upon the special competency of
the federal courts to decide questions of federal law.
B. Personal Jurisdiction
Q–21. Part 1. Defendant of Nebraska went to Colorado for a
picnic. She stayed only a few hours. While in Colorado, she was
served with process from a Colorado state court. The action arose

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from an automobile accident that occurred in Wyoming. Does
Colorado have personal jurisdiction in the action?
Part 2. Same facts as Part 1, except that the defendant is a
corporation. Its President goes to Colorado for a short personal
errand and is served with process. Does Colorado have jurisdiction
over the action?
Answer to Q–21. Part 1.
Yes. Defendant was served in the state. Assertion of "transient"
or "territorial" jurisdiction is of long standing, and has been
upheld against constitutional attack even where defendant had
no connection with the forum other than service in the state.
Burnham v. Superior Court, 495 U.S. 604, 110 S. Ct. 2105, 109
L.Ed.2d 631 (1990).
Part 2. No. Transient jurisdiction normally applies only when
the defendant is a natural person present within the state. A
corporation is an artificial person. No other basis for personal
jurisdiction exists here.
Q–22. D Corporation was incorporated in Nevada solely to obtain
the benefits of a favorable corporation law. D Corporation's only
place of business is in Texas. Other than incorporation, it has no
contacts at all with Nevada: no property, no business activity, no
shareholders. P, a Texas resident, sues D Corporation in Nevada
state court on an automobile accident that occurred in Texas. May
Nevada exercise personal jurisdiction over D Corporation?
Answer to Q–22.
Yes. Incorporation in a state gives the state power to subject
the corporation to its courts. This is akin to service on a natural
person within a state.
Q–23. D Corporation is incorporated and has its principal place of
business in state A. It ships 2000 cases of beer a year to X, a
wholesaler in state B. It does no other business in state B. P, a
management consultant in state B, sues D Corporation in state
court of state B claiming failure to pay for services he performed

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for D Corporation in state A. May state B exercise personal
jurisdiction in the case of P v. D Corporation?
Answer to Q–23.
Probably no. First, even though D Corporation is transacting
business in state B, that business has no connection with the
claim. The long-arm statutes of many states require that the
claim arise out of the events that take place in the state. [See,
e.g., Uniform Interstate and International Procedure Act §
1.03(b) in part I.C.1, supra].
Second, even in those states that have long-arm statutes that
reach to the limits of due process–whether by specific
provision or court interpretation–D Corporation would not
likely be found to have sufficient minimum contacts such as
not to offend traditional notions of fair play and substantial
justice in state B. This would be an attempted assertion of
general jurisdiction by state B (the claim does not arise from
the contacts), and courts require a high level of continuous and
systematic business to establish minimum contacts with the
state in such a case.
Q–24. Under a long-arm statute, a state court in state X can
exercise personal jurisdiction over defendant based on defendant’s
minimum contacts with state X. Does a federal court sitting in state
X also have personal jurisdiction over defendant?
Answer to Q–24.
Yes. Because Fed. R. Civ. P. 4(k)(1)(A) incorporates state longarm statutes, a federal court may exercise personal jurisdiction
whenever the state in which it is located would have personal
jurisdiction. [A federal court may also exercise personal
jurisdiction under Fed. R. Civ. P. 4(k) in a few situations when
the state court could not, but these are not relevant here.]
Q–25. Part 1. D Corporation is incorporated and has its only place
of business in state A. It contracts with P, a resident of state B, to
ship 100 cases of whiskey from state A to state B. D Corporation
fails to ship the whiskey, and consequently, P sues D Corporation

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in state court in B. May state B exercise personal jurisdiction over
D Corporation?
Part 2. Same facts as Part 1, with the additional facts that D
Corporation has shipped whiskey to P in state B for several years,
P has always paid for those shipments with checks drawn on a
bank in state B, and P has negotiated prices and other contract
terms with D Corporation over the telephone and by mail from P's
office in state B. May state B exercise personal jurisdiction over D
Corporation?
Answer to Q–25. Part 1.
No. The long-arm statute is likely to be satisfied. For example,
Uniform Interstate and International Procedure Act §
1.03(a)(2), in part I.C.3, supra, provides jurisdiction when the
claim arises from defendant’s "contracting to supply services or
things in this state." Second, however, the defendant must have
minimum contacts with the state so that exercise of jurisdiction
over it would not offend traditional notions of fair play and
substantial justice. On the facts here, D Corporation has no
contact with state B other than a single, unperformed contract.
A court will conclude the exercise of jurisdiction would violate
due process.
Part 2. Yes. As in Part 1, the long-arm statute is satisfied. The
additional facts clearly supply sufficient minimum contacts of
D Corporation with state B for the court to exercise
jurisdiction.
Q–26. D Corporation, located solely in Michigan, has supplied
component parts to Acme Manufacturing Co., located in North
Carolina, for several years. Acme is D Corporation's primary
customer. Acme uses the parts and ships the final product
nationwide. One of the parts fails and P is injured in New York.
Does New York have personal jurisdiction over D Corporation?
Answer to Q–26.
Maybe. The first question is whether the long-arm statute
reaches defendant’s actions, so we would look at the New York

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statute. If we assume the New York statute is similar to
Uniform Interstate and International Procedure Act §
1.03(a)(4), in part I.C.3, supra, D Corporation did cause
"tortious injury in this state by an act or omission outside this
state;" the additional requirement is that D Corporation
"derives substantial revenue from goods or services used or
consumed in this state." This element will be more difficult to
satisfy and will likely require production of a record to show
the revenues.
The due process step may or may not be satisfied. D
Corporation has placed its product into the stream of
commerce, perhaps knowing that some portion will flow into
New York. There are no other known contacts. The plurality
opinion in Asahi Metal Industry Co. v. Superior Court, 480 U.S.
102, 107 S. Ct. 1026, 94 L.Ed.2d 92 (1987), disapproves the
stream of commerce theory as a basis for personal jurisdiction.
Two concurring opinions, commanding five votes, appear to
approve the stream of commerce theory, but agree on dismissal
for other reasons. Accordingly, the constitutional acceptability
of the stream of commerce theory is in doubt.
C. Notice and Opportunity to Be Heard
Q–27. P landlord commenced an action to evict D tenant pursuant
to state unlawful detainer law for failure to pay rent. Service was
made on D by tacking the summons and complaint to D's
apartment door, even though such notices had sometimes in the
past disappeared from other tenants' doors. Is this constitutionally
sufficient notice to D?
Answer to Q–27.
No. Due process requires that P choose a method of notice
that is reasonably calculated to give actual notice, "reasonably
certain to inform those affected." Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 315, 70 S. Ct. 652, 657, 94
L.Ed. 865, 874 (1950). Here P was aware of D's location and
chose to notify by posting on a door to a common area, even
though other such notices had disappeared. The Supreme

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Court held such notice is constitutionally inadequate in Greene v.
Lindsey, 456 U.S. 444, 102 S. Ct. 1874, 72 L.Ed.2d 249 (1982).
Q–28. State X's garnishment statute allows seizure when plaintiff
alleges defendant is about to waste property in which plaintiff has
an ownership interest. Plaintiff must file a detailed affidavit of the
facts and post a bond. The garnishment order must be signed by a
judge. Plaintiff is allowed a hearing on the seizure "no later than
two weeks after the sheriff takes possession of the property." Does
this procedure provide a constitutional opportunity to be heard?
Answer to Q–28.
Maybe. The Supreme Court's earlier pre-judgment seizure cases
seem to require four criteria be met for a constitutional seizure:
1) plaintiff must file a particularized affidavit, 2) plaintiff must
post a bond, 3) a judge must approve the seizure, and 4)
defendant must receive a right to an early hearing. The first
three appear to be met. The question is whether a hearing "no
later than two weeks" after the seizure is a "prompt post
deprivation hearing." The Court did not specify a time limit.
The Court’s latest decision, Connecticut v. Doehr, 501 U.S. 1, 111
S. Ct. 2105, 115 L.Ed.2d 1, (1991), turns toward a balancing
test to evaluate a pre-judgment seizure. The court is to balance
the interest of the party from whom the property is seized, the
interest of the party seizing the property, and the risk of
erroneous deprivation. To apply such a balancing test in this
question, we would need additional facts.
D. Venue
Q–29. P, a resident of South Dakota, sues D, a resident of Kansas,
in federal district court in Nebraska on a claim based upon an
automobile accident in Nebraska. Jurisdiction is based solely on
diversity of citizenship. Is venue properly laid in Nebraska?
Answer to Q–29.
Yes. A substantial part of the events or omissions giving rise to
the claim–indeed the whole claim–arose in Nebraska, which is
a permissible venue. 28 U.S.C. § 1391(a)(2). Another

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permissible venue would have been Kansas, where defendant
lives. 28 U.S.C. § 1391(a)(1).
Q–30. Part 1. P, a resident of Illinois, sues D, a resident of Ohio,
and D Corporation, which is incorporated and has its principal
place of business in Indiana. D Corporation regularly does business
and so is subject to personal jurisdiction in Illinois, Ohio, Indiana,
and Kentucky. The sole basis for jurisdiction is diversity of
citizenship. The claim arises from an automobile accident in
California. Is venue properly laid in federal district court in Ohio?
Part 2. Could venue properly be laid in federal district court in
Illinois?
Part 3. Could venue properly be laid in federal district court in
Indiana?
Part 4. Would your answer to any of the above parts of this
question be different if federal subject matter jurisdiction were
based on a federal question instead of diversity of citizenship?
Answer to Q–30, Part 1.
Yes. Both defendants reside in Ohio, so venue is proper under
28 U.S.C. § 1391(a)(1). D Corporation is deemed a resident of
Ohio under § 1391(c) because it is subject to personal
jurisdiction there when the action is commenced.
Part 2. No. The residence of the plaintiff is not a permissible
venue under § 1391(a). Both defendants do not reside in
Illinois, so § 1391(a)(1) does not apply, and no part of the claim
arose there, so § 1391(a)(2) does not apply.
An argument that § 1391(a)(3) applies, allowing venue in a
district "in which any defendant is subject to personal
jurisdiction," would fail. As a fallback provision, § 1391(a)(3)
applies only when "there is no other district in which the action
may otherwise be brought." As can be seen in part 1, the action
may be brought in Ohio under § 1391(a)(1). Also, the action
may be brought in California under § 1391(a)(2).

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Part 3. No. Venue may be laid, pursuant to § 1391(a)(1), in a
district where "any defendant resides, if all defendants reside in
the same State." Defendant D Corporation resides in Indiana,
but defendant D does not. No part of the claim arose in
Indiana. Since venue could be laid in either Ohio or California,
the fallback provision cannot be used.
Part 4. No. The two venue statutes differ only in their third
subsections. The "catch-all" federal question venue subsection,
§ 1391(b)(3), is worded differently from the "catch-all" diversity
venue subsection, § 1391(a)(3), but both are similar in that they
apply only when venue cannot properly be laid in another
district. From parts 1 and 2, both Ohio and California would
be proper venues.
III. Computer Exercises
A. CALI CIV 03: Jurisdiction and Venue
This computer-assisted exercise is based on the following fact
scenario. Study these facts carefully. After the facts, in part III.A.3,
infra, you will find several questions raising jurisdictional questions
about the facts. The computer will ask the same questions,
including what reasons you give for your answers, so we advise you
to consider these questions carefully and reach your best answers
before you go to the computer.
This is a lengthy computer-assisted exercise. Our estimated
completion time is two hours. We recommend that you attempt to
complete this exercise in one sitting because your answers to earlier
questions will be saved by the computer and used in later
questions.
1. Facts
You are a lawyer working for a firm in the state of Fraser. One of
the firm's partners asks you to do some research on a personal
injury action. Pam Pedestrian is a local resident who was involved
in an accident in the state of Elliott while on summer vacation
there. A truck driven by a servant of D Corporation collided with a
car driven by David Driver, causing Driver's car to swerve onto the

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sidewalk and strike Pedestrian. The partner wants to sue both D
Corporation and David Driver, and asks you to identify states
where the action can be brought without being dismissed for lack
of jurisdiction or improper venue. Pedestrian's claim will be based
on negligence, and therefore arises under state law.
The partner hands you the file in Pedestrian's case. It yields the
following information.
Pedestrian is a doctor who practices in Fraser. She owns a home in
Fraser, where she was born and reared and plans to live out her
days. She was injured in the accident, and if liability can be
established, Pedestrian could realistically hope to recover about
$250,000.
David Driver is a law student who lived at his parent's home in
Fraser through high school. He next lived on campus while
attending college at Fraser State University, and then moved to a
small apartment in the state of Coffman when he became a student
at Coffman Law School. Driver's parents support him while he
attends law school, and he has frequently returned to his parent's
home in Fraser during vacation periods. Driver is a third-year law
student. Between his second and third years of law school, Driver
was a summer associate for a law firm in Coffman. During the
summer, he moved from the apartment he had rented for two
years into the much larger apartment he now occupies.
Two months ago, Driver accepted a full-time job with a law firm in
the state of Northrop. He obtained the job through interviews at
Coffman Law School, and has not visited Northrop since accepting
the job. He says he plans to remain in Coffman only until his
graduation five months hence. Just recently, Driver inherited a
$120,000 house in Northrop from a cousin. He has never occupied
or even seen the house, and it is being rented to tenants on a lease
that expires in six months. Driver told the law firm in Northrop
that if he got an offer he would move to Northrop and live there
permanently.
D Corporation is a shoe manufacturer incorporated in the state of
Coffman. Its home office and manufacturing plant are located in

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the state of Northrop. Consequently, its corporate officers and all
of its employees are located in Northrop, although a few of its sales
representatives occasionally travel in neighboring states to take
orders for shoes. D Corporation sells most of its shoes in
Northrop, but it sells a substantial number of shoes on a regular
basis to wholesalers in both Coffman and Fraser. D Corporation
has not sold any shoes or conducted any other business activities,
directly or indirectly, in Elliott. The truck involved in the accident
was passing through Elliott while transporting a shoe display to an
industrial fair in another state. With the exception of property
specifically described above, neither defendant owns any attachable
property in any states.
Your initial research shows that all states involved in this case have
adopted the general American rules of personal jurisdiction
described in I.C. supra.
2. Fact Summary
Fraser is
— Pedestrian's home state
— the home state of Driver's parents
— one of the states in which D Corporation sells shoes
Coffman is
— the state where Driver is now attending law school
— one of the states in which D Corporation sells shoes
— the state in which D Corporation is incorporated
Elliott is
— the site of the accident
Northrop is
— the state of D Corporation's plant and home office
— the state of Driver's future law firm employer
— the state where the house inherited by Driver is located

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— one of the states in which D Corporation sells shoes
3. Questions for Computer Exercise
Please answer "yes," "no," or "maybe" to each of the following
questions. Assume that the defendants will raise every objection to
jurisdiction and venue available to them, and that none of the
courts will dismiss on forum non conveniens.
The "maybe" answer should be used when you believe a
categorical "yes" or "no" is inappropriate. When more facts are
needed before a decision can be made, or if sufficient facts are
known but both sides have substantial legal arguments, then
answer "maybe." You should not base a "maybe" answer on
conceivable but frivolous legal arguments or on factual possibilities
that are unusual and improbable.
Q–1. Coffman–Federal Court
Can Pedestrian bring suit against both defendants in federal court
in Coffman?
Answer yes, no, or maybe.
[Note: Your answer to this question should take into account all aspects of
jurisdiction. The following questions will probe each of these aspects.]
1a. Would the court have subject matter jurisdiction?
Answer yes, no, or maybe.
Briefly state reasons for your answer.
1b. Would the court have personal (including quasi in rem)
jurisdiction?
Answer yes, no, or maybe.
Reasons?
1c. Would venue be proper?
Answer yes, no, or maybe.
Reasons?
Q–2. Coffman–State Court
Can Pedestrian bring suit against both defendants in state court in
Coffman?

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[Note: Since at least one court in the state system will be a court of general
subject matter jurisdiction, and venue will always be proper in at least one state
court, you need consider only whether the state has personal (including quasi in
rem) jurisdiction to answer the state court questions.]
Answer yes, no, or maybe.
Reasons?
Q–3. Elliott–Federal Court
Can Pedestrian bring suit against both defendants in federal court
in Elliott?
3a. Would the court have subject matter jurisdiction?
Answer yes, no, or maybe.
Reasons?
3b. Would the court have personal (including quasi in rem)
jurisdiction?
Answer yes, no, or maybe.
Reasons?
3c. Would venue be proper?
Answer yes, no, or maybe.
Reasons?
Q–4. Elliott–State Court
Can Pedestrian bring suit against both defendants in state court in
Elliott?
Answer yes, no, or maybe.
Reasons?
Q–5. Northrop–Federal Court
Can Pedestrian bring suit against both defendants in federal court
in Northrop?
5a. Would the court have subject matter jurisdiction?
Answer yes, no, or maybe.

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Reasons?
5b. Would the court have personal (including quasi in rem)
jurisdiction?
Answer yes, no, or maybe.
Reasons?
5c. Would venue be proper?
Answer yes, no, or maybe.
Reasons?
Q–6. Northrop–State Court
Can Pedestrian bring suit against both defendants in state court in
Northrop?
Answer yes, no, or maybe.
Reasons?
Q–7. Fraser–Federal Court
Can Pedestrian bring suit against both defendants in federal court
in Fraser?
7a. Would the court have subject matter jurisdiction?
Answer yes, no, or maybe.
Reasons?
7b. Would the court have personal (including quasi in rem)
jurisdiction?
Answer yes, no, or maybe.
Reasons?
7c. Would venue be proper?
Answer yes, no, or maybe.
Reasons?

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Q–8. Fraser–State Court
Can Pedestrian bring suit against both defendants in state court in
Fraser?
Answer yes, no, or maybe.
Reasons?
This concludes the questions. You are now ready to go to the
computer to work through CALI CIV 03: Jurisdiction and Venue.
B. CALI CIV 19: Jurisdiction Over the Person
In addition to computer-assisted exercise, CALI CIV 03, you may
wish to gain additional understanding of jurisdiction by doing the
CALI CIV 19 "Jurisdiction over the Person" by James M. Klebba.19
This exercise is designed for a student who has already read most
of the material on personal jurisdiction in a typical first year civil
procedure course. The topics covered include the "minimum
contacts" test as a measure of the due process clause of the 14th
Amendment, the interpretation and application of typical long-arm
statutes, the interplay of statutory interpretation with the
constitutional requirements, the difference between "specific" and
"general" jurisdiction, the extent to which a defendant may
contractually waive jurisdiction protections, an exploration of the
different ways in which the jurisdictional rules apply depending on
whether the defendant is an individual or a corporation, and the
continued viability of the concept of "transient" jurisdiction. The
above topics are explored through a series of hypotheticals,
beginning with an extended variation on the facts of International
Shoe. The two predominant jurisdictional statutes used in the
exercise are the Uniform Interstate and International Procedure
Act and the Rhode Island (California) statute that extends
jurisdiction to the limits of the Due Process Clause. At appropriate
points in the exercise students are able to refer back to the
introductory fact situations, the Uniform Act, a list of important
Victor H. Schiro Professor of Law, Loyola University School of Law, New
Orleans. The exercise is used with permission of the author.
19

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citations and previous related questions. The exercise is divided
into three parts, so that one part can be conveniently done at a
sitting.

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Exercise Three - Pleading a
Complaint
This exercise is about pleading, but more specifically, it is about
pleading a complaint. Following discussion of the history of
pleading under the common law and the codes, the exercise
explores the requirements of pleading a complaint under the
Federal Rules of Civil Procedure. It does not expand into the
general topic of pleading, so subjects such as responses to a
complaint, additional pleadings, and amendments to pleadings are
not included. The exercise culminates in the pleading of a
complaint for defamation, and to that end includes the facts of a
hypothetical case plus discussion of the substantive law of
defamation.
I. History of pleading
A. Pleading under the Common Law
1. The Systems of Law and Equity
The judicial system in England developed two separate and distinct
types of courts. These two systems of courts–law and equity–were
independent of each other: they developed and expanded their
jurisdictions separately and not as a complementary system. Even
though these courts offered a litigant different types of relief, the
litigant was forced to choose the correct court at his peril. A case
commenced in one court could not be transferred to another court.
On one side of the divide were the three common law courts.
King’s Bench originally heard criminal cases and pleas of the
crown. Common Pleas originally heard cases between subject and
subject; it was held at a fixed place, which came to be Westminster.
Exchequer originally heard revenue matters, then expanded its civil
jurisdiction with the fiction that a person wronged by another
person is less able to pay taxes, so such a case was in reality a
revenue matter. The three common law courts contested with each

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other to expand their civil jurisdiction and eventually came to have
essentially concurrent civil jurisdiction.
In these courts, a plaintiff pursued an “action at law” by filing a
“claim” or “complaint” before a judge (or in the case of
Exchequer, before a baron). The common law courts employed
juries to decide questions of fact. The relief that these courts could
grant was legal, which meant almost exclusively money damages.
The common law courts developed a rigid system of writs that
limited the types of actions that could be brought, as discussed in
I.A.2, infra. These courts also became somewhat hidebound by the
accumulation of their precedents.
On the other side of the divide was the court of equity. The court
of Chancery became available to prevent individual injustices that
could occur through the rigid operation of the common law. This
court developed parallel to, and independent of, the common law
courts.
In Chancery, a plaintiff pursued a “suit in equity” by filing a “bill”
before a chancellor. The court decided cases by the conscience of
the chancellor, who would attempt to do justice in the individual
case. To that end, Chancery originally refused to create precedents,
but as the years passed, an oral tradition arose, and then written
precedents developed. The chancellor decided all aspects of the
case, including questions of fact. Chancery used no juries. The
relief that this court could grant was equitable, which meant forms
of relief–such as injunctions, specific performance, and rescission–
that were designed to make the plaintiff whole when legal relief was
not adequate.
This divided, independent system of law and equity flourished in
England in the seventeenth and eighteenth centuries, so the system
was imported into the American colonies. It became the legal
system of the American states, and endured until the adoption of
code practice in the mid-to-late nineteenth century (and in many
states that refused the codes for long afterward). The English
system itself was transformed in 1873 when Parliament combined

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all the courts into the Supreme Court of Judicature with both
common law and equity jurisdiction.
2. The Writ System in the Common Law Courts
The part of the English common law system of most interest for
study of the historical roots of pleading a complaint is the writ
system.20 Originally, a common law court secured jurisdiction over
a civil case when the King, or later the Chancellor, issued a writ to
the sheriff to arrest the defendant and bring him before the court.
As the years passed, these writs took on differing forms that
hardened into separate categories that became summaries of the
type of case.
The primary contract (ex contractu) writs in the common law courts
were debt (for a fixed sum of money or specific chattel owed),
covenant (for breach of an obligation under seal), assumpsit (for
breach of an obligation not under seal), and account (for receipts
and disbursements in a continuing relationship). The primary tort
(ex delicto) writs were trespass (for a direct and immediate injury to
person or property),21 case (for an indirect injury to person or
property),22 detinue (to recover a specific chattel), replevin (also to
recover specific chattels), and trover (for money damages against a
person who converted a chattel).
20 See generally

Frederic W. Maitland, The Forms of Action at Common Law (1948);
George B. Adams, The Origin of English Equity, 16 Colum. L. Rev. 87 (1916).
21 The writ of trespass was originally criminal, which developed to prevent breaches

of the King’s peace. The writ later further divided into trespass quare clausum
fregit (q.c.t.) for injury to land, trespass de bonis asportatis (d.b.a.) for injury to
chattels, and trespass vi et armis (with force and arms) for injury to person.
22 The distinction between the writ of trespass and the writ of (trespass on the) case

was the direct or indirect nature of the injury to plaintiff. It had nothing to do with
intent of the defendant. For example, “[i]f a man throws a log into the highway,
and in that act hits me, I may maintain trespass because it is an immediate wrong;
but if as it lies there I tumble over it, and receive an injury, I must bring an action
upon the case; because it is only prejudicial in consequence.” Reynolds v. Clarke, 93
Eng. Rep. 747, 748 (K.B. 1726). Similarly, trespass lies against a defendant who
feeds a dog poison; case lies against a defendant who leaves poison for a dog to
find.

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3. Problems with Common Law Pleading
The primary problem with the common law pleading system was it
became more of a game of skill for lawyers than a method of
resolving disputes on the merits. First, plaintiff’s attorney was
required to choose the correct writ to plead the case, for the wrong
writ would put plaintiff out of court. In most cases, the choice was
easy, but in too many cases the facts lay between writs or in no writ
at all. Second, pleadings did all the heavy lifting in cases, at least
until the time of trial. Pleadings had the functions of 1) giving the
opponent and the judge notice of the nature of the claim (or
defense), 2) weeding out groundless claims (or defenses), 3)
revealing the facts of the case, and 4) narrowing the issues. Third,
because the pleading system had the goal of narrowing the case to a
single issue of law or fact, the case might require many pleadings
back and forth. For example, a defendant who responded with a
plea of confession and avoidance (today an affirmative defense) did
not deny plaintiff’s complaint, so no issue was joined; plaintiff was
required to replead a replication. Should that replication also plead
in confession and avoidance, defendant was required to plead a
rejoinder. The string could continue. Also, because the goal was a
single issue, the common law severely restricted joinder of claims
and parties.
B. Pleading under the Codes
1. Development of Code Pleading
The first great reform of pleading was the code system. The state
of New York in 1848 adopted a code of civil procedure based on
the work of a committee chaired by David Dudley Field. This Field
code was intended and designed to simplify pleading and remove
many of the technicalities from civil procedure. To that end, the
Field code abolished the common law writs in favor of one form
of action to be known as a “civil action,” merged the systems of
law and equity, simplified pleading and procedure, and allowed
broad joinder of claims and parties. See generally Jack H. Friedenthal,
Mary Kay Kane & Arthur R. Miller, Civil Procedure § 5.1 (4th ed.
2005). The primary method by which the Field code accomplished
this feat was through its requirement that a party plead only “a

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plain and concise statement of the facts constituting each cause of
action (defense or counterclaim) without unnecessary repetition.”
The Field code became a popular model for procedural reform.
States over the ensuing years adopted their own codes of civil
procedure based on the New York model. By the time of the
promulgation of the Federal Rules of Civil Procedure in 1938, a
substantial majority of states were code states.
2. Problems with Code Pleading
The codes accomplished the primary goals of simplifying pleading
and removing technicalities and traps for the unwary. Problems
remained. First, a code by definition was a statute; this made
revisions and adjustments difficult because the legislature had to
act. Second, the codes still required the pleadings to do the heavy
pre-trial lifting of giving notice, weeding out groundless claims,
revealing the facts, and narrowing the issues. Third, the most
difficult problems grew out of the greatest reform of the codes: the
centerpiece of the codes was the seemingly-simple requirement that
a plaintiff need plead only “the facts constituting each cause of
action.” Both “facts” and “cause of action” soon became litigationgenerating centers of controversy.
a. Pleading ultimate facts
From the first Field code in New York through all of the code
states, the codes required the plaintiff to plead ultimate facts–as
contrasted with conclusions of law or evidentiary facts. On the one
hand, pleading conclusions of law was deficient. A plaintiff who
pleaded only that defendants “trespassed,” “assaulted” her, and
caused her “to be confined” gave notice to the opponent and the
court of theories of trespass, assault, and false imprisonment, but
the complaint did nothing to reveal the facts, narrow the issues, or
weed out baseless claims. See, e.g., Gillespie v. Goodyear Serv. Stores,
258 N.C. 487, 129 S.E.2d 762 (1963). On the other hand, pleading
evidentiary facts was deficient. A plaintiff who merely recited the
evidence of a real estate transaction failed to plead the ultimate fact
of the right of possession. See, e.g., McCaughy v. Schuette, 117 Cal.
223, 48 P.2d 1088 (1897). This could result in prolixity, and

94

ambiguity of inference; for example, if plaintiff pleaded a decedent
delivered $5000 to defendant, the inference of whether it was to be
a loan or a gift was not clear.
A complaint that pleaded conclusions of law could be challenged.
A complaint that pleaded only evidentiary facts could be
challenged. Since they could be challenged, they often were
challenged, especially because an “ultimate” fact was difficult to
identify. Consider this small hypothetical. Plaintiff wishes to sue for
slander because at a student government meeting defendant
announced that plaintiff stole books from his library carrel. How
should the key allegation read? What is the ultimate fact? Here are
three candidates:


Defendant slandered plaintiff.



Defendant said plaintiff stole books from him.



Defendant imputed dishonesty to plaintiff.

The first allegation is insufficient as it is a conclusion of law. The
second allegation is insufficient as it is an evidentiary fact. The third
allegation is sufficient as it is an ultimate fact.
b. Pleading a cause of action
The codes required plaintiff to plead the facts constituting a “cause
of action,” but did not offer any definition of the term of art.
Controversy quickly developed over what a cause of action
required. Must the plaintiff state the legal theory of recovery? How
many facts must the plaintiff plead? Perhaps even more important,
how would a cause of action be defined and bounded for purposes
of res judicata? Commentators disagreed vehemently. Courts at all
levels, including the Supreme Court of the United States, labored
to define a cause of action both in the individual case and in a

95

comprehensive fashion.23 Eventually, two major positions on
“cause of action” emerged.
One position was the “primary right” theory, as advocated by
Professors John Norton Pomeroy and O. W. McCaskill.24 These
advocates argued a cause of action was the intersection of a single
legal right in plaintiff with a single legal duty in defendant. For
example, when plaintiff and defendant had an auto accident,
defendant rushed to plaintiff’s car to punch him in the face, and
seized plaintiff’s wallet as preliminary compensation, plaintiff had
three separate and distinct legal theories of recovery: negligence,
battery, and conversion. This meant plaintiff had three causes of
action, Pomeroy and McCaskill asserted. Essentially, a cause of
action was a single legal theory of recovery, and thus was essentially
the same as the common law “right of action.” Plaintiff’s inchoate
three rights of action would become embodied in three causes of
action when pleaded in the complaint.
The other position was the “transactional” theory, as advocated by
Professor Charles A. Clark.25 Clark argued a cause of action was a
single set of facts without regard to possible legal theories
embedded within that set of facts: “The essential thing is that there
23 Compare Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 321, 47 S. Ct. 600, 602, 71

L.Ed. 1069, 1072 (1927) (“A cause of action does not consist of facts, but of the
unlawful violation of a right which the facts show.”) with United States v. Memphis
Cotton Oil Co., 288 U.S. 62, 67-68, 53 S. Ct. 278, 280, 77 L.Ed. 619, 623 (1933) (“[A
cause of action is] something separate from writs and remedies, the group of
operative facts out of which a grievance has developed.”).
24 John Norton Pomeroy, Code Remedies § 347 (Thomas A. Boyle ed., 4th ed. 1904);

O. W. McCaskill, Actions and Cause of Action, 34 Yale L.J. 614, 638 (1925). McCaskill
defined cause of action as “that group of operative facts which, standing alone,
would show a single right in the plaintiff and a single delict to that right giving
cause for the state, through its courts, to afford relief to the party or parties whose
right is invaded.”
25 Charles E. Clark, The Code Cause of Action, 33 Yale L.J. 817, 837 (1924). Clark

defined cause of actrion as “an aggregate of operative facts which give rise to one
or more relations of right-duty between two or more persons. The size of such
aggregate should be worked out in each case pragmatically with an idea of securing
convenient and efficient dispatch of trial business.”

96

be chosen a factual unit, whose limits are determined by the time
and sequence and unity of the happenings, rather than by some
vague guess or prophecy of potential judicial action.”26 Clark’s
cause of action was determined from a lay perspective on what
facts would constitute a single transaction without regard to any
legal theories a lawyer or judge might later apply to those facts.
Accordingly, in the hypothetical in the paragraph above, Clark
would answer plaintiff had one cause of action arising from a single
set of facts, not three causes of action. As can be seen, Clark’s
cause of action was much broader than Pomeroy’s and McCaskill’s
cause of action. This difference would be manifest in the facts
necessary to plead a cause of action and also in unpleaded portions
of a cause of action that might be barred by res judicata.
C. Pleading under the Federal Rules of Civil Procedure
1. Development of the Federal Rules
Because of these and other problems with the codes, an impetus
developed in the early twentieth century for another round of
sweeping reform in civil procedure. Congress passed the Rules
Enabling Act in 1934 (28 U.S.C. § 2072), which allowed the
Supreme Court to appoint an advisory committee to draft rules of
civil procedure for the federal courts. The advisory committee,
under the leadership of reporter Charles E. Clark, recommended a
set of civil procedure rules to the Court, and the Court
promulgated the Federal Rules of Civil Procedure in 1938.
The Federal Rules have been hugely successful. They govern
procedure in the federal courts to this day. As were the codes, the
federal rules in their turn have been popular in the states. A
majority of American states today are rules states with rules
patterned after the Federal Rules–yet because several states with
large populations retained their codes, the majority of Americans
today live in code states.

26 Charles E. Clark, Code Pleading 143 (2d ed. 1947).

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2. Pleading a Claim under the Federal Rules
The Federal Rules continue the great reforms of the codes:
abolishing the common law writs in favor of a “civil action,”
merging law and equity, allowing broad joinder of claims and
parties, and simplifying pleading and procedure. As to the latter,
the rules simplify pleading by removing some of its duties. No
longer is pleading required to reveal the facts, narrow the issues, or
weed out groundless claims. Instead, the function of pleading
under the rules is to give notice to the opposing party and the court
of the nature of the claim (or defense). The Federal Rules are often
called a notice pleading system.
The Federal Rules accomplish the feat of this simple, notice
pleading system primarily by requiring plaintiff to plead only “a
short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). The intended simplicity of
pleading a claim is reinforced by other rules.27] The other functions
of preparing a case for trial are delegated to other portions of the
rules, primarily the discovery rules.
By requiring only a short and plain statement of a claim, the rules
eliminate the two major sources of pleading litigation the codes
generated. The codes required pleading of “facts.” That
requirement does not appear in Federal Rule 8. The codes required
pleading of a “cause of action.” That phrase does not appear in
Federal Rule 8–or anywhere in the Federal Rules. It has been
abolished in the federal courts and rules states. Use of the newlycoined term “claim for relief” in preference to “cause of action”
was quite intentional on the part of reporter Clark and the
committee–and therefore the Supreme Court–to eliminate these
27 Fed. R. Civ. P. 8(d)(1) instructs the pleader “[e]ach allegation must be simple,

concise, and direct. No technical form is required.” Fed. R. Civ. P. 8(e) instructs the
court “[p]leadings must be construed as to do justice.” Fed. R. Civ. P. 84 instructs
that “[t]he forms in the appendix suffice under these rules and illustrate the
simplicity and brevity that these rules contemplate.” For example, the allegation in
form 11 for negligence that “defendant negligently drove a motor vehicle against
the plaintiff” states a claim for relief, but would not have stated a cause of action
under the codes.

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two pleading problems. Two corollaries follow from this choice by
the Court: 1) the term cause of action is obsolete and should not be
used in federal courts and rules states, and 2) the term claim
embodies Clark’s view that the proper litigation unit is an operative
set of facts instead of a single legal theory.
The transition from cause of action to claim did not–and even
today sometimes does not–come easily. Repeated attempts to reinstitute fact pleading and the cause of action have been made, and
beaten back, in the federal courts. The most famous early case
standing for the proposition that Federal Rule 8(a)(2) means what it
says is Dioguardi v. Durning, 139 F.2d 774 (2d Cir. 1944). The district
court dismissed plaintiff’s hand-drawn, nearly unintelligible
complaint for failure “to state facts sufficient to constitute a cause
of action.” The opinion reversing the dismissal was written by the
same man who earlier had drafted the Federal Rules: Judge Charles
E. Clark of the Second Circuit. The court decided the complaint
stated a claim because it gave basic notice to defendant of the
nature of plaintiff’s claim. Not long after Dioguardi, the Supreme
Court stated “all the rules require is ‘a short and plain statement of
the claim’ that will give the defendant fair notice of what the
plaintiff’s claim is and the grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L.Ed.2d 80, 85 (1957).
Recent cases confirming the notice pleading approach include
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 113 S. Ct. 1160, 122 L.Ed.2d 517 (1993) rejecting
heightened pleading requirements for certain civil rights actions)
and Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 167 L.Ed.2d
1081 (2007) (rejecting heightened pleading requirements in § 1983
cases).
The notice pleading approach that underlies the entire federal rules
system has been cast into some doubt by two recent Supreme
Court decisions. The opinion in Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007), requires a
plaintiff in an antitrust action under the Sherman Act to plead
more factual matter than mere notice would require; even more
importantly, the opinion disapproves the broad statement of notice

99

pleading in Conley. Two years later, the opinion in Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937, 173 L.Ed.2d 868 (2009), requires
that a claim be “plausible” in order to survive a motion to dismiss
for failure to state a claim.
The impact of these two decisions is not yet clear. One view is that
the opinions are aberrations in the history of federal rules notice
pleading, one limited to complicated antitrust cases and the other
explained by an unwillingness to allow a plaintiff incarcerated as a
terrorist to succeed in a challenge to his confinement conditions.
The other view is that the two cases signal a major change in the
approach to pleading being wrought by the Supreme Court
through case decisions instead of amendment to the federal rules.
Which of these views prevails awaits additional decisions.
In sum, the role of pleading under the Federal Rules is much less
than it was under the common law or the codes. Pleading is no
longer a fine art. A court construing a challenged complaint will
not look to see if every jot and tittle is in place, but will ask whether
the complaint gives fair notice of the claim.
II. Drafting a Complaint under the Federal Rules
A. Form of the Complaint
The complaint is composed of four major sections: the caption, the
body, the demand for relief, and the signature.
The caption. Each complaint must have at the top of the first page
an appropriate caption, which is a standardized heading including
the name of the court, the names of the parties, the file number,
and the designation of the pleading [here, the complaint]. “Every
pleading must have a caption with the court’s name, a title, a file
number, and a Rule 7(a) designation.” Fed. R. Civ. P. 10(a). A
standard caption would be as follows:
UNITED STATES DISTRICT COURT
DISTRICT OF DAKOTA
___________________________________

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PETER SCHULER,
Plaintiff
COMPLAINT

v.

File Number___________
DAVID DOUR,
Defendent
___________________________________
__________
The body. The body must first state "a short and plain statement of
the grounds for the court's jurisdiction." Fed. R. Civ. P. 8(a)(1). See
II.B.1, infra. Second, the body must contain separate, numbered
paragraphs, Fed. R. Civ. P. 10(b), which state "a short and plain
statement of the claim showing that the pleader is entitled to
relief." Fed. R. Civ. P. 8(a)(2). See II.B.2, infra. The "complaints" at
the end of this exercise are examples of the body section of the
complaint. An introductory phrase to the body of the complaint,
such as "For her complaint against defendant, plaintiff alleges as
follows" is commonly used, but is not necessary.
Demand for relief. The complaint must include "a demand for the
relief sought." Fed. R. Civ. P. 8(a)(3). This demand is also called the
ad damnum clause, or the wherefore clause. The following example
is a common form:
WHEREFORE,
Plaintiff
demands
judgment against Defendant in the amount
of $100,000, plus interest and costs.
Many attorneys add a phrase such as "and for other relief as the
court may deem the plaintiff to be entitled," but Fed. R. Civ. P.
54(c), which provides a judgment “should grant the relief to which
each party is entitled, even if the party has not demanded that relief
in its pleadings” renders such a phrase superfluous.

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Signature. Fed. R. Civ. P. 11(a) requires a manual signature on the
copy of the pleading filed with the court, plus information as to the
address and telephone number of the attorney. See Fed. R. Civ. P.,
Form 2. A common signature form is as follows:
Lawyer, Argue & Case
by /s/ C.C. Case
Attorneys for Plaintiff
111 Main Street
Capital City, Dakota 11111
(111)111–1111
B. Content of the Complaint
1. Jurisdictional Allegations
The first requirement for a complaint in a federal court is that it
include “a short and plain statement of the grounds for the court’s
jurisdiction.” Fed. R. Civ. P. 8(a)(1). This statement is required
because the federal courts are courts of limited subject matter
jurisdiction [see Exercise Two, part I.A]. Subject matter jurisdiction
of the federal courts is never assumed, as it is in state courts of
general subject matter jurisdiction (so a state rules system patterned
on the federal rules will likely omit this requirement). An allegation
of federal question jurisdiction will cite the federal law provision
under which the claim is alleged to arise. An allegation of diversity
jurisdiction will allege the citizenship of each of the parties and the
amount in controversy. For examples of sufficient jurisdictional
allegations, see Fed. R. Civ. P., Form 7.
Later in this exercise, section III.D.1 contains several varying
allegations of diversity jurisdiction. You will be asked to evaluate
each for sufficiency.
2. The Claim
The next requirement for a complaint in a federal court is that it
include “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While this
sparse requirement, especially as reinforced by decisions of the
Supreme Court, allows plaintiff to plead the facts of the case with
generality (see I.C.2, supra), it should not be taken as license to

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authorize sloppy pleading practices. An attorney who attempts to
draft a complaint without having first thought through the
elements of the claim and the facts necessary to establish those
elements will draft a poor complaint. Even should the complaint
survive a challenge to its sufficiency, damage will result in
unnecessary time and effort defending that challenge, possible later
complications in the litigation, and impairment of the attorney’s
reputation.
In order to draft a good complaint, plaintiff’s attorney still must
investigate the case, research the law, and then plead the facts
necessary to place plaintiff’s claim under that law. “The Rules
didn’t abolish the necessity for clear thinking.” Plastino v. Mills, 236
F.2d 32, 34 (9th Cir. 1956). In the absence of thinking through the
legal nature of the claim to be pleaded, the plaintiff’s attorney may
well omit important facts, include irrelevant allegations, or even
plead a defense to the claim. One treatise suggests pleaders under
the Federal Rules should still continue to "make statements of
claim that provide the opposing party and the court with a fairly
definite picture of the transaction sued on and the legal theories
implicitly used. This is the most that can be expected of pleadings.”
Fleming James, Jr., Geoffrey C. Hazard, Jr. & John Leubsdorf, Civil
Procedure § 3.6, at 191 (5th ed. 2001).
Pleading can be thought of as a syllogism. The form of a classic
syllogism is this.
All men are mortal. [major premise]
Socrates is a man. [minor premise]
[Therefore] Socrates is mortal. [conclusion]
The applicable substantive law is the major premise. The facts of
the case that fit the law are the minor premise. The conclusion
follows that plaintiff wins. Traditionally, plaintiff need not plead
the major premise since the court is presumed to know the law.
Plaintiff need plead only the minor premise. Even so, a careful
pleader will not leave the court to guesswork. For example, Fed. R.
Civ. P. Form 11 identifies the nature of plaintiff’s claim as

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“defendant negligently drove.” The allegations of the official form
do not recite the elements of the law of negligence, but they do
notify the opposing party and the court that the claim is for
negligence.
Later in this exercise, section III.D.2 contains several alternatives
for allegations of the body of a complaint for defamation. You will
be asked to evaluate each for sufficiency.
3. Federal Rule 11 and Ethical Considerations in Good
Faith Pleading
Prior to 1983, Fed. R. Civ. P. 11 required only a good faith
certification that the attorney had "read the pleading," that it was
on "good ground," and that it was "not interposed for delay."
While this imposed an ethical requirement on the attorney filing a
pleading, the rule provided no real means of enforcement. From
the adoption of the Federal Rules in 1938 until 1983, few Rule 11
sanctions were sought, and fewer were granted.
This situation changed dramatically with amendment of Rule 11 in
1983. Responding to a burgeoning federal caseload and claims of
abusive litigation practices, the Supreme Court rewrote Rule 11 in
several ways. First, application of the rule was expanded beyond
pleadings to include also motions and other papers. Second, any
pleading, motion, or other paper not signed was to be stricken.
Third, the rule expanded improper purposes of pleading from delay
alone to include harassment or needless expense. Fourth, violation
of the rule would result in a mandatory sanction ("shall impose").
Finally, and most importantly, the rule required that the paper be
signed only "after reasonable inquiry." That meant an attorney
could no longer accept a client's story at face value, at least without
some minimal level of additional investigation, as a basis for
pleading. The Court summarized the obligations of Rule 11 in this
fashion: "A signature certifies to the court that the signer has read
the document, has conducted a reasonable inquiry into the facts
and the law and is satisfied that the document is well-grounded in
both, and is acting without any improper motive." Business Guides,

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Inc. v. Chromatic Comm'ns Enter., Inc., 498 U.S. 533, 542, 111 S. Ct.
922, 929, 112 L.Ed.2d 1140, 1153 (1991).
Some litigants and attorneys sought to avoid sanctions by claiming
good faith, but the good faith defense was rejected. Rule 11 applied
an objective, not a subjective, standard. Business Guides, 498 U.S. at
542, 111 S. Ct. at 922, 112 L.Ed.2d at 1140. An attorney was
required to meet the standard of a reasonable attorney. Failure to
meet that standard resulted in a variety of sanctions, which
commonly included reimbursement of attorney’s fees to the
opposing party who had been required to defend the objectively
unreasonable pleading or other paper.
Ten years of controversy followed. Many thought Rule 11 had
swung from the extreme of toothlessness to the extreme of
excessively sharp fangs. This controversy induced the Supreme
Court to revisit Rule 11 in 1993. The rule was both contracted and
expanded.
On the contraction side, the new rule provides procedures for Rule
11 sanctions motions. First, a party seeking a Rule 11 sanction
must make the request in a separate motion. Fed. R. Civ. P.
11(c)(2). Second, the party seeking a sanction must serve the
motion on the offending party and then allow 21 days for
withdrawal or correction of the offending material before filing the
motion for sanctions with the court. Fed. R. Civ. P. 11(c)(2). Third,
the rule makes clear that the purpose of a sanction is deterrence,
not compensation: “A sanction imposed under this rule must be
limited to what suffices to deter repetition of the conduct or
comparable conduct by others similarly situated.” Fed. R. Civ. P.
11(c)(4). The sanction may be in the form of "nonmonetary
directives," or if monetary, the sanction will ordinarily be paid into
court, not to the moving party. Fed. R. Civ. P. 11(c)(4). This major
change from the 1983 version of the rule certainly eliminates much
of the incentive for seeking a sanction.
On the expansion side, the new rule places a continuing obligation
on a pleader in later stages of the case: "[b]y presenting to the court
a pleading, written motion, or other paper– whether by signing,

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filing, submitting, or later advocating it." Fed. R. Civ. P. 11(b). In
other words, a Rule 11 violation occurs when an attorney advocates
a position in violation of the rule even though the position had
been justified by the law and facts at the time it was first asserted.
For example, an allegation in a complaint might be proved
untenable by later discovery, so it cannot be relied on in a motion
for summary judgment. A second expansion is to fix liability on law
firms for the violations of their attorneys. Finally, the
representations made are expanded:
Representations to the Court.
By presenting to the court a pleading,
written motion, or other paper–whether by
signing, filing, submitting, or later
advocating it–an attorney or unrepresented
party certifies that to the best of the
person's knowledge, information, and
belief, formed after an inquiry reasonable
under the circumstances:
(1) it is not being presented for any
improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the
cost of litigation;
(2) the claims, defenses, and other legal
contentions are warranted by existing law or
by a nonfrivolous argument for extending,
modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary
support or, if specifically so identified, will
likely have evidentiary support after a
reasonable
opportunity
for
further
investigation or discovery; and
(4) the denials of factual contentions are
warranted on the evidence or, if specifically
so identified, are reasonably based on belief
or a lack of information.

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Fed. R. Civ. P. 11(b).
The objective standard for evaluation remains.28 An attorney's
subjective good faith belief is not a defense against sanctions when
an objective, reasonable attorney would not have held such a belief
or would have undertaken a more thorough investigation.29
Similar concerns underlie Rule 3.1 of the Model Rules of
Professional Conduct:
A lawyer shall not bring or defend a
proceeding, or assert or controvert an issue
therein, unless there is a basis in law and
fact for doing so that is not frivolous, which
includes a good faith argument for an
extension, modification or reversal of
existing law * * *.
As with Fed. R. Civ. P. 11, the test of the Model Rule is objective.
Consequently, a subjective, good faith belief in the truth of a
pleading will not save the attorney who files an objectively false or
frivolous pleading from professional discipline.

28 Perhaps the most difficult area to evaluate is Fed. R. Civ. P. 11(b)(2),

which
covers arguments for modification of existing law. One guide is the following:
Argument for extensions, modifications, or reversals of
existing law or for creation of new law do not violate
subdivision (b)(2) provided they are "nonfrivolous." This
establishes an objective standard, intended to eliminate
any "empty head pure heart" justification for patently
frivolous arguments. However, the extent to which a
litigant has researched the issues and found some support
for its theories even in minority opinions, in law review
articles, or through consultation with other attorneys
should certainly be taken into account in determining
whether paragraph (2) has been violated.

Advisory Committee Note to 1993 Amendments to Fed. R. Civ. P. 11, 146 F.R.D.
586–87 (1993).
29 Many examples of reasonable, and unreasonable, investigations are collected in

5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 3d §
1335 (2004).

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III. An Exercise In Drafting A Complaint for Defamation
under the Federal Rules: CALI Civ 01
This exercise includes the facts of a hypothetical case of
defamation, discussion of the substantive law of the tort of
defamation, and discussion of the procedural law of pleading a
defamation complaint. Please read these materials carefully and
answer the preliminary questions asked in section III.D. You will
then be ready to go to the computer terminal to work through
CALI CIV 01: Drafting a Complaint. Take the facts of the case and
a copy of the Federal Rules of Civil Procedure with you.
A. Facts of the Case
You are an attorney practicing with a law firm in Capital City,
Dakota. One of the partners in your firm has just received a
statement from a client, Peter Schuler. The partner hands you the
statement, in which Schuler gives the following account:
"Until this past May, I was a student at Dakota College in College
Town, Dakota. On April 30, one of the proctors caught me
watching television in the dorm with my girlfriend. The college is
strict and old-fashioned. Women aren't allowed in the mens' dorms
after 8 p.m.
"The proctor turned me in. They scheduled a hearing before the
Dakota College Disciplinary Board, which has the job of punishing
student misbehavior. All of its members are faculty members. Dean
William Roberts is always on the Board. The other professors take
turns, two at a time. This time the other members were Professor
Mary Trueblood and Professor David Dour.
"Professor Trueblood is a nice person. But having Professor Dour
on the Board was a stroke of bad luck for me. He's always hated
me.
"I went before the Board in Room 215 of Old Main on May 10 and
apologized. They said that they would let me know what their
decision was the next morning.
"The next morning Dean Roberts told me that the board had voted
to suspend me from school for a year because I had violated the

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visiting hours rules. I have never heard of anyone else getting such
heavy treatment. Even Dean Roberts admitted it was heavy.
"So I looked at the records that the student council keeps of all
disciplinary hearings. Out of 50 cases in the last ten years, only
three students have been suspended. The others have all received
social probation or something less. The council records don't show
the reasons for the suspensions, but I talked to five alumni who
went to the hearings on those three suspensions when they were
students. All three suspensions were given after the same hearing
seven years ago. Four out of the five alumni told me definitely that
the students were suspended for cheating on an exam.
"I couldn't figure out why I got that treatment. I went in to see
Professor Trueblood. I knew her from field trips in geology and
always thought she was O.K. She didn't want to talk to me at first,
but after beating around the bush for a while she finally told me
confidentially that the Dean had been very much influenced by
what Professor Dour said after I left. According to Trueblood,
Professor Dour said, 'Peter is a heavy user of crack cocaine.'
Trueblood said that those were Dour's exact words. I don't know
where Dour got the idea that I am a drug user. It's absolutely
untrue and I can't think of anyone who would say that about me.
Maybe he made it up. He must have known that Dean Roberts is
paranoid about drugs. Anyway, Trueblood said that they suspended
me because they thought I was a drug user.
"I had this great part-time job in a bank in College Town and I was
planning on going into its management training program after I
graduated. When I went in to work the week after the Disciplinary
Board meeting, my boss, John Thompson, told me I was fired. At
first he wouldn't say why, but eventually he admitted that he had
heard I had a 'personal reputation incompatible with the banking
industry.' I asked him if he was talking about gossip that I had been
using drugs and he said 'All I can say to that is if such were the
case, that would be incompatible with the best interests of
banking.'

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"I asked him if he knew Professor Dour and he said 'Yes, but he
has nothing to do with this. He didn't tell me anything.' I think
Thompson was lying and that either Dour told him the phony
story about crack, or that somehow he heard about what was said
at the disciplinary hearing.
"I don't want to go back to Dakota College—ever! I'm disgusted
with the place. Anyway, everyone there thinks I'm weird. I'm now
back home, where my dad is letting me work in his furniture store."
Your partner asks you to draft a complaint for Peter Schuler
against David Dour. The case will be filed in federal district court
in Dakota, since the backlog there is considerably shorter than in
state court. One drawback to Dakota federal court is that the judge
is quite punctilious about pleading, having been trained many years
ago in a code pleading state. Accordingly, you should compose a
complaint to survive close scrutiny, and it should be able to survive
probable defense motions to require a more definite statement
under Fed. R. Civ. P. 12(e), or to dismiss for failure to state a claim
under Fed. R. Civ. P. 12(b)(6).
B. Substantive Law of Defamation
1. State Law
The Erie doctrine30 requires the federal court in Dakota to follow
state law concerning the elements of defamation, except where
federal constitutional issues are involved.
Dakota law provides that a defendant who communicates a
disparaging, damaging falsehood about plaintiff to a third person is
liable in an action for defamation (slander).31

30 The Erie doctrine is based on Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct.

817, 82 L.Ed. 1188 (1938). Under Erie, state law provides the rule of decision for
certain issues that arise in cases tried in federal court. For purposes of this exercise,
you need only remember that state law defines the substantive elements of
defamation, while federal law determines which party must plead the elements of
the claim and the degree of particularity with which they must be pleaded.

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Under the decisional law of the state of Dakota, the elements of
slander are as follows:
(1) Publication. The slanderous words must have
been spoken by the defendant so that a third
person could hear them. A purely private
statement, heard only by the plaintiff, is not
slander. (No court of record in Dakota has
specifically ruled on the issue of whether
publication to a third person is an element of the
tort of slander, but commentators have assumed
that the Dakota courts would follow the law of
other jurisdictions and require this element.)
(2) Falsity. The words must have been false.
(3) Disparagement. The words must have been
disparaging, that is, they must have been words
that would tend to cause a person to be disliked,
shunned, ridiculed, or held in contempt by others.
"Joan is a thief" would clearly be disparaging. On
the other hand, "Joan is a taxpayer" is not
disparaging, and there would be no recovery even
though Joan might have been offended by the
words.
(4) Pecuniary Damage/Slander per se. In many
slander cases, the words must have caused some
specific pecuniary damage, such as loss of business
customers, loss of a contract, or discharge from
employment. Recovery cannot be based on
humiliation, damage to reputation, illness, or
mental distress alone.

encompasses both libel and slander. In a general sense,
libel is defamation communicated in writing or other durable form, and
slander is defamation communicated orally. Since the defendant made his
communications orally, the action might be characterized as either for the
tort of defamation or for the tort of slander. Both terms will be used in this
exercise. On the tort of defamation, see generally Dan B. Dobbs, The Law of
Torts §§ 400-23 (2000).
31 The term defamation

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The requirement of pecuniary damage does not
apply to words that are slanderous per se. Words
are slanderous per se if they (1) charge the person
with a serious crime involving moral turpitude, (2)
indicate the person has a loathsome disease, or (3)
derogate the person's ability or honesty in the
person's trade, business, or profession.
Dakota courts have not to this date been called on
to decide whether suspension from college causes
"pecuniary damage." Similarly open questions are
whether the use of crack is a "serious crime
involving moral turpitude" or whether use of
crack is sufficiently analogous to a "loathsome
disease" to justify classifying a statement charging
use of crack as slanderous per se.
(5) Privilege. In some contexts the free exchange
of information has been considered to be so
important that the Dakota caselaw confers an
absolute privilege upon false statements. The
absolute privilege applies, for example, to
statements made by legislators on the floor of the
state legislature. As to such statements, an action
for slander can be defeated by the defense of
privilege even if the person making the statement
knew it was false.
In other contexts, the free exchange of
information has been considered sufficiently
important to justify conferring a conditional
privilege. For example, there is a conditional
privilege in Dakota for statements made in giving
a reference to a prospective employer of a person.
Another conditional privilege exists for persons
reporting crimes to the police. The existence of a
conditional privilege will defeat a claim for slander
unless the person making the statement acted in
bad faith, with spite or ill will, toward the person
defamed.

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Whether a statement made by a college professor
to another disciplinary board member about a
student is covered by an absolute privilege, a
conditional privilege, or no privilege at all is an
open question of law in the state of Dakota.
2. Federal Constitutional Law
Although state law generally governs the elements of slander,
federal constitutional doctrine must also be taken into account, and
the law in this area is uncertain and changing. A dictum in Gertz v.
Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L.Ed.2d 789
(1974), seems to indicate that the First Amendment prohibits states
from imposing liability without fault in defamation cases, i.e., the
defendant must have been at least negligent in publication of a false
statement. Arguably, the Supreme Court's decision means that a
state cannot constitutionally impose liability for making a false
statement when the defendant reasonably believed the statement to
be true.
Such a conclusion was unsettled by the decision eleven years later
in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105
S. Ct. 2939, 86 L.Ed.2d 593 (1985), which can be read to say that
cases involving a plaintiff who is a private figure (not a public
figure) concerning a matter of private concern do not require a
showing of defendant's fault for liability. Gertz involved a private
figure in a matter of public concern. No additional guidance has
been provided by the Court.
C. Procedural Law: the Burden of Pleading
The court of appeals in your circuit has announced that under its
interpretation of the Erie doctrine, Dakota law should be followed
on substantive issues in a defamation case, but federal law should
be followed on pleading issues, including the allocation of the
burden of pleading. A party who has the burden of pleading an
issue must raise that issue in the pleadings, or the issue will be
resolved against that party.
One question to be answered is who has the burden of pleading
privilege: is it an element of the claim that must be pleaded by

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plaintiff, or is it an affirmative defense that must be pleaded by
defendant? While Fed. R. Civ. P. 8(c)(1) does not include privilege
in its list of 19 examples of affirmative defenses, the rule provides
“any avoidance or affirmative defense.” Your research on federal
caselaw on the pleading of slander has led you to conclude that
privilege is an affirmative defense.
On the subject of pleading a defamation case in general, you have
also found the following passage in a treatise on federal practice:
Although special pleading requirements
have not been set out in the federal rules for
libel and slander actions, the standard for
successfully pleading defamation tends to
be more stringent than that applicable to
most other substantive claims because of
the historically unfavored nature of this type
of action, the First Amendment
implications of many of these cases, and the
desire to discourage what some believe to
be all too frequently vexatious litigation.
Thus, many of the somewhat inhibiting
traditional attitudes toward pleading in the
context of defamation have survived the
adoption of the federal rules.
Of course, all the plaintiff technically is
required to do is state a claim for which
relief may be granted, and many federal
courts have demanded no more than that.
This theoretically means providing a short
and plain statement indicating that the
elements of a libel or slander claim are
present. Contrary to the common law and
the generally accepted code approach, some
courts have held that it is not necessary to
include in the complaint the exact
statements upon which the action is based,
which seems consistent with Rule 8,
although some federal courts have held to
the contrary and others have indicated that

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the substance of the actionable words
should be pleaded. It also has been held by
at least one court that an allegation of falsity
is required. A general allegation of
publication and the place where the libel
circulated will suffice in most instances.
However, if the defendant does seek by a
motion for a more definite statement under
Rule 12(e) to have the plaintiff fix the situs
of the alleged tort, the motion may well be
granted, although this seems to represent a
technically improper use of that motion.
If the defamatory character of the statement
rests on extrinsic facts, those facts should
be pleaded. And if the libelous character of
the
statement
depends
upon
an
interpretation of the words other than a
meaning that usually is given to the
statement, the special meaning should be
specifically pleaded by way of innuendo,
explanation, or colloquium. It also is
necessary to allege that the defamation
pertained to the plaintiff.
A complaint indicating that the uttered
statements are not actionable per se has
been held not sufficient to state a claim for
relief in the absence of an allegation of
special damages, as is discussed under Rule
9(g); conversely, if a writing contains
material that is libelous per se, allegations in
the complaint of special damages under
Rule 9(g) are not necessary.
Although some courts tend to be unwilling
to construe the statement of the claim for
relief liberally in a libel or slander action and
require that all elements of the substantive
cause of action be specially pleaded, nothing
in Rule 8 imposes a special burden on the
pleader in these classes of cases. A number

115

of federal courts have not insisted that each
element of the underlying cause be
specifically pleaded. In Garcia v. Hilton Hotels
International, Inc., for example, the plaintiff
failed to allege in so many words that there
had been a publication and the defendant
challenged the complaint under Rules
12(b)(6), 12(e), and 12(f). Although the
court in Garcia inferred the existence of
publication and denied the motion to
dismiss, as is discussed in another section, it
did grant the defendant’s motion for a more
definite statement, inter alia, because of the
vagueness resulting from the plaintiff’s
failure to set out the substance of the
utterance alleged to have been made
slanderously or the facts relied upon to
establish that it had been published to
anyone else. Thus, despite the fact that the
Garcia case represents a liberal attitude
toward the pleading requirements of the
federal rules, it also indicates that traces of
disfavor for defamation actions still exist.
There is little doubt that because of the
unfavored status of libel and slander
actions, it is advisable for the pleader to set
forth the claim for relief as clearly as
possible, and that all the elements of the
claim at least should be inferable from the
allegations in the complaint.
5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure:
Civil 3d § 1245 (2004).
D. Preliminary Questions
Please answer the following questions before going to the
computer to begin CALI CIV 01: Drafting a Complaint. [Note: if
you want to omit the section on jurisdictional allegations, skip to
section III.D.2, infra, and when you begin the computer exercise,
tell the computer to start on Question 3.]

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1. Jurisdictional allegations
Since every complaint filed in federal court must allege federal
subject matter jurisdiction [Fed. R. Civ. P. 8(a)(1)], we review the
relevant part of the diversity statute, and then examine nine
possible jurisdictional allegations. The statute reads as follows:
(a) The district courts shall have original
jurisdiction of all civil actions where the
matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and
costs, and is between—
(1) citizens of different States;
(2) citizens of a State and citizens or
subjects of a foreign state;
(3) citizens of different States and in
which citizens or subjects of a foreign
state are additional parties; and
(4) a foreign state, defined in section
1603(a) of this title, as plaintiff and
citizens of a State or of different States.
For the purposes of this section, section
1335, and section 1441, an alien admitted to
the United States for permanent residence
shall be deemed a citizen of the State in
which such alien is domiciled.
28 U.S.C. § 1332(a).
Which of the following jurisdictional allegations would be deemed
completely satisfactory by the most punctilious judge? (The
computer will ask you to list all of the completely satisfactory
allegations.)
1. Plaintiff is a citizen of the state of Minnesota and
defendant is a citizen of the state of Dakota. The amount
in controversy exceeds, exclusive of interest and costs, the
sum of seventy-five thousand dollars.

117

2. This action arises under the laws of the United States, as
hereinafter more fully appears.
3. Plaintiff is a resident of the state of Minnesota and
defendant is a resident of the state of Dakota. The
amount in controversy exceeds, exclusive of interest and
costs, the sum of seventy-five thousand dollars.
4. Plaintiff is a citizen of the state of Minnesota. Defendant's
citizenship is unknown to plaintiff. The amount in
controversy exceeds, exclusive of interest and costs, the
sum of seventy-five thousand dollars.
5. Jurisdiction in this action is based on diversity of
citizenship and jurisdictional amount, in accordance with
the requirements of 28 U.S.C. § 1332(a).
6. Plaintiff is domiciled in the state of Minnesota and
defendant is domiciled in the state of Dakota. The
amount in controversy exceeds, exclusive of interest and
costs, the sum of seventy-five thousand dollars.
7. Plaintiff is a citizen of Minneapolis, Minnesota and
defendant is a citizen of College Town, Dakota. The
amount in controversy exceeds, exclusive of interest and
costs, the sum of seventy-five thousand dollars.
8. Plaintiff is a citizen of the state of Minnesota and
defendant is not a citizen of the state of Minnesota. The
amount in controversy exceeds, exclusive of interest and
costs, the sum of seventy-five thousand dollars.
9. Plaintiff is a citizen of the state of Minnesota and
defendant is a citizen of the state of Dakota.
2. Substantive Allegations
Before proceeding, you may wish to try your hand at drafting a
complaint from scratch. You can then compare your draft to the
model drafts that follow. [The computer will not ask for your
complaint, so if you wish, you may skip to the next paragraph.]
Your draft complaint should be in the proper form, including a

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caption, a body, a demand for relief, and a signature (see II.A, supra).
When drafting the body of the complaint, plead all of the necessary
elements of defamation (see III.B.1, supra). Keep in mind that
defamation (slander) may require the pleading of special damages,
and Fed. R. Civ. P. 9(g) requires "If an item of special damage is
claimed, it must be specifically stated."
For the computer exercise, the caption, the demand for judgment,
and the signature sections of the complaint will be omitted. You
will be asked to frame the allegations only for the body of the
complaint. Please frame the body of your complaint either by (a)
choosing one of the six complaints set forth on the following pages
or (b) composing a complaint by using paragraph two of one of the
complaints and paragraph three of another.
In assessing complaints one through six, you should remember that
you do not want a complaint only minimally acceptable under the
Federal Rules. You want a complaint that is as nearly perfect as
possible, so defendant's attorney will have no basis for attacking it
on pleading grounds. Therefore, you want to compose a complaint
that does not even arguably commit any of the following pleading
errors:
Error 1: The complaint fails to allege an element of the claim. Example:
Plaintiff sues defendant alleging that defendant negligently drove
his automobile in such a fashion as to endanger plaintiff. She fails
to allege any injuries. Plaintiff has omitted the fourth element of
the tort of negligence (duty, breach, causation, damages), and since
the burden of pleading on this issue is on plaintiff, this complaint
would be subject to attack under Fed. R. Civ. P. 12(b)(6) for failure
to state a claim.
You need plead only a “short and plain statement of the claim.”
Fed. R. Civ. P. 8(a)(2). At the same time, you want to make sure
that your complaint alleges facts establishing all of the elements of
slander (see III.B., supra). Otherwise, a punctilious judge might
dismiss under Fed. R. Civ. P. 12(b)(6).
Error 2: The complaint fails to give the defendant information necessary to
frame an answer. Fed. R. Civ. P. 12(e) provides "A party may move

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for a more definite statement of a pleading to which a responsive
pleading is allowed but which is so vague or ambiguous that the
party cannot reasonably prepare a response. * * *” You should
avoid a complaint that—though it technically states a claim—omits
facts the other party needs to know in order to determine what
defenses to raise in the answer. Because a motion for more definite
statement is proper only when defendant cannot reasonably
respond and is not to be used to force discovery out of plaintiff,
the motion is rarely made and rarely granted. Even so, you should
not give the defendant's attorney cause, or even an opening, to
make the motion.
Error 3: The complaint raises an affirmative defense and fails to avoid it. A
plaintiff need not anticipate affirmative defenses in the complaint,
but should the plaintiff allege facts establishing an affirmative
defense, she must go further and allege other facts that avoid the
defense. Example: Suppose that the statute of limitations for
slander is three years, but the statute is tolled when the plaintiff is
mentally incompetent. Under Fed. R. Civ. P. 8(c)(1), the statute of
limitations is an affirmative defense. Plaintiff alleges in the
complaint a slander by defendant four years previously, but fails to
allege she was mentally incompetent for two of the four
intervening years. Plaintiff has raised an affirmative defense in the
complaint without avoiding it, and her complaint is subject to
dismissal under Fed. R. Civ. P. 12(b)(6).
Normally, of course, a district judge will allow plaintiff to amend
the complaint, but the 12(b)(6) motion might cause unwelcome
delay. Filing and decision on the motion postpones the date upon
which defendant must file the answer [see Fed. R. Civ. P. 12(a)(4)].
Error 4: The complaint contains superfluous matter. A small amount of
superfluity is usually nothing to worry about. Under Fed. R. Civ. P.
12(f), courts may order stricken from a pleading any "redundant,
immaterial, impertinent, or scandalous matter," but a motion to
strike is not favored and would certainly not be granted against a
complaint as short as the ones set forth in this exercise. Even so, a
careful pleader will not frame a complaint containing superfluous
matter. The inclusion of unnecessary matter will seem amateurish,

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and may impair the pleader's effectiveness in persuading the court
about other matters. Furthermore, the superfluous language may
provide information to the opposing party that will help in
preparation of the case.
Error 5: The complaint violates standards of professional responsibility. As
discussed in section II.B.3, supra, Fed. R. Civ. P. 11 requires an
attorney to sign the complaint and provides that the signature
certifies several matters, including that the claim is warranted by
both law and fact. Violation of the rule can subject both the lawyer
and the client to sanctions.
Rule 3.1 of the Model Rules of Professional Responsibility [see
II.B.3, supra] imposes a similar requirement of objective good faith
on the attorney signing a pleading. Violation of Model Rule 3.1
could subject the lawyer to professional discipline.
Each of the six "complaints" below contains three paragraphs for
the body of the complaint. Assume that the date left blank is the
most recent year. Before going to the computer to work through
CALI CIV 01, please read the complaints and answer the questions
that follow them.
Complaint One
1. [Jurisdictional allegation]
2. On May 10, 20__, in Room 215 of Old Main on the
campus of Dakota College, in College Town, Dakota,
defendant slandered the plaintiff.
3. As a result, plaintiff has been injured in his reputation
and career, and has suffered great pain and mental
anguish, to his damage in the sum of $100,000.
Complaint Two
1. [Jurisdictional allegation]
2. On May 10, 20__, in Room 215 of Old Main on the
campus of Dakota College in College Town, Dakota,
defendant falsely stated "Peter (referring to plaintiff) is a
heavy user of crack cocaine." Defendant knew this

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statement to be false at the time that he made it, or acted
in reckless disregard of the truth.
3. As a result, plaintiff has been injured in his reputation,
suspended from college, has been unable to obtain any
employment, and has suffered great mental anguish, all to
his damage in the sum of $100,000.
Complaint Three
1. [Jurisdictional allegation]
2. On May 10, 20__, in Room 215 of Old Main on the
campus of Dakota College, in College Town, Dakota,
defendant slandered the plaintiff by falsely stating to
William Roberts and Mary Trueblood, "Peter (referring to
plaintiff) is a heavy user of crack cocaine." These false and
defamatory statements were reported to plaintiff by Mary
Trueblood, who was present at the meeting.
3. As a result, plaintiff's reputation has been damaged, he
has suffered great humiliation, he has been suspended
from college for one year, and he has been discharged
from employment by the First National Bank, all to his
damage in the amount of $100,000.
Complaint Four
1. [Jurisdictional allegation]
2. Defendant was a professor, and plaintiff a student, at
Dakota College in College Town, Dakota, on May 10,
20__. On that date defendant stated falsely that "Peter
(referring to plaintiff) is a heavy user of crack cocaine."
Said statement was made to William Roberts and Mary
Trueblood. These persons were faculty members
attending a Dakota College Disciplinary Committee
meeting which had been called in Room 215 of Old Main
for the purpose of disposing of a disciplinary action
against the plaintiff. Defendant failed to exercise due care
in ascertaining whether the statement was true before
making it.

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3. Plaintiff has been suspended from college; has suffered
damage to his reputation, as well as great mental anguish;
and was discharged from employment by the First
National Bank; all to his damage in the amount of
$100,000.
Complaint Five
1. [Jurisdictional allegation]
2. Defendant slandered the plaintiff by falsely stating to
third persons, including John Thompson of the First
National Bank, that "Peter (referring to plaintiff) is a
heavy user of crack cocaine." Defendant knew this
statement to be false when it was made, or he acted with
reckless disregard for the truth, or he failed to exercise
due care in determining whether it was true.
3. As a result of defendant's false statement, the plaintiff
has suffered great mental anguish and has been injured in
his reputation, and there is evidence that, as a result of
defendant's false statement, plaintiff was suspended from
college and discharged from employment by the First
National Bank, all to his damage in the amount of
$100,000.
Complaint Six
1. [Jurisdictional allegation]
2. On May 10, 20__, in Room 215 of Old Main on the
campus of Dakota College, in College Town, Dakota,
defendant falsely stated to William Roberts and Mary
Trueblood, "Peter (referring to plaintiff) is a heavy user of
crack cocaine." Defendant knew these words to be false,
or he spoke them in reckless disregard of the truth, or he
failed to exercise due care in determining whether they
were true.
3. Defendant's false statement was made by him to other
members of the College Disciplinary Board while the
Board was deliberating about whether to punish plaintiff

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for violating college visiting hours rules. The Board
ultimately decided to suspend plaintiff from college. This
penalty was ostensibly imposed because of a violation of
visiting hours rules, but actually was the result of
defendant's slanderous statement. The student council
records indicate that only three of the fifty students
disciplined in the past ten years have been punished by
suspension, and those three students were all suspended
in one hearing. Four out of the five witnesses to that
hearing have stated definitely that the students involved
were suspended for cheating. Another result of
defendant's slanderous statement was that plaintiff was
discharged from his employment at the First National
Bank. The aforesaid suspension from school, discharge
from employment, and attendant humiliation and mental
anguish, caused plaintiff to suffer damages in the amount
of $100,000.
In preparing for the computer exercise, answer these questions by
referring to the Pleading Defects Display at the end of the
questions.
(a) In composing a complaint, I would use the second
paragraph of Complaint ___ and the third paragraph of
Complaint ___.
(b) Is Complaint One fully satisfactory?
Answer yes or no.
(c) If you answered that Complaint One is not fully
satisfactory, then identify the defect(s) in Complaint One
by choosing in a number or numbers from the Pleading
Defects Display.
(d) Is Complaint Two fully satisfactory?
Answer yes or no.
(e) If you answered that Complaint Two is not fully
satisfactory, then identify the defect(s) in Complaint Two

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by choosing in a number or numbers from the Pleading
Defects Display.
(f) Is Complaint Three fully satisfactory?
Answer yes or no.
(g) If you answered that Complaint Three is not fully
satisfactory, then identify the defect(s) in Complaint Three
by choosing in a number or numbers from the Pleading
Defects Display.
(h) Is Complaint Four fully satisfactory?
Answer yes or no.
(i) If you answered that Complaint Four is not fully
satisfactory, then identify the defect(s) in Complaint Four
by choosing in a number or numbers from the Pleading
Defects Display.
(j) Is Complaint Five fully satisfactory?
Answer yes or no.
(k) If you answered that Complaint Five is not fully
satisfactory, then identify the defect(s) in Complaint Five
by choosing in a number or numbers from the Pleading
Defects Display.
(l) Is Complaint Six fully satisfactory?
Answer yes or no.
(m) If you answered that Complaint Six is not fully
satisfactory, then identify the defect(s) in Complaint Six
by choosing in a number or numbers from the Pleading
Defects Display.
Pleading Defects Display
(The computer will ask you to use this multiple choice display to
identify defects in the allegations of the above six complaints.)
1. Omission of an element. The complaint arguably fails to allege
an element of the claim.

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2. Rule 12(e) vulnerability. The complaint is subject to a motion
for a more definite statement because it arguably fails to give
the defendant information necessary to frame an answer.
3. Unavoided defense. The complaint arguably raises an
affirmative defense and fails to avoid it.
4. Superfluity. The complaint contains damaging superfluous
matter that should be omitted for tactical or other reasons.
5. Violation of rules of professional responsibility. The complaint
violates Fed. R. Civ. P. 11 and Model Rule of Professional
Responsibility 3.1.
You are now ready to go to the computer to work through CALI
CIV 01: Drafting a Complaint. The estimated completion time is
two hours, although this exercise can be divided into segments to
be completed in separate sittings.

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Exercise Four - Demurrers
and Judgments on the
Pleadings
This computer aided exercise presents a defamation action in the
state of Dakota. The facts are the same as in Exercise Three,
except that the action is filed in state court instead of federal court.
Peter Schuler, a former student at Dakota College, claims that
David Dour, a professor at the college, called him a user of crack
cocaine. As the exercise progresses, the computer will describe the
pleadings filed by the parties and ask you to identify the issues that
would be raised on challenges to those pleadings.
Dakota is a code pleading state, so the first challenge to plaintiff’s
pleading will be a demurrer by defendant. Later you will be asked
to consider a motion for judgment on the pleadings. Since this
exercise explores code pleading, it will be of special interest to
students planning to practice in a code pleading state. Relevance to
students planning to practice in a rules state will be less direct.
Indeed, in a rules state, Fed. R. Civ. P. 7(c) provided until 2007 that
“[d]emurrers, pleas, and exceptions for insufficiency of a pleading
shall not be used.”32 Even so, this exercise has value for students
focusing on rules procedures. The code procedure is historically
enlightening and provides instructive contrast with rules procedure.
This exercise considers both. Even if you have studied only federal
pleading, you will be able to do this exercise. The preliminary text
will tell you what you need to know about code pleading.

32 Perhaps the provision should have been retained, but the advisory committee

concluded “[f]ormer Rule 7(c) is deleted because it has done its work. If a motion
or pleading is described as a demurrer, plea, or exception for insufficiency, the
court will treat the paper as if properly captioned.” The proper motion would be to
dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6).

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Please read the following description of Dakota's substantive and
procedural law. Then answer the preliminary questions below,
before going to the computer to begin CALI CIV 02: Demurrers
and Judgments on the Pleadings.
I. Substantive Law
The substantive law of defamation in the state of Dakota is
discussed in Exercise Three, part III.B. Please reread those pages.
In reaction to the dictum in Gertz v. Robert Welch, Inc., 418 U.S. 323,
94 S. Ct. 2997, 41 L.Ed.2d 789 (1974) [see Exercise Three, part
III.B.2], the Supreme Court of Dakota recognized a defense of due
care. This means that even should defendant Dour's statement be
found false and not privileged, defendant still prevails if he
exercised due care in attempting to ascertain that the statement was
true.
II. Procedural law
A. Burden of Pleading
In Dakota, plaintiff has the burden of pleading the elements of
slander (publication, falsity, disparagement, and pecuniary
damage/slander per se). Defendant has the burden of pleading the
affirmative defenses of truth,33 privilege, and due care. When
defendant raises the affirmative defense of qualified privilege,

33 Truth, on which the defendant has the burden of pleading, and falsity, on which

the plaintiff has the burden of pleading, are of course only two sides of the same
coin. One of the peculiarities of the law of defamation/slander is that some
jurisdictions have held that both the plaintiff and the defendant have the burden of
pleading on the issue of truth/falsity. See 5 Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure: Civil 3d § 1245 (2004). If the plaintiff fails to plead

that the statement was false, then the complaint is legally insufficient. If the
plaintiff does plead falsity, then the defendant must raise truth as an
affirmative defense; a denial of the allegation of falsity in the complaint is
insufficient. Should defendant fail to raise truth as an affirmative defense,
then the defense will be waived unless the court later permits defendant to
amend the answer.

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plaintiff has the burden of pleading malice to overcome the
privilege.
To say that a party has the burden of pleading on a given issue
means that the party must raise that issue in the pleadings, or the
issue will be resolved against the party. Dakota follows the rule that
ambiguities in the pleadings are to be resolved against the pleader.34
B. Sequence of Code Pleadings and Motions
Under Dakota law, plaintiff commences the action by filing a
complaint. Defendant may respond with a special demurrer (raising
issues that do not go to the merits, such as lack of jurisdiction or
improper joinder), with a general demurrer (challenging the legal
sufficiency of the complaint, as discussed below), or with an
answer. In the answer, defendant must raise any affirmative
defenses or they will be waived. When defendant does not raise any
affirmative defenses, the pleadings close with the answer. When
defendant raises affirmative defenses, plaintiff is required to file a
reply, denying or avoiding35 the averments of the affirmative
defenses. This reply closes the pleadings.36 Since the defendant is

34 Note that the code rule of resolving ambiguities against the pleader contrasts

with practice in federal courts and rules states, where pleading ambiguities and
irregularities are normally resolved in favor of the pleader. "Pleadings must be
construed so as to do justice." Fed. R. Civ. P. 8(e).
35 A party avoids the allegations of the opponent's pleading by introducing new

matter that will entitle the party to judgment even if the allegations of the
opponent's pleading are true. At common law, the plea was called confession and
avoidance. For example, if a plaintiff pleaded that the defendant falsely called her a
thief, and the defendant responded by admitting that the statement was made but
alleging that it was made during a criminal trial, then the defendant would have
confessed the allegations in the plaintiff's complaint but avoided liability by raising
the affirmative defense of absolute privilege. The modern day affirmative defense is
the descendant of the common law confession and avoidance.
36 Dakota's code pleading system extends the pleadings a step beyond the federal

rules, which close pleadings with the complaint and the answer except in certain
specified situations, such as an answer to a counterclaim or when the court orders a
reply to the answer. Fed. R. Civ. P. 7(a).

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not permitted to respond to the reply, the allegations in the reply
are taken as denied or avoided by the defendant.
After the pleadings have closed, either party may move for
judgment on the pleadings.
C. The General Demurrer
Dakota's general demurrer is a procedural device used by the
defendant to challenge the legal sufficiency of the plaintiff's
complaint. Only issues of law may be decided; the demurrer is not
a method of testing the facts. The usual maxim "law for the judge,
facts for the jury" applies. The general demurrer is defendant's way
of saying to plaintiff, "Admitting for the moment that all of the
facts alleged in your complaint are true, you are still not entitled to
relief as a matter of law." Put more colloquially, defendant is saying
"Yeah, so what!"
The purpose of the general demurrer is to allow early dismissal of a
complaint that is insufficient on its face. Suppose that the
complaint alleges "The defendant stuck out his tongue. This caused
me severe emotional distress. Therefore, I am entitled to damages."
Even if these facts were true, the plaintiff would not be entitled to
relief. The sooner the case is dismissed, the better. The defendant
should not be required to file an answer, undergo discovery, and
prepare for trial without being able to get a determination about
whether the plaintiff's complaint is legally sufficient.
At common law, filing a general demurrer was a daring step, since
defendant thereby made a binding concession that the facts alleged
by the plaintiff were true. When the court decided the facts pleaded
by plaintiff did support relief, defendant had lost. Under modern
pleading systems, defendant no longer faces sudden death if the
demurrer is not sustained. Defendant is still allowed to file an
answer denying that the facts alleged in the complaint are true.
When the demurrer is sustained, the court will usually grant the
plaintiff leave to amend the complaint to cure the defect(s) in the
pleading, so a demurrer is particularly useful when defendant
believes plaintiff has pleaded all of the facts that she could
conceivably prove. Should plaintiff's legal theory be tenuous, the

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demurrer allows both parties to obtain a ruling on the legal
sufficiency of the cause of action37 without incurring the expense of
trial. The general demurrer is thus functionally equivalent to the
Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a
claim upon which relief can be granted.
Dakota follows the traditional rule that a demurrer cannot be a
"speaking motion," that is, matters outside the challenged pleading
can never be presented to the court for its consideration on a
demurrer. A demurrer to a complaint examines only the face of the
complaint. All of the facts asserted are taken to be true for
purposes of deciding the legal sufficiency of the complaint.38
D. The Motion for Judgment on the Pleadings
After the pleadings have closed, either party may make a motion
for judgment on the pleadings. The motion may be used by the
defendant as a sort of hang fire demurrer, or by the plaintiff to
challenge the legal sufficiency of the defendant's answer.

37 The codes require plaintiff to plead a "cause of action." Because of procedural

wrangling over the scope of a cause of action and the difficult niceties of pleading
ultimate facts, the drafters of the federal rules discarded the concept of the cause of
action in favor of the "claim." Fed. R. Civ. P. 8(a)(2) requires "a short and plain
statement of the claim showing that the pleader is entitled to relief." For discussion
of cause of action and claim, see Exercise Three, part I.B to I.C.
38 Practice under the rules is the same, yet the rules provides an escape valve that

allows the court to consider matters outside the face of the complaint:

If, on a motion under Rule 12(b)(6) or 12(c), matters
outside the pleadings are presented to and not
excluded by the court, the motion must be treated as
one for summary judgment under Rule 56. All
parties must be given a reasonable opportunity to
present all the material that is pertinent to the
motion.
Fed. R. Civ. P. 12(d).

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As with the demurrer, the motion for judgment on the pleadings
cannot "speak."39 The allegations of the party opposing the motion
are taken as true; resolution of factual issues is reserved for trial.
Nor can the movant rely upon an affirmative allegation in her
pleading, unless it is admitted by the adversary. For example,
suppose plaintiff sues defendant on a theory of invasion of privacy,
alleging defendant used plaintiff's photograph for advertising
purposes without permission. If defendant admits using the
photograph but raises an affirmative defense, plaintiff would be
entitled to judgment on the pleadings when her complaint is legally
sufficient and defendant's affirmative defense is legally insufficient.
If the defendant denied using the photograph, however, the
plaintiff would be bound by that denial for purposes of the motion
for judgment on the pleadings. Plaintiff could not introduce
extrinsic evidence that the photograph had been used.
The motion for judgment on the pleadings "searches the
pleadings." When plaintiff makes a motion for judgment on the
pleadings, she exposes herself to the possibility that her complaint
will be dismissed. Before examining the sufficiency of the
defendant's answer, the court examines the sufficiency of the
plaintiff's complaint, and if the plaintiff's complaint does not state a
cause of action, it will be dismissed. A bad answer is good enough
to withstand a bad complaint.
The general demurrer and the motion for judgment on the
pleadings are not the only means for weeding out non meritorious
cases before trial. The motion for summary judgment is a more
effective device. Summary judgment is the subject of Exercise
Eight.

39 In rules practice also, a motion for judgment on the pleadings looks only to the

faces of the complaint and the answer. The rules have an escape valve here also. As
with the Rule 12(b)(6) motion, a court ruling on a motion for judgment on the
pleadings may consider “matters outside the pleadings,” which automatically
converts the motion into one for summary judgment. Fed. R. Civ. P. 12(d).

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III. Preliminary Questions
Study the following pleadings [assume the year is the most recent]
and answer the following questions before going to the computer
to work through CALI CIV02: Demurrers and Judgments on the
Pleadings. The computer will ask you the same questions, with the
same numbers [note the numbers are nonconsecutive here]. The
computer will also ask you additional questions that are not posed
here.
Part One—Demurrer
Assume Peter Schuler commenced his suit against David Dour in
Dakota state court by filing a complaint containing the following
allegations as its body:
COMPLAINT ONE
1. On May 10, 20__, in Room 215 of Old Main at Dakota College,
defendant falsely stated "Peter (referring to plaintiff) is a heavy user
of crack cocaine."
2. As a result, plaintiff has been injured in his reputation and has
suffered great pain and mental anguish, all to his damage in the
sum of $100,000.
Defendant responded with a general demurrer.
Q–1. In this procedural posture, could the trial court properly
decide whether plaintiff was a heavy user of crack?
Answer yes or no.
Q–3. In ruling on the demurrer, could the trial court properly
decide whether the use of crack is a crime involving moral
turpitude?
Answer yes or no.
Q–4. In ruling on the demurrer, could the trial court properly
decide whether a disparaging statement has to be false to be
actionable?
Answer yes or no.

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Q–6. In ruling on the demurrer, can the trial court properly
decide whether publication is an element of the tort of
slander?
Answer yes or no.
Q–8. In ruling on the demurrer, could the trial court properly
decide whether a conditional privilege applies to statements
made by a college professor in a disciplinary hearing?
Answer yes or no.
Q–9. The trial court scheduled a hearing on the demurrer and
requested briefs from the parties. Plaintiff's brief argued that
using crack is a serious crime involving moral turpitude, and
therefore he did not need to plead pecuniary damage. Must
the trial court decide that plaintiff's position on this issue is
wrong in order to sustain the demurrer?
Answer yes or no.
Please consider the issues that could be decided on demurrer had
plaintiff instead filed the following complaint. The computer will
ask you questions about it.
COMPLAINT TWO
1. On May 10, 20__, in Room 215 of Old Main at Dakota
College, defendant falsely stated to Mary Trueblood and
William Roberts: "Peter (referring to plaintiff) is a heavy user
of crack cocaine."
2. As a result of defendant's false statement, plaintiff has
suffered damage to his reputation and great pain and mental
anguish, all to his damage in the sum of $100,000.
Part Two—Judgments on the Pleadings
Assume plaintiff filed Complaint Two, reprinted immediately
above.
Defendant responded with the following answer.
Answer

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1. Now comes the defendant and denies each and every
material allegation in plaintiff's complaint except the
allegations in paragraph 1 of plaintiff's complaint.
2. Now comes the defendant and for a further defense
avers that the statement made by the defendant was
made in a hearing before the Disciplinary Board of
Dakota College, when defendant, a Professor at Dakota
College, was discussing the issue of whether plaintiff, a
student, should be suspended from said college.
In response to defendant's answer, plaintiff filed the following
reply:
REPLY
1. Plaintiff admits the allegations in paragraph 2 of
defendant's answer.
2. Plaintiff further avers that defendant knew the
statement "Peter is a heavy user of crack cocaine" was
false at the time that he made it.
After the reply was filed, defendant moved for judgment
on the pleadings.
Q–16. In ruling on defendant's motion, may the trial court
properly decide whether plaintiff is a user of crack?
Answer yes or no.
Q–17. In ruling on defendant's motion, may the trial court
properly decide whether using crack is a serious crime
involving moral turpitude?
Answer yes or no.
Q–18. In ruling on defendant's motion, may the trial court
properly decide whether a statement by a college professor
before a disciplinary board is absolutely privileged?
Answer yes or no.
Q–19. If the trial court determined that a statement of a
professor before a disciplinary board was absolutely

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privileged, would defendant be entitled to judgment on the
pleadings?
Answer yes or no.
Q–20. If the plaintiff had denied that the statement was made
before the disciplinary board, would the defendant be entitled
to judgment on the pleadings if such statements were
absolutely privileged?
Answer yes or no.
Q–21. On the motion for judgment on the pleadings, may the
trial court properly decide whether publication is an element
of the tort of slander?
Answer yes or no.
Q–22. Suppose that the plaintiff alleged publication and the
defendant admitted making the statement to plaintiff, denied
publication, and raised the affirmative defense of due care. In
a motion for judgment on the pleadings, could the trial court
properly decide whether publication is an element of the tort
of slander?
Answer yes or no.
You are now ready to go to the computer to do CALI CIV 02:
Demurrers and Judgments on the Pleadings. The estimated
completion time for this computer-assisted exercise is one hour; it
can be done in more than one sitting.

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Exercise Five - Motions to
Dismiss and Waiver under
Federal Rule 12
I. Raising, and Waiving, Rule 12 Defenses
Exercise Three explored pleading a complaint. This exercise
explores one type of response to a complaint: a preliminary motion
to dismiss under Federal Rule of Civil Procedure 12. Consequently,
this exercise is narrower than Exercise Three. We do not explore
the requirements of, or drafting, an answer, which is the responsive
pleading to the complaint. We do not discuss other possible
preliminary motions, such as a motion for more definite statement
or a motion to strike. We discuss the assertion–and possible
waiver–of the seven grounds found in Federal Rule 12(b) for
dismissal of a complaint.
A. The Federal Rule 12(b) Defenses
1. Abandonment of the Special Appearance
The common law provided a plea in abatement to attack
jurisdiction and a demurrer to attack the legal sufficiency of a
complaint. The codes provided a demurrer to handle both tasks. In
both systems, the defendant could make a special appearance to
challenge jurisdiction. This can be seen in some older decisions that
refer to defendant having “appeared specially.”
Special appearance was a term of art. Defendant appeared in the
court for the sole purpose of challenging personal jurisdiction, and
no other purpose. That was why the appearance was special. A
defendant who attempted to present other defenses or motions
before the court made a general appearance, and a general
appearance amounted to a consent to personal jurisdiction. A
defendant who challenged jurisdiction and at the same time
pleaded to the merits of the complaint obviously called on the
power of the court; this was a general appearance. A defendant

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could also consent, or waive objection, to personal jurisdiction
more subtly. For example, a defendant made a general appearance
by such actions as opposing plaintiff’s motion to amend the
complaint, engaging in discovery, challenging the legal sufficiency
of the complaint, or possibly even informing the court that it chose
not to appear. Consequently, a defendant wishing to challenge
personal jurisdiction had to be careful; the challenge must have
been to personal jurisdiction and nothing else.
When the special appearance was successful, the case was
dismissed and defendant went home happy. When the special
appearance was unsuccessful, the case proceeded. At that point,
defendant might have a choice to make. Some states allowed
defendant to proceed to defend on the merits while preserving the
jurisdictional objection. Other states provided that a defendant
who proceeded to defend on the merits waived the jurisdictional
objection.
All of this has been swept aside in practice in federal courts and in
state court systems patterned after the Federal Rules. Federal Rule
12(b) has abolished the special appearance: “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.”
2. Assertion of Rule 12(b) Defenses
A defendant is required to serve an answer on plaintiff within “20
days after being served with the summons and complaint.” Fed. R.
Civ. P. 12(a)(1)(A)(i). [A defendant waiving service is allowed a
response time of 60 days (90 days if defendant was addressed
outside any federal judicial district). Fed. R. Civ. P. 12(a)(1)(A(ii)].
Instead of answering within that 20-day period, defendant may
choose to make a preliminary Rule 12(b) motion to dismiss.40.
40 Actually, defendant is

not the only party who can raise these defenses. The
plaintiff, for example, can raise the defenses in response to a counterclaim. The
language of Fed. R. Civ. P. 12 is carefully drawn to cover any party responding to a
claim, whether defendant, plaintiff, or third party defendant. For convenience, this
exercise will use the terms "plaintiff" and "defendant" in the usual context of a
simple two-party action with no counterclaim.

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Should defendant choose that course of defense, and the motion
prove unsuccessful, defendant is allowed 10 days after service of
the court’s unfavorable decision on the motion to answer. Fed. R.
Civ. P. 12(a)(4)(A).
The seven challenges that Federal Rule 12(b) specifically allows to
be made by preliminary motion are the following:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted;
and
(7) failure to join a party under Rule 19.
A defendant wishing to raise any one of these seven challenges has
two options. Option one is to raise any and all of the defenses in
the answer. “Every defense to a claim for relief in any pleading
must be asserted in the responsive pleading if one is required.”
Fed. R. Civ. P. 12(b). The answer is the responsive pleading
required to the complaint. Fed. R. Civ. P. 7(a). Option two is to
raise any and all of these defenses in a preliminary motion, one
made before the answer is pleaded. “But a party may assert the
following defenses by motion: [listing the seven defenses]. A
motion asserting any of these defenses must be made before
pleading if a responsive pleading is allowed.” Fed. R. Civ. P. 12(b).
The party may join all motions under Rule 12 into a single motion.
Fed. R. Civ. P. 12(g)(1).
Those are the only two options. A defendant who brings a
preliminary motion to dismiss that asserts fewer than all of the
defenses and later attempts to assert an additional Rule 12(b)
defense for the first time in the answer will in most instances waive
it, as discussed in I.A.3, infra. Similarly, a defendant cannot make

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successive preliminary motions to dismiss; one is the quota
allowed:
Except as provided in Rule 12(h)(2) or (3),
a party that makes a motion under this rule
must not make another motion under this
rule raising a defense or objection that was
available to the party but omitted from its
earlier motion.
Fed. R. Civ. P. 12(g)(2).
The reason the rules limit defendant to one preliminary motion is
rather obvious. That is the efficient method to dispose of all the
threshold jurisdictional motions. Without that limitation, defendant
could delay the proceeding for a long time by doling out the
motions. For example, defendant could move to dismiss for
insufficient service of process; following denial of that motion,
defendant could move to dismiss for improper venue. The string
could continue through multiple preliminary motions.
All of the seven grounds for dismissal found in Federal Rule 12(b)
are threshold issues that can and should be disposed of before the
parties and the court proceed to the work of deciding the merits of
the case.41 With the exception of dismissal for failure to state a
claim upon which relief can be granted, all of the grounds for
dismissal are separable from the merits. With the exceptions of
dismissal for failure to join a Rule 19 party and failure to state a
claim, all of the grounds for dismissal render the court powerless to
act in the case because of a defect in jurisdiction, venue, or service
of process. By requiring defendant to assert these defenses early–
either in preliminary motion or no later than the answer–the rules
prevent defendant from laying in the weeds and springing such a
ground for dismissal on plaintiff later should progress in the
litigation not be favorable to defendant.

41 “If a party so moves, any defense listed in Rule 12(b)(1)-(7)–whether made in a

pleading or by motion–and a motion under Rule 12(c) must be heard and decided
before trial unless the court orders a deferral until trial.” Fed. R. Civ. P. 12(i).

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3. Waiving Rule 12(b) Defenses
While Fed. R. Civ. P. 12(g)(2) requires a defendant who makes a
preliminary motion under Rule 12 to consolidate all of its Rule
12(b) defenses into that motion, the enforcement provision is
found in Fed. R. Civ. P. 12(h):
(1) When Some Are Waived. A party waives
any defense listed in Rule 12(b)(2)-(5) by:
(A) omitting it from a motion in the
circumstances described in Rule
12(g)(2); or
(B) failing to either:
(i) make it by motion under this
rule; or
(ii) include it in a responsive
pleading or in an amendment
allowed by rule 15(a)(1) as a matter
of course.
(2) When to Raise Others. Failure to state a
claim upon which relief can be granted, to join
a person required by Rule 19(b), or to state a
legal defense to a claim may be raised:
(A) in any pleading allowed or ordered
under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
(3) Lack of Subject-Matter Jurisdiction. If the
court determines at any time that it lacks
subject-matter jurisdiction, the court must
dismiss the action.
Fed. R. Civ. P. 12(h).
Since this exercise concerns waiver of defenses, we will work from
back to front in this rule. First, Fed. R. Civ. P. 12(h)(3) provides
that the defense of lack of subject matter jurisdiction [Fed. R. Civ.
P. 12(b)(1)] cannot be waived. This of course follows from the fact

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that jurisdiction over the subject matter is granted by constitution
and statutes, not by action of the parties. [See Exercise Two, part
I.A]. Second, Fed. R. Civ. P. 12(h)(2) provides that the defenses of
failure to state a claim [Fed. R. Civ. P. 12(b)(6)] and failure to join a
person required by Rule 19(b) [Fed. R. Civ. P. 12(b)(7)] may be
made later: in a pleading, in a motion for judgment on the
pleadings, or even at trial. In other words, these two rule 12
defenses are not waived by failure to consolidate them into a
preliminary motion.
That leaves four rule 12 defenses that by the express provision of
Fed. R. Civ. P. 12(h)(1) are waived if omitted from a preliminary
motion to dismiss made “under this rule.” These four waivable
defenses are lack of personal jurisdiction [Fed. R. Civ. P.
12(b)(2)],42 improper venue [Fed. R. Civ. P. 12(b)(3)], insufficient
process [Fed. R. Civ. P. 12(b)(4)], and insufficient service of
process [Fed. R. Civ. P. 12(b)(5)].43 .These defenses must be
consolidated into any preliminary motion brought under rule 12
[Fed. R. Civ. P. 12(g)(2)]; in the absence of a preliminary motion to
dismiss, these defenses must be consolidated into the answer; or
these defenses must be consolidated into an amendment to the
answer that is allowed to be made as a matter of course.44 Failure of
42 While the rule refers to lack of jurisdiction over the person, this is understood to

include all bases of personal jurisdiction, including in personam, in rem, and quasi in
rem jurisdiction. [See Exercise Two, part I.A].
43 A motion to dismiss for insufficient process is properly brought only when the

form of the process is defective. A motion to dismiss for insufficient service of
process is properly brought to challenge the method of serving the process.
44 Fed. R. Civ. P. 12(h)(1)(B)(ii) allows a defense omitted from the answer to be

saved by amendment of the pleading made as a matter of course. Fed. R. Civ. P.
15(a)(1)(A) allows the complaint to be amended once as a matter of course “before
being served with a responsive pleading.” While the answer is the responsive
pleading to the complaint, no responsive pleading to the answer is usually
permitted [unless the court orders a reply pursuant to Fed. R. Civ. P. 7(a)(7)], Fed.
R. Civ. P. 15(a)(1)(B) gives defendant 20 days after serving the answer on the
plaintiff to amend the answer as a matter of course. Later amendment of the
answer, as by consent of the parties or by leave of court, does not save the omitted
defense.

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defendant to assert one or more of these defenses in one of the
preceding manners results in waiver of the defense(s).
II. Written Exercise
The following pages–and the accompanying computer-aided
exercise CALI CIV 09–contain several questions to probe your
understanding of the interrelationships of the federal rules and
federal statutes involved in questions of waiver of defenses under
Federal Rule 12. You will be required to exercise close scrutiny and
interpretation of a complex set of interrelated provisions. The rules
are Fed. R. Civ. P. 6(b), 7, 11, 12, and 15(a). The statutes are 28
U.S.C. §§ 1391(a) [venue] and 1404(a) [transfer of venue]. You will
need your rulebook with these rules and statutes for both the
following written exercise and CALI CIV 09. The questions in the
written exercise and the computer-assisted lesson examine these
rules and statutes, consider the reasons for special treatment of
Rule 12 defenses, and analyze the waiver provisions of the rule.
Instructions. This section contains questions for you to answer to
test and strengthen your knowledge of waiver of Rule 12 defenses.
Use your scrolling feature so that the screen shows only the
question. Answer the question, then scroll down to compare your
answer to the authors’ answer.
Q–1. Federal Rule of Civil Procedure 12(b) lists seven defenses
that may be raised by the defendant prior to answering the
complaint. A preliminary motion raising one of the Rule 12(b)
defenses postpones the time for filing the answer until after the
court has ruled on the motion. Fed. R. Civ. P. 12(a)(4)(A). The
following questions are designed to probe why these defenses
receive special treatment.
Q–1(a). Do the seven defenses in Rule 12(b) all involve matters
that can be determined by the court on the face of the pleadings,
without the necessity for testimony or findings of fact?
Answer to Q–1(a).
No. With the exception of the motion to dismiss for failure to
state a claim [Rule 12(b)(6)], all of the listed defenses require

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findings of fact if the factual basis for them is contested. For
example, the motion to dismiss for insufficient service of
process, if contested, would require the trial court to make a
finding about whether process was served upon an appropriate
person. In a diversity case, the motion to dismiss for lack of
subject-matter jurisdiction can turn on whether a party acquired
citizenship by moving to a new state, a matter that requires a
finding of fact about the party's actions and intent. Under Fed.
R. Civ. P. 43(c), the trial court could base factual findings on
affidavits submitted by the parties, but would have the
discretion to hear oral testimony or require depositions.
Q–1(b). Is there a need to decide the seven defenses before the rest
of the lawsuit because they raise especially important issues?
Answer to Q–1(b).
No. Not all of the issues are important. For example, the
defense of insufficient process can involve the mere assertion
that plaintiff omitted the summons or the complaint from
otherwise proper process—a matter that cannot have much
importance to a defendant who obviously knows of the lawsuit
or she would not be making the motion. Similarly, the defense
of insufficient service of process can be raised successfully if
the plaintiff served an employee of a corporation who was not
an officer, managing or general agent, or process agent within
the meaning of Rule 4(h)(1)(B). The sole purpose of allowing
such motions seems to be to encourage parties to mind their
formalities. The motions rarely terminate a lawsuit; instead,
absent a statute of limitations problem, they merely result in a
re-service of process.
Q–1(c). Are the seven defenses suitable for early disposition
because they involve trivial matters of form that should be
corrected early in the lawsuit?
Answer to Q–1(c).
No. Some of the defenses are trivial, and some are highly
important. The defense of lack of subject-matter jurisdiction is

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considered near-sacred because it protects the division of
powers between federal courts and state courts inherent in
federalism. See Charles A. Wright & Mary Kay Kane, The Law
of Federal Courts § 7 (6th ed. 2002).
Q–1(d). Do the seven defenses involve matters that can be severed
for separate determination because they do not go to the merits of
the lawsuit?
Answer to Q–1(d).
Yes, with minor qualifications. None of the defenses go to the
merits, except the defense of failure to state a claim upon
which relief can be granted. A Rule 12(b)(6) defense goes to the
merits in the sense that it involves determination of whether
the allegations, if true, present a meritorious claim. That
defense, however, does not require or allow the court to look
beyond the face of the complaint, and hence is a good defense
to sever and consider early. Surely the lawsuit should not
proceed if the plaintiff's own statement of the claim,
considered as true, provides no grounds for relief.
The other Rule 12(b) defenses have nothing to do with the
merits of the case, so they are easy to separate and rule on prior
to proceeding with the main lawsuit. Early disposition will
promote judicial economy. When a defendant has a defense of
improper venue or lack of jurisdiction, the court should rule on
that defense before the parties develop the merits of the case,
which may later be dismissed because it was brought in the
wrong court. Finally, the defenses concerning process and
service of process might just as well be disposed of earlier as
later; the possibility that separate treatment of these defenses
will result in delay may not be too high a price to pay in order
to encourage plaintiffs to adhere to the proper formalities,
which after all have the significant purpose of making sure that
defendants are given proper notice.
Q–2. Sally filed a complaint against George and process was served
on Day 1. On Day 4, prior to his answer, George filed a motion
raising the defenses of lack of subject-matter jurisdiction, lack of

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personal jurisdiction, improper venue, insufficient service of
process, and failure to state a claim upon which relief can be
granted. Can George raise all of these defenses at the same time in
the same motion?
Answer to Q–2.
Yes. The defenses can be consolidated in the motion. Fed. R.
Civ. P. 12(g)(1). Under some prior systems of pleading, the
defendant was required to raise defenses in sequence, a timeconsuming and inefficient procedure.
Q–3. Sally filed a complaint against George and process was served
on Day 1. On Day 4, prior to his answer, George filed a motion
under Rule 12(b)(1) to dismiss for lack of subject-matter
jurisdiction. The next day, George filed a motion under Rule
12(b)(3) to dismiss for improper venue. Has George waived his
venue defense?
Answer to Q–3.
Yes. Rule 12(h)(1)(A) provides for waiver of the venue defense
if it is omitted “from a motion in the circumstances described
in Rule 12(g)(2).” Rule 12(g)(2) provides for consolidation of all
Rule 12 motions that were "available" to the movant. The
purpose of these waiver provisions is to require that pre-answer
motions be brought together, thereby preventing the delay that
might arise from hearing the motions sequentially.
Q–4. Sally filed a complaint against George and process was served
on Day 1. On Day 4, prior to his answer, George filed a motion
under Rule 12(b)(2) to dismiss for lack of personal jurisdiction. The
next day, George filed a motion under Rule 12(b)(1) to dismiss for
lack of subject matter jurisdiction. Has George waived his subject
matter jurisdiction defense?
Answer to Q–4.
No. Rule 12(h)(3) provides that the defense of subject-matter
jurisdiction may be raised “at any time.” It may also be raised
by the court on its own motion. Subject matter jurisdiction is
granted by constitution and statutes, not by action of the

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parties. The federal subject matter jurisdiction defense is
considered to be particularly consequential, since erroneous
assertion of federal jurisdiction would be usurpation of state
power. Hence, the defense is not waivable; the interests of
speed and economy must yield to federalism.
Q–5. Sally filed a complaint against George and process was served
on Day 1. On Day 19, prior to his answer, George filed a motion
under Rule 12(f) to strike impertinent matter from the complaint.
The next day, George filed a motion under Rule 12(b)(2) to dismiss
for lack of personal jurisdiction. Has George waived his personal
jurisdiction defense?
Answer to Q–5.
Yes. Rule 12(h)(1)(A) provides that a defense of lack of
personal jurisdiction is waived by “omitting it from a motion in
the circumstances described in Rule 12(g)(2).” Rule 12(g)(2)
provides “a party that makes a motion under this rule must not
make another motion under this rule raising a defense or
objection that was available to the party but omitted from its
earlier motion.” Since a personal jurisdiction defense was
"available," and a Rule 12(f) motion is a "motion under this
rule [Rule 12]," the defense of personal jurisdiction was waived.
Q–6. Sally filed a complaint against George and process was served
on Day 1. Without filing any preliminary motions, George filed an
answer on Day 10 in which, in addition to responding to
allegations in Sally's complaint, he raised the defenses of lack of
personal jurisdiction, lack of subject-matter jurisdiction, failure to
state a claim upon which relief could be granted, improper venue,
and expiration of the statute of limitations. Does George have the
right to raise all of these defenses in his answer without making any
prior motions?
Answer to Q–6.
Yes. Rule 12(b) provides “a party may assert the following
defenses by motion." The defendant has two options: 1) raise
the defenses in a preliminary motion, or 2) raise the defenses in

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the answer, provided that they have not been waived by
omission from a preliminary motion. Since George made no
preliminary motion, he did not waive any defenses by failing to
join them with other defenses. They may all be consolidated in
the answer, along with admissions, denials, and affirmative
defenses.
Q–7. Sally filed a complaint against George and process was served
on Day 1. On Day 10, George filed a Rule 12(b)(1) motion raising
the defense of lack of subject-matter jurisdiction. On Day 40, the
trial court held a hearing on the Rule 12(b)(1) motion and ruled in
favor of Sally. On Day 45, George filed his answer, which was
timely because the Rule 12(b)(1) motion extended the time for
filing the answer until 10 days after notice of the court's action on
the motion. [Fed. R. Civ. P. 12(a)(4)(A).] In his answer, George
responded to the allegations in Sally's complaint and also raised the
defenses of failure to state a claim upon which relief could be
granted, lack of personal jurisdiction, expiration of the statute of
limitations, res judicata, and improper venue.
Q–7(a). Has George waived the defense of failure to state a claim
upon which relief could be granted?
Answer to Q–7(a).
No. The defense of failure to state a claim has not been waived.
Rule 12(h)(2) preserves the defense and allows it to be asserted
in a pleading, on a motion for judgment on the pleadings, or at
trial. The defense is considered too important to allow it to be
waived by mistake.
Q–7(b). Has George waived the defense of lack of personal
jurisdiction?
Answer to Q–7(b).
Yes. The defense of personal jurisdiction was waived by failure
to join it in the Rule 12 motion. See Rule 12(h)(1)(A).
Q–7(c). Has George waived the defense of the statute of
limitations?

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Answer to Q–7(c).
No. The statute of limitations defense has not been waived
because it is not a Rule 12 defense. This affirmative defense [see
Fed. R. Civ. P 8(c)(1)] could not have been raised in the Rule
12 motion, and therefore cannot be waived by omission from
the motion.
Q–7(d). Has George waived the venue defense?
Answer to Q–7(d).
Yes. The defense of improper venue has been waived by the
provisions of Rule 12(h)(1)(A).
Q–8. Sally filed and served a summons and complaint, and a set of
interrogatories, on George on Day 1. On Day 10, George made a
Rule 26(c) motion for a protective order, claiming that the
interrogatories were burdensome and vexatious. On Day 15,
George filed an answer responding to the allegations in Sally's
complaint and raising the defense of improper venue. Has George
waived the defense of improper venue?
Answer to Q–8.
No. Rule 12(h)(1)(A) provides for waiver of a venue defense
omitted from a Rule 12 motion in circumstances in which Rule
12 requires joinder. The operative language is in Rule 12(g)(2),
which requires consolidation when a motion has been made
"under this rule," i.e., under Rule 12. The Rule 26(c) motion for
a protective order was not a Rule 12 motion, so omission of a
venue defense did not trigger the waiver provisions of Rule
12(h)(1).
Q–9. Sally filed and served a complaint against George on Day 1.
George did not file any preliminary motions. On Day 10, he served
and filed an answer that denied all of the material allegations of
Sally's complaint and raised the defenses of lack of subject matter
jurisdiction and contributory negligence. Neither the parties nor the
court took any further action until Day 25, when George attempted
to amend his answer to include the defense of improper venue.
Will this amendment save the venue defense?

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Answer to Q–9.
Yes. George may amend the answer and save the venue
defense. Rule 12(h)(1)(B) provides that the venue defense is
waived if it is omitted from a Rule 12 motion, or no motion
having been made, if it is omitted from a "responsive pleading
or in an amendment allowed by Rule 15(a)(1) as a matter of
course." Here the amendment is permitted "as a matter of
course" because no responsive pleading is normally permitted
to an answer [see Fed. R. Civ. P. 7(a)], and 20 days have not
passed since the answer was served [see Rule 15(a)(1)(B)].
Q–10. Sally commenced an action alleging that George had
defamed her by telling third persons that she is a drug addict.
Process was served on Day 1. George did not make any
preliminary motions. On Day 10, he filed an answer denying that
he had ever said that Sally is a drug addict, and admitting all of the
other allegations of Sally's complaint. On Day 35, George
attempted to amend his answer to assert the defense of lack of
personal jurisdiction. Will this amendment save the personal
jurisdiction defense?
Answer to Q–10.
No. Here, the period during which the answer could be
amended as a matter of course has elapsed, since no responsive
pleading is normally permitted to an answer [see Fed. R. Civ. P.
7(a)] and more than 20 days have passed since service of the
answer [see Fed. R. Civ. P. 15(a)(a)(B)]. Therefore, under Rule
12(h)(1)(B), the defense of lack of personal jurisdiction has
been waived.
III. Computer Exercise: CALI Civ 09
You are now ready for additional work in applying Rule 12 in
CALI CIV 09: Waiver Under Rule 12. Be sure to take your Federal
Rules rulebook with you to the computer. The estimated
completion time for this computer-assisted exercise is one hour; it
can be done in more than one sitting.

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Exercise Six - Joinder and
Supplemental Jurisdiction
I. Introduction
A. Joinder Devices Available under the Federal Rules
1. Common Law and Code Practice
Joinder was harshly restricted under the common law. Since a
primary goal of common law pleading was reduction of the case to
a single issue of law or fact [see Exercise Three, part I.A.3], the
typical case was one plaintiff against one defendant on one theory
of recovery. Joinder of claims or parties on the grounds of
convenience or judicial economy was not considered desirable.
Joinder of differing theories of recovery was difficult and often
impossible because of the common law writ system. Consider, for
example, a plaintiff who wished to plead that defendant had both
restrained him and announced to bystanders that he had caught a
horse thief. Could plaintiff join these two theories in a single
action? Since false imprisonment was properly brought under a
writ of trespass, and slander was properly brought under a writ of
case, the defendant could successfully demur for improper joinder.
The same result followed should plaintiff wish to plead defendant
had taken a horse (trespass) and refused to return it (case).
Similarly, joinder of parties was difficult because plaintiff was the
master of his own case. While joinder of parties was possible, it
depended on the substantive rights of the parties, which in turn
depended on complicated rules that traced once again into the writ
system.
Procedure in the court of equity was more flexible. Equity did not
attempt to hold a case to a single issue. In fact, equity attempted to
resolve an entire dispute in a single lawsuit; a popular equity maxim
was “equity delights to do justice and not by halves.” Accordingly,
equity allowed plaintiffs to join various theories of recovery in a

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single suit, and equity allowed joinder of additional parties whose
interests were implicated by the main controversy.
The middle 1800s brought on the wave of procedural reform of
the codes. The codes borrowed from both common law and
equity, and adopted several joinder concepts from the latter. See
Charles E. Clark, Code Pleading chs. 6-7 (2d ed. 1947). Joinder
became easier. Problems remained. Joinder of theories of recovery
was limited by narrow court interpretations of “transaction or
transactions”45 and also by the typical code provision that causes of
action joined “must affect all the parties to the action.” Joinder of
parties was limited by narrow court interpretations of typical code
provisions, such as that plaintiffs could join when they had “an
interest in the subject of the action and in obtaining the relief
demanded,” or that defendants could be joined when they “claim
an interest in the controversy adverse to the plaintiff.” See Charles
E. Clark, Code Pleading 365, 382 (2d ed. 1947). A case, decided as
late as 1925, illustrates these difficulties. In Ader v. Blau, 241 N.Y. 7,
148 N.E. 771 (1925), plaintiff sued two defendants for wrongful
death. The cause of action for negligence against the first
defendant was for maintaining an attractive nuisance on which a
boy hurt himself; the cause of action against the second defendant
was for medical malpractice in treating the injuries. The decision
was that parties and causes of action were misjoined since the

45 The typical pattern of a code was to list categories of causes of action that

could be joined:
(1) contracts, express or implied; (2) injuries to the
person; (3) injuries to the character; (4) injuries to
the property; (5) actions to recover real property
with or without damages; (6) actions to recover
chattels with or without damages; (7) claims against a
trustee by virtue of a contract or operation of law;
(8) actions arising out of the same transaction or
transactions connected with the same subject of
action.
See Charles E. Clark, Code Pleading 441 (2d ed. 1947).

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causes of action did not arise out of the same transaction and they
did not affect all the parties.
2. Federal Rules Joinder
The Federal Rules of Civil Procedure, promulgated in 1938,
adopted the reforms of the codes and went further. Because the
drafters were able to identify the problem areas that had developed
in joinder under the codes, they were able to eliminate many of the
problems. Joinder of both theories of recovery and of parties
became easier. This increased ease of joinder was tongue-in-groove
with the new role of pleading. Pleading under the common law and
the codes served four functions: 1) giving the opponent and the
judge notice of the nature of the claim (or defense), 2) weeding out
groundless claims (or defenses), 3) revealing the facts of the case,
and 4) narrowing the issues. See Exercise Three, part I.A.3.
Pleading under the Federal Rules was designed primarily to give the
opponent notice and to leave the functions of revealing facts,
narrowing issues, and weeding out meritless claims to discovery.
See Exercise Three, part I.C.2. Similarly, joinder was designed to
promote broad convenience and judicial economy, and to leave
problems of confusion that such joinder might create to devices
such as separation and severance for trial. See Fed. R. Civ. P. 42.
A panoply of joinder devices is available under the Federal Rules.
In fact, the number of devices and the similarity of some of the
names of the devices can cause confusion. As a consequence, a
person studying federal joinder must be sure to keep the various
devices separate. The task may seem daunting at first, but
understanding the purpose of each joinder device should greatly
reduce the difficulty. This section provides the names and brief

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descriptions of all of the devices.46 The next section of this exercise
discusses each device in more detail. The Federal Rules joinder
devices are the following:


joinder of claims (party may join more than one claim
against another party);



compulsory counterclaim (claim against an opposing party that
arises out of the same transaction or occurrence as the
claim of the opposing party);



permissive counterclaim (claim against an opposing party that
does not arise out of the same transaction or occurrence);



cross-claim (claim against a co-party);



permissive joinder of parties (allows joinder of multiple
plaintiffs or multiple defendants);



compulsory joinder of parties (requires joinder of multiple
plaintiffs or multiple defendants);



third-party practice, or impleader (party defending a claim may
bring into the action a third person who may be
derivatively liable for all or part of the claim);



intervention of right (third person must be allowed to enter
the action as a party);

46 This exercise does not consider certain topics related to joinder: real party in

interest (action must be brought in the name of the person who will benefit from a
recovery), and capacity to sue or be sued (ability of a person to represent her own
interests in an action). See 6A Charles A. Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure: Civil §§ 1542-73 (2010). This exercise does not
consider standing to sue (ability of a person to challenge governmental action). See
13A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure: Jurisdiction §§ 3531 et seq. (2005).
This exercise also does not consider class actions, a joinder device that allows a
large number of persons to join as plaintiffs (or defendants) in a single litigation.
The multiple nuances of that topic far exceed the scope of this brief treatment of
joinder devices. See generally 7A-7B Charles A. Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure: Civil 2d §§ 1751-1820 (2005).

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

permissive intervention (third person may be allowed to enter
the action as a party); and



interpleader (person holding property potentially subject to
multiple claimants may require claimants to assert their
claims against the property in the same action–can be
statutory interpleader or interpleader under the rule).

B. Supplemental Jurisdiction
1. The History of Pendent and Ancillary Jurisdiction.
As part I.A discussed, the passage of years has brought more
generous joinder. With this loosening of restrictions on the joinder
devices themselves, attention in the field of joinder–at least in the
federal courts–has shifted from the joinder devices to questions of
federal subject matter jurisdiction.47 For example, a plaintiff may be
allowed as a matter of joinder of claims to attach a state law claim
to a federal question claim, but why is a federal court allowed to
adjudicate the state law claim? Or a defendant may be allowed as a
matter of joinder to assert a state law cross-claim against a codefendant, but why is a federal court allowed to adjudicate the state
law claim?
The federal courts created two common law doctrines that
expanded their jurisdictional reach over joined claims and parties:
pendent jurisdiction and ancillary jurisdiction. Both of these
common law doctrines have been subsumed into the statutory
doctrine of supplemental jurisdiction.
Pendent jurisdiction allowed a plaintiff who asserted a federal
question claim to add on, or append, additional state law theories
of recovery arising out of the same facts as the federal claim.
Assume, for example, plaintiff had been fired by her employer, and
wished to assert three theories of recovery against defendant: a civil
rights violation under Title VII, a breach of contract under state
The doctrine of supplemental jurisdiction applies only in federal courts,
which are courts of limited subject matter jurisdiction. State courts of general
jurisdiction do not have problems with limited subject matter jurisdictional
reach, so joinder problems in state courts are limited to the joinder devices.
47

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law, and the tort of intentional infliction of emotional distress
under state law. This three-count complaint could be filed in state
court. Could all three counts be brought into federal court? Yes,
said pendent jurisdiction. Since the two state-law theories arose out
of a “common nucleus of operative fact,” all formed part of the
same “case” under Article III and the entire case could be heard in
federal court.48
The pendent state law theories were limited to those factually
intertwined with the federal law theory. In the example above,
plaintiff could bring a three-count complaint for 1) Title VII
violation, 2) breach of employment contract, and 3) intentional
infliction of emotional distress. Pendent jurisdiction would not
allow 4) a factually-unrelated traffic accident between plaintiff and
one of defendant’s trucks. On the other hand, pendent jurisdiction
would likely allow 4) defamation for a reference letter sent to one
of plaintiff’s prospective new employers.
Attempts were made to expand pendent jurisdiction to cover
pendent parties as well as pendent “claims.” These attempts to
create pendent party jurisdiction achieved some success in lower
federal courts, but were repeatedly rejected in the Supreme Court.49
48 United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L.Ed.2d

218, 227-28 (1966). The idea that federal courts have power to hear all aspects of a
case traces back to Osborn v. Bank of the United States, 22 U.S. 738, 823 (1824):
[W]hen a question to which the judicial power of the
Union is extended by the constitution, forms an ingredient
of the original cause, it is in the power of congress to give
the circuit courts jurisdiction of that cause, although other
questions of fact or of law be involved in it.

While the Gibbs opinion referred to the federal claim and the state law claim, the
better terminology would be to refer to two theories of recovery within the same
claim, since a claim is commonly recognized as all facts comprising a transaction or
occurrence, which would be roughly synonymous with the “common nucleus of
operative fact.” Gibbs meshes nicely with the scope of the federal claim for relief.
See Exercise Three, part I.C.2.
49 Finley v. United States, 490 U.S. 545, 109 S. Ct. 2003, 104 L.Ed.2d 593 (1989); Owen

Equip. & Erection Co. v. Kroger, 437 U.S. 365, 98 S. Ct. 2396, 57 L.Ed.2d 274 (1978);
Aldinger v. Howard, 427 U.S. 1, 96 S. Ct. 2413, 49 L.Ed.2d 276 (1976).

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While pendent jurisdiction assisted plaintiffs, ancillary jurisdiction
assisted defendants. A defendant properly brought into federal
court was allowed by the doctrine of ancillary jurisdiction to assert
any claims it had that arose out of the same transaction or
occurrence as the original, jurisdictionally-proper claim. Thus, for
example, a defendant was allowed to assert a compulsory
counterclaim against the plaintiff because a compulsory
counterclaim by definition arose out of the same transaction or
occurrence as the claim.
Operation of ancillary jurisdiction in most cases became quite
mechanical. The test for ancillary jurisdiction was whether the
joined claim arose out of the same transaction or occurrence. The
same test was found in many of the joinder devices. Therefore,
when the joinder device was satisfied, ancillary jurisdiction was
satisfied. Ancillary jurisdiction covered compulsory counterclaims,
cross-claims, third-party claims, and intervention of right; it did not
cover permissive counterclaims and permissive intervention.
The concept of the same transaction or occurrence in its essence
means a single set of facts, so the kinship of ancillary jurisdiction to
pendent jurisdiction’s “common nucleus of operative fact” is
readily apparent. Therefore, merger of the two doctrines became
sensible.
2. Supplemental Jurisdiction
Congress decided in 1990 to merge the two jurisdictional doctrines
by statute, and to call the result “supplemental jurisdiction”:
(a) Except as provided in subsections (b)
and (c) or as expressly provided otherwise
by Federal statute, in any civil action of
which the district courts have original
jurisdiction, the district courts shall have
supplemental jurisdiction over all other
claims that are so related to claims in the
action within such original jurisdiction that
they form part of the same case or
controversy under Article III of the United
States Constitution. Such supplemental

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jurisdiction shall include claims that involve
the joinder or intervention of additional
parties.
(b) In any civil action of which the district
courts have original jurisdiction founded
solely on section 1332 of this title [diversity
jurisdiction], the district courts shall not
have supplemental jurisdiction under
subsection (a) over claims by plaintiffs
against persons made parties under Rule 14,
19, 20, or 24 of the Federal Rules of Civil
Procedure, or over claims by persons
proposed to be joined as plaintiffs under
Rule 19 of such rules, or seeking to
intervene as plaintiffs under rule 24 of such
rules, when exercising supplemental
jurisdiction over such claims would be
inconsistent
with
the
jurisdictional
requirements of section 1332.50
In later sections of this exercise, we will explore this statute in
depth and apply it in a wide variety of joinder situations. We will
see that it is not a paragon of legislative drafting and has several
unintended consequences. For now, we note that in many ways §
1367 does exactly what it was intended to do. It brings together
pendent jurisdiction and ancillary jurisdiction into the new doctrine
of supplemental jurisdiction. It establishes the test for
supplemental jurisdiction as “the same case or controversy under
Article III,” which is largely synonymous with the common nucleus
of operative fact and the transaction or occurrence. It creates
pendent party jurisdiction in the last sentence of paragraph (a). It
restricts the use of supplemental jurisdiction in diversity cases in
paragraph (b) so as not to tread on the doctrine of complete
diversity.
50 28 U.S.C. § 1367(a)-(b). Paragraph (c) outlines situations in which the federal

court may decline to exercise supplemental jurisdiction. Paragraph (d) is a saving
statute for statute of limitations purposes should the court send a state claim back
to state court. Paragraph (e) defines state for purposes of the statute.

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Consequently, any joinder question requires a series of analytical
steps. The first step is to determine whether the joinder device
permits the joinder. The second step is to determine whether the
federal court has independent subject matter jurisdiction over the
claim or party to be joined. When the federal court has
independent jurisdiction, this second step is satisfied. When,
however, the federal court does not have independent jurisdiction
over the added claim or party, then the supplemental jurisdiction
statute must be consulted. The third step is to determine that the
claim or party to be added is part of the same case or controversy
under Article III as required by § 1367(a). If so, and federal
jurisdiction is not based solely on diversity, the analysis is at an end.
If the federal jurisdictional basis is diversity, then a fourth step is
required. The fourth step demands careful parsing of § 1367(b) to
make sure that it does not take away the federal supplemental
jurisdiction that § 1367(a) granted. As can be seen, only the first
step involves operation of the actual joinder device.
II. The Joinder Devices
A. Claims
1. Joinder of Claims
As stated previously, the common law sharply restricted joinder of
claims in its search for a single issue in an action. The codes
broadened claim joinder by enumerating several possibilities for
joinder, but the courts became caught up in technical and narrow
definitions of the terms in those statutes.
The Federal Rules removed any possible questions about joinder of
claims. Joinder of claims under Federal Rule 18 is unrestricted: “A
party asserting a claim, counterclaim, crossclaim, or third-party
claim may join, as independent or alternate claims, as many claims
as it has against an opposing party.” The overriding policy is
efficiency, allowing both the court and the parties to resolve all
disputes in a single lawsuit. That means a plaintiff who has a
conglomeration of totally unrelated claims against a defendant may
join them all in one action–although Federal Rule 10 suggests
strongly that unrelated claims be stated in separate counts. It means

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also that other parties who properly bring a transactionally-related
claim, such as a counterclaim or a cross-claim, are able to add
unrelated claims.
Should a confusing mess result, the solution of the rules is to allow
the court to use its discretion under Federal Rule 42(b) to order
separate trials. Joinder of claims is not a pleading problem; it is a
trial problem.
Of course the rule makes clear that claims “may” be joined. A party
may choose either to add another claim, or to save it for a later
lawsuit. A party choosing the latter course must be wary of the
preclusion doctrines. Should the unasserted matter actually be part
of the same claim asserted in the first suit, it would be lost under
the doctrine of claim preclusion (res judicata). Even should the
unasserted matter truly be a separate claim, one or more common
issues may be litigated and decided in the first lawsuit, raising the
possibility of issue preclusion (collateral estoppel). See Exercise
Eleven.
2. Supplemental jurisdiction
Pendent jurisdiction allowed a claimant asserting a federal question
to add a state law theory of recovery when both arose from a
“common nucleus of operative fact.” The same result is allowed
under supplemental jurisdiction since the common nucleus of
operative facts is essentially equivalent to the “same case of
controversy under Article III” required by § 1367(a).
What about the situation when plaintiff has two factually unrelated
claims against defendant? When federal jurisdiction is based on a
federal question, the second, state law claim would not qualify for
supplemental jurisdiction because–being factually unrelated–it
would by definition not qualify as “part of the same case or
controversy under Article III.” When the federal basis is diversity,
then supplemental jurisdiction is not necessary because diversity
exists and plaintiff will likely be able to aggregate the amounts of all
the claims.

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B. Counterclaims
A counterclaim is asserted against an “opposing party.” Fed. R.
Civ. P. 13(a)(1), (b). Essentially that means a counterclaim crosses
the “v” of the lawsuit. A defendant may assert a counterclaim
against plaintiff. A plaintiff may assert a counterclaim against a
counterclaiming defendant. A third-party defendant may
counterclaim against a third-party plaintiff. A claim that does not
cross the “v,” as for example a defendant against another
defendant, is not a counterclaim.
The roots of counterclaim practice can be found in the common
law. The practices of recoupment and setoff were available, but
each had limitations. Recoupment by a defendant was limited to a
claim arising from the same contract or transaction as the plaintiff’s
claim. As such, it could reduce or eliminate plaintiff’s recovery, but
could not provide a positive recovery for defendant. Setoff was
created in equity to remedy these weaknesses of recoupment.
Setoff allowed a positive recovery, and the defendant’s claim did
not have to arise from the same transaction as the plaintiff’s claim.
Yet setoff had its own weaknesses: the claim to be set off had to be
liquidated or subject to ready computation. The right of setoff had
to be mutual. Most importantly, since setoff was an equitable
procedure, the circumstances had to call for the action of equity.
For example, when A and B owed each other money, and A sued B
for the debt, B could use setoff only when A was insolvent;
otherwise B could bring a separate action.
The codes invented the counterclaim. Typically, they limited its use
to situations where the counterclaim arose from the same
transaction, or from the same contract, as the claim.
The Federal Rules create two types of counterclaims: compulsory
counterclaims and permissive counterclaims.
1. Compulsory Counterclaims
A compulsory counterclaim is a counterclaim that arises out of the
same transaction or occurrence as the claim.51 Other counterclaims
51 Fed. R. Civ. P. 13(a)(1) provides as follows:

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are permissive counterclaims. Courts are therefore required to
determine the scope of the “transaction or occurrence.” While that
phrase cannot be precisely defined, in its essence a transaction or
occurrence is a single set of facts. It is not tied to legal theories or
defenses. When cars driven by A and B collide, and then driver B
gets out of his car and punches driver A, this presents one
transaction or occurrence (only one event), not one for negligence
and another for battery. Clearly, the transaction or occurrence is
close kin to the claim for relief [see Exercise Three, part I.C.2], to
the common nucleus of operative fact of pendent jurisdiction, to
the Article III case or controversy of supplemental jurisdiction, and
to the scope of a claim for purposes of res judicata [see Exercise
Eleven, part II.C].
Unfortunately, many federal courts have felt a need to gloss the
rule. The four popular glosses are 1) whether res judicata would
apply to a second suit on defendant’s claim, 2) whether the issues
of fact and law in the claim and counterclaim are largely the same,
3) whether the same evidence will support or defeat both the claim
and the counterclaim, and 4) whether the claim and counterclaim
have a logical relationship. Why “transaction or occurrence”
requires gloss is puzzling. Courts that look to a single set of facts
follow the language of the rule, not an unnecessary addition. The
logical relationship standard may make sense for the more difficult
decision of when to tie transactions together into the same claim,
as is sometimes necessary to decide for a question of joinder of
A pleading must state as a counterclaim any claim that–at
the time of its service–the pleader has against an opposing
party if the claim:
(A) arises out of the transaction or occurrence that is the
subject matter of the opposing party’s claim; and
(B) does not require adding another party over whom the
court cannot acquire jurisdiction.

As can be seen, the pleader need not state a counterclaim it does not have at the
time of serving the pleading. The rule also contains other escape valves, including
that the potential counterclaim is already “the subject of another pending action.”
Fed. R. Civ. P. 13(a)(2)A). See generally Jack H. Friedenthal, Mary Kay Kane &
Arthur R. Miller, Civil Procedure § 6.7, at 361 (4th ed. 2005).

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parties [see part II.E.1, infra] or in the field of res judicata.52 It
should be unnecessary here. See Douglas D. McFarland, In Search of
the Transaction or Occurrence: Compulsory Counterclaims, 40 Creighton L.
Rev. 699 (2007).
The party possessing a compulsory counterclaim “must state” it.
Even though a defending party is thus required to litigate its claim
in a forum of the opposing party’s choosing, the drafters decided
that this inconvenience was justified by the efficiency of litigating
all claims arising from the same transaction or occurrence in one
proceeding. A compulsory counterclaim that is not stated is lost,
although courts vary on the theory of loss, some using preclusion,
others using an estoppel, and others using a sanction for violation
of the rules.53 Clearly, the safe course for an attorney in doubt as to
whether a client’s potential counterclaim is compulsory or
permissive is to plead it.
2. Permissive Counterclaims
The Federal Rules define a permissive counterclaim by exclusion. A
permissive counterclaim is any counterclaim that is not
compulsory. “A pleading may state as a counterclaim against an
opposing party any claim that is not compulsory.” Fed. R. Civ. P.
13(b).
As the name suggests, a party may assert the permissive
counterclaim in the action or may instead sue on it in a separate
action–at a time and place of the party’s choosing. Since by
definition the permissive counterclaim does not involve the same
subject matter as the claim, little efficiency is lost. A party choosing
not to bring a permissive counterclaim must at the same time be
52 Claim preclusion covers all parts of the plaintiff’s claim that were or should have

been adjudicated. Most courts today accept the transactional definition of claim
found in Restatement (Second) of Judgments § 24 (1982): “the claim extinguished
includes all rights of the plaintiff to remedies against the defendant with respect to
all or any part of the transaction, or series of connected transactions, out of which
the action arose.”
53 See 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure: Civil 2d § 1417 (2010).

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careful that it is not lost through the operation of issue preclusion;
to the extent that the counterclaim has an issue (or issues) in
common with the claim, the decision on that issue in the litigation
of the claim may well be preclusive in a later, separate action on the
counterclaim. See Exercise Eleven, part II.B.
3. Supplemental Jurisdiction for Counterclaims
Prior to the enactment of supplemental jurisdiction, the law in the
area was clear. Compulsory counterclaims, arising out of the same
transaction or occurrence, qualified for ancillary jurisdiction;
permissive counterclaims, not arising out of the same transaction
or occurrence, did not qualify for ancillary jurisdiction.
Enactment of § 1367 in 1990 was not intended to change, and did
not change, these results. Compulsory counterclaims ride into
federal court on supplemental jurisdiction. Permissive
counterclaims do not.
Compulsory counterclaim. Looking first to § 1367(a), the court
must decide whether the counterclaim is part of the same case or
controversy under Article III. By definition, a compulsory
counterclaim, because it must arise out of the same transaction or
occurrence, is part of the same Article III case or controversy.
Looking next to § 1367(b), the court will recognize that in diversity
cases, “claims by plaintiffs against persons made parties under Rule
14, 19, 20, or 24" are not within supplemental jurisdiction. A
counterclaim is asserted under Rule 13. Since that rule is not on the
list, § 1367(b) does not apply, and the court is back to § 1367(a). A
compulsory counterclaim is carried into federal court by
supplemental jurisdiction.
Permissive counterclaim. Looking first to § 1367(a), the court must
decide whether the counterclaim is part of the same case or
controversy under Article III. By definition, a permissive
counterclaim, because it does not arise out of the same transaction
or occurrence, is not part of the same Article III case or
controversy. The court need not even consider § 1367(b).

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C. Crossclaims
1. Joinder of Crossclaims
The crossclaim traces back into the equity courts, which allowed a
party to assert a cross-bill against another party. This procedure
found its way into the federal equity rules of 1912. Many code
states adopted the procedure, usually renaming the device a crosscomplaint. See Jack H. Friedenthal, Mary Kay Kane & Arthur R.
Miller, Civil Procedure § 6.7 (4th ed. 2005).
The Federal Rules carried forward the possibility of asserting a
claim against another party to the action, either as a counterclaim
against an opposing party or as a crossclaim against a coparty. A
coparty is a party on the same side of the “v.” In other words, a
crossclaim is by a defendant against another defendant. Or a
crossclaim is by one plaintiff against another plaintiff. For example,
assume plaintiff A and plaintiff B sue defendant C and defendant
D. C could crossclaim against D since they are coparties. [Note
that should C assert such a crossclaim, C and D would then
become opposing parties, and a claim by D back against C would
be a counterclaim.] Or C and D could assert a counterclaim against
A and B. A might then plead a crossclaim against B (perhaps for
indemnity).
Federal Rule 13(g) governs crossclaims in federal practice: “A
pleading may state as a crossclaim any claim by one party against a
coparty if the claim arises out of the transaction or occurrence that
is the subject matter either of the original action or of a
counterclaim * * *.” The rule accordingly makes four things clear.
First, a crossclaim is a claim against a coparty. Second, a crossclaim
is always permissive. Third, the party must state a “claim;” an
assertion that a coparty is entirely liable should be pleaded as a
denial, not as a crossclaim. Fourth, the crossclaim must arise “out
of the transaction or occurrence” of the original claim or
counterclaim. The concept of transaction or occurrence means in
its essence the same set of operative facts [see II.B.1, supra].
Allowing parties to add factually related claims to an existing action
makes efficient sense for the court; allowing the addition of

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unrelated claims to an existing action would serve no efficiency
purpose. That is why a crossclaim must be part of the same
transaction or occurrence. This reasoning is undercut somewhat,
however, by the fact that once a party is able to plead a crossclaim,
the party is then able to add other, completely unrelated claims to
the same action. This is so because of the broad federal joinder of
claims rule, which allows the joinder of all claims against a party.
See II.A.1, supra.
2. Supplemental Jurisdiction for Crossclaims
Prior to the enactment of supplemental jurisdiction, crossclaims
qualified for ancillary jurisdiction because by rule they are required
to arise from the same transaction or occurrence as the claim, and
the same transaction or occurrence was also the test for ancillary
jurisdiction. Enactment of § 1367 in 1990 was not intended to
change, and did not change, this result.
As with any question of supplemental jurisdiction, we begin with §
1367(a). It provides supplemental jurisdiction extends to “all other
claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or
controversy under Article III * * *.” A crossclaim, because it must
arise from the same transaction or occurrence, is part of the same
case or controversy. Supplemental jurisdiction exists. We then
consult § 1367(b). It provides supplemental jurisdiction does not
exist in diversity cases when joinder is accomplished under certain
enumerated rules. Rule 13(g) is not on the list. Consequently,
crossclaims will always be covered by supplemental jurisdiction.
D. Third-Party Claims [Also Known as Impleader]
1. Joinder of Third-Party Claims
Third-party practice is commonly called impleader, and the two
terms are synonymous. The only difficulty with use of the term
impleader is that it is another joinder device beginning with “i,”
and sometimes this causes confusion. A person must remember
that impleader is used by a party to bring a person not a party (a
third party) into the action, intervention is used by a person not a
party to the action to force his way into the action, and interpleader is

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used by a person subject to multiple claims to the same property to
force all claimants to assert those claims in a single action.
Third-party practice finds its origins in a common law procedure
called “vouching in,” or “vouching to warranty.” This procedure
allowed a defendant to vouch in another person who would be
liable (originally because the third person had given a warranty on
the property sought from defendant); this allowed the vouched in
party to assume defense of the action. A judgment against the
original defendant would then also be conclusive on the vouched
in party. The weakness of this procedure was that the original
defendant was still required to bring a second, separate action
against the vouched in party to obtain a judgment. Third-party
practice was adopted by several of the code states, and
subsequently by the Federal Rules.
The advantage of third-party practice lies in this example. Plaintiff
consumer sues defendant retailer for selling a defective product.
The retailer can defend the action, and–should it lose–later sue the
manufacturer of the product in a separate action. When the retailer
wins that second action, the manufacturer ultimately pays the
damages. The retailer is removed from the middle. Drawbacks exist
with this plan, however. First, inconsistent results might occur: the
jury in the first action may decide the product was defective, and
the jury in the second action may decide the product was not
defective. Second, delay results. The retailer might have to pay the
first judgment years before the second case proceeds to judgment.
Even worse, during the time lag the statute of limitations on the
second action might expire. Third, the retailer will incur the
expense of litigating two separate actions.
Impleader removes these problems. By impleading the
manufacturer into the original action, the retailer removes the
possibility of inconsistent results since the same jury will decide the
entire action. Judgment will be entered on both the original claim
and the third-party claim at the same time, so no delay results. Both
claims will be determined in the same litigation, so little added
expense will result.

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Prior to the general, plainer English, re-writing of the Federal Rules
in 2007, the third-party practice rule was one large, complicated
paragraph. The amendment broke the rule into several smaller,
more understandable parts. Even so, in order to assist
understanding third-party practice, we parse out each sentence of
the rule. Here are the relevant portions of Federal Rule 14(a),
interspersed with our comments in italics.
A defending party may, as third-party
plaintiff, serve a summons and complaint
on a nonparty who is or may be liable to it
for all or part of the claim against it. Fed. R.
Civ. P. 14(a)(1) (in part).
Third-party practice, or impleader may be used only against “a nonparty.” A
claim against an opposing party is a counterclaim. A claim against a co-party
is a crossclaim. When plaintiff sues defendant, and defendant brings in a third
party, defendant then becomes known as “defendant and third-party plaintiff.”
The original plaintiff remains the plaintiff, and the nonparty brought into the
action is the third-party defendant.
This language also contains the most important thing to remember about the
joinder device: impleader liability must be derivative. A third-party claim
asserts the third-party defendant “is or may be liable” to the original defendant
for the defendant’s liability to the plaintiff. Impleader is not a device to offer up
an alternative defendant to the plaintiff. For example, plaintiff homeowner sues
defendant waterproofing company because the basement continues to leak.
Defendant can implead the manufacturer of the waterproof paint it used. That
is derivative liability. Defendant cannot implead the architect of the house on
the theory that the fault lies in the house design instead of the waterproofing job.
That is an alternate defendant, not derivative liability. Rule 14 cannot be used
for that purpose. Defendant should plead a denial.
But the third-party plaintiff must, by motion
obtain the court’s leave if it files the thirdparty complaint more than 14 days after
serving its original answer.. Fed. R. Civ. P.
14(a)(1) (in part).
The original defendant may implead as a matter of right within 14 days of
serving the original answer (although another party may later move to strike the

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third-party complaint, so impleader in the end is always discretionary with the
court); of course, the common practice is to serve the third-party complaint as
part of the same document as the answer. After the 14-day period has expired,
defendant must obtain leave of court to use third-party practice. The court will
decide whether the increased efficiency of a single action will outweigh any
prejudice to a party.
The person served with the summons and
third-party
complaint–the
‘third-party
defendant’:
(A) must assert any defense against the
third-party plaintiff’s claim under Rule 12;
(B) must assert any counterclaim against the
third-party plaintiff under Rule 13(a), and
may assert any counterclaim against the
third-party plaintiff under Rule 13(b) or any
crossclaim against another third-party
defendant under Rule 13(g);
(C) may assert against the plaintiff any
defense that the third-party plaintiff has to
the plaintiff’s claim * * *.. Fed. R. Civ. P.
14(a)(2) (in part).
The third-party defendant can defend the third-party claim, counterclaim
against the third-party plaintiff (original defendant), cross-claim against other
third-party defendants (if any–this is unlikely), and defend–assist in defense
of–the original claim. After all, if the original claim fails, no liability will pass
through.
[The third-party defendant] may also assert
against the plaintiff any claim arising out of
the transaction or occurrence that is the
subject matter of the plaintiff’s claim against
the third-party plaintiff.. Fed. R. Civ. P.
14(a)(2)(D).
The third-party defendant may assert a claim directly against the original
plaintiff, but that claim must be related to the action or efficiency would not
result; accordingly, the claim must arise out of the same transaction or
occurrence as the plaintiff’s claim. The proper title for such a claim is a Rule 14

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claim; it is not a counterclaim since the third-party defendant and the plaintiff
are not opposing parties until such a claim is asserted, and it is not a crossclaim since they are not co-parties.
The plaintiff may assert against the thirdparty defendant any claim arising out of the
transaction or occurrence that is the subject
matter of the plaintiff’s claim against the
third-party
plaintiff.
The
third-party
defendant must then assert any defense under
Rule 12 and any counterclaim under Rule
13(a), and may also assert any counterclaim
under Rule 13(b) or any crossclaim under
Rule 13(g).. Fed. R. Civ. P. 14(a)(3).
The original plaintiff is allowed to assert a claim directly against a third-party
defendant who the original defendant has brought into the action, so long as the
claim is transactionally related. The third-party defendant is then allowed to
defend the claim as would an original defendant. Should a claim by the plaintiff
against the third-party defendant be asserted first, it would be a Rule 14 claim;
should it be asserted after the third-party defendant has asserted a claim directly
against plaintiff, it would be a counterclaim since the two parties have become
opposing parties.
Any party may move to strike the thirdparty claim, to sever it, or to try it
separately.. Fed. R. Civ. P. 14(a)(4).
As mentioned above, the court will decide whether efficiency outweighs any
possible prejudice to a party of trial in a single action.
A third-party defendant may proceed under
this rule against a nonparty who is or may
be liable to the third-party defendant for all
or part of any claim against it.. Fed. R. Civ.
P. 14(a)(5).
This would be properly termed a fourth-party action. The third-party defendant
would become the “third-party defendant and fourth-party plaintiff.” The above
portions of Rule 14 apply, just as they do to a third-party action. And the
chain of actions can, at least in theory, continue.

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2. Supplemental Jurisdiction for Third-party Claims
Prior to the enactment of supplemental jurisdiction, third-party
claims qualified for ancillary jurisdiction (a derivative claim must
arise from the same transaction or occurrence). Enactment of §
1367 in 1990 was not intended to change, and did not change, this
result.
In the standard third-party practice situation, defendant impleads
the third-party defendant. The statute provides that supplemental
jurisdiction extends to “all other claims that are so related to claims
in the action within such original jurisdiction that they form part of
the same case or controversy under Article III * * *.” 28 U.S.C. §
1367(a). A third-party claim, because it must arise derivatively
through the original claim, is part of the same case or controversy.
Supplemental jurisdiction exists under § 1367(a). We then consult §
1367(b). It provides supplemental jurisdiction does not exist in
diversity cases for joinder “over claims by plaintiffs against persons
made parties under Rule 14 * * *.” This sentence does not apply:
even though joinder is accomplished under Rule 14, the third-party
claim is not a claim by a plaintiff. It is a claim by a defendant.
Consequently, supplemental jurisdiction exists over the third-party
claim.
The same result was intended to apply, and does apply, in two
other third-party practice situations. When the third-party
defendant brings in a fourth-party defendant, that also is not a
claim by a plaintiff, so supplemental jurisdiction attaches. Similarly,
when the third-party defendant asserts a claim directly against the
original plaintiff, that also is not a claim by a plaintiff, so
supplemental jurisdiction applies.
The opposite result was intended to apply, and does apply, when
the original plaintiff asserts a claim directly against the third-party
defendant. Even though this claim must arise from the same
transaction or occurrence, so § 1367(a) is satisfied, it is a claim by a
plaintiff against a person made party under Rule 14, so § 1367(b)
eliminates the supplemental jurisdiction. Owen Equip. & Erection Co.
v. Kroger, 437 U.S. 365, 98 S. Ct. 2396, 57 L.Ed.2d 274 (1978), held

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that ancillary jurisdiction did not extend to such a claim. The
drafters intended to, and did, carry this result forward in § 1367.
E. Joinder of Parties
1. Permissive Joinder of Parties
The common law, in its search for a single issue, made joinder of
parties difficult. It tied joinder to the substantive rights of the
parties and the forms of action. It distinguished between joint
interests in which joinder was possible and several interests in
which joinder was not possible. The codes allowed joinder more
generously, although they added their own artificial categories for
when joinder of parties would be permitted. See generally Jack H.
Friedenthal, Mary Kay Kane & Arthur R. Miller, Civil Procedure § 6.4
(4th ed. 2005).
While joinder of parties under Federal Rule 20 is not freely allowed
as is joinder of claims under Federal Rule 18 [see II.A.1, supra], the
two requirements of Federal Rule 20(a) for permissive joinder of
parties are minimal:


–the relief sought arises from the “same transaction,
occurrence, or series of transactions or occurrences,” and



–a common question of law or fact will arise.54

54 Fed. R. Civ. P. 20(a) reads in relevant part as follows:

(1) Plaintiffs. Persons may join in one action as plaintiffs
if:
(A) they assert any right to relief jointly, severally, or in the
alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or
occurrences; and
(B) any question of law or fact common to all plaintiffs
will arise in the action.
(2) Defendants. Persons * * * may be joined in one
action as defendants if:
(A) any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising out
of the same transaction, occurrence, or series of
transactions or occurrences; and

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The transaction or occurrence test arises throughout the federal
joinder devices. We have already discussed its meaning with regard
to compulsory counterclaims, for example [see II.B.1, supra]. The
essence of a transaction or occurrence is a single set of facts; it is
not in any way tied to legal theories of recovery or defenses.
Federal Rule 20 goes even further than a single transaction or
occurrence: it allows permissive joinder when the relief arises from
a series of transactions or occurrences. Perhaps, for example,
plaintiff is injured in an auto accident, and several months later the
physician treating her for the accident injuries commits malpractice.
Plaintiff can join the driver and the physician permissively as
defendants since this is a series of transactions or occurrences–
even though separated in time by several months. Or perhaps a
salesman of worthless securities sells them to plaintiff A over the
telephone and some time later sells them to plaintiff B during an
in-home presentation. The court would likely determine this to be a
series of transactions or occurrences so that the two buyers could
join permissively as plaintiffs in a single action. Here is where the
logical relationship test, considering judicial economy and
convenience, makes sense [see II.B.1, supra].
The common question requirement is even easier to satisfy. The
question may be law or fact. In the first example above, the extent
and valuation of plaintiff’s combined injuries would provide a
common question of fact. In the second example, the fraudulent
nature of defendant’s securities sales would provide a common
question of law. The rule does not require a majority of common
questions, or even a multitude of common questions. It requires
only a common question. Once again, consideration of whether a
common question is presented will prompt the court to consider
economy and convenience of trying the case in a single proceeding.
Should the court determine that parties are misjoined, the remedy
is to drop the misjoined party, not to dismiss the case. See Fed. R.
Civ. P. 21.
(B) any question of law or fact common to all defendants
will arise in the action. * * *

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2. Compulsory Joinder of Parties
The common law required joinder of parties in certain limited
situations, chiefly when a joint interest was involved. The codes
generally carried this requirement forward. In interpreting this
requirement in Shields v. Barrow, 58 U.S. (17 How.) 130, 15 L.Ed.
158 (1855), the Supreme Court distinguished between merely
necessary parties, without whom the action could proceed, and
indispensable parties, without whom the action could not proceed.
A party was deemed indispensable when the action would affect
the absent party’s interest or the action could not provide complete
relief without the absent party. Over the following years, courts
tended to sidestep the facts of the individual case in their haste to
apply one of these two conclusory labels.
When Federal Rule 19 was originally promulgated in 1938, it
adopted this system. The title of the rule was “Necessary Joinder of
Parties,” and it referred to “persons having a joint interest” who
“shall be made parties.” The same difficulties of the code systems
accompanied the new rule. Courts had great difficulty
distinguishing between “indispensable” and “necessary” parties,
and tended to slap conclusory labels on them. This resulted in
complete rewriting of Federal Rule 19 in 1966.
The title of Federal Rule 19 is now “Required Joinder of Parties.”
It attempts to avoid the labels of necessary and indispensable
parties and directs the court faced with a question of whether a
third party must be joined in an action to make a pragmatic
decision based on the individual case.
First, a court must consider Rule 19(a) to determine whether the
person is “to be joined if feasible.” The inquiry is designed to
investigate how strong the third party’s interest is in the case.55 The
rule provides guidelines to the court, primarily considering whether
the absent person’s interest will be affected or whether complete
relief is possible without the absent person. Should the court
55 7 Charles A. Wright, Arthur R. Miller & Mary Kay Kane,

Procedure: Civil 3d §§ 1601-04 (2001).

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Federal Practice and

decide the person is one who “must be joined,” the court “must
order that the person be made a party.”
In the event joinder of the person is not feasible (joinder would
destroy diversity or the person is not subject to personal
jurisdiction), then the court must proceed to Rule 19(b). That rule
leads the court through consideration of four practical factors to
determine whether the better course is to proceed without the
absent person or to dismiss the action. The rule requires the court
to place the conclusion where it belongs: at the end of the analysis.
Only after considering all the factors and deciding that the fairer of
the two options is to dismiss the action, can the court apply the
label “indispensable” party. The label is a conclusion, not a
substitute for practical considerations and analysis. This point was
driven home forcefully by the Supreme Court in a major decision
rendered only two years after the rewriting of Rule 19. Provident
Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S. Ct. 733,
19 L.Ed.2d 936 (1968).
Even though the absent person is commonly called an
indispensable party, the rules reinforce that until analysis is
completed, this conclusory label should not be applied. The motion
to dismiss is to be made for “failure to join a party under Rule 19.”
Fed. R. Civ. P. 12(b)(7). A party is instructed as to waiver for
failure “to join a person required by Rule 19(b).” Fed. R. Civ. P.
12(h)(2). Accordingly, the proper term for such a party is a “Rule
19 party.” The term “indispensable party” is conspicuously absent
from the rules.
3. Supplemental Jurisdiction for Joinder of Parties
As discussed in I.B.1, supra, pendent and ancillary jurisdiction were
devices that supported joinder of additional claims in a federal
lawsuit. Despite several attempts by lower federal courts to
establish a doctrine of pendent party jurisdiction, these efforts were
uniformly rejected by the Supreme Court.
With the adoption of supplemental jurisdiction in 1990, the
possibility of supplemental jurisdiction over additional parties to a
lawsuit arose. First, § 1367(a) provides “[s]uch supplemental

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jurisdiction shall include claims that involve the joinder or
intervention of additional parties.” Second, § 1367(b) applies only
to diversity cases.
Consequently, a case in federal court on any basis save diversity
alone will allow the joinder of additional, nondiverse parties.
Consider the facts of Finley v. United States, 490 U.S. 545, 109 S. Ct.
2003, 104 L.Ed.2d 593 (1989). Plaintiff, a citizen of California, sued
the United States in federal court when her husband’s airplane
crashed at the San Diego airport; she sought to join a second
defendant, the city of San Diego, a California citizen, on a state law
tort claim arising out of the same crash. The Supreme Court
refused pendent party jurisdiction. Today, both of these claims
could be brought into federal court. Plaintiff’s suit against the
United States comes in because the United States is a party. 28
U.S.C. § 1346. Plaintiff’s claim against the city comes in by
supplemental jurisdiction. This is so because § 1367(a) requires the
two claims be part of the “same case or controversy under Article
III.” Only one airplane crashed; everything arose out of that single
accident. Further, the statute specifically covers “claims that
involve the joinder or intervention of additional parties.” That is
the end of the jurisdictional analysis since § 1367(b) applies only to
a “civil action of which the district courts have original jurisdiction
founded solely on section 1332.”
An unintended glitch in the statute may even allow permissive
joinder of plaintiffs who fail to meet the diversity requirements.
Consider, for example, two subcontractors, both citizens of state
A, who wish to sue defendant contractor, a citizen of state B, for
breach of their separate contracts in the same construction project.
One plaintiff seeks $400,000, but the other plaintiff seeks only
$27,000. Clearly, one plaintiff satisfies diversity requirements, but
the other does not. Can the two plaintiffs join permissively to sue
together in federal court?
The question of joinder is easily answered. Both parties sue on
contracts arising from the same construction project, so the same
transaction or occurrence is involved (one building project); at least

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one common question may arise on the events of the project or in
interpretation of the standard-form contracts.
The more interesting question is whether diversity jurisdiction
between plaintiff one and defendant allows supplemental
jurisdiction over plaintiff two. We first look to § 1367(a) and
determine that all parties were involved in one constitutional case
or controversy (only one building project). Then we look at §
1367(b), which applies since the sole basis for federal jurisdiction is
diversity. The statute reads “the district courts shall not have
supplemental jurisdiction under subsection (a) over claims by
plaintiffs against persons made parties under Rule * * * 20 * * *.”
This is a claim by a person made party under Rule 20, not a claim
against a person made party under Rule 20, so § 1367(b) does not
speak to this situation. How should a court respond to this
apparent drafting error? Some federal courts read the statute as it is
written and allow supplemental jurisdiction. E.g., Stromberg Metal
Works, Inc. v. Press Mechanical, Inc., 77 F.3d 928 (7th Cir. 1996).
F. Intervention
A person who is not a party to a lawsuit can force his way in and
become a party through the joinder device of intervention. The
outsider can intervene into the lawsuit, either as a plaintiff or as a
defendant. Should the intervention be successful, the intervenor
becomes a full-fledged party to the suit.
Intervention originated in Roman law to give a nonparty a means
to protect an interest when that interest might be affected by a
decision in a lawsuit that the losing party chose not to appeal; it
developed in different forms in the common law and equity
courts.56 The device was taken into practice under the codes, and a
typical code required the nonparty to show she had an interest in
the subject matter of the lawsuit that was not represented by the
current parties.

56 See Jack H. Friedenthal, Mary Kay Kane & Arthur R. Miller, Civil Procedure § 6.10

(4th ed. 2005).

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Federal Rule 24 provides two types of intervention: of right and
permissive. When the nonparty satisfies the requirements of Rule
24(a), it has a right to intervene. When the nonparty is unable to
satisfy that rule, it still may intervene permissively under Rule 24(b)
in the discretion of the court. Of course, since the court must
decide whether the requirements of Rule 24(a) are satisfied, in a
large sense all intervention is permissive.
In a second sense also, all intervention is permissive. A nonparty is
never required to intervene. It can choose to remain outside a
lawsuit and attempt to protect its interests in a separate suit. Due
process prevents binding nonparties with the result of a lawsuit.
The joinder device of intervention balances a number of interests.
It prevents persons from impairing the rights of nonparties
through a lawsuit. It promotes efficiency by allowing entire
controversies to be resolved in a single lawsuit. It balances the
control of the litigation by the original parties with control shared
with the new party; this seems to be part of the general trend
toward dilution of party control in favor of court governance of a
lawsuit.
1. Intervention of Right
Federal Rule 24(a) places three essential requirements on a party
seeking to intervene of right. First, the application for intervention
must be timely. The rule provides no guidelines of timeliness, so the
court will consider the matter on an individual case basis. The court
will consider such things as the stage of the litigation, the reasons
for any delay in application, and any possible prejudice to the
existing parties should the intervention be allowed. Certainly an
application to intervene made during the pleading stage of the
litigation will be timely; later applications raise possible delay for
the original parties.
Second, the nonparty must show (a statute granting a right to
intervene or) “an interest relating to the property or transaction that
is the subject of the action and [the movant] is so situated that
disposing of the action may as a practical matter impair or impede the
movant’s ability to protect its interest.” Fed. R. Civ. P. 24(a) (emphasis

178

added). A person who claims the proceeds of an insurance policy
has an interest in that policy that would support intervention into a
suit between another claimant for the proceeds and the insurance
company. A lienholder of a property has an interest in a lawsuit
involving that property. The interest need not always be economic.
The federal courts have recognized a broad range of interests to
support intervention, including economic, environmental, and
educational.57
The rule also requires that the nonparty’s interest may be impaired
or impeded. Early cases held that the nonparty had to be bound by
the potential adverse decision. This standard was almost impossible
to satisfy since due process prevents binding a nonparty. Therefore,
the rule was rewritten a number of times so that today it requires
only that the nonparty’s interest may be impaired or impeded as a
practical matter. For example, in a challenge by environmentalists
to pollution caused by an industrial plant, potential relief might
include closing the plant. Employees, businesses in the locality, and
even the county that might have its tax basis eroded would likely be
held to have interests that as a practical matter might be impaired.
Third, the nonparty must show that existing parties do not
adequately represent the movant’s interest. For example, when a
nonparty seeks the proceeds of an insurance policy, neither other
claimants to the proceeds nor the insurance company represents
the nonparty’s interest in any way. On the other hand, assume a
town zones land for open space. The landowner sues the town for
a declaratory judgment that the ordinance is invalid. Will an
environmental group that supports zoning the land for open space
be entitled to intervene of right? The answer is no because the
town is already defending the zoning and adequately represents
that interest.
This requirement that representation not be adequate can interplay
with the timeliness requirement. For example, assume parents of
schoolchildren sue the school board for racial discrimination.
57 See 7C Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure: Civil 3d § 1908 (2007).

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Other parents support the board policies, but they cannot
intervene because the board is adequately representing their
interests. The lengthy litigation results in a judgment by the trial
court that the policies are discriminatory. The school board, for
various reasons, decides not to appeal. Can the parents supporting
the board’s policies now intervene for purpose of prosecuting the
appeal? Their interests for the first time are not represented, yet
post judgment in the trial court is hardly timely. A well-known case,
Smuck v. Hobson, 408 F.2d 176 (D.C. Cir. 1969), allowed
intervention, but not all courts have agreed that such intervention
is timely.
2. Permissive intervention
When the nonparty cannot qualify for intervention of right, it may
still seek leave of court to intervene permissively. Federal Rule
24(b) requires only a timely application and a showing that a federal
statute confers a conditional right to intervene or the movant “has
a claim or defense that shares with the main action a common
question of law or fact.”
As with permissive joinder of parties [see II.E.1, supra], a common
question is usually easy to find. Since the sole requirement of a
common question is so minimal, much will depend on the
discretion of the court. The court will consider such things as the
strength of the intervenor’s interest, possible prejudice to existing
parties, and possible dilution of the control of the lawsuit by the
original parties.
3. Supplemental Jurisdiction over Intervenors
Prior to 1990, persons intervening of right generally qualified for
ancillary jurisdiction while persons intervening only permissively
had to establish their own independent basis for federal
jurisdiction. The advent of supplemental jurisdiction in 1990 tilted
the scale strongly toward the requirement of an independent basis
of federal jurisdiction for all intervenors.
As with any question of supplemental jurisdiction, we first consider
§ 1367(a), which requires that the claim to be added “be so related
to claims in the action within such original jurisdiction that they

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form part of the same case or controversy under Article III.” The
court will look closely at the intervenor’s interest/claim to
determine whether it is part of the same constitutional case. Since a
constitutional case is essentially a common nucleus of operative
fact, supplemental jurisdiction over an added claim by a nonparty is
possible.
Next, we consider § 1367(b). When the basis for federal
jurisdiction is diversity alone, this subsection applies, and it clearly
eliminates any possibility of supplemental jurisdiction over
intervenors:
the district courts shall not have
supplemental jurisdiction under subsection
(a) over claims by plaintiffs against persons
made parties under Rule * * * 24 of the
Federal Rules of Civil Procedure, or over
claims by persons * * * seeking to intervene
as plaintiffs under Rule 24 of such rules * *
*.
Here the statute is clear. It specifically eliminates supplemental
jurisdiction in diversity cases over both intervening defendants and
intervening plaintiffs.
G. Interpleader
We reach the last of the joinder devices, and the last of the joinder
“i”s. Interpleader is unique, and is structurally different from all of
the other joinder devices. One of your authors likes to introduce
interpleader by reading a newspaper story that appeared on the
Associated Press wire several years ago:
The scramble is on over who gets to keep
$22,350 found in a room in the Excel Inn in
Bloomington [Minnesota].
The money was in $10, $20, $50 and $100
bills when [Mary Roe], a maid, found it in a
brown leather briefcase while cleaning a
room being rented by [John Doe] of St.
Cloud [Minnesota], she said.

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Roe, following the ‘finders keepers’ theory
of law, has filed a claim for the cash. Doe,
who returned for the money the day after
he discovered it was missing, says the
money belongs to him. He told the
Bloomington police that he found it five
days earlier in a paper bag near a parked car
in north Minneapolis [on the day after the
Super Bowl].
The situation became even more
complicated when the police, who had
some doubts about Doe’s story, notified the
Internal Revenue Service. The IRS now says
Doe owes $33,963 in back taxes and
therefore is also laying claim to the money.
In addition, Excel Inns Limited Partnership,
which owns the motel, and Excel
Management Associates, which operates it,
have filed a claim to the money on the
theory that they may have more legal right
to the cash than Roe.
The city of Bloomington, which has
custody of the money, [will sue] to have the
ownership question decided in court.
What type of action will the city file? The stakeholder (the city) is
willing to hand over the stake (the briefcase of cash) to one of the
claimants, but does not want to hand it over to one claimant, be
sued by another for it, and have to pay twice. The joinder device of
interpleader was created for exactly this situation.
Originally, a true bill in interpleader required the stakeholder to
deposit the stake into court and step back to allow the claimants to
compete for it. More recently, (an action in the nature of)
interpleader allows the stakeholder also to claim the property.
Although interpleader provides a joinder device to bring all
potential claimants into a single action, it does not supply personal
jurisdiction over all the claimants. Because of this weakness, the
first federal interpleader act was passed in 1917. Today, it provides

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a method of nationwide service on claimants. This is known as
statutory interpleader. A second type of federal interpleader is also
available under Federal Rule 22. This is known as interpleader
under the rule. Both types of federal interpleader have differing
subject matter jurisdiction, personal jurisdiction, service, and other
requirements, so the stakeholder may choose one or the other
depending on how the situation fits each.
1. Statutory Interpleader
Statutory interpleader is spread through three sections of title 28:
§§ 1335, 1397, and 2361. Taken together, these sections eliminate
many of the jurisdictional problems that otherwise would exist in
federal court. Only minimal diversity is required between two or
more claimants to the property (§ 1335); the citizenship of a
plaintiff bringing the interpleader is thus irrelevant unless the
plaintiff is also a claimant (an “action in the nature of
interpleader”). A minimum jurisdictional amount of $500 is
required (§ 1335). The stakeholder must pay or place the stake into
court (§ 1335). Venue may be laid in a district where any claimant
resides (§ 1397). Process may be served nationwide (§ 2361). The
district court may enjoin claimants from pursuing the property in
any other state or federal court (§ 2361).
2. Interpleader under the Rule
Interpleader under Federal Rule 22 in many ways is less desirable
than statutory interpleader, yet because of the differing
jurisdictional requirements, it may be the only one of the two types
of federal interpleader available to the stakeholder.
Interpleader under the rule has no special diversity jurisdiction
provisions, which means that standard diversity requirements
apply. The plaintiff stakeholder must be of citizenship diverse from
all defendants/claimants (§ 1332). The stake must be of a value
exceeding $75,000 (§ 1332). Venue must be laid under standard
venue rules (§ 1391). A defendant may seek interpleader by way of
a counterclaim (statutory interpleader is silent on this possibility).
The rule is silent on whether the court may enjoin claimants from
proceeding against the stake in other actions.

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III. Questions on Joinder
Instructions. This section contains questions for you to answer to test and
strengthen your knowledge of the law of joinder and supplemental jurisdiction
Use your scrolling feature so that the screen shows only the question. Answer
the question yes, no, or maybe, and formulate your reasoning, then scroll down
to compare your answer to the authors’ answer. P represents plaintiff and D
represents defendant. For all questions, assume you are in federal court.
A. Counterclaims
Q-1. Part 1. P sues D for negligence in an auto accident. D wishes
to counterclaim against P for negligence in the same auto accident.
Is this a compulsory counterclaim? Part 2. Does this counterclaim
qualify for supplemental jurisdiction?
Answer to Q-1. Part 1.
Yes. A compulsory counterclaim arises out of the same
transaction or occurrence as the original claim. Fed. R. Civ. P.
13(a)(1)(A). One auto accident is one transaction or
occurrence. This compulsory counterclaim must be asserted or
lost.
Part 2. Yes. Since it arises out of the same transaction or
occurrence, this compulsory counterclaim is part of the same
case or controversy under Article III, as required by § 1367(a).
The counterclaim is asserted under Fed. R. Civ. P. 13(a); Rule
13 is not referenced in § 1367(b). Because § 1367(a) applies,
and § 1367(b) does not, the counterclaim qualifies for
supplemental jurisdiction.
Supplemental jurisdiction may be unnecessary. Since the
original claim was for negligence, we must assume the basis for
federal jurisdiction is diversity. When the parties are diverse for
the claim, they must also be diverse for the counterclaim.
Supplemental jurisdiction would be needed only should the
amount of the counterclaim fall short of the jurisdictional
amount required by § 1332.
Q-2. Part 1. P sues D for negligence in an auto accident. D wishes
to counterclaim against P for an antitrust violation arising out of a

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previous business relationship. Is this a compulsory counterclaim?
Part 2. Does this counterclaim qualify for supplemental
jurisdiction?
Answer to Q-2. Part 1.
No. The claim is for an auto accident. The counterclaim is for
an antitrust violation arising from activities factually unrelated
to the auto accident. That means the two claims arise from
different transactions or occurrences, so it is not a compulsory
counterclaim. Defendant may assert this as a permissive
counterclaim. Fed. R. Civ. P. 13(b).
Part 2. No. Since the permissive counterclaim does not arise
from the same transaction or occurrence, it cannot be part of
the same case or controversy under Article III as required by §
1367(a).
In this question, the counterclaim does not require
supplemental jurisdiction. An antitrust violation is a federal
question. It comes into federal court under § 1331.
Q-2. Part 3. D asserts this antitrust counterclaim against P. P has a
state tort law unfair competition claim against D arising from their
previous business relationship. Is this a compulsory
counterclaim? Part 4. Does this counterclaim qualify for
supplemental jurisdiction? Part 5. What pleading should P use to
assert this unfair competition claim against D?
Answer to Q-2. Part 3.
Yes, this is a compulsory counterclaim. Once defendant asserts
the antitrust counterclaim, P must assert this state tort law
unfair competition claim as a counterclaim to the counterclaim
since it arises out of the same transaction or occurrence as the
antitrust claim.
When pleading the original complaint, P could have joined this
claim as a separate count. P and D are of diverse citizenship (or
they could not be in federal court on the auto accident claim),
and Fed. R. Civ. P. 18(a) allows P to assert “as many claims as
it has against an opposing party.” P chose not to join the claim

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at that time, but now that D has pleaded the antitrust claim, P
must assert the unfair competition claim as a compulsory
counterclaim or lose it.
Part 4. As the answer to Part 3 notes, plaintiff could have
joined this claim in the original complaint, so supplemental
jurisdiction is not needed. Assume, however, that the court
decides P and D are not diverse. Then the question is whether
P’s state law counterclaim to D’s federal question counterclaim
is covered by supplemental jurisdiction. The answer is yes.
Both arise from the same transaction or occurrence, which
means the same case or controversy under Article III. That
satisfies § 1367(a). The counterclaim is pleaded under Fed. R.
Civ. P. 13(a), which is not listed in § 1367(b).
Part 5. Plaintiff should assert this compulsory counterclaim in
the answer to the counterclaim: “Only these pleadings are
allowed: * * * (3) an answer to a counterclaim designated as a
counterclaim * * *. Fed. R. Civ. P. 7(a).
Q-3. Part 1. P sues D for negligence in an auto accident. D wishes
to counterclaim against both P and third party X for negligence in
the same auto accident. Can D do this in a compulsory
counterclaim?
Part 2. Assume P is a citizen of New York, D is a citizen of New
Jersey, and X is a citizen of New Jersey. Does the counterclaim
against both P and X qualify for supplemental jurisdiction?
Answer to Q-3.
Yes. D can assert the compulsory counterclaim against P, and
join an additional defending party to the counterclaim under
Fed. R. Civ. P. 13(h): “Rules 19 and 20 govern the addition of a
person as a party to a counterclaim or crossclaim.” Rule 20,
governing permissive joinder of parties, allows joinder when
the claim against the added party arises out of the same
transaction or occurrence and involves a common question of
law or fact. Those requirements are met.

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Part 2. Yes. The compulsory counterclaim falls within § 1367(a)
as part of the same case or controversy under Article III. The
statute also provides “supplemental jurisdiction shall include
claims that involve the joinder or intervention of additional
parties.”
The supplemental jurisdiction so provided by § 1367(a) is not
destroyed by § 1367(b). In one view, the joinder of X is
pursuant to Rule 13(h), which is not mentioned at all in §
1367(b). In another view, the joinder of X is pursuant to Rule
20, but that does not change the result because the statute
refers to “claims by plaintiffs against persons made parties
under Rule * * * 20 * * *.” This is a claim by a defendant, not a
plaintiff, so the statute by its terms does not apply.
Q-4. P sells D an expensive piece of merchandise. D falls behind in
payments, and P sues. D answers. Some months later, D discovers
the merchandise is defective. Has D lost this compulsory
counterclaim by failing to plead it in the answer?
Answer to Q-4.
No. Fed. R. Civ. P. 13(a) provides several escape valves from
the compulsory counterclaim rule. The one that applies here is
that defendant is required to plead “any claim that–at the time
of its service–the pleader has.” Since D was unaware of the
defects at the time of answering, the claim for defects is not a
compulsory counterclaim. Other escape valves include that the
potential counterclaim requires parties beyond the jurisdiction
of the court and that the potential counterclaim is already the
subject of another action.
Q-5. P, a citizen of California, purchases merchandise from D, a
large retail store in California. When P fails to make payments, D
engages in vigorous collection efforts. P sues D in federal court for
a violation of the Fair Debt Collection Practices Act, a federal
statute. Is D’s counterclaim for the balance due on the account a
compulsory counterclaim so that it qualifies for supplemental
jurisdiction?

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Answer to Q-5.
Maybe. Our answer is yes. Rule 13(a) defines a compulsory
counterclaim as arising “out of the transaction or occurrence.”
There is only one set of facts between these two parties:
purchase, nonpayment, and collection efforts. The two parties
entered one contract. These events are all tied closely together
in time and space, and form a convenient trial unit. A layperson
would expect all matters arising from the purchase and
payment to be tried together. They form a common nucleus of
operative fact. These are all alternative ways of expressing that
this is a single transaction or occurrence. As such, it constitutes
one constitutional case or controversy under Article III. That
means supplemental jurisdiction under § 1367(a).
Some federal courts answer no. These courts note that the law
and facts of the collection efforts are different from the law
and facts of the underlying debt. More importantly, they
recognize that allowing the merchant to assert a compulsory
counterclaim for the debt might discourage purchasers from
suing initially to enforce the federal Fair Debt Collection
Practices Act. Viewed in that perspective, the collection efforts
are not part of the same transaction or occurrence as the
purchase, and thus the counterclaim is not compulsory or
supplemental. The merchant will have to sue in a separate
action in state court. See 6 Charles A. Wright, Arthur R. Miller
& Mary Kay Kane, Federal Practice and Procedure: Civil §
1410 (2010) (collecting cases).
The problem with the latter view is it ignores Rule 13(a). These
two parties have engaged in only one set of interrelated
dealings. That is one transaction or occurrence. The fact that
the rule allows the merchant to bring an ordinary state law
collection counterclaim in federal court, or that the result might
undermine to some extent the federal policy of deterring
abusive debt collection, should be irrelevant. The remedy of the
rules is an order for separate trials under Rule 42(a), not a
refusal to allow the pleading.

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B. Crossclaims
Q-6. Part 1. P, a citizen of Florida, sues D1, a citizen of Texas, and
D2, a citizen of Texas, in federal court under § 1332 for breach of
contract. Damages claimed are $200,000. Can D1 file a
counterclaim arising from the same contract against D2 for
$100,000?
Part 2. Can D2 file a crossclaim arising from the same contract
against D1 for $100,000?
Part 3. Would such a crossclaim qualify for supplemental
jurisdiction?
Answer to Q-6. Part 1.
No. A counterclaim is asserted against an opposing party. Fed.
R .Civ. P. 13(a), (b). D1 and D2 are not opposing parties as
they are both on the same side of the “v.”
Part 2. Yes. A crossclaim is asserted against a coparty. Fed. R.
Civ. P. 13(g). D2 and D1, being on the same side of the “v,”
are co-parties. Since the crossclaim arises from the same
contract as the original claim, it clearly satisfies the requirement
that it arise from the same transaction or occurrence.
Part 3. Yes. Since both D2 and D1 are citizens of Texas, the
crossclaim does not independently satisfy the diversity
requirement. Supplemental jurisdiction will be necessary.
The short answer is that a crossclaim always qualifies for
supplemental jurisdiction. The longer answer is that the
crossclaim, since it arises out of the same contract, is part of
the same transaction or occurrence, and that requirement is
essentially synonymous with being part of the same case or
controversy under Article III as required by § 1367(a). And
Rule 13(g) is not one of the joinder rules eliminated from the
operation of § 1367(a) by provision of § 1367(b). Since §
1367(a) applies, and § 1367(b) does not, supplemental
jurisdiction exists.

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Q-6. Part 4. Can D1 then file a counterclaim against D2 for
$100,000?
Part 5. Would the counterclaim qualify for supplemental
jurisdiction?
Answer to Q-6. Part 4.
Yes. Once a defendant asserts a cross-claim against another
defendant, the two become opposing parties, and the proper
device for the second defendant to assert a claim back against
the crossclaiming defendant is a counterclaim. Since all of these
claims arise from the same contract, this would be a
compulsory counterclaim.
Part 5. Yes. Since both D1 and D2 are citizens of Texas, the
counterclaim does not meet the diversity requirement itself.
Supplemental jurisdiction will be necessary.
The short answer is that a compulsory counterclaim always
qualifies for supplemental jurisdiction. The longer answer is
that the counterclaim, since it arises out of the same contract, is
part of the same transaction or occurrence, which makes it so
related to “claims in the action within such original jurisdiction
that they form part of the same case or controversy under
Article III.” So § 1367(a) applies,
Q-7. Part 1. P former employee, a citizen of Illinois, sues both D1
former employer, a corporation incorporated and operating solely
within Illinois, and D2 former supervisor, a citizen of Illinois, for a
violation of Title VII in firing her. Can D2 crossclaim against D1
for indemnity to be paid in the event P succeeds in the lawsuit?
Part 2. Would such a crossclaim qualify for supplemental
jurisdiction?
Answer to Q-7. Part 1.
Yes. This crossclaim against a coparty arises out of the same
transaction or occurrence as the original claim. The crossclaim
need not be mature at the time of pleading: “The crossclaim
may include a claim that the coparty is or may be liable to the

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cross-claimant for all or part of a claim asserted in the action
against the cross-claimant.” Fed. R. Civ. P. 13(g).
Part 2. Yes. The crossclaim does not satisfy federal jurisdiction
itself because it presents a state law question and the parties are
not diverse.
Because the crossclaim is for possible indemnity in the event P
wins her claim, the crossclaim arises from the same transaction
or occurrence as the original claim and so is part of the same
case or controversy under Article III. That satisfies § 1367(a).
Since the original federal jurisdiction was based on a federal
question under § 1331, the second paragraph of the
supplemental jurisdiction statute need not be studied: § 1367(b)
applies only when diversity is the sole basis for federal
jurisdiction. Supplemental jurisdiction exists.
Q-8. P, a citizen of Arizona, sues D1, a citizen of California, and
D2, a citizen of California, for negligence in an auto accident
occurring in California. P claims $100,000. Will a crossclaim by D1
against D2 for contribution of $50,000 qualify for supplemental
jurisdiction?
Answer to Q-8.
Yes. The crossclaim does not satisfy federal jurisdiction itself
because it presents a state law question and the jurisdictional
amount is not sufficient.
Because the crossclaim is for possible contribution in the event
P wins the claim, the crossclaim arises from the same
transaction or occurrence as the original claim and so is part of
the same case or controversy under Article III. That satisfies §
1367(a). Since the crossclaim is joined under Rule 13(g), which
is not enumerated, § 1367(b) does not apply.
Q-9. P sues D1 and D2 for conspiracy to violate the federal
antitrust laws. Can D1 file a crossclaim against D2 for breach of an
unrelated contract?
Answer to Q-9.

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No. Fed. R. Civ. P. 13(g) requires that a cross-claim arise out of
the same transaction or occurrence. A factually unrelated claim
by definition does not.
Q-10. Part 1. P, a citizen of Kentucky, sues D1, a citizen of Ohio,
and D2, a citizen of Ohio, for breach of contract. D1 files a crossclaim against D2 for breach of the same contract. Can D1 at the
same time join an unrelated tort claim against D2?
Part 2. Would the unrelated tort claim qualify for supplemental
jurisdiction?
Answer to Q-10. Part 1.
Yes. Once D1 asserts a proper crossclaim against D2, he can
join any other claims he has against that party. Fed. R. Civ. P.
18.
Part 2. No. Diversity is absent between D1 and D2, so
supplemental jurisdiction is required to bring the crossclaim
and the additionally joined claim into federal court. The
crossclaim is based on the same contract and so qualifies for
supplemental jurisdiction. The unrelated claim, even though
Rule 18 allows it to be joined, must find its own way into
federal court. Because the added claim does not arise out of the
same transaction or occurrence, it does not satisfy the
requirement of § 1367(a) that it be part of the same case or
controversy under Article III. No supplemental jurisdiction.
C. Third-party claims
Q-11. P commences an action against D for negligence arising
from an auto accident. P serves the complaint on D on June 20. D
answers with a denial on July 1. D serves a third-party complaint
on third-party defendant [3D] on July 18. Will the court strike the
third-party complaint on motion of either P or 3D?
Answer to Q-11.
Yes. Rule 14 allows defendant 14 days after service of the
answer to serve a third-party complaint without leave of court.
Since more than 14 days have passed, defendant will have to

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obtain leave of court. This early in the litigation, the court is
highly likely to grant leave to assert the impleader, so an answer
of no (on reasoning that the impleader is not timely but that
the court will likely grant leave instead of granting the motion
to strike) is acceptable.
Q-12. P commences an action against D for negligence arising
from a three-car auto accident. D serves a third-party complaint on
3D, the driver of the third car. The third-party complaint asserts D
was not negligent and 3D was negligent. Will the court strike the
third-party complaint on motion of either P or 3D?
Answer to Q-12.
Yes. A third-party claim must assert derivative liability: “is or
may be liable to [the third-party plaintiff] for all or part of the
claim against it.” Fed. R. Civ. P. 14(a)(1). This is not a claim of
derivative liability; it is a defense that another, alternative
defendant is liable directly to the plaintiff. It is not a proper use
of third-party practice.
Q-13. Part 1. P, a citizen of Washington, sues D, a citizen of
Oregon, for $250,000 for breach of contract. Can D implead 3D, a
citizen of Washington, for indemnity on liability on the contract?
Part 2. Can 3D then assert a claim against P for $125,000 for
breach of the same contract?
Part 3. Can P then assert a claim against 3D for $125,000 for
breach of the same contract?
Answer to Q-13. Part 1.
Yes. This is a proper use of third-party practice, since the
liability would be derivative. With regard to federal jurisdiction,
the original claim satisfied diversity jurisdiction (Washington v.
Oregon for $250,000), and the third-party claim independently
satisfied diversity jurisdiction (Oregon v. Washington for
$250,000), so supplemental jurisdiction need not be considered.
Part 2. Yes. This claim by the third-party defendant directly
against the plaintiff is allowed by Fed. R. Civ. P. 14(a)(2)(D)

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since it arises from the same transaction or occurrence–here
the same contract–as the original claim. With regard to federal
jurisdiction, the claim does not independently satisfy diversity
(Washington v. Washington), so we must consider
supplemental jurisdiction. Under § 1367(a), the derivative claim
is part of the same transaction or occurrence, so it is part of the
same case or controversy under Article III; under § 1367(b),
this is not a claim by a plaintiff against a person made party
under Rule 14. Consequently, supplemental jurisdiction exists.
Part 3. No. This claim by the plaintiff directly against the thirdparty defendant is allowed by Fed. R. Civ. P. 14(a)(3) since it
arises from the same transaction or occurrence–here the same
contract–as the original claim. With regard to federal
jurisdiction, however, the claim does not independently satisfy
diversity (Washington v. Washington), so we must consider
supplemental jurisdiction. Even though the claim is part of the
same case or controversy under Article III for § 1367(a), this is
a claim by a plaintiff against a person made party under Rule
14, which is disallowed by § 1367(b). Consequently,
supplemental jurisdiction does not exist.
Q-14. Part 1. P, a citizen of Michigan, sues D, a citizen of Ohio, for
an auto accident. D asserts a permissive counterclaim against P for
breach of an unrelated contract. Assume the jurisdictional amounts
in both claims are adequate. Can P implead X, a citizen of Ohio,
for indemnity on any liability on the contract?
Part 2. Can D then assert a claim directly against X for breach of
the same contract, and will the federal court have supplemental
jurisdiction over that claim?
Answer to Q-14. Part 1.
Yes. The permissive counterclaim satisfies federal jurisdiction
independently (Ohio v. Michigan for sufficient amount). At
that point, the original plaintiff, as “defending party,” may
assert a third-party claim. Fed. R. Civ. P. 14(a)(1), (b). The
third-party claim independently satisfies federal jurisdictional

194

requirements (Michigan v. Ohio for complete indemnity), so
supplemental jurisdiction is not needed.
Part 2. Yes and yes. The claim by the original defendant D
directly against X is allowed by Fed. R. Civ. P. 14(a)(3). With
regard to federal jurisdiction, the claim does not independently
satisfy diversity (Michigan v. Michigan), so we must consider
supplemental jurisdiction. The third-party claim is part of the
same transaction or occurrence as the counterclaim, which is in
federal court on its own independent jurisdictional basis, so it
satisfies § 1367(a). Under 1367(b), this is not a claim by a
plaintiff against a person made party under Rule 14.
Consequently, supplemental jurisdiction exists. Even though
this claim by “defendant” directly against X is equivalent to a
claim by an original plaintiff directly against a third-party
defendant, the plain language of § 1367(b) does not cover it.
Glitch in the statute or intended, this third-party claim is in
federal court.
D. Joinder of Parties
Q-15. A fire negligently started by D1 destroys P’s house. Several
months later, D2, D1's insurance company, refuses to pay the claim
without any good faith basis for refusal. Can P permissively join
both D1 and D2 as defendants in a single lawsuit?
Answer to Q-15.
Yes. The first requirement for permissive joinder of
defendants, that the claims against both arise from the same
transaction or occurrence, or series of transactions or
occurrences, is satisfied. Even though the claim against D1 and
the claim against D2 are separated in time by several months,
will involve little overlap in evidence, and are on different
theories of recovery, the important fact is that there was only
one fire. Everything arose from that single event. That is
properly considered a single “transaction,” and without
question both claims are from a related “series of transactions
or occurrences.” Fed. R. Civ. P. 20(a)(2)(A).

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The second requirement, that at least one common question
will arise [Fed. R. Civ. P. 20(a)(2)(B)], is easily met. Some of the
common questions are D1's negligence in the fire, the amount
of P’s damages, etc.
Q-16. Part 1. P1 is a pedestrian on the sidewalk. A car driven by D
runs a stop sign and broadsides a car driven by P2. P2's car skids
onto the sidewalk and injures P1. Can P1 and P2 permissively join
together to sue D in a single lawsuit?
Part 2. Assume P1 and P2 have not yet sued D. More than a year
later, P1 still has not recovered from the accident injuries. She
consults D2, a physician, and is treated negligently. Can P1 and P2
permissively join together as plaintiffs to sue in a single lawsuit and
permissively join both D and D2 as defendants?
Answer to Q-16. Part 1.
Yes. The first requirement for permissive joinder of plaintiffs,
that the claims of both arise from the same transaction or
occurrence, is satisfied. There was only one accident. The
second requirement of a single common question is easily met.
Issues of D’s negligence (breach of duty, causation) will arise
with regard to both plaintiffs. Fed.R.Civ.P. 20(a)(1)(A),(B).
Part 2. Yes. Both P1 and P2 can permissively join as plaintiffs
for the reasons given in the answer to Part 1. Plaintiffs can
permissively join both D and D2 as defendants for the same
reasons given in the answer to Q-15. Even though the medical
malpractice occurred more than a year after the accident, it
clearly arose from the events of the accident and therefore is
part of the same series of transactions or occurrences. P1
would not have been in the physician’s office but for the
accident injuries. The extent of P’s injuries is one apparent
common question.
Q-17. P, a citizen of Louisiana, undergoes an operation in which a
plate and screw device is implanted into his back. The device
breaks. P sues D device manufacturer, a citizen of Pennsylvania, in
federal court. P sues D surgeon, a citizen of Louisiana, in a separate

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suit in state court. D manufacturer moves to dismiss the federal
suit for failure to join a Rule 19 party. Should the motion to dismiss
be granted?
Answer to Q-17.
No. Joint tortfeasors are never Rule 19/indispensable parties.
The common law has always given plaintiff the option to sue
one or more at his option, and the unlucky chosen defendant
cannot force joinder of, or demand dismissal for failure to join,
the other(s). Temple v. Synthes Corp., 498 U.S. 5, 111 S. Ct. 315,
112 L.Ed.2d 263 (1990).
Q-18. P, a citizen of Virginia, enters a contract with D1, a citizen of
North Carolina, and at the same time enters a related contract with
D2, a citizen of Virginia. Both contracts refer to each other, and
interpretation of one will require interpretation of the other. Both
defendants fail to perform. P sues D1 for breach of contract. D1
moves to dismiss for failure to join a Rule 19 party (D2 cannot be
joined since diversity would be destroyed). Should the motion be
granted?
Answer to Q-18.
Maybe. We hope you recognized this is a trick question. The
proper answer is that no answer can be given until we grind our
way through the considerations of Federal Rule 19(a) and
19(b). A categorical answer to this question, based only on the
information so far at hand, would be to place a conclusory label
on D2, which is exactly what Fed. R. Civ. P. 19 was rewritten in
1966 to avoid.
Q-19. Part 1. P, a citizen of Florida, is employed by D Corporation,
incorporated in Delaware with principal place of business in
Georgia. D supervisor, a citizen of Florida, fires D “because we
don’t want anyone of your religion working for us.” Can P join
both defendants in a single suit in federal court alleging two counts:
1) violation of Title VII of the Civil Rights Act of 1964, and 2)
breach of the contract of employment?

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Part 2. Will the federal court have supplemental jurisdiction under
§ 1367 over the state law count two and D supervisor?
Answer to Q-19. Part 1.
Yes. Plaintiff was fired once. The claims against both
defendants arise from the same transaction or occurrence.
Common questions not only exist, but also they likely
predominate.
Part 2. Yes. Supplemental jurisdiction exists under § 1367(a)
because this is a single set of facts arising from P’s termination:
it is one case or controversy under Article III. The analysis
need not continue to § 1367(b) because that subsection applies
only when the sole basis of jurisdiction is diversity. Here, a
federal question–alleged violation of Title VII, a federal
statute–is presented. Supplemental jurisdiction under § 1367(a)
includes “joinder * * * of additional parties.”
Q-20. Part 1. P1, P2, and P3, all citizens of Pennsylvania, together
open a small business and rent a property from D in New Jersey.
The business does not succeed, and Ps believe the failure is
because D fraudulently represented the nature of the property. P1
loses $100,000, P2 loses $50,000, and P3 loses $5,000. Can the
three plaintiffs join together to sue D?
Part 2. Will the court have supplemental jurisdiction over P2 and
P3?
Part 3. D counterclaims against P1 for rent of $5000 still due on
the property. Will the court have supplemental jurisdiction over
cross-claims by P1 against the other two plaintiffs for contribution?
Answer to Q-20. Part 1.
Yes. This is permissive joinder of plaintiffs. All three plaintiffs
were involved in the same business deal for the same property.
This is the same transaction or occurrence. Common questions
involving all four include whether a fraudulent representation
was made, whether defendant acted with scienter, and the like.
Fed. R. Civ. P. 20(a)(1).

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Part 2. Maybe. The answer to this question is the same as was
discussed above in II.E.3. Diversity exists between P1 and D.
The amounts claimed by P2 and P3 are insufficient. We first
look to § 1367(a) and determine that all parties were involved
in one constitutional case or controversy (only one business
deal involving one property), and the statute allows “joinder * *
* of additional parties.” Then we look at § 1367(b): “The
district courts shall not have supplemental jurisdiction under
subsection (a) over claims by plaintiffs against persons made
parties under Rule * * * 20 * * *.” This is a claim by persons
made parties under Rule 20, not a claim against persons made
parties under Rule 20, so the plain language of § 1367(b) does
not cover this situation. How should a court respond to this
apparent drafting error? Some federal courts read the statute as
it is written and allow supplemental jurisdiction even though
the rather clear intent was not to allow supplemental
jurisdiction in such a situation.
Part 3. Maybe. The federal court certainly has supplemental
jurisdiction over the compulsory counterclaim. The question is
whether it has supplemental jurisdiction over P1's cross-claims
against P2 and P3. The cross-claims for contribution arose
from the single business deal, so § 1367(a) provides
jurisdiction. While the other plaintiffs are in the position of
defending parties to the cross-claims, they are still “plaintiffs”
in the lawsuit. The relevant sentence of § 1367(b) again is “The
district courts shall not have supplemental jurisdiction under
subsection (a) over claims by plaintiffs against persons made
parties under Rule * * * 20 * * *.” Since the other three
plaintiffs were originally made parties under Rule 20, the plain
language reading of the statute is no supplemental jurisdiction.
Another glitch.
E. Intervention
Q-21. When a man is killed in an auto accident, his two children as
next of kin bring a wrongful death action against the other driver
for negligence. Upon learning of the action, a woman who claims
she is the illegitimate daughter of the deceased seeks to intervene as

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a plaintiff to share in any recovery. Should this nonparty be allowed
to intervene of right?
Answer to Q-21.
Yes. The intervenor has an interest in the damages for
wrongful death that may be recovered. The intervenor’s
interest may be impaired: the two existing plaintiffs may obtain
a recovery that exhausts defendant’s resources. The
intervenor’s interest is not adequately represented: the two
plaintiffs have no interest in cutting her in for a share and the
defendant has no interest in providing any share to cut. See Fed.
R. Civ. P. 24(a)(2). So long as the petition for intervention is
timely, it should be granted.
Q-22. Part 1. A corporation wishes to open a drug treatment
facility in a vacant building that formerly was a neighborhood
school. To do so, it must obtain a conditional use permit from the
city. Under pressure from a neighborhood association comprised
of neighboring property owners, the city council turns down the
permit. The corporation sues the city to require it to issue the
permit. Will the neighborhood association be allowed to intervene
of right as a defendant?
Part 2. Will the neighborhood association be allowed to intervene
permissively as a defendant?
Part 3. Assume the association does not seek to intervene. When
the trial court orders the city to issue the conditional use permit
and the city council decides not to appeal, will the association be
allowed to intervene of right to pursue the appeal?
Answer to Q-22. Part 1.
No. The interests of the neighborhood association are
adequately represented by the city, which is defending the
action. Even though the members of the association have
property interests that may be impaired, they cannot intervene
of right. See Fed. R. Civ. P. 24(a)(2).
Part 2. Maybe. The sole requirement that the association’s
defense have a question of law or fact in common with the

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existing parties is easily met. See Fed. R. Civ. P. 24(b)(1)(B). At
that point, the court will consider other factors including delay
of the proceedings, control of the litigation, and value of the
association’s participation.
Part 3. Maybe. Since the association is no longer adequately
represented, it has a right to intervene, so long as it petitions
for intervention in a timely fashion. Plaintiff will argue
intervention following final judgment in the trial court is not
timely. The association will argue it acted promptly as soon as it
had a right to intervene. While the majority opinion would be
that the association may intervene of right [see II.F.1, supra], the
court in this particular case decided the petition to intervene
was untimely. Omegon, Inc. v. City of Minnetonka, 346 N.W.2d 684
(Minn. App. 1984).
Q-23. P, a citizen of Tennessee, sues D, a corporation incorporated
in Nevada with principal place of business in Kentucky, for
pollution of a body of water on which P is a landowner. The basis
of federal jurisdiction is diversity. I, a citizen of Kentucky, who
owns land that borders on the same body of water, petitions to
intervene of right, or in the alternative permissively, as a plaintiff.
Assuming Fed. R. Civ. P. 24 allows either type of intervention, will
the court have supplemental jurisdiction?
Answer to Q-23.
No. Even assuming arguendo that the proposed intervention
satisfies § 1367(a) since it involves the same pollution of the
same body of water, § 1367(b) disallows supplemental
jurisdiction in diversity cases for both intervening plaintiffs (as
here) and intervening defendants.
F. Interpleader
Q-24. An insurance company, incorporated and with principal
place of business in Ohio, issues a policy of life insurance with the
face value of $50,000. The insured dies. The daughter of the
insured, a citizen of California, sues in state court to recover the
proceeds. The widow of the insured, a citizen of California,
informs the insurance company she also intends to claim the

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proceeds. Will the insurance company be able to interplead the
daughter and widow in federal court?
Answer to Q-24.
No. Neither type of interpleader–statutory or under the rule–is
available on these facts. Statutory interpleader requires minimal
diversity of claimants [see 28 U.S.C. § 1335]; both claimants are
from California. The citizenship of the insurance company is
irrelevant since it is not claiming the stake. Interpleader under
the rule [Fed. R. Civ. P. 22] is subject to standard jurisdiction
requirements. Diversity is satisfied since the insurance company
is a citizen of Ohio and both claimants are citizens of
California, but the jurisdictional amount is insufficient. The
insurance company will have to interplead the claimants in state
court.
Q-25. Part 1. P, a citizen of Illinois, advertises a baseball
autographed by Babe Ruth on an internet auction website. P agrees
to sell the ball to A, a citizen of Illinois, for $10,000. After the
auction is closed, D, a citizen of Illinois, offers P $20,000 for the
ball, and P accepts. P then receives a letter from the New York
Yankees baseball club informing him that the ball was stolen from
a memorabilia display owned by the club. Will P be able to bring an
action against the three claimants for federal statutory interpleader?
Part 2. Will P be able to bring an action against the three claimants
for interpleader under the rule?
Answer to Q-25. Part 1.
Yes. Minimal diversity amongst the claimants exists (Illinois
and New York) and the amount in controversy is $500 or more
[see 28 U.S.C. § 1335]. P may lay venue in either Illinois or New
York, where the claimants reside [see §1397]. Process is
available nationwide [see § 2361], so if P commences the action
in Illinois, process may be served on the Yankees ball club in
New York.
Part 2. No. Standard jurisdiction requirements apply to
interpleader under the rule [Fed. R. Civ. P. 22]. Diversity

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jurisdiction
does
not
exist.
Plaintiff
and
two
defendants/claimants are citizens of Illinois. Also, the amount
in controversy does not exceed $75,000.
Q-26. Part 1. A bank incorporated and with principal place of
business in New Mexico receives a deposit for $250,000 from a
depositor in Texas. The depositor dies. The depositor’s wife, a
citizen of Texas, claims the account. Depositor’s two children, both
citizens of Texas, claim the account. Depositor’s business partner,
a citizen of Texas, claims the account. Will the bank be able to
bring an action against the four claimants for federal statutory
interpleader?
Part 2. Will the bank be able to bring an action against the four
claimants for interpleader under the rule?
Answer to Q-26. Part 1.
No. Even though § 1335 requires only minimal diversity, it
requires diversity amongst the claimants, not between the
stakeholder and the claimants. All claimants here are citizens of
Texas. Statutory interpleader is not available.
Part 2. Yes. Complete diversity exists between the plaintiff bank
and all defendant claimants. The amount in controversy
exceeds $75,000. The venue statute [28 U.S.C. § 1391(a)] allows
the bank to lay venue in Texas (where all defendants reside) or
New Mexico (where a substantial part of the property is
located). Should the bank commence the action in federal court
in New Mexico, personal jurisdiction over the Texas
defendants may be a problem.
IV. Computer Exercises
You are now ready for additional work on joinder and
supplemental jurisdiction in the computer-assisted exercises
available through CALI. We have not written a computer-assisted
exercise to accompany this written exercise on joinder and
supplemental jurisdiction, but the CALI library includes three selfcontained exercises from which to choose. All three exercises are

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written by David Welkowitz, Professor of Law, Whittier Law
School.
A. CALI CIV 11: A Review of Joinder Concepts
This exercise is intended to allow students to review joinder of
claims and parties under the Federal Rules. The exercise uses a
construction project litigation as the basis for the questions. The
litigation grows gradually, adding claims and parties along the way.
At each step, the student is asked questions about the propriety of
joining the claim and/or the party.
B. CALI CIV 18: Joinder of Claims and Parties
This exercise is designed to be used in different ways. Students may
use it as a tutorial to accompany assigned readings, as a supplement
to reinforce concepts discussed in class, or as a review before
exams. The program is interactive, requiring the student to respond
to various questions and hypotheticals to learn the principles
embodied in the rules. It does not assume any specific knowledge
of the joinder rules--it is designed to teach the rules from scratch.
The program uses hypertext links between various parts of the
program. These links offer students options in navigating through
the program so they are not forced to follow a particular order.
The user is the master of the organization. All of the rules and
statutes that are needed are available as part of the program and
may be viewed at any time by selecting an on-screen button.
The program includes units on a variety of joinder topics: claim
joinder (Rule 18); permissive party joinder (Rule 20); counterclaims
(Rule 13); crossclaims (Rule 13); third-party claims (Rule 14);
compulsory joinder of parties (Rule 19); and intervention (Rule 24).
It also contains an extensive unit devoted to the subject matter
jurisdiction problems raised by these rules. Finally, there is a review
unit to allow the user to apply the principles learned in the lesson.
C. CALI CIV 21: An Interpleader Primer
This exercise briefly describes the concept of interpleader and
some of the historical limitations on the remedy, but its focus is
on statutory interpleader [28 U.S.C. § 1335] and interpleader

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under the rule [Fed. R. Civ. P. 22]. The lesson introduces the
various procedural issues involved–such as subject matter
jurisdiction, personal jurisdiction, and venue–and highlights the
differences between statutory and rule interpleader on these
subjects. The lesson also contains a segment on the problem
presented in enjoining other pending actions. The lesson requires
the student to use the relevant statutes and rules, which are
included in the lesson.

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Exercise Seven - Discovery
I. Discovery under the federal rules
A. Philosophy
Prior to the effective date of the Federal Rules of Civil Procedure
in 1938, common law and code procedures generally assigned
pleadings the tasks of giving notice of the nature of the case,
narrowing issues for trial, weeding out groundless claims, and
revealing the facts of the case. See Exercise Three, parts I.A-B.
Beyond the pleadings, the attorney had few or no formal devices
for investigation of the opponent's case. Effective advocacy relied
on keeping the opponent in the dark about the details of the case
and items of evidence until the attorney could spring surprises at
trial. This system was called the "sporting theory of justice" in
Tiedman v. American Pigment Corp., 253 F.2d 803, 808 (4th Cir.1958).
The drafters of the Federal Rules intended to narrow the function
of the pleadings to notice-giving only, and to allow the discovery
devices to handle the other work of shaping the case for trial. See
Exercise Three, part I.C. Consequently, discovery today under the
Federal Rules has three purposes:
(1) To narrow the issues, in order that at the
trial it may be necessary to produce evidence
only on a residue of matters that are found
to be actually disputed and controverted.
(2) To obtain evidence for use at the trial.
(3) To secure information about the
existence of evidence that may be used at
the trial and to ascertain how and from
whom it may be procured, as for instance,
the existence, custody, and location of
pertinent documents or the names and
addresses of persons having knowledge of
relevant facts.
8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal
Practice and Procedure: Civil 2d § 2001, at 18 (2010)

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In order to promote the general goal of the Federal Rules of trial
and decision of cases on the merits, the discovery devices are
designed to reduce the ability to keep the opponent in the dark and
to spring surprises at trial. Of course, discovery is self-starting and
self-propelled, except for certain required initial disclosures. See
I.C., infra. Some attorneys do not engage in extensive discovery in
some cases, and some may not ask the correct discovery questions,
so surprises still occur at trial, but the adoption of the discovery
devices has given the careful, thorough attorney the ability to
minimize or even eliminate such tactics by the opponent.
The philosophy of discovery of the Federal Rules has earned high
praise:
The pre-trial deposition-discovery mechanism
established by Rules 26 to 37 is one of the most
significant innovations of the Federal Rules of
Civil Procedure. Under the prior federal practice,
the pre-trial functions of notice-giving,
issue-formulation and fact-revelation were
performed primarily and inadequately by the
pleadings. Inquiry into the issues and the facts
before trial was narrowly confined and was often
cumbersome in method. The new rules, however,
restrict the pleadings to the task of general
notice-giving and invest the deposition-discovery
process with a vital role in the preparation for
trial. The various instruments of discovery now
serve (1) as a device, along with the pre-trial
hearing under Rule 16, to narrow and clarify the
basic issues between the parties, and (2) as a
device for ascertaining the facts, or information as
to the existence or whereabouts of facts, relative
to those issues. Thus civil trials in the federal
courts no longer need be carried on in the dark.
The way is now clear, consistent with recognized
privileges, for the parties to obtain the fullest
possible knowledge of the issues and facts before
trial.

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Hickman v. Taylor, 329 U.S. 495, 500–501, 67 S. Ct. 385, 388–389,
91 L.Ed. 451, 457 (1947).
While the discovery system of the Federal Rules remains popular,
some critics have always existed. In the past three decades, the
critics have primarily pointed to the spiraling costs of litigation.
The heavy costs of discovery can lead to the abuse of discovery to
prevent the pursuit of meritorious claims,58 to force nuisance
settlements of nonmeritorious claims,59 or to delay the processing
and termination of litigation through the courts.60 In general, say
the critics, discovery as now practiced burdens society with
unnecessary, nonproductive expense.
This perception of abuses resulted in substantive amendments to
the discovery rules in 1970, 1980, 1983, 1993, 2000, and 2006.
Some of these changes were designed to give federal judges
additional control over discovery, especially in complex cases,
through pretrial conferences and discovery orders. The 1993
amendments for the first time required initial disclosure of
information without any discovery request. See I.C, infra. The 2000
amendments narrowed the scope of discovery. See I.B, infra. The
2006 amendments attempted to make discovery of electronicallystored information easier.
By and large, however, despite these criticisms and adjustments, the
basic philosophy of discovery under the Federal Rules has not been
58 "Delay and excessive expense now characterize a large percentage of all civil

litigation. The problems arise in significant part, as every judge and litigator knows,
from abuse of the discovery procedures available under the Rules." Dissent from
Order Amending Civil Rules, 446 U.S. 997, 999 (1980) (Powell, J., joined by
Stewart, J., and Rehnquist, J.).
59 "But to the extent that [discovery] permits a plaintiff with a largely groundless

claim to simply take up the time of a number of other people, with the right to do
so representing an in terrorem increment of the settlement value, rather than a
reasonably founded hope that the process will reveal relevant evidence, it is a social
cost rather than a benefit." Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741,
95 S. Ct. 1917, 1928, 44 L.Ed.2d 539, 552 (1975).
60 Several sources are collected in 8 Charles A. Wright, Arthur R. Miller & Richard

L. Marcus, Federal Practice and Procedure: Civil § 2001 (2010).

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substantially altered since 1938. The rules are intended to allow free
and open discovery so that each side can become completely
informed about the opponent's case to the end of informed
settlement or decision on the merits.
B. Scope of Discovery
The broad scope of discovery is set forth in Federal Rule 26(b)(1):
Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any
party’s claim or defense–including the
existence, description, nature, custody,
condition, and location of any documents or
other tangible things and the identity and
location of persons who know of any
discoverable matter. For good cause, the
court may order discovery of any matter
relevant to the subject matter involved in the
action. Relevant information need not be
admissible at the trial if the discovery
appears reasonably calculated to lead to the
discovery of admissible evidence. All
discovery is subject to the limitations
imposed by Rule 26(b)(2)(C).
Note the rule restricts the scope of discovery to matters that are
relevant to any party’s claim or defense. Prior to amendment in
2000, the rule allowed discovery of matters relevant “to the subject
matter involved in the pending action.” This broader scope of
discovery is now allowed by the rule only on order of the court for
good cause shown. This amendment too responded to concerns of
overly broad discovery and possible abuse, specifically to disallow
discovery to develop new claims or defenses not already pleaded.
On the one hand, the rule specifically eliminates some possible
objections to discovery. The attorney may discover material either
to explore the opponent's case or to support the attorney's own
case. The names of persons having knowledge–typically, witnesses
to the occurrence in question–must be revealed. An opponent
cannot object that the material to be discovered would be

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inadmissible at trial, e.g., hearsay, if the information is itself relevant
and will likely lead to admissible evidence.
On the other hand, the scope of discovery is not unlimited. Federal
Rule 26 places several limits on discovery. Rule 26(b)(1) provides
matters that are privileged or irrelevant are not discoverable. Rule
26(b)(2)(A) gives the court broad authority to alter the rules. Rule
26(b)(2)(C)(i) authorizes the court to limit discovery that is
“unreasonably cumulative or duplicative,” or that “can be obtained
from some other source that is more convenient, less burdensome,
or less expensive.” Rule 26(b)(3) gives protection to "work
product." Rule 26(b)(4) governs discovery from experts. Rule 26(c),
dealing with protective orders, also contains general limits designed
to keep discovery from becoming burdensome or oppressive
1. Privilege
Privileged matter is outside the scope of discovery. The law of
evidence provides privileges, and the law of the state where the
federal court sits must be consulted to determine privileges the
state law recognizes, at least in federal court cases founded on
diversity of citizenship. See Fed. R. Evid. 501. Commonly accepted
privileges include attorney-client, spousal, clergy-penitent, doctorpatient, governmental secrets, and informers. Less common
privileges include psychotherapist-patient, accountant-client, and
journalist-source. Some few states recognize other privileges,
including dentist-patient, chiropractor-patient, nurse-patient, social
worker-client, and others.
A common occurrence in a deposition is that an attorney will
object to a question and then tell the witness to answer. Such an
objection, perhaps to the form of the question or to material that
will be inadmissible at trial, is then on the record. Should the
deposition be utilized at trial, the judge can then rule on the
objection. When a question calls for privileged material, the
attorney may properly object and instruct the witness not to
answer, for the material sought is beyond the scope of discovery.

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2. Relevancy
Irrelevant material is outside the scope of discovery. Again the law
of evidence supplies our guide:
‘Relevant evidence’ means evidence having
any tendency to make the existence of any
fact that is of consequence to the
determination of the action more probable
or less probable than it would be without
the evidence.
Fed. R. Evid. 401. The definition of relevant evidence in the federal
rule combines two common law evidence concepts: materiality and
relevancy.
Materiality is the portion of the rule that says "any fact that is of
consequence to the determination of the action." In other words,
the fact to be proved must be raised in the case by the pleadings.
For example, assume in a tort case, plaintiff's attorney by
interrogatory asks defendant to reveal the location and amount of
its bank accounts. Certainly, the answer sought has nothing to do
with the issues of liability or compensatory damages. Whether a
defendant may be able to pay a judgment is not “of consequence”
to whether the defendant is liable for damages. Accordingly, the
fact is "immaterial" under the common law, and therefore
"irrelevant" under Federal Evidence Rule 401. The result depends
on whether the pleadings have raised an issue of punitive damages.
With no such issue, the question is irrelevant and outside the scope
of discovery. With a demand for punitive damages made in the
pleadings, the plaintiff will be entitled at trial to inform the jury
members of the amount of defendant's wealth so they will know
how much money will be required to punish defendant adequately.
The size of defendant's bank account would be relevant and so
within the scope of discovery.
Relevance is the portion of the rule that refers to "more probable
or less probable than it would be without the evidence." In other
words, the evidence has a tendency in logic to prove what it is
offered to prove. For example, in a fender-bender case, plaintiff

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attempts to prove that defendant was negligent in failure to keep a
proper lookout by offering evidence that defendant three days
prior to the accident had made a purchase from a pornographic
book store. That evidence tends to prove defendant made the
purchase but the purchase in no way relates to the accident; after
hearing the evidence, the jury will not have its assessment of the
probabilities of whether defendant kept proper lookout changed a
whit. A similar result follows when a party attempts to prove the
lessor caused damage to leased property by showing the lessor has
a lot of money and previously obtained a lucrative government
contract. See City of Cleveland v. Peter Kiewit Sons' Co., 624 F.2d 749
(6th Cir.1980).
Such examples are rare, however. In general, consistent with the
policy of a broad scope of discovery, the courts have interpreted
relevance generously, "to encompass any matter that bears on, or
that reasonably could lead to other matter that could bear on, any
issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340, 351, 98 S. Ct. 2380, 2389, 57 L.Ed. 253, 265 (1978).
Of course, this statement was made prior to the 2000 amendment
to Federal Rule 26(b) narrowing the scope of discovery by
restricting it to matters relevant to the parties’ claims or defenses
[see I.B., supra], but the amendment does not change the definition
of relevance.
One other question of relevance is specifically answered by Rule
26(a)(1)(A)(iv): the existence and contents of any insurance
agreement that may possibly cover damages awarded in the action
must be revealed–as a required initial disclosure.
3. Trial Preparation: Materials
An immunity from discovery of litigation materials "prepared or
formed by an adverse party's counsel in the course of his legal
duties" was created by the Supreme Court in Hickman v. Taylor, 329
U.S. 495, 510, 67 S. Ct. 385, 393, 91 L.Ed. 451, 462 (1947). This
"work product" immunity is qualified, not absolute, and can be
overcome by a showing by the adversary that "production of those
facts is essential to the preparation of one's case." Hickman, 329

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U.S. at 511, 67 S. Ct. at 394, 91 L.Ed. at 462. Oral statements are
even more difficult to obtain, since they embody even more of the
lawyer's thought processes. The purposes of the work product
doctrine, as envisioned by the Court, prevent a free ride on the
opponent's investigation and protect the adversary system.
Federal Rule 26(b)(3) now codifies the work product immunity:
(A)Documents and Tangible Things. Ordinarily, a
party may not discover documents and
tangible things that are prepared in
anticipation of litigation or for trial by or for
another party or its representative (including
the other party’s attorney, consultant, surety,
indemnitor, insurer, or agent). But, subject
to Rule 26(b)(4), those materials may be
discovered if:
(i) they are otherwise discoverable under
Rule 26(b)(1); and
(ii) the party shows that it has substantial
need for the materials to prepare its case
and cannot, without undue hardship,
obtain their substantial equivalent by
other means.
(B) Protection Against Disclosure. If the
court orders discovery of those
materials, it must protect against
disclosure of the mental impressions,
conclusions, opinions, or legal theories
of a party’s attorney or other
representative concerning the litigation.
(C)Previous Statement. Any party or other
person may, on request and without the
required showing, obtain the person’s own
previous statement about the action or its
subject matter. * * *
Several points might be highlighted about the rule. First, protection
is afforded only for material prepared in anticipation of litigation or

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for trial; materials created not in anticipation of litigation or for trial
are not protected. Second, even though the immunity is sometimes
called attorney work product, the materials need not be produced
by an attorney; any representative of the party is covered so long as
that person prepared the materials in anticipation of litigation or
for trial. Third, this qualified immunity can be overcome by a
showing of "substantial need" for the materials; the party seeking
discovery and showing such need will be able to discover the
materials. Fourth, the “mental impressions, conclusions, opinions,
or legal theories” of the attorney or other representative are
protected, and as a practical matter are absolutely immune. Fifth, a
person who gave a statement in anticipation of litigation can obtain
as of right a copy of that statement. Finally, the second sentence of
the rule subordinates it to Rule 26(b)(4), which governs discovery
of trial preparation materials involving experts; expert witnesses
and their reports discoverable under Rule 26(b)(4) cannot be
resisted as trial preparation materials under Rule 26(b)(3).
4. Trial Preparation: Experts
Properly stated, there is no additional limit on the scope of
discovery for expert witnesses, but the Federal Rules do place
special limits on the methods that may be used to discover expert
testimony. Rule 26(b)(4) differentiates between experts who may be
called to testify at trial and experts employed only for trial
preparation. The latter type of expert's opinion is discoverable only
"upon showing exceptional circumstances under which it is
impracticable for the party [seeking discovery] to obtain facts or
opinions on the same subject by other means." Fed. R. Civ. P.
26(b)(4)(D)(ii).
The opinion of an expert who may testify is more readily available.
Prior to 1993, the opinion of a trial expert could be obtained only
by interrogatory to the opposing party, possibly supplemented by
other discovery as agreed to by stipulation or as ordered by the
court. After the 1993 amendments, the name and a detailed report
of the expert, including the expert’s opinion, supporting
information, exhibits, qualifications, and prior testimony, are part
of the initial disclosures required to be made to the opponent

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without request. Fed. R. Civ. P. 26(a)(2)(B). See I.C., infra.
Subsequent to receipt of the report, the opponent may take the
expert's deposition. Fed. R. Civ. P. 26(b)(4)(A).
Of course, as with other areas of discovery, the parties are allowed
to stipulate to modify procedures governing or limiting discovery.
See Fed. R. Civ. P. 29.
5. Protective Orders
The court has power to make a protective order to limit discovery
“to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense * * *." Fed. R. Civ. P.
26(c). The rule then suggests eight ways in which the court may
limit discovery. Some of the protections ordered by courts under
this rule include designating a time or place for discovery, requiring
a certain method of discovery, prohibiting inquiry into certain
matters, limiting the amount of discovery, and protecting the
confidentiality of material discovered.61
C. Required Disclosures
From adoption of the Federal Rules in 1938 until 1993, discovery
was always self–starting. A party could do as much discovery as the
Rules allowed, or little or nothing. No party was required to reveal
anything except in response to a proper discovery request. This
procedure changed with the adoption of "required disclosures" by
amendment to Rule 26 in 1993.62 Now, Federal Rule 26(a) requires
parties to disclose certain categories of information without request
and by a definite timetable. The idea is that this basic information
will be subject to request anyway and requiring disclosure saves
61 See generally Charles A. Wright & Mary Kay Kane, The Law of Federal Courts §

83 (6th ed. 2002).
62 The 1993 amendment to Fed. R. Civ. P. 26(a) introduced required disclosures to

federal practice. The amendment was controversial, and in recognition of that
controversy, the amended rule allowed individual districts to opt out of the initial
disclosure requirements by local rule. Several districts did so. Following several
years of experience, in 2000 the Supreme Court amended the rule again to eliminate
the opt out possibility. The initial disclosures indeed became “required disclosures”
in all federal districts.

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time and expense both to the parties and to the court. Additional
discovery proceeds by request, as it always has.
Three categories of information must be disclosed. Each has its
own timing provision.
First, within 14 days after a meeting of the parties to discuss claims
and defenses, possible settlement, required disclosures, and
discovery necessary in the litigation [Fed.R.Civ.P. 26(f)], each party
must disclose


name, address, and telephone number of persons who
are “likely to have discoverable information” the
disclosing party may use to support its claim or
defense (except by impeachment);



documents the disclosing party may use to support its
claim or defense (except by impeachment);



a computation of damages claimed; and



insurance agreements.

Fed.R.Civ.P. 26(a)(1)(A)(i)-(iv). Nine categories of proceedings,
such as habeas corpus petitions and student loan collections, are
exempted from the required disclosures by Fed. R. Civ. P.
26(a)(1)(B).
Second, within the time specified by the court, each party must
disclose the name and a report of each expert to be called to testify
at trial. Fed. R. Civ. P. 26(a)(2). See I.B.4, supra.
Third, at least 30 days before trial, each party must disclose the
name, address, and telephone number of each witness who may be
called; the designation of any witness whose testimony is to be
presented by deposition; and an identification of each document or
other exhibit that it may offer. Fed. R. Civ. P. 26(a)(3).
D. Discovery Devices
Any or all of the discovery devices may be employed by the
attorney in any litigation. The careful attorney will develop a
discovery strategy early in the litigation; decisions must be made as

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to which devices are appropriate, what information is necessary,
and what sequence of discovery should be used.
The most popular discovery device is the oral deposition. Fed. R. Civ.
P. 27-28, 30. A witness is called before a court reporter, who
administers an oath. The attorney noticing the deposition then
takes the testimony of the witness; the attorney opposing the
deposition may then also examine. The deposition allows discovery
of new information and identifies controverted facts. The
deposition of a party may narrow issues by obtaining admissions. A
deposition may be taken from any person, and is not limited to
parties.
The huge advantage of the deposition is flexibility. The attorney
taking the testimony can follow up with questions about new
information or areas where the witness seems hesitant. The
deposition also allows the attorney to evaluate both the opponent's
witness and the opposing attorney before trial. Should the
deponent become unavailable at the time of trial, the deposition
may be read into the trial record as former testimony. Fed. R. Civ.
P. 32; Fed. R. Evid. 804(b)(1). The primary disadvantage of the
deposition is cost, which includes both the expense of the court
reporter and the fees of the attorneys taking the deposition.
A little-used device is the deposition upon written questions. Fed. R. Civ.
P. 31. Again, the deponent is called before a court reporter and
sworn, but then the reporter reads a list of questions previously
submitted by the attorney and records the answers. A great deal of
expense is saved since the attorney does not attend the deposition,
but the loss of flexibility in inability to ask follow-up questions
makes this discovery device unpopular.
Interrogatories are written questions submitted to the opposing party
for answers under oath. Fed. R. Civ. P. 33. Interrogatories may be
sent only to parties. While the attorney writes the interrogatories,
they are still relatively inexpensive compared to the oral deposition.
Some attorneys believe that an advantage of interrogatories is more
complete answers are given, since research can be done and the
answers can be given after proper consideration; other attorneys

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believe that this is a disadvantage, since the opposing attorney can
sanitize the answers before they are given. Again, there is no
flexibility of follow-up questions.
A request for production of documents allows the attorney to inspect and
copy documents and other tangible things (including computer
data) in the "possession, custody or control" of another party. Fed.
R. Civ. P. 34. Although a request for production of documents and
things may be sent only to a party, documents in the possession of
a nonparty may be obtained by use of a subpoena duces tecum
under Fed. R. Civ. P. 45.
Requirement of a showing of good cause for production was
eliminated by amendment in 1970, so use of this device—as all
others save the physical or mental exam—proceeds without resort
to the court, in the absence of objection to discovery. Usually,
inspection of documents works by agreement of the parties rather
than formal request for production; in a complex case, production
of documents may involve thousands of hours in inspection of a
party's files.
When the mental or physical condition of a party is in controversy,
the court may order a physical or mental examination "for good cause."
Fed. R. Civ. P. 35. While a party who claims personal injury clearly
places physical condition in controversy, examinations of a party
who "has not affirmatively put into issue his own mental or
physical condition are not to be automatically ordered merely
because the person has been involved in an accident * * *."
Schlagenhauf v. Holder, 379 U.S. 104, 121, 85 S. Ct. 234, 244, 13
L.Ed.2d 152, 165 (1964). Even so, little showing of good cause is
ordinarily required, and in fact, such examinations are typically
arranged by stipulation of the attorneys.
Requests for admission require the opposing party to admit the truth
of
any matters within the scope of Rule
26(b)(1) relating to:
(A) facts, the application of law to fact, or
opinions about either; and

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(B) the genuineness of any described
documents.
Fed.R.Civ.P. 36(a)(1). This device is designed to verify information
and narrow issues for trial, and to save expense of unnecessary
proof at trial, not to discover new information. Requests for
admissions may be thought of as a brush-clearing device, not a
method of obtaining truly important admissions. Admission of a
disputed fact will simply be denied.
E. Sanctions for Failure to Make Discovery
A party or person from whom discovery is sought may seek a
protective order from the court against inappropriate discovery.
Fed. R. Civ. P. 26(c). See I.B.5, supra. Absent a protective order, the
person refusing to submit to discovery will be subject to a court
order compelling discovery [Federal Rule 37(a)], followed by
sanctions should the person fail to obey the order [Federal Rule
37(b)]. In other words, sanctions for failure to make discovery
almost always require a two step process.
The general scheme of the rule is that
sanctions can be imposed only for failure to
comply with an order of the court. Thus,
when the discovery procedure itself requires
a court order, as under Rule 35, or permits a
court order, as when there has been a
discovery conference under Rule 26(f) or a
protective order has been denied under Rule
26(c), failure to obey the order can be
punished immediately by any of the
sanctions listed in Rule 37(b)(2). When the
discovery procedure is one set in motion by
the parties themselves without court order,
the party seeking discovery must first obtain
an order under Rule 37(a) requiring the
recalcitrant party or witness to make the

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discovery sought; it is only violation of this
order that is punishable under Rule 37(b).63
Available sanctions under Rule 37(b) include treating the failure as
contempt of court, striking all or parts of pleadings, preventing the
admission of evidence, taking designated facts as established, and
awarding expenses of attorney's fees.
II. Questions on Discovery
Instructions. This section contains questions for you to answer to test and
strengthen your knowledge of the law of discovery. Use your scrolling feature so
that the screen shows only the question. Answer the question yes, no, or maybe,
and formulate your reasoning, then scroll down to compare your answer to the
authors’ answer. For all questions, assume you are in federal court.
A. Philosophy of Discovery Under the Federal Rules
Q–1. Plaintiff is swimming across a lake when she is struck by
Defendant's motorboat. Defendant sends an interrogatory to
Plaintiff requesting the names of all of Plaintiff's past swimming
instructors. Plaintiff objects that Defendant is "just on a fishing
expedition." Upon Defendant's motion, should the court compel
the discovery?
Answer to Q–1.
Yes. As the Supreme Court said in Hickman v. Taylor, 329 U.S.
495, 507, 67 S. Ct. 385, 392, 91 L.Ed. 451, 460 (1947):
No longer can the time-honored cry of "fishing
expedition" serve to preclude a party from inquiring into
the facts underlying his opponent's case. Mutual
knowledge of all the relevant facts gathered by both
parties is essential to proper litigation. To that end, either
63 Charles A. Wright & Mary Kay Kane, The Law of Federal Courts § 90, at 642

(6th ed. 2002). The authors note four exceptions to this two-step process exist. An
immediate sanction is allowed for a willful failure to appear at a deposition or
answer interrogatories or respond to a request for inspection; for an unjustified
refusal to make admissions; for failure to join in framing a discovery plan upon
request by another party; or for failure to make a required disclosure.

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party may compel the other to disgorge whatever facts he
has in his possession.
So long as the material sought is within the scope of discovery,
it must be produced. On these facts, past swimming instructors
could perhaps give admissible evidence on Plaintiff's swimming
ability, which may be relevant to the defense of
contributory/comparative negligence.
Q–2. Plaintiff purchases a trailer home from Defendant
manufacturer, and later discovers various defects in materials and
construction. When Plaintiff sues Defendant for damages,
Defendant answers and serves Plaintiff with 347 interrogatories. Is
Plaintiff required to answer these interrogatories?
Answer to Q–2.
No. Even though the philosophy of the Federal Rules generally
is to allow free and open discovery, and the mere fact that a
party must respond to a large volume of discovery requests is
not grounds for objection, Federal Rule 33(a)(1) allows a party
to serve no more than 25 interrogatories without leave of court.
This numerical limit was inserted in 1993 in response to
perceived discovery abuse. In an appropriate case, the court
can grant leave for additional interrogatories. Another option is
the parties can stipulate under Rule 29 to modify the limitations
placed on discovery.
Prior to 1993, the answer to this question would have been
maybe. Federal Rule 26(c) allows a party to move for a
protective order from discovery demands that amount to
"oppression" or cause "undue burden or expense." Should a
party be able to convince the court any discovery is beyond
another party’s legitimate discovery needs and is in bad faith
and intended to annoy, embarrass, oppress, or burden, the
protective order may issue. See I.B.5, supra.
Q–3. Part 1. During her oral deposition, Defendant reveals the
existence of a letter relevant to her defense; the letter, she says, is in
the possession of her customer. Defendant did not produce this

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letter as part of her initial disclosures under Federal Rule
26(a)(1)(A)(ii). Has Defendant violated the required disclosures
requirement?
Part 2. Plaintiff later makes no effort to obtain the letter through
discovery. At trial, when Defendant introduces the letter, will
Plaintiff’s objection to the evidence be sustained because the
contents are "a complete surprise”?
Answer to Q–3.
Part 1. No. Defendant has not violated her obligation to make
initial disclosures because Rule 26(a)(1)(A)(ii) requires her to
produce documents she may use to support her defense that
are in her “possession, custody, or control.” This document is
in the possession of a customer, not the Defendant.
Were the facts different, and Defendant had failed to make
required disclosure of a document in her possession, custody,
or control, Defendant would probably not be permitted to use
the document at trial as a sanction for failure to disclose it. Fed.
R. Civ. P. 37(c)(1).
Part 2. No. Discovery is self-starting. A party may do no
discovery, if he so chooses. On these facts, Defendant revealed
the existence of the letter, but Plaintiff made no discovery
attempt to obtain it. The only fault involved is Plaintiff's.
Surprise has not been totally eliminated from trials.
B. Scope of Discovery
Q–4. At his oral deposition, Defendant says he consulted with his
personal attorney before sending a notice of termination of
contract to Plaintiff. Defendant refuses to say what the attorney
advised. Will Plaintiff be able to obtain an order compelling
Defendant to reveal the information?
Answer to Q–4.
No. "Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense * * *."
Fed. R. Civ. P. 26(b)(1). The two specific limits on the scope of

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discovery are privilege and relevance. The facts clearly indicate
that the advice came in a private consultation between
Defendant and Defendant's attorney. The attorney-client
privilege applies. The material sought is outside the scope of
discovery.
Q–5. Defendant collides with Plaintiff at an intersection. Plaintiff
sues for negligence and alleges excessive speed. Plaintiff schedules
a deposition upon written questions of Witness, who has already
been interviewed informally by both parties. The only information
Witness has is that ten minutes before the accident, she saw
Defendant speeding. Will an objection by Defendant to the
deposition be sustained?
Answer to Q–5.
Maybe. As stated in the Answer to Q–4, irrelevant material is
outside the scope of discovery. See I.B.2., supra. The question is
whether the fact that Defendant was speeding ten minutes
before the accident would be of any probative value to a jury
attempting to decide whether Defendant was speeding at the
time of the accident. In other words, when the jury hears
Defendant was speeding earlier, would it have its assessment of
the probability that Defendant was speeding at the time of the
accident changed? Courts have divided on the relevance of
such testimony. See generally Kenneth S. Broun (ed.), McCormick
on Evidence § 185 (6th ed. 2006).
Q–6. Plaintiff refuses to produce a relevant, unprivileged document
on the sole ground that it would be hearsay and inadmissible at
trial. Will Defendant's motion to compel discovery be granted?
Answer to Q–6.
Yes. "Relevant information need not be admissible at the trial if
the discovery appears reasonably calculated to lead to the
discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).
Discovery of a hearsay statement may lead to the author,
whose personal testimony would be admissible.

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Q–7. Defendant refuses to produce an insurance policy covering
the occurrence since the ability to pay would be irrelevant to the
issues of liability and damages. Will Plaintiff's motion to compel
discovery be granted?
Answer to Q–7.
Yes. Fed. R. Civ. P. 26(a)(1)(A)(iv) requires mandatory initial
disclosure of any insurance agreement that may help satisfy a
potential judgment in the suit. An amendment to Rule 26 in
1970 clarified that such agreements are discoverable, and
insurance policies were made part of the Rule 26(a) required
initial disclosures in 1993.
Q–8. Following threats of suit by Plaintiff, Defendant hires an
outside accountant to analyze its books; the accountant makes a
written report to Defendant. Later, Plaintiff commences suit and
requests production of the accountant’s report. When asked why
she wants the report, Plaintiff's attorney responds "No special
reason—just being thorough." Must Defendant produce the
report?
Answer to Q–8.
No. Since the report was made in response to threats of suit,
the report was clearly "prepared in anticipation of litigation,"
and is protected work product (trial preparation materials). Fed.
R. Civ. P. 26(b)(3). Occasionally one will hear a statement that
work product protection applies only to the work of an
attorney or someone working for an attorney, i.e., attorney's
work product, but the doctrine is not so limited and covers a
variety of party's representatives: "attorney, consultant, surety,
indemnitor, insurer, or agent." Fed. R. Civ. P. 26(b)(3)(A). The
question indicates no showing of substantial need to overcome
the work product immunity.
Q–9. As part of its regular business recordkeeping, Defendant
keeps a record of all checks it issues. When Plaintiff sues on an
account, Defendant pleads the affirmative defense of payment.
Plaintiff requests production of Defendant's check record.

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Defendant objects that the material is work product, and that
Plaintiff has shown no need to overcome the immunity. Will
Plaintiff's motion to compel discovery be granted?
Answer to Q–9.
Yes. The check record is regularly kept as part of the business.
It was not prepared in anticipation of litigation or for trial. It is
not work product. Need is irrelevant. In fact, this would be a
required initial disclosure of a relevant document. Fed. R. Civ.
P. 26(a)(1)(A)(ii).
Q–10. Plaintiff's attorney takes the statement of Witness A, who
says that Witness B was also present at the accident scene.
Defendant sends an interrogatory asking for the names and
addresses of "all persons known to Plaintiff who may have
witnessed the accident." May Plaintiff refuse to identify Witness B
on the ground that discovery of B constitutes work product?
Answer to Q–10.
No. Work product does not protect facts learned. "There is no
shield against discovery * * * of the facts that the opponent has
acquired, or the persons from whom he obtained the facts * * *
even though the documents themselves have a qualified
immunity from discovery." Charles A. Wright & Mary Kay
Kane, The Law of Federal Courts § 82, at 597 (6th ed. 2002).
Witness B should have been revealed as a required initial
disclosure. Fed. R. Civ. P. 26(a)(1)(A)(i).
Even if Witness B were not found until after Plaintiff had made
her required disclosures, Plaintiff would still be under a duty to
supplement the disclosures. Fed. R. Civ. P. 26(e).
Q–11. Witness, an acquaintance of Defendant, gives an oral
statement to the attorney for Plaintiff. Upon learning that Plaintiff's
attorney refuses to provide a copy of the statement to Defendant's
attorney because it is work product, Defendant induces Witness to
demand a copy of the statement. Must Plaintiff's attorney comply?
Answer to Q–11.

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Yes. Even though the work product immunity would protect
the oral statement against discovery by Defendant, Witness
may demand her own statement. "Any party or other person
may, on request and without the required showing, obtain the
person’s own previous statement about the action or its subject
matter.” Fed. R. Civ. P. 26(b)(3)(C). See I.B.3, supra. Should
Witness then hand the statement over to Defendant, that is his
business.
Q–12. Defendant sends Plaintiff an interrogatory requesting the
names and addresses of all witnesses Plaintiff intends to call at trial.
May Plaintiff object on the grounds of work product?
Answer to Q–12.
Yes. A party is required to identify all witnesses to an
occurrence, usually phrased as all persons who may have
knowledge, but a list of trial witnesses is compiled only after
the attorney has sifted through all potential witnesses and
decided who will be asked to testify. This mental sifting makes
the list work product. "If the court orders discovery of [work
product], it must protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of a party’s
attorney or other representative concerning the litigation.” Fed.
R. Civ. P. 26(b)(3)(B).
This question assumes the interrogatory is sent during the
discovery phase of the litigation. Later, Plaintiff is required to
make mandatory disclosure of a witness list at least 30 days
prior to trial. Fed. R. Civ. P. 26(a)(3)(A)(i).
Q–13. Prior to commencing suit, Plaintiff’s attorney asks Expert A
and Expert B to evaluate the design of a machine. As part of his
required disclosures under Rule 26(a)(2)(A), Plaintiff identifies
Expert B. Defendant sends an interrogatory to Plaintiff requesting
the identities of any other experts Plaintiff consulted. Is Plaintiff
required to identify Expert A in answer to the interrogatory?
Answer to Q–13.

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No. Experts who may testify at trial must be disclosed under
Fed. R. Civ. P. 26(a)(2)(A). Plaintiff did so identify Expert B.
Experts a party employs in anticipation of litigation who are
not expected to be called as a witness at trial need not be
identified absent exceptional circumstances. Fed. R. Civ. P.
26(b)(4)(D(ii). Defendant has shown no need at all here.
Q–14. Plaintiff sues Doctor for malpractice, and seeks to depose
another Patient of Doctor who has undergone the same procedure.
Patient does not want to testify because of personal privacy. When
Plaintiff subpoenas Patient for a deposition, can Patient obtain any
relief from the court?
Answer to Q–14.
Maybe. Patient can seek a protective order from the court “to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Fed. R. Civ. P.
26(c)(1). Courts are solicitous of privacy concerns of
nonparties. The court could decide to protect the party or
person seeking a protective order in one or more of the ways
mentioned in the rule–no one present except persons
designated by the court, deposition sealed, and the like.
C. Discovery Devices
Q–15. Plaintiff sues Defendant for negligence. Plaintiff sends a set
of interrogatories to Witness, asking for a complete description of
the accident. Should Witness decline to answer, will Plaintiff be
able to obtain an order from the court compelling discovery?
Answer to Q–15.
No. Interrogatories may be served only on parties. Fed. R. Civ.
P. 33(a)(1). Witness is not a party. The only discovery devices
that may be used against nonparties are oral depositions and
depositions upon written questions.
Q–16. A letter relevant to the action of Plaintiff v. Defendant is in
the possession of Third Party. Defendant serves a subpoena duces
tecum on Third Party, instructing him to make the letter available

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to Defendant's attorney for inspection and copying. Must Third
Party comply with the subpoena [Hint: see Fed. R. Civ. P. 45(a)]?
Answer to Q-16.
Yes. Fed. R. Civ. P. 45(a)(1)(A) reads as follows:
Every subpoena must:
***
(iii) command each person to whom it is
directed to do the following at a specified
time and place: attend and testify; produce
designated documents, electronically stored
information, or tangible things in that
person’s possession, custody, or control; or
permit the inspection of premises * * *.
This rule allows use of a subpoena against Third Party to
obtain the letter without the wasted effort of requiring Third
Party to testify. Prior to 1991,Fed. R. Civ. P. 45(a) allowed use
of a subpoena only to "command each person to whom it is
directed to attend and give testimony," i.e., at a deposition,
hearing, or trial. Use of a subpoena to obtain documents from
a nonparty in the absence of testimony was improper. Some
states still consider use of a subpoena for documents only to be
an abuse of process.
Were Third Party a party to the action, then this request to
produce documents would be appropriate under Fed. R. Civ. P.
34. A subpoena would not be necessary.
Q–17. Plaintiff sues Defendant for personal injury damages arising
from a car accident, alleging that Defendant ran a red light.
Defendant, without any particular showing of good cause other
than the need to verify plaintiff's injuries, moves the court for an
order compelling Plaintiff to submit to a physical examination. Will
the court order the discovery?
Answer to Q–17.
Yes. While a physical examination may be ordered under Fed.
R. Civ. P. 35(a)(2)(A) only "for good cause," Plaintiff has

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clearly placed his physical condition into issue by claiming
personal injury damages, and that claim alone will furnish
sufficient cause for the court to order the examination.
Q–18. In the same action described in Q–17, Plaintiff, without any
particular showing of cause, moves the court for an order
compelling Defendant to submit to an eye examination. Will the
court order the discovery?
Answer to Q–18.
No. A physical examination may be ordered for a party, but
only "for good cause." Fed. R. Civ. P. 35(a)(2)(A). Plaintiff has
made no showing at all of cause for an eye exam on these facts.
The court will not order a physical examination of the parties in
every accident case. See Schlagenhauf v. Holder, 379 U.S. 104, 121,
85 S. Ct. 234, 244, 13 L.Ed.2d 152, 165 (1964).
D. Sanctions for Failure to Make Discovery
Q–19. Defendant notices Plaintiff's deposition. Plaintiff appears
and testifies, but refuses to answer questions on one subject.
Defendant immediately goes to court and moves for sanctions,
specifically requesting the court to rule that any evidence on that
subject will be foreclosed at trial. Will the court grant a sanction for
failure to make discovery?
Answer to Q–19.
No. Sanctions for failure to make discovery is a two-step
process. The party seeking discovery must first move the court
for an order compelling discovery. Second, should the party
resisting discovery not comply with that court order, then
sanctions may be imposed. See I.E., supra. Since the first step of
an order compelling discovery has not been taken, the second
step of sanctions is not available.
III. Computer Exercise
You are now ready for additional work on discovery. We have not
written a computer-assisted exercise to accompany this written
exercise on discovery, but the CALI library contains a discovery

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game in which students compete against each other. It is self
contained, and the facts necessary to play the discovery game are
proved to you as part of the exercise. The computer-assisted
exercise CALI CIV 20 was written by Own Fiss, Sterling Professor
of Law, Yale Law School.
CALI CIV 20: Woburn: A Game of Discovery
This game is designed to introduce students to the fundamentals of
the discovery process. It is based on the acclaimed book "A Civil
Action," by Jonathan Harr, and draws its problems from the
litigation arising out of the contamination of the Aberjona aquifer
in Woburn, Massachusetts. Woburn provides students with a
unique opportunity to acquaint themselves with the Federal Rules
of Civil Procedure regarding discovery in the context of a concrete,
real-life case. Assuming the roles of plaintiffs' and defendants'
attorneys, the players alternate making decisions about when and
how to disclose or request discovery of certain pieces of
information, as well as when to cooperate with and when to
oppose their opponent's discovery efforts. The simulation is highly
interactive, with the computer taking the role of Judge Skinner,
who occasionally intervenes to rule on discovery motions. The
thirteen problem sets included with Woburn cover a wide variety
of topics, including:


mandatory
initial
requirements;



proper use of various methods of discovery (subpoenas,
interrogatories, depositions, requests for document
production, medical examinations, requests for admission);



expert witness reports;



work product and privilege defenses;



cost-shifting for discovery activities;



attorney's fees awards; and



sanctions for conduct in violation of the rules.

and

230

supplemental

disclosure

Woburn teaches students the details of the rules. It also
illuminates the strategic dimensions of discovery. While pursuing
their discovery efforts within the context of the rules, the players
are forced to think strategically about the costs of various
discovery activities, time constraints, and their reputation with the
judge, jury, and the legal community at large. Frivolous motions
are punished by a loss of reputation; time-consuming document
requests may exhaust a player's financial resources. The need to
juggle these non-legal factors brings the rules to life, showing
students how particular rules affect attorneys' decision-making
processes in concrete situations. The game is to be played out of
class, on the students’ own schedule. At the end the students will
have internalized the structure and dynamics of the discovery
rules, and be ready to discuss the more conceptual or policyoriented issues in class. On-screen reports let the players know at
all times how their discovery efforts are progressing, and pictures
of the actual persons involved in the trial as well as of the
contamination site, court documents, and so forth, further
heighten the impact of the game.

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Exercise Eight - Summary
Judgment
I. The law of summary judgment
A. Federal Rule 56
Since 1938, summary judgment has been governed in federal courts
by Fed.R.Civ.P. 56. The key language of that rule from its
beginnings until today is the following: “The judgment sought
should be rendered if * * * there is no genuine issue as to any
material fact.” Fed. R. Civ. P. 56(c)(2). The important concepts
here are material fact and genuine issue.
While either party can move for summary judgment, it is almost
exclusively a defendant’s weapon. Accordingly, the following
discussion assumes defendant is moving for summary judgment.
A material issue of fact is one that would affect the result of the
case. For example, in an auto accident case, the fact of whether
plaintiff or defendant had the green light would be material. When,
however, defendant moves for summary judgment on the basis of
the statute of limitations, the motion will be granted should the
court determine the statute has expired. Any fact issues in the case–
color of the traffic light, speed of the vehicles, amount of
damages–are immaterial. The only issue that matters to the result is
whether the statute has expired.
Similarly, a suit for breach of contract presents fact issues of offer,
acceptance, consideration, and damages. None of these issues is
material when defendant moves for summary judgment based on
res judicata. Neither would any of the issues be material should the
basis for the motion be failure of plaintiff to assert the claim as a
compulsory counterclaim in defendant’s earlier suit against
plaintiff.
Of course, these situations are uncommon. Typically, the fact
issues in the case will be material.

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More common is a summary judgment motion based on the
plaintiff’s failure to raise a genuine issue of fact. A genuine fact
issue is one that is not frivolous. Plaintiff can make many factual
allegations in the complaint, but a genuine issue is one that has
evidentiary support. In that sense, summary judgment is the means
for defendant to test whether plaintiff has anything to back up
those allegations.
Plaintiff must present facts that would be admissible in evidence at
the trial. “A supporting or opposing affidavit must be made on
personal knowledge, [and] set out facts that would be admissible in
evidence * * *.” Fed. R. Civ. P. 56(e)(1). The affidavits–or other
materials such as depositions or interrogatory answers–must be
based on personal, firsthand knowledge, not hearsay or opinion.
For example, plaintiff sues for defamation, alleging defendant
called him a business cheat. Defendant moves for summary
judgment and includes the affidavits of three disinterested
eyewitnesses all stating that they heard the entire exchange and
defendant uttered no such statement. Plaintiff responds with the
affidavit of a person who was not present stating she heard from
another person that defendant had uttered the words. Summary
judgment will be granted. The affidavit of plaintiff’s witness is
based on hearsay, not personal knowledge, and will be disregarded.
Without it, plaintiff has no genuine issue of fact preventing
summary judgment.
Or plaintiff responds by arguing that the complaint alleges the
defamation occurred. This also is unavailing, as a complaint is not
based on personal knowledge. Summary judgment will be granted
as plaintiff has failed to come forward with admissible evidence of
the fact to demonstrate a genuine issue.
What if plaintiff puts in his own affidavit–or verifies the
complaint–stating that the defendant made the statement? Despite
the evidence of the three disinterested eyewitnesses versus
plaintiff’s interested solo statement, summary judgment should not
be granted. The court will not weigh the credibility of the evidence

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of the two sides. The summary judgment motion seeks fact issues;
it does not seek to decide them.
You can read through Fed.R.Civ.P. 56 now.
B. Supreme Court Interpretation of Federal Rule 56
The Supreme Court has been called on to interpret Rule 56 on
many occasions. Responding to criticism that lower courts were
overly cautious in granting summary judgment motions, the Court
decided three cases in 1986 that became known as the summary
judgment trilogy. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct.
2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 474 U.S. 574, 106 S. Ct. 1348, 89 L.Ed.2d
538 (1986). These three opinions interpreted Rule 56 in a new light
and made summary judgment easier to obtain. The most important
of the three opinions is the following opinion because of the
Court’s discussion of what the nonmoving party must show to
demonstrate a genuine issue of fact.
Anderson v. Liberty Lobby, Inc.
Supreme Court of United States, 1986.
477 U.S. 242, 106 S. Ct. 2505, 91 L.Ed.2d 202.
JUSTICE WHITE delivered the opinion of the Court.
[§ 1]
In New York Times Co. v. Sullivan, 376 U.S. 254, 279–280, 84
S. Ct. 710, 725–726, 11 L.Ed.2d 686 (1964), we held that, in
a libel suit brought by a public official, the First
Amendment requires the plaintiff to show that in
publishing the defamatory statement the defendant acted
with actual malice—"with knowledge that it was false or
with reckless disregard of whether it was false or not." We
held further that such actual malice must be shown with
"convincing clarity." Id., at 285–286, 84 S. Ct., at 728–729.
See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.
Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). These New York
Times requirements we have since extended to libel suits

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brought by public figures as well. See, e.g., Curtis Publishing
Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L.Ed.2d 1094
(1967).
[§ 2]
This case presents the question whether the
clear-and-convincing-evidence requirement must be
considered by a court ruling on a motion for summary
judgment under Rule 56 of the Federal Rules of Civil
Procedure in a case to which New York Times applies. The
United States Court of Appeals for the District of
Columbia Circuit held that that requirement need not be
considered at the summary judgment stage. 241 U.S. App.
D.C. 246, 746 F.2d 1563 (1984). We granted certiorari, 471
U.S. 1134, 105 S. Ct. 2672, 86 L.Ed.2d 691 (1985), because
that holding was in conflict with decisions of several other
Courts of Appeals, which had held that the New York Times
requirement of clear and convincing evidence must be
considered on a motion for summary judgment. We now
reverse.
[§ 3]
Respondent Liberty Lobby, Inc., is a not-for-profit
corporation and self-described "citizens' lobby."
Respondent Willis Carto is its founder and treasurer. In
October 1981, The Investigator magazine published two
articles: "The Private World of Willis Carto" and "Yockey:
Profile of an American Hitler." These articles were
introduced by a third, shorter article entitled "America's
Neo–Nazi Underground: Did Mein Kampf Spawn Yockey's
Imperium, a Book Revived by Carto's Liberty Lobby?" These
articles portrayed the respondents as neo-Nazi,
anti-Semitic, racist, and Fascist.
[§ 4]
Respondents filed this diversity libel action in the United
States District Court for the District of Columbia, alleging

235

that some 28 statements and 2 illustrations in the 3 articles
were false and derogatory. Named as defendants in the
action were petitioner Jack Anderson, the publisher of The
Investigator, petitioner Bill Adkins, president and chief
executive officer of the Investigator Publishing Co., and
petitioner Investigator Publishing Co. itself.
[§ 5]
Following discovery, petitioners moved for summary
judgment pursuant to Rule 56. In their motion, petitioners
asserted that because the respondents are public figures
they were required to prove their case under the standards
set forth in New York Times. Petitioners also asserted that
summary judgment was proper because actual malice was
absent as a matter of law. In support of this latter assertion,
petitioners submitted the affidavit of Charles Bermant, an
employee of petitioners and the author of the two longer
articles. In this affidavit, Bermant stated that he had spent a
substantial amount of time researching and writing the
articles and that his facts were obtained from a wide variety
of sources. He also stated that he had at all times believed
and still believed that the facts contained in the articles
were truthful and accurate. Attached to this affidavit was an
appendix in which Bermant detailed the sources for each of
the statements alleged by the respondents to be libelous.
[§ 6]
Respondents opposed the motion for summary judgment,
asserting that there were numerous inaccuracies in the
articles and claiming that an issue of actual malice was
presented by virtue of the fact that in preparing the articles
Bermant had relied on several sources that the respondents
asserted were patently unreliable. Generally, the
respondents charged that the petitioners had failed
adequately to verify their information before publishing.
The respondents also presented evidence that William
McGaw, an editor of The Investigator, had told petitioner

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Adkins before publication that the articles were "terrible"
and "ridiculous."
***
[§ 7]
Our inquiry is whether the Court of Appeals erred in
holding that the heightened evidentiary requirements that
apply to proof of actual malice in this New York Times case
need not be considered for the purposes of a motion for
summary judgment. Rule 56(c) of the Federal Rules of Civil
Procedure provides that summary judgment "shall be
rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." By its very terms, this
standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an
otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue
of material fact.
[§ 8]
As to materiality, the substantive law will identify which
facts are material. Only disputes over facts that might affect
the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual
disputes that are irrelevant or unnecessary will not be
counted. See generally 10A C. Wright, A. Miller & M.
Kane, Federal Practice and Procedure § 2725, pp. 93–95
(1983). This materiality inquiry is independent of and
separate from the question of the incorporation of the
evidentiary standard into the summary judgment
determination. That is, while the materiality determination
rests on the substantive law, it is the substantive law's
identification of which facts are critical and which facts are
irrelevant that governs. Any proof or evidentiary

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requirements imposed by the substantive law are not
germane to this inquiry, since materiality is only a criterion
for categorizing factual disputes in their relation to the legal
elements of the claim and not a criterion for evaluating the
evidentiary underpinnings of those disputes.
[§ 9]
More important for present purposes, summary judgment
will not lie if the dispute about a material fact is "genuine,"
that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party. In First National
Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S. Ct.
1575, 20 L.Ed.2d 569 (1968), we affirmed a grant of
summary judgment for an antitrust defendant where the
issue was whether there was a genuine factual dispute as to
the existence of a conspiracy. We noted Rule 56(e)'s
provision that a party opposing a properly supported
motion for summary judgment " 'may not rest upon the
mere allegations or denials of his pleading, but ... must set
forth specific facts showing that there is a genuine issue for
trial.' " We observed further that
"[i]t is true that the issue of material fact required
by Rule 56(c) to be present to entitle a party to
proceed to trial is not required to be resolved
conclusively in favor of the party asserting its
existence; rather, all that is required is that
sufficient evidence supporting the claimed factual
dispute be shown to require a jury or judge to
resolve the parties' differing versions of the truth
at trial." 391 U.S., at 288–289, 88 S. Ct., at 1592.
We went on to hold that, in the face of the defendant's
properly supported motion for summary judgment, the
plaintiff could not rest on his allegations of a conspiracy to
get to a jury without "any significant probative evidence
tending to support the complaint." Id., at 290, 88 S. Ct., at
1593.

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[§ 10]
Again, in Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct.
1598, 26 L.Ed.2d 142 (1970), the Court emphasized that
the availability of summary judgment turned on whether a
proper jury question was presented. There, one of the
issues was whether there was a conspiracy between private
persons and law enforcement officers. The District Court
granted summary judgment for the defendants, stating that
there was no evidence from which reasonably minded
jurors might draw an inference of conspiracy. We reversed,
pointing out that the moving parties' submissions had not
foreclosed the possibility of the existence of certain facts
from which "it would be open to a jury ... to infer from the
circumstances" that there had been a meeting of the minds.
Id., at 158–159, 90 S. Ct., at 1608, 1609.
[§ 11]
Our prior decisions may not have uniformly recited the
same language in describing genuine factual issues under
Rule 56, but it is clear enough from our recent cases that at
the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine
issue for trial. As Adickes, supra, and Cities Service, supra,
indicate, there is no issue for trial unless there is sufficient
evidence favoring the nonmoving party for a jury to return
a verdict for that party. Cities Service, 391 U.S., at 288–289,
88 S. Ct., at 1592. If the evidence is merely colorable,
Dombrowski v. Eastland, 387 U.S. 82, 87 S. Ct. 1425, 18
L.Ed.2d 577 (1967) (per curiam ), or is not significantly
probative, Cities Service, supra, at 290, 88 S. Ct., at 1592,
summary judgment may be granted.
[§ 12]
That this is the proper focus of the inquiry is strongly
suggested by the Rule itself. Rule 56(e) provides that, when
a properly supported motion for summary judgment is

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made, the adverse party "must set forth specific facts
showing that there is a genuine issue for trial." And, as we
noted above, Rule 56(c) provides that the trial judge shall
then grant summary judgment if there is no genuine issue
as to any material fact and if the moving party is entitled to
judgment as a matter of law. There is no requirement that
the trial judge make findings of fact. The inquiry performed
is the threshold inquiry of determining whether there is the
need for a trial—whether, in other words, there are any
genuine factual issues that properly can be resolved only by
a finder of fact because they may reasonably be resolved in
favor of either party.
[§ 13]
Petitioners suggest, and we agree, that this standard mirrors
the standard for a directed verdict under Federal Rule of
Civil Procedure 50(a), which is that the trial judge must
direct a verdict if, under the governing law, there can be but
one reasonable conclusion as to the verdict. Brady v.
Southern R. Co., 320 U.S. 476, 479–480, 64 S. Ct. 232, 234,
88 L.Ed. 239 (1943). If reasonable minds could differ as to
the import of the evidence, however, a verdict should not
be directed. Wilkerson v. McCarthy, 336 U.S. 53, 62, 69 S. Ct.
413, 417, 93 L.Ed. 497 (1949)....
[§ 14]
The Court has said that summary judgment should be
granted where the evidence is such that it "would require a
directed verdict for the moving party." Sartor v. Arkansas
Gas Corp., 321 U.S. 620, 624, 64 S. Ct. 724, 727, 88 L.Ed.
967 (1944). And we have noted that the "genuine issue"
summary judgment standard is "very close" to the
"reasonable jury" directed verdict standard: "The primary
difference between the two motions is procedural;
summary judgment motions are usually made before trial
and decided on documentary evidence, while directed
verdict motions are made at trial and decided on the

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evidence that has been admitted." Bill Johnson's Restaurants,
Inc. v. NLRB, 461 U.S. 731, 745, n. 11, 103 S. Ct. 2161,
2171, n. 11, 76 L.Ed.2d 277 (1983). In essence, though, the
inquiry under each is the same: whether the evidence
presents a sufficient disagreement to require submission to
a jury or whether it is so one-sided that one party must
prevail as a matter of law.
[§ 15]
Progressing to the specific issue in this case, we are
convinced that the inquiry involved in a ruling on a motion
for summary judgment or for a directed verdict necessarily
implicates the substantive evidentiary standard of proof
that would apply at the trial on the merits. If the defendant
in a run-of-the-mill civil case moves for summary judgment
or for a directed verdict based on the lack of proof of a
material fact, the judge must ask himself not whether he
thinks the evidence unmistakably favors one side or the
other but whether a fair-minded jury could return a verdict
for the plaintiff on the evidence presented. The mere
existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the
plaintiff. The judge's inquiry, therefore, unavoidably asks
whether reasonable jurors could find by a preponderance
of the evidence that the plaintiff is entitled to a verdict—
"whether there is [evidence] upon which a jury can properly
proceed to find a verdict for the party producing it, upon
whom the onus of proof is imposed." Munson, supra, 14
Wall., at 448.
[§ 16]
... [W]here the First Amendment mandates a "clear and
convincing" standard, the trial judge in disposing of a
directed verdict motion should consider whether a
reasonable factfinder could conclude, for example, that the
plaintiff had shown actual malice with convincing clarity.

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***
[§ 17]
Just as the "convincing clarity" requirement is relevant in
ruling on a motion for directed verdict, it is relevant in
ruling on a motion for summary judgment. When
determining if a genuine factual issue as to actual malice
exists in a libel suit brought by a public figure, a trial judge
must bear in mind the actual quantum and quality of proof
necessary to support liability under New York Times. For
example, there is no genuine issue if the evidence presented
in the opposing affidavits is of insufficient caliber or
quantity to allow a rational finder of fact to find actual
malice by clear and convincing evidence.
[§ 18]
Our holding that the clear-and-convincing standard of
proof should be taken into account in ruling on summary
judgment motions does not denigrate the role of the jury. It
by no means authorizes trial on affidavits. Credibility
determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury
functions, not those of a judge, whether he is ruling on a
motion for summary judgment or for a directed verdict.
The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor. Adickes,
398 U.S., at 158–159, 90 S. Ct., at 1608–1609. Neither do
we suggest that the trial courts should act other than with
caution in granting summary judgment or that the trial
court may not deny summary judgment in a case where
there is reason to believe that the better course would be to
proceed to a full trial. Kennedy v. Silas Mason Co., 334 U.S.
249, 68 S. Ct. 1031, 92 L.Ed. 1347 (1948).
[§ 19]
In sum, we conclude that the determination of whether a
given factual dispute requires submission to a jury must be

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guided by the substantive evidentiary standards that apply
to the case. This is true at both the directed verdict and
summary judgment stages. Consequently, where the New
York Times "clear and convincing" evidence requirement
applies, the trial judge's summary judgment inquiry as to
whether a genuine issue exists will be whether the evidence
presented is such that a jury applying that evidentiary
standard could reasonably find for either the plaintiff or the
defendant. Thus, where the factual dispute concerns actual
malice, clearly a material issue in a New York Times case, the
appropriate summary judgment question will be whether
the evidence in the record could support a reasonable jury
finding either that the plaintiff has shown actual malice by
clear and convincing evidence or that the plaintiff has not.
***
[§ 20]
Because the Court of Appeals did not apply the correct
standard in reviewing the District Court's grant of summary
judgment, we vacate its decision and remand the case for
further proceedings consistent with this opinion.
It is so ordered.
II. Computer Exercise: CALI CIV 13
The computer-aided exercise, CALI CIV13: Summary Judgment, is
based on a case involving a claim for defamation and a
counterclaim for battery. The exercise requires interpretation of the
opinion in Anderson, I.B., supra. In their memoranda supporting and
opposing summary judgment on the claim, and also on the
counterclaim, both parties rely heavily on this summary judgment
decision by the Supreme Court. Please study this opinion carefully
in preparation for your rulings on the motions made by the parties
in the computer-aided exercise.
The elements of defamation can be found in Exercise Three, part
III.B. Please re-read them. The elements of battery are reproduced
here in II.A, infra. After studying Anderson, the elements of both

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torts, and the facts scenario in II.B, infra, answer the questions
posed in II.C, infra, and then go to the computer to test your
answers.
A. The Law of Battery
The elements of the tort of battery can be found in
RESTATEMENT (SECOND) OF TORTS §§ 13, 18 (1965):
§ 13. Battery: Harmful Contact
An actor is subject to liability to another for
battery if
(a) he acts intending to cause a harmful
or offensive contact with the person of
the other or a third person, or an
imminent apprehension of such a
contact, and
(b) a harmful contact with the person of
the other directly or indirectly results.
§ 18. Battery: Offensive Contact
(1) An actor is subject to liability to another
for battery if
(a) he acts intending to cause a harmful
or offensive contact with the person of
the other or a third person, or an
imminent apprehension of such a
contact, and
(b) an offensive contact with the person
of the other directly or indirectly results.
(2) An act which is not done with the
intention stated in Subsection (1,a) does not
make the actor liable to the other for a mere
offensive contact with the other's person
although the act involves an unreasonable
risk of inflicting it and, therefore, would be
negligent or reckless if the risk threatened
bodily harm.

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B. The Facts of the Case
You are the federal district judge in the District of Wisdom. Your
special term calendar for today shows a hearing on two motions for
summary judgment in the case of Peter Schuler v. David Dour. [Note
that this exercise, while self contained, is a continuation of the facts
in Exercise Three and CALI CIV 01.] Defendant Dour has moved
for summary judgment on plaintiff's claim of defamation; plaintiff
Schuler has moved for summary judgment on defendant's
counterclaim for battery. Your law clerk has prepared the following
summary of the contents of the case file.
1. The complaint. Plaintiff Peter Schuler is a student at Dakota State
College. His student activism has made him a "name" on campus,
resulting in his recent election as student body president. Since his
election, Schuler has become even more active, and the most
recent demonstration resulted in his photograph on page one of
the local newspaper together with a brief interview. Two days later,
a letter to the editor in the newspaper from David Dour questioned
why anyone would follow Schuler, "who is a known user of crack
cocaine."
Schuler alleges Dour knew the statement was false or he acted in
reckless disregard of whether it was false. He says Dour has been
out to get him ever since he was reinstated as a student at Dakota
State. Schuler had been the subject of a disciplinary hearing, and
Dour had made the crack allegation at that time, but when Schuler
filed a defamation suit, all parties eventually agreed to drop the
whole matter. [See Exercise Three.]
2. The Answer and Counterclaim. Defendant David Dour is a
professor at Dakota State College. He admits writing the letter to
the editor, but denies all other allegations in the complaint,
including that he knew the allegation of crack use was false or that
he acted in reckless disregard of whether it was false. He alleges
that he relied on "multiple reliable sources" in making the
statement.
For a counterclaim, Dour alleges that Schuler came into his
seminar classroom in a rage about the letter. Schuler battered Dour

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by pushing him out the first floor window, causing severe cuts and
bruises and a broken pelvis.
3. The Answer to the Counterclaim. Schuler admits entering the
doorway of the seminar room, denies touching Dour who was
across the room, and alleges he lacks knowledge or information
sufficient to form a belief as to Dour's injuries.
4. Medical Report. Dr. Anne Hickman, who examined Schuler at the
discovery demand of Dour, reports that no traces of cocaine were
found in Schuler. Any cocaine use in the past several months
would have been revealed.
5. Oral Deposition of Schuler. Schuler denies ever using crack or any
other form of cocaine. He denies ever using any drugs. He believes
Dour "well knew" the crack allegation was false because he had
made it before at the disciplinary proceedings, then quickly
withdrew it when Schuler filed the first lawsuit. Schuler admits
stepping into the seminar room, but denies ever touching or even
approaching Dour, and says Dour appeared to fall out the window
on his own.
6. Oral Deposition of Dour. Dour admits he has never personally seen
Schuler use crack, but maintains he did not hold actual malice
because he based the accusation on "reliable sources." He named
the sources as three students at Dakota State: Jane Abbott, John
Bauer, and Cynthia Croswell. Despite vigorous cross examination,
Dour held fast to his story that he thought the report true. He says
that he even tried to reconfirm the statement with the three
students, but was unable to reach them in the short time before he
sent off the letter to the editor, because he "had to strike while the
iron was hot."
As to his claim of battery, Dour says he was sitting in the
windowwell, teaching his seminar, when Schuler stormed into the
room. "The next thing I knew, I was on the ground outside with a
broken pelvis. Schuler must have pushed me."
7. Oral Deposition of Jane Abbott. Abbott states that shortly before the
disciplinary hearing, she glanced through a window and saw a

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person using crack. She was taking a class from Professor Dour at
the time, and informed him she had seen Schuler using crack. Dour
told her he would take care of the matter. At the start of the next
semester, Abbott had a chance encounter with Schuler that made
her realize he had not been the person she saw through the
window. She tried to call Dour once or twice, and left her name,
but he never returned her calls. She has not talked to Dour since
her class with him ended.
8. Affidavits of John Bauer and Cynthia Croswell. Both Bauer and
Croswell aver that they are students of Professor Dour's and were
sympathetic to his previous difficulties with Schuler in the
disciplinary hearing, word of which had leaked across campus.
Both Bauer and Croswell state that after the hearing, they told
Dour he was doing the right thing, trying to rid the campus of a
"known drug user."
9. Affidavits of Dave Duncan and Emily Early. Both Duncan and Early
were students in Dour's seminar class. They aver that Schuler
stomped into the doorway, but never entered the room. Dour was
apparently so startled that he fell backwards out the window.
10. Plaintiff Schuler's Motion and Supporting Memorandum in Favor of
Summary Judgment on the Counterclaim for Battery and Memorandum
Opposing Summary Judgment on the Claim for Defamation.
11. Defendant Dour's Motion and Supporting Memorandum in Favor of
Summary Judgment on the Claim for Defamation and Memorandum
Opposing Summary Judgment on the Counterclaim for Battery.
C. Questions
Please answer "yes," "no," or "maybe" to the following questions
and formulate the reasons for your answer. If you believe
substantial arguments exist on both sides of the question, you
should respond "maybe." Do not, however, base a "maybe" answer
on conceivable but frivolous legal arguments. The question
numbers correspond to those in the computer exercise.
Q–1. Should summary judgment be granted to plaintiff Peter
Schuler on defendant David Dour's counterclaim for battery?

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Q–2a. If you answered "no," what genuine issue of material fact
cannot be determined on the motion?
Q–3a. If you answered "yes" or "maybe," what issue can be
resolved (or may arguably be resolved) as not a genuine issue of
material fact, allowing judgment to be ordered?
Q–11. Should summary judgment be granted to defendant David
Dour on plaintiff Peter Schuler's claim for defamation?
Q–12a. If you answered "no," what genuine issue of material fact
cannot be determined on the motion?
Q–12b. If you answered "yes," what issue can be resolved as not a
genuine issue of material fact, allowing summary judgment to be
ordered?
Q–12c. If you answered "maybe," what issue arguably can be
resolved as not a genuine issue of material fact, allowing summary
judgment to be ordered?
You are now ready to go to the computer terminal to work
through CALI CIV 13. You will be asked to refer to the opinion
in Anderson [see I.B., supra] and the fact scenario [see II.B., supra].
You will also need to be familiar with the torts of defamation [see
Exercise Three, part III.B] and battery [see II.A, supra]. Have these
materials, plus Fed. R. Civ. P. 56, with you. The estimated
completion time for CALI CIV 13 is one hour, although this
exercise can be divided into segments to be completed in separate
sittings.

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Exercise Nine - Judgment as
a Matter of Law
I. Judgment as a matter of law
A. Controlling the Jury
The judgment as a matter of law is one of many devices available to
the judge to control the freedom of the jury. Many other devices
available during and after trial, including rulings on evidence and
the motion for new trial, also control jury freedom. This exercise
deals only with judgment as a matter of law and its closely-related
kin, the binding instruction. It is probably the most important.
Before discussing this device, we sketch briefly some policy
arguments for and against restricting jury freedom.
Two principal arguments favor restricting jury freedom. First,
without a method to take cases away from the jury, the court would
be unable to dispose of frivolous cases prior to trial. For example, a
person sues her neighbor, claiming the neighbor was rude to her. If
the jury were totally free to decide issues of law and fact, the
plaintiff would be entitled to a jury trial on the issue of whether
being rude to one's neighbor is actionable. Or take a case in which
the facts alleged in the complaint state a claim upon which relief
can be granted, but no significant evidence supports the claim. For
example, a person believes he is being poisoned by a neighbor, and
so alleges in the complaint. The only evidence the plaintiff can
produce is testimony that his neighbor said churlish things about
him. Obviously, there ought to be some way of preventing such
cases from going to the jury. The normal jury would not even want
to hear them.
A second reason for restricting jury freedom is to prevent jury
lawlessness. Were a jury allowed to decide cases on an ad hoc basis,
the law would be both uncertain and inconsistent. Parties in like
positions would not be treated alike, and the uncertainty would
encourage litigation. A jury might decide to award damages because
it was prejudiced against the defendant, even though no rule of law

249

supported its decision. A sympathetic jury might decide to award
damages to an injured person even though no evidence connects
defendant to the injury. The judgment as a matter of law, and the
lesser power to grant a new trial when the verdict is against the
weight of the evidence, provide a degree of control by the trial
court, which itself is subject to control by a multi-judge appellate
court.
Arrayed against these arguments are those favoring jury freedom:
1. The jury possesses a collective wealth of common sense
that allows it effectively to evaluate the testimony of
ordinary witnesses.
2. The jury's collective memory may be superior to the
memory of a single judge. The jurors, working together,
may be able to do a better job of piecing together the
testimony.
3. Juries are less susceptible to corruption or other forms of
improper influence than are judges. The jury is an ad hoc
body summoned for only a few cases, and can perform its
duties without feeling the tug of conflicting personal
loyalties.
4. The jury, because it is an ad hoc body, may have more
courage than the judge. Even when not elected, the judge
may be subject to political influence, or at least the force
of public opinion. In a controversial case, the judge may
try to reach a compromise instead of giving complete
victory to a controversial litigant. The jury may be more
willing to take controversial stances.
5. Many factual disputes in lawsuits are not really susceptible
to rational determination. By delegating decision of these
factual disputes to a multi-person body that is perceived as
non-political and neutral, the judicial system may produce
decisions that are more satisfying to the litigants than
would be the case if a single judge made these difficult
decisions.

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These arguments in favor of jury freedom are stronger when
applied to some aspects of the jury's job than others. When the jury
makes a decision about the credibility of a witness, i.e., when it
decides whether the witness is testifying truthfully or falsely, the
jury's collective competence may be superior to that of the trial
judge. Common sense and collective memory may give the jury
greater power to search out inconsistencies in testimony or to
understand ordinary witnesses. Also, the bad judge—the one who
is subject to improper influence or who does not have the courage
to reach a proper decision—is less subject to appellate review on
credibility decisions than on the other decisions that a trial judge
must make. This limit on appellate control stems from the fact that
credibility decisions are often based upon the appearance and
demeanor of the witness at trial—whether the witness hesitated
when giving testimony, whether the witness appeared evasive, and
so forth. An appellate court cannot recapture the demeanor of a
witness on the basis of the "cold record." Therefore, credibility
decisions are normally left to the fact-finder at trial. When this is
done, a choice must be made about giving the power to make these
credibility decisions either to the trial judge or to the jury. Many
would favor giving the power to the jury.
In contrast, when the decision at trial involves an issue of law, or
an issue of whether certain inferences can be drawn from certain
facts, the "cold record" is quite adequate for purposes of appellate
review. Therefore, the arbitrary, corrupt, or incompetent trial judge
can be controlled by the appellate court; less reason exists for
sending these issues to the jury. Moreover, the trial judge is often
better qualified to decide these issues than is the jury.
B. Judgment as a Matter of Law
1. Directed Verdict and JNOV
For hundreds of years, courts and lawyers used the devices of
directed verdict and JNOV (judgment n.o.v. or judgment non obstante
veredicto). The only substantial difference between these two devices
was the timing of the motion. The motion for directed verdict was
made after the opponent had rested, or at the close of all the

251

evidence. In either event, the motion was made before the case was
given to the jury. The motion for judgment n.o.v. was in effect a
motion for directed verdict delayed until after the jury had returned
its verdict. Hence, the party was asking the court to order entry of
judgment in its favor notwithstanding the jury's verdict in favor of
the opponent.
The terminology, though not the timing or purpose of the motions,
changed for the federal courts in 1991. By amendment to Fed. R.
Civ. P. 50, the directed verdict and JNOV motions are now the
same motion: a motion for judgment as a matter of law. The idea is
that the JNOV is actually a reserved motion for directed verdict.
The common name was adopted to recognize that fact and also to
recognize that the directed verdict and the JNOV are really the
same motion made at different stages of the proceeding. In federal
practice, a motion for directed verdict had to be made at the close
of all the evidence in order to preserve one's right to make the
motion for judgment n.o.v. This requirement is preserved after the
amendment: a motion for judgment as a matter of law (old directed
verdict) must be made after the opposing party has been fully heard
(typically at the close of all the evidence) in order for a party to
renew the motion after the verdict is returned (old JNOV). Fed. R.
Civ. P. 50(b). This requirement is rooted in the history of the right
to jury trial. See Charles A. Wright & Mary Kay Kane, The Law of
Federal Courts § 95, at 685-86 (6th ed. 2002).
We refer to the judgment as a matter of law, but of course the
older cases, including the three reproduced later in this exercise,
refer to directed verdict and JNOV. Many states also continue to
use the terminology of directed verdict and JNOV. One can expect
lawyers to continue to use the terms, even in federal courts, for
some time to come. In federal courts today, any motion for
directed verdict or for JNOV will be treated as a motion for
judgment as a matter of law.
The timing of the motion for judgment as a matter of law gives the
trial court the option of ruling either before or after the jury's
verdict. A wise judge who is unsure about whether the motion
should be granted prior to submission of the case to the jury may

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decide to wait until after the jury has returned its verdict. The jury
may moot the issue by returning a verdict in favor of the
proponent of the motion. Even when the jury returns a verdict
against the proponent, the proponent will almost certainly move
again for judgment as a matter of law later. Then the trial judge can
grant the motion.
The decision to wait may save time and money. If the appellate
court decides that the trial judge was wrong in granting the motion
after the verdict, it can reinstate the jury verdict instead of
remanding for a new trial. That saves the litigants and the court
system the cost of another trial. When the trial judge grants the
motion prior to submission to the jury, and the appellate court
decides the trial judge was wrong, the only likely option is to grant
an entire new trial.
On the other hand, judges must decide motions properly. In a case
when the jury should not be allowed to return a verdict in favor of
one of the parties, granting the motion prior to submission to the
jury saves the jury from going through the useless charade of
returning a verdict that will soon be nullified.
The standard for granting a judgment as a matter of law [Fed. R.
Civ. P. 50(a)] before the case goes to the jury or a "renewed"
judgment as a matter of law [Fed. R. Civ. P. 50(b)] after the jury
verdict is returned is necessarily the same, at least in theory. In
practice, however, some judges require a more impressive showing
for a judgment as a matter of law before verdict (old directed
verdict) than after verdict (old JNOV). This is so because of the
differing treatments on appeal discussed above and also because
the judge may be reluctant to take a case from a jury that has sat
through the entire trial.
Stated generally, and therefore to some extent incompletely, the
question whether a judgment as a matter of law should be granted
turns upon whether the jury could reasonably return a verdict in
favor of the party opposing the motion. If no reasonable jury could
find for that party on the basis of the evidence that has been
presented to it, i.e., reasonable minds could not differ, then the

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motion should be granted. As you will see later, this standard,
though generally true, is in need of some qualification.
2. Binding Instructions
The judgment as a matter of law standard is of central importance
in understanding another device for controlling the jury—the
binding instruction. A binding instruction tells the jury that it must
find a certain fact to be true; the judge decides the issue. The
binding instruction differs from the ordinary instruction, which
informs the jury about the law and tells the jury to apply the facts
as it finds them.
Example:
In a slander case [see Exercise Three, part III.B], defendant in
the answer denies publication of a statement calling plaintiff an
LSD user and raises the affirmative defense of truth. In the
opening statement to the jury, defendant's lawyer states that the
defense expects to prove both that the LSD statement was
made privately (i.e., only to the plaintiff, so the element of
publication is missing) and that the LSD statement was true.
Defendant's lawyer introduces no evidence that would support
a reasonable finding the LSD statement was true. There is a
genuine dispute, however, about whether the LSD statement
was made publicly or privately.
In instructing the jurors, the court will tell them they can not
find that the LSD statement was true, and that the only issue
for their decision is whether the LSD statement was made
privately. The court would issue a "binding instruction" on the
issue of truth or falsity.
The binding instruction amounts to a partial judgment as a
matter of law. It is issued when one of the parties would not be
entitled to a favorable jury determination on a particular issue,
but could still win the case because the jury might reasonably
find favorably on other issues. The standard for granting a
binding instruction is the same as the standard for granting a
judgment as a matter of law.

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Often, whether a party is entitled to a judgment or binding
instruction on a certain issue will depend upon which party
bears the "burden of proof" on that issue. In saying that a party
bears the burden of proof, we mean that the party bears both
the burden of persuasion and the initial burden of production.
3. Burdens of Production and Persuasion
While we commonly hear of the burden of proof, a more exacting
analysis identifies two burdens of proof: the burden of production
of evidence and the burden of persuading the jury.
A party is said to bear the burden of production, also called the burden
of going forward with the evidence, on a particular issue if failure
to offer evidence sufficient to support a jury determination on the
issue will result in an adverse judgment as a matter of law against it.
In other words, the party with the burden of production must go
forward and submit sufficient evidence so that the court can
conclude that a reasonable juror could find more likely than not in
favor of that party's position on all issues essential to its case.
Obviously, the allocation of the burden of production is of great
importance in deciding which party will be able to prevail on a
motion for judgment as a matter of law. Where to allocate the
production burden is a difficult question, and involves
consideration of many possible factors. At the same time, we must
recognize that in the broad mine run of cases, the plaintiff, as the
party attempting to change the status quo, bears the burden of
production (and the burden of persuasion).
Example:
In a slander case, plaintiff alleges, and defendant admits, that
defendant called plaintiff a thief. The only issue raised by the
pleadings is whether the statement was true, i.e., whether
plaintiff is a thief. Neither party produces any evidence on this
issue. If plaintiff bears the burden of producing evidence that
he is not a thief, he will suffer an adverse judgment as a matter
of law. If defendant bears the burden of producing evidence
that plaintiff is a thief, she will suffer an adverse judgment as a
matter of law.

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The foregoing example is a case in which neither party
produces any evidence on a dispositive issue of fact. That is the
easiest case. A judgment as a matter of law will often be
justified, however, even when the party with the burden of
production produces some evidence relevant to the issue.
Example:
Plaintiff alleges that defendant called him a thief, and defendant
denies making the statement. On the issue, plaintiff introduces
only evidence that the defendant disliked him. This testimony
has some tendency to suggest that the defendant would say bad
things about the plaintiff. Yet it is a slender reed upon which to
base a determination that she called plaintiff a thief. A jury
verdict in plaintiff's favor would be nearly as arbitrary as one
based on no evidence at all. The judge would be justified in
granting a judgment as a matter of law because the plaintiff has
not produced sufficient evidence to satisfy his burden of
production.
The burden of production should be distinguished from the burden
of persuasion. A party bearing the burden of production on an
issue must produce sufficient evidence to create an issue for
the jury. The rules about burden of production are applied by
the court in the decision whether to send the issue to the jury.
Once an issue is sent to the jury, the judge instructs the jury
about the burden of persuasion, and rules about burden of
persuasion are applied by the jury in determining which party
should receive a favorable jury verdict.
Example:
The plaintiff bears the burden of persuasion on fact X. Under
the relevant law, the party who bears the burden of persuasion
must establish the existence of the fact in dispute by a
preponderance of the evidence; in other words, the existence of
the fact is more probable than its nonexistence, or more likely
than not. The court will instruct the jury about this rule. If the
jury determines that the existence and nonexistence of fact X

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are equally probable, it should return a verdict against the
plaintiff.
Although the concepts of production burden and persuasion
burden are distinct, the weight of the production burden
depends upon the weight of the persuasion burden. For
example, if a party has the burden of persuading the jury that
there is "virtual certainty" that fact X is true, then to satisfy the
burden of production the party would need to convince the
judge that he has produced evidence sufficient to allow a
reasonable jury to determine that fact X is true to a virtual
certainty. Note that this is not the same thing as saying that the
party must convince the judge that fact X is true to a virtual
certainty. A judge might believe that the existence of fact X has
not been established to a virtual certainty, while simultaneously
believing that a reasonable jury could find its existence more
likely than not.
For this exercise, you may assume that the burden of
persuasion is the usual one in civil actions of preponderance,
i.e., showing that the existence of a fact is more probable than
its nonexistence. Therefore, if the opponent of a judgment as a
matter of law motion bears the burdens of production and
persuasion, the court, in deciding whether that party came
forward with sufficient evidence to satisfy the burden of
production, must decide whether a reasonable jury could find
the existence of the fact more probable–more likely–than not.
A party who bears the burden of persuasion and the initial
burden of production is commonly said to bear the burden of
proof. Usually the same party bears both burdens. In most
jurisdictions, however, the burden of production can shift from
one party to the other, and possibly back again, during the
course of the trial. This shifting occurs when the party bearing
the initial burden of production has produced evidence of such
great weight that the other party will suffer an adverse judgment
on the issue if it fails to produce evidence to the contrary.
Example:

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Plaintiff sues defendant for slander, alleging that defendant
called her an LSD user. The only issue for decision at trial is
whether the statement was made. Plaintiff bears the burden of
proof on this issue.
When plaintiff introduces evidence sufficient to permit a
reasonable jury to find that the LSD statement was made, she
has satisfied her burden of production and is entitled to go to
the jury. Suppose plaintiff goes further, and produces evidence
of such probative force that, in the absence of contrary
evidence, no reasonable jury could find that the statement was
not made. For example, plaintiff produces testimony of several
unimpeached, disinterested witnesses who claim to have heard
defendant make the statement. In most jurisdictions, the
plaintiff would then be entitled to a judgment as a matter of
law unless defendant produces some contrary evidence. In such
circumstances, the burden of production has shifted to the
defendant. The defendant must go forward to produce
evidence sufficient to allow a reasonable juror to decide more
likely than not that the statement was not made in order to take
the case to the jury.
In the foregoing example, the plaintiff has the burden of proof,
that is, the initial burden of production and the burden of
persuasion. When she produces enough evidence to satisfy the
burden of production, the case moves into the area of jury
control. When the plaintiff produces overwhelming evidence,
the burden of production shifts to the defendant, once again
allowing the judge to take control. When the defendant
produces evidence that contradicts plaintiff's evidence, the case
will once again become a matter for the jury to decide.
While most jurisdictions permit the burden of production to
shift, the usual rule is that the burden of persuasion never shifts.
It remains always upon the party on whom it was originally
cast. If the plaintiff bears the burden of persuasion upon an
issue, then whenever the issue is sent to the jury, the jury will
be instructed to find against the plaintiff if he has not satisfied
the persuasion burden. This instruction will be given whether

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or not the production burden shifted to the defendant at some
point in the lawsuit.
Moreover, imposing the persuasion burden on the plaintiff
affects the definition of both parties' burdens of production. In
order to survive a motion for judgment as a matter of law, i.e.,
satisfy the burden of production, the plaintiff must produce
evidence sufficient to permit a reasonable jury to find itself
persuaded in her favor. In contrast, the defendant will survive a
motion merely by showing that a reasonable jury could find
itself either persuaded in his favor or in equipoise—that is, not
persuaded by either side.
Examples:
(1) Plaintiff's decedent and defendant's decedent, driving from
opposite directions, crash in the middle of the highway. Both
plaintiff and defendant allege the other driver was solely at fault
in crossing the center line. No evidence is submitted, since
there are no witnesses and accident reconstruction is
unavailable. The court will grant a judgment as a matter of law
against plaintiff, the party with the burden of production,
because no reasonable juror could find more likely than not in
favor of plaintiff. At most, the jurors would be in equipoise as
either proposition is equally likely on the evidence submitted.
(2) Plaintiff farmer’s cow is killed on defendant railroad’s
tracks. The only evidence shows that the cow was struck near
both a downed fence that is the responsibility of the railroad to
maintain and an open gate that is the responsibility of the
farmer to keep closed. The court will grant a judgment as a
matter of law against the plaintiff because no reasonable person
could find more likely than not that the cow gained access to
the tracks over the downed fence instead of through the open
gate in this 50-50 case. The party with the burden of
production must provide sufficient evidence so that a
reasonable juror could assess the probabilities at least 51-49 in
his favor.

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4. Evidence Considered for Judgment as a Matter of
Law
We have said that the issue for the court on a motion for judgment
as a matter of law is whether the jury could reasonably return a
verdict for the party opposing the motion. This statement is a
useful simplification of the standard. In most jurisdictions,
however, it is not precisely correct unless qualified, because the
governing law imposes limits upon the evidence that the court may
consider in determining whether a finding for the opponent would
be reasonable.
No one questions the trial judge's authority to grant judgment
when no evidence has been produced on a material issue, or when
so little evidence has been produced by the party bearing the
burden of proof that even considering only the evidence in its
favor and believing all of it, no reasonable jury could find in its
favor. Moreover, there seems to be general agreement that a judge
should grant judgment when the only evidence in favor of the party
with the burden of proof is incredible on its face—that is, it is
incredible even in the absence of impeachment of the testifying
witnesses or contradiction by other witnesses. For example, the
jury cannot be allowed to base a verdict upon testimony by a
witness that he inhabits two bodies or that she saw the event by the
light of the sun rising in the west. This is not to say that the court
can disregard evidence it disbelieves. Standard law is that a
judgment as a matter of law motion must be decided by the court
without weighing credibility and granting all reasonable inferences
to the party opposing the motion. A witness who testifies to facts
not inherently incredible must be given full weight. Even a
convicted perjurer's testimony may not be discounted.
The typical situation is that the opponent of the motion has
produced testimony that is not inherently incredible. In deciding
whether to grant judgment, what evidence should the trial judge be
allowed to consider? The judicial answers to this question can, if
some variations are overlooked, be placed into three categories.

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a. The Favorable–Evidence–Only Test
In determining whether a jury could reasonably find for the
opponent of a judgment as a matter of law motion, the court
should consider only the evidence favorable to the opponent,
completely ignoring any unfavorable evidence.
This test gives the jury power to believe or disbelieve any witness
(subject, of course, to the qualification that the jury may not believe
a witness whose testimony is incredible on its face). For example,
the jury may believe the testimony of a convicted perjurer even if it
is contradicted by the testimony of 20 bishops. The testimony of
the 20 bishops must be ignored by a judge ruling on the judgment
as a matter of law motion because it is unfavorable to the
opponent of the motion. Moreover, the jury may disbelieve the
testimony of any witness, even if the witness has not been
impeached or contradicted. Therefore, under this test, a court
could not grant judgment in favor of a party bearing the burden of
proof, since the jury might disbelieve all of that party's witnesses
and find itself unpersuaded.
This test gives the jury a great deal of power, yet does not
completely destroy the function of the judgment as a matter of law.
The court can still grant judgment on grounds that, even believing
all the favorable testimony and ignoring all other testimony, a jury
could not reasonably determine that the party with the burden of
proof had established a case by a preponderance of the evidence.
Example:
Decedent is found dead under conditions of apparent suicide.
Decedent's widow brings a civil action against the defendant,
claiming that the defendant killed her husband. She produces
the testimony of W that a month before decedent's death, W
saw decedent defeat defendant in a fistfight. Defendant
produces 20 witnesses who were present at the time of the
alleged fight. The 20 witnesses all testify that no fight occurred.
In determining whether to grant a judgment as a matter of law
under the favorable-evidence-only test, the court must accept
W's testimony that the fight took place. There is nothing

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inherently incredible about a fistfight, and the testimony of the
20 opposing witnesses must be ignored. The judge should still
grant judgment for the defendant, however, because the jury
could not reasonably infer that defendant committed murder
merely on the basis of testimony that defendant had an earlier
fistfight with decedent.
Another way of describing the favorable-evidence-only test is
to say that the jury has the power to believe or disbelieve the
direct evidence testimony of any witness, but it must be
reasonable in drawing inferences from circumstantial evidence.
b. The Qualified Favorable–Evidence Test
In deciding whether the jury could reasonably return a verdict in
favor of the opponent of a judgment as a matter of law motion, the
court should consider only (a) evidence favorable to the opponent,
and (b) evidence unfavorable to the opponent that is not
contradicted by direct evidence and that cannot reasonably be
disbelieved. All other evidence must be disregarded.
This test still allows the jury to believe any testimony that is not
inherently incredible; however, this test deprives the jury of the
power to disbelieve whomever it pleases. The testimony of the
convicted perjurer can still be accepted, even though contradicted
by 20 bishops. The jury cannot disbelieve testimony that is not
directly contradicted if it would be unreasonable to do so. Thus,
this test permits granting judgment in favor of the party bearing the
burden of proof.
Example:
P alleges in his complaint that D called him a murderer. D
answers, denying that she made the statement and admitting all
other allegations in the complaint. P has the burden of proof
on whether the statement was made. P produces as witnesses
20 bishops who testify that they heard D make the statement.
Their testimony is uncontradicted, unimpeached, and
disinterested. D does not cross-examine the bishops and she
rests without producing any evidence. P is entitled to judgment
as a matter of law under the qualified favorable-evidence test.

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Note that the qualified favorable-evidence test still gives the
jury power to resolve contradictions in direct evidence. Thus, if
D had taken the stand and denied making the statement, she
would have been entitled to go to the jury despite the contrary
testimony of 20 bishops.
Testimony can be contradicted either by direct evidence or by
circumstantial evidence. If D takes the stand and denies making
the statement, she has contradicted the bishops with direct
evidence. Both the bishops and the defendant have testified
about a fact that they claim to have perceived with their senses.
In the following example, direct evidence is contradicted by
circumstantial evidence.
Example:
Plaintiff and defendant have a collision in a traffic intersection.
Twenty bishops testify that they were watching the traffic light
in the intersection and it was red in plaintiff's direction. Their
testimony is disinterested and unimpeached.
Plaintiff testifies that he was waiting for the light to change
when he saw two cars in front of him start through the
intersection. Plaintiff inferred that the light had changed from
red to green and followed them, but does not claim that he
actually saw the light change.
If believed, plaintiff's testimony supports a reasonable
inference that the light had changed. Plaintiff has not, however,
produced direct testimony that contradicts the bishops'
testimony; plaintiff has contradicted the bishops with
circumstantial evidence.
In the foregoing example, a belief in plaintiff's testimony is not
logically inconsistent with belief in the bishops' testimony.
Therefore, granting judgment would not deprive the jury of the
power to believe the testimony of any witness; it would only
deprive the jury of the power to disbelieve the bishops'
testimony. Under the qualified favorable-evidence test, the trial
judge would have power to grant judgment for defendant.

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c. The All-the-Evidence Test
In deciding whether the jury could reasonably return a verdict in
favor of the opponent of a judgment as a matter of law motion, the
court should consider all the evidence, favorable or unfavorable,
for both parties.
This test gives the trial judge power to resolve conflicts in direct
testimony and to determine whether the jury could reasonably
believe or disbelieve witnesses.
Example:
The only issue raised by the pleadings is whether defendant
called plaintiff a murderer. Defendant has admitted all the
other allegations of plaintiff's complaint. Twenty bishops testify
that they heard defendant make the statement. Defendant
denies making the statement. Under the all the evidence test,
the trial judge could properly grant judgment as a matter of law
against the defendant because the evidence is overwhelming
and the jury could not reasonably believe her testimony over
that of the 20 bishops.
The all-the-evidence test does not place the trial judge in the
position of a juror. The judge is supposed to defer to the jury
and grant judgment only when a jury verdict for the opposing
party would be unreasonable.
Example:
The only issue raised by the pleadings is whether defendant
called plaintiff a murderer. Defendant admitted all the other
allegations of plaintiff's complaint.
Plaintiff testifies that defendant called him a murderer in the
presence of third person T. Defendant denies making the
statement, and T corroborates defendant’s denial. The judge
believes the defendant and T, yet recognizes that reasonable
persons could differ about who was telling the truth. Under the
all-the-evidence test, the judge should not grant judgment,
since that would be weighing credibility.

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The all-the-evidence test has been called the "set-aside" test,
because courts adopting it have sometimes said that the judge
should grant judgment if, looking at all the evidence, she would
feel duty bound to set aside a verdict for the party opposing the
motion for judgment as a matter of law. Linking the test to
setting aside a contrary verdict, i.e., granting a new trial on the
ground that the verdict is against the weight of the evidence,
apparently allows the trial judge to resolve issues of credibility,
at least to the extent of ruling that a reasonable jury could not
believe a witness's testimony. Trial judges have this power
when ruling on a motion for new trial, and so linking the
judgment as a matter of law test gives them this power when
ruling on a motion for judgment as a matter of law.
II. Computer Exercise: CALI CIV 04
A. Introductory Note
This computer-aided exercise was written primarily to explore the
three competing standards for judgment as a matter of law. The
debate over the proper test to use to consider the evidence on such
a motion continued in the federal courts–and state courts–for more
than 50 years following the decision in Wilkerson v. McCarthy, 336
U.S. 53, 69 S. Ct. 413, 93 L.Ed. 497 (1949) [see II.B., infra]. The
Supreme Court ended the debate for the federal courts in Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097,
2110, 147 L.Ed.2d 105, 121-22 (2000):
Those decisions holding that review under
Rule 50 should be limited to evidence
favorable to the nonmovant appear to have
their genesis in [Wilkerson]. * * * But
subsequent decisions have clarified that
[Wilkerson] was referring to the evidence to
which the trial court should give credence, not
to the evidence that the court should review.
In the analogous context of summary
judgment under Rule 56, we have stated that
the court must review the record “taken as a
whole.” [Citation omitted.] And the standard

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for granting summary judgment “mirrors”
the standard for judgment as a matter of law,
such that “the inquiry under each is the
same.” [Citations omitted.] It therefore
follows that, in entertaining a motion for
judgment as a matter of law, the court
should review all of the evidence in the
record.
While the question of whether to use the favorable-evidence-only
test, the qualified-favorable-evidence test, or the all-the-evidence
test has been answered, the interpretations of the Chamberlain,
Wilkerson, and Simblest opinions [see II.B, infra] required in this
lesson remain useful as an exercise in reading of opinions,
recognition of holding and dictum, and synthesis of cases.
B. Cases and Questions
Please read the following three federal cases on judgments as a
matter of law (remember that these cases will refer to directed
verdict and JNOV instead) and answer the following questions
before going to the computer terminal. Be prepared to give reasons
for your answers.
1. What arguments can be made that in the Chamberlain case,
the Supreme Court endorsed the all-the-evidence test?
Examine the Chamberlain opinion carefully for language
supporting or refuting the proposition that the Court
endorsed the all-the-evidence ("set-aside") test, and be
prepared to cite sections of the opinion containing such
language.
2. What arguments can be made that the Chamberlain case is
consistent with the favorable-evidence-only test or with the
qualified favorable-evidence test?
3. Is the Wilkerson case consistent with the theory that the
Supreme Court follows the all-the-evidence test?
4. Is the Wilkerson case consistent with the theory that the
Supreme Court follows the favorable-evidence-only test?

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5. Is the Wilkerson case consistent with the theory that the
Supreme Court follows the qualified favorable-evidence
test?
6. Is the Simblest case consistent with the theory that the
Second Circuit had adopted the all-the-evidence test? The
favorable-evidence-only test? The qualified favorableevidence test?
Pennsylvania Railroad Co. v. Chamberlain
Supreme Court of the United States, 1933.
288 U.S. 333, 53 S. Ct. 391, 77 L.Ed. 819.
[§ 1]
MR. JUSTICE SUTHERLAND delivered the opinion of the
Court.
This is an action brought by respondent against petitioner
to recover for the death of a brakeman, alleged to have
been caused by petitioner's negligence. The complaint
alleges that the deceased, at the time of the accident
resulting in his death, was assisting in the yard work of
breaking up and making up trains and in the classifying and
assorting of cars operating in interstate commerce; that in
pursuance of such work, while riding a cut of cars, other
cars ridden by fellow employees were negligently caused to
be brought into violent contact with those upon which
deceased was riding, with the result that he was thrown
therefrom to the railroad track and run over by a car or
cars, inflicting injuries from which he died.
[§ 2]
At the conclusion of the evidence, the trial court directed
the jury to find a verdict in favor of petitioner. Judgment
upon a verdict so found was reversed by the court of
appeals. Judge Swan dissenting. 59 F.(2d) 986.
[§ 3]

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That part of the yard in which the accident occurred
contained a lead track and a large number of switching
tracks branching therefrom. The lead track crossed a
"hump," and the work of car distribution consisted of
pushing a train of cars by means of a locomotive to the top
of the "hump," and then allowing the cars, in separate
strings to descend by gravity, under the control of hand
brakes, to their respective destinations in the various
branch tracks. Deceased had charge of a string of two
gondola cars, which he was piloting to track 14.
Immediately ahead of him was a string of seven cars, and
behind him a string of nine cars, both also destined for
track 14. Soon after the cars ridden by deceased had passed
to track 14, his body was found on that track some distance
beyond the switch. He had evidently fallen onto the track
and been run over by a car or cars.
[§ 4]
The case for respondent rests wholly upon the claim that
the fall of deceased was caused by a violent collision of the
string of nine cars with the string ridden by deceased. Three
employees, riding the nine-car string, testified positively
that no such collision occurred. They were corroborated by
every other employee in a position to see, all testifying that
there was no contact between the nine-car string and that
of the deceased. The testimony of these witnesses, if
believed, establishes beyond doubt that there was no
collision between these two strings of cars, and that the
nine-car string contributed in no way to the accident. The
only witness who testified for the respondent was one
Bainbridge; and it is upon his testimony alone that
respondent's right to recover is sought to be upheld. His
testimony is concisely stated, in its most favorable light for
respondent, in the prevailing opinion below by Judge
Learned Hand, as follows [p. 986]:
[§ 5]

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"The plaintiff's only witness to the event, one Bainbridge,
then employed by the road, stood close to the yardmaster's
office, near the 'hump.' He professed to have paid little
attention to what went on, but he did see the deceased
riding at the rear of his cars, whose speed when they passed
him he took to be about eight or ten miles. Shortly
thereafter a second string passed which was shunted into
another track and this was followed by the nine, which,
according to the plaintiff's theory, collided with the
deceased's. After the nine cars had passed at a somewhat
greater speed than the deceased's, Bainbridge paid no more
attention to either string for a while, but looked again when
the deceased, who was still standing in his place, had passed
the switch and onto the assorting track where he was
bound. At that time his speed had been checked to about
three miles, but the speed of the following nine cars had
increased. They were just passing the switch, about four or
five cars behind the deceased. Bainbridge looked away
again and soon heard what he described as a 'loud crash,'
not however an unusual event in a switching yard.
Apparently this did not cause him at once to turn, but he
did so shortly thereafter, and saw the two strings together,
still moving, and the deceased no longer in sight. Later still
his attention was attracted by shouts and he went to the
spot and saw the deceased between the rails. Until he left to
go to the accident, he had stood fifty feet to the north of
the track where the accident happened, and about nine
hundred feet from where the body was found."
[§ 6]
The court, although regarding Bainbridge's testimony as
not only "somewhat suspicious in itself, but its
contradiction ... so manifold as to leave little doubt," held,
nevertheless, that the question was one of fact depending
upon the credibility of the witnesses, and that it was for the
jury to determine, as between the one witness and the
many, where the truth lay. The dissenting opinion of Judge

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Swan proceeds upon the theory that Bainbridge did not
testify that in fact a collision had taken place, but inferred it
because he heard a crash, and because thereafter the two
strings of cars appeared to him to be moving together. It is
correctly pointed out in that opinion, however, that the
crash might have come from elsewhere in the busy yard
and that Bainbridge was in no position to see whether the
two strings of cars were actually together; that Bainbridge
repeatedly said he was paying no particular attention; and
that his position was such, being 900 feet from the place
where the body was found and less than 50 feet from the
side of the track in question, that he necessarily saw the
strings of cars at such an acute angle that it would be
physically impossible even for an attentive observer to tell
whether the forward end of the nine-car cut was actually in
contact with the rear end of the two-car cut. The dissenting
opinion further points out that all the witnesses who were
in a position to see testified that there was no collision; that
respondent's evidence was wholly circumstantial, and the
inferences which might otherwise be drawn from it were
shown to be utterly erroneous unless all of petitioner's
witnesses were willful perjurers. "This is not a case," the
opinion proceeds, "where direct testimony to an essential
fact is contradicted by direct testimony of other witnesses,
though even there is it conceded a judgment as a matter of
law might be proper in some circumstances. Here, when all
the testimony was in, the circumstantial evidence in support
of negligence was thought by the trial judge to be so
insubstantial and insufficient that it did not justify
submission to the jury."
[§ 7]
We thus summarize and quote from the prevailing and
dissenting opinions, because they present the divergent
views to be considered in reaching a correct determination
of the question involved. It, of course, is true, generally,
that where there is a direct conflict of testimony upon a

270

matter of fact, the question must be left to the jury to
determine without regard to the number of witnesses upon
either side. But here there really is no conflict in the
testimony as to the facts. The witnesses for petitioner flatly
testified that there was no collision between the nine-car
and the two-car strings. Bainbridge did not say there was
such a collision. What he said was that he heard a "loud
crash," which did not cause him at once to turn, but that
shortly thereafter he did turn and saw the two strings of
cars moving together with the deceased no longer in sight;
that there was nothing unusual about the crash of cars—it
happened every day; that there was nothing about this
crash to attract his attention except that it was extra loud;
that he paid no attention to it; that it was not sufficient to
attract his attention. The record shows that there was a
continuous movement of cars over and down the "hump,"
which were distributed among a large number of branch
tracks within the yard, and that any two strings of these
cars moving upon the same track might have come
together and caused the crash which Bainbridge heard.
There is no direct evidence that in fact the crash was
occasioned by a collision of the two strings in question; and
it is perfectly clear that no such fact was brought to
Bainbridge's attention as a perception of the physical sense
of sight or of hearing. At most there was an inference to
that effect drawn from observed facts which gave equal
support to the opposite inference that the crash was
occasioned by the coming together of other strings of cars
entirely away from the scene of the accident, or of the
two-car string ridden by deceased and the seven-car string
immediately ahead of it.
[§ 8]
We, therefore, have a case belonging to that class of cases
where proven facts give equal support to each of two
inconsistent inferences; in which event, neither of them
being established, judgment, as a matter of law, must go

271

against the party upon whom rests the necessity of
sustaining one of these inferences as against the other,
before he is entitled to recover.
[§ 9]
The rule is succinctly stated in Smith v. First National Bank in
Westfield, 99 Mass. 605, 611–612, 97 Am.Dec. 59, quoted in
the Des Moines National Bank case, supra:
"There being several inferences
deducible from the facts which
appear, and equally consistent with
all those facts, the plaintiff has not
maintained the proposition upon
which alone he would be entitled to
recover. There is strictly no evidence
to warrant a jury in finding that the
loss was occasioned by negligence
and not by theft. When the evidence
tends equally to sustain either of two
inconsistent propositions, neither of
them can be said to have been
established by legitimate proof. A
verdict in favor of the party bound
to maintain one of those
propositions against the other is
necessarily wrong."
[§ 10]
That Bainbridge concluded from what he himself
observed that the crash was due to a collision between
the two strings of cars in question is sufficiently indicated
by his statements. But this, of course, proves nothing,
since it is not allowable for a witness to resolve the doubt
as to which of two equally justifiable inferences shall be
adopted by drawing a conclusion, which, if accepted, will
result in a purely gratuitous award in favor of the party
who has failed to sustain the burden of proof cast upon
him by the law.

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[§ 11]
And the desired inference is precluded for the further
reason that respondent's right of recovery depends upon
the existence of a particular fact which must be inferred
from proven facts, and this is not permissible in the face
of the positive and otherwise uncontradicted testimony
of unimpeached witnesses consistent with the facts
actually proved, from which testimony it affirmatively
appears that the fact sought to be inferred did not exist.
This conclusion results from a consideration of many
decisions.... A rebuttable inference of fact, as said by the
court in the Wabash Railroad case, "must necessarily yield
to credible evidence of the actual occurrence." And, as
stated by the court in George v. Mo. Pac. R.R. Co., supra, "It
is well settled that where plaintiff's case is based upon an
inference or inferences, that the case must fail upon
proof of undisputed facts inconsistent with such
inferences." Compare Fresh v. Gilson, 16 Pet. 327, 330,
331, 10 L.Ed. 982. In Southern Ry. Co. v. Walters, supra, the
negligence charged was failure to stop a train and flag a
crossing before proceeding over it. The court concluded
that the only support for the charge was an inference
sought to be drawn from certain facts proved. In
rejecting the inference, this court said [p. 194]:
[§ 12]
"It is argued that it may be inferred from the speed of the
train when some of the witnesses observed it crossing
other streets as well as Bond Avenue, and from a guess of
the engineer as to the time required to get up such speed
after a full stop, that none could have been made at Bond
Avenue. But the argument amounts to mere speculation
in view of the limited scope of the witnesses' observation,
the down grade of the railway tracks at the point, and the
time element involved. (Compare Chicago, M. & St. P.R.
Co. v. Coogan, 271 U.S. 472, 46 S. Ct. 564, 70 L.Ed. 1041.)
Five witnesses for defendant [employees] testified that a

273

full stop was made and the crossing flagged, and that no
one was hit by the rear of the tender, which was the front
of the train.
[§ 13]
"An examination of the record requires the conclusion
that the evidence on the issue whether the train was
stopped before crossing Bond Avenue was so
insubstantial and insufficient that it did not justify a
submission of that issue to the jury."
[§ 14]
Not only is Bainbridge's testimony considered as a whole
suspicious, insubstantial and insufficient, but his
statement that when he turned shortly after hearing the
crash the two strings were moving together is simply
incredible if he meant thereby to be understood as saying
that he saw the two in contact; and if he meant by the
words "moving together" simply that they were moving
at the same time in the same direction but not in contact,
the statement becomes immaterial. As we have already
seen he was paying slight and only occasional attention to
what was going on. The cars were eight or nine hundred
feet from where he stood and moving almost directly
away from him, his angle of vision being only 3°33¢ from
a straight line. At that sharp angle and from that distance,
near dusk of a misty evening (as the proof shows), the
practical impossibility of the witness being able to see
whether the front of the nine-car string was in contact
with the back of the two-car string is apparent. And,
certainly, in the light of these conditions, no verdict based
upon a statement so unbelievable reasonably could be
sustained as against the positive testimony to the contrary
of unimpeached witnesses, all in a position to see, as this
witness was not, the precise relation of the cars to one
another. The fact that these witnesses were employees of
the petitioner, under the circumstances here disclosed,

274

does not impair this conclusion. Chesapeake & Ohio Ry. v.
Martin, 283 U.S. 209, 216–220, 51 S. Ct. 453, 75 L.Ed.
983.
[§ 15]
We think, therefore, that the trial court was right in
withdrawing the case from the jury. It repeatedly has
been held by this court that before evidence may be left
to the jury, "there is a preliminary question for the judge,
not whether there is literally no evidence, but whether
there is any upon which a jury can properly proceed to
find a verdict for the party producing it, upon whom the
onus of proof is imposed." Pleasants v. Fant, 22 Wall. 116,
120, 121, 22 L.Ed. 780. And where the evidence is "so
overwhelmingly on one side as to leave no room to doubt
what the fact is, the court should give a peremptory
instruction to the jury." Gunning v. Cooley, 281 U.S. 90, 94,
50 S. Ct. 231, 233, 74 L.Ed. 720; Patton v. Texas & Pacific
Railway Co., 179 U.S. 658, 660, 21 S. Ct. 275, 45 L.Ed.
361. The rule is settled for the federal courts, and for
many of the state courts, that whenever in the trial of a
civil case the evidence is clearly such that if a verdict were
rendered for one of the parties the other would be
entitled to a new trial, it is the duty of the judge to direct
the jury to find according to the views of the court. Such
a practice, this court has said, not only saves time and
expense, but "gives scientific certainty to the law in its
application to the facts and promotes the ends of justice."
Bowditch v. Boston, 101 U.S. 16, 18, 25 L.Ed. 980; Barrett v.
Virginian Ry. Co., 250 U.S. 473, 476, 39 S. Ct. 540, 63
L.Ed. 1092, and cases cited; Herbert v. Butler, 97 U.S. 319,
320, 24 L.Ed. 958. The scintilla rule has been definitely
and repeatedly rejected so far as the federal courts are
concerned. Schuylkill & D. Improvement & R. Company v.
Munson, 14 Wall. 442, 448, 20 L.Ed. 867; Commissioners of
Marion County v. Clark, 94 U.S. 278, 284, 24 L.Ed. 59;
Small Co. v. Lamborn & Co., 267 U.S. 248, 254, 45 S. Ct.

275

300, 69 L.Ed. 597; Gunning v. Cooley, supra; Ewing v. Goode,
supra, at pp. 443–444.
[§ 16]
Leaving out of consideration, then, the inference relied
upon, the case for respondent is left without any
substantial support in the evidence, and a verdict in her
favor would have rested upon mere speculation and
conjecture. This, of course, is inadmissible. C.M. & St. P.
Ry. v. Coogan, 271 U.S. 472, 478, 46 S. Ct. 564, 70 L.Ed.
1041; Gulf, etc., R.R. v. Wells, 275 U.S. 455, 459, 48 S. Ct.
151, 72 L.Ed. 370; New York Central R. Co. v. Ambrose,
supra; Stevens v. The White City, supra.
[§ 17]
The judgment of the Circuit Court of Appeals is reversed
and that of the District Court is affirmed.
Mr. Justice Stone and Mr. Justice Cardozo concur in the
result.
Wilkerson v. McCarthy
Supreme Court of the United States, 1949
336 U.S. 53, 69 S. Ct. 413, 93 L.Ed. 497
[§ 1]
MR. JUSTICE BLACK delivered the opinion of the Court.
The petitioner, a railroad switchman, was injured while
performing duties as an employee of respondents in their
railroad coach yard at Denver, Colorado. He brought this
action for damages under the Federal Employers' Liability
Act.
[§ 2]
The complaint alleged that in the performance of his duties
in the railroad yard it became necessary for him to walk
over a wheel-pit on a narrow boardway, and that due to
negligence of respondents, petitioner fell into the pit and

276

suffered grievous personal injuries. The complaint further
alleged that respondents had failed to furnish him a safe
place to work in several detailed particulars, namely, that
the pit boardway (1) was not firmly set, (2) was not securely
attached, and (3) although only about 20 inches wide, the
boardway had been permitted to become greasy, oily, and
slippery, thereby causing petitioner to lose his balance, slip,
and fall into the pit.
[§ 3]
The respondents in their answer to this complaint admitted
the existence of the pit and petitioner's injuries as a result
of falling into it. They denied, however, that the injury
resulted from the railroad's negligence, charging that
plaintiff's own negligence was the sole proximate cause of
his injuries. On motion of the railroad the trial judge
directed the jury to return a verdict in its favor. The
Supreme Court of Utah affirmed, one judge dissenting.
[§ 4]
The opinion of the Utah Supreme Court strongly indicated,
as the dissenting judge pointed out, that its finding of an
absence of negligence on the part of the railroad rested on
that court's independent resolution of conflicting
testimony. This Court has previously held in many cases
that where jury trials are required, courts must submit the
issues of negligence to a jury if evidence might justify a
finding either way on those issues. See, e.g., Lavender v.
Kurn, 327 U.S. 645, 652, 653, 66 S. Ct. 740, 743, 744, 90
L.Ed. 916; Bailey v. Central Vermont Ry., 319 U.S. 350, 354,
63 S. Ct. 1062, 1064, 1065, 87 L.Ed. 1444; Tiller v. Atlantic
Coast Line R. Co., 318 U.S. 54, 68, 63 S. Ct. 444, 451, 452,
87 L.Ed. 610, 143 A.L.R. 967; and see Brady v. Southern R.
Co., 320 U.S. 476, 479, 64 S. Ct. 232, 234, 88 L.Ed. 239. It
was because of the importance of preserving for litigants in
FELA cases their right to a jury trial that we granted
certiorari in this case.

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[§ 5]
The evidence showed the following facts without dispute:
[Petitioner fell into the railroad's pit while attempting to
cross it on a "permanent board" that straddled it. For three
years, all railroad employees had used the "permanent
board" as a walkway. However, three months before
petitioner's fall, the railroad had placed "safety chains"
around the pit. Petitioner's position was that the railroad's
employees customarily used the board as a walkway despite
the safety chains, and that the railroad's failure to prevent
this use constituted negligence. The railroad's position was
that only the "pit workers" (who did not include plaintiff)
used the permanent board after the safety chains were in
place.]
Neither before nor after the chains were put up had the
railroad ever forbidden pit workers or any other workers to
walk across the pit on the "permanent board." Neither
written rules nor spoken instructions had forbidden any
employees to use the board. And witnesses for both sides
testified that pit workers were supposed to, and did,
continue to use the board as a walkway after the chains and
posts were installed. The Utah Supreme Court nevertheless
held that erection of the chain and post enclosure was itself
the equivalent of company orders that no employees other
than pit workers should walk across the permanent board
when the chains were up. And the Utah Supreme Court
also concluded that there was insufficient evidence to
authorize a jury finding that employees generally, as well as
pit workers, had continued their long-standing and open
practice of crossing the pit on the permanent board
between the time the chains were put up and the time
petitioner was injured.
[§ 6]
It is the established rule that in passing upon whether there
is sufficient evidence to submit an issue to the jury we need

278

look only to the evidence and reasonable inferences which
tend to support the case of a litigant against whom a
peremptory instruction has been given. Viewing the
evidence here in that way it was sufficient to show the
following:
[§ 7]
Switchmen and other employees, just as pit workers,
continued to use the permanent board to walk across the
pit after the chains were put up as they had used it before.
Petitioner and another witness employed on work around
the pit, testified positively that such practice continued. It is
true that witnesses for the respondents testified that after
the chains were put up, only the car men in removing and
applying wheels used the board "to walk from one side of
the pit to the other...." Thus the conflict as to continued
use of the board as a walkway after erection of the chains
was whether the pit workers alone continued to use it as a
walkway, or whether employees generally so used it. While
this left only a very narrow conflict in the evidence, it was
for the jury, not the court, to resolve the conflict.
[§ 8]
It was only as a result of its inappropriate resolution of this
conflicting evidence that the State Supreme Court affirmed
the action of the trial court in directing the verdict.
Following its determination of fact, the Utah Supreme
Court acted on the assumption that the respondents "had
no knowledge, actual or constructive, that switchmen were
using the plank to carry out their tasks," and the railroad
had "no reason to suspect" that employees generally would
so use the walkway. From this, the Court went on to say
that respondents "were only required to keep the board
safe for the purposes of the pit crewmen ... and not for all
the employees in the yard." But the court emphasized that
under different facts, maintenance of "a 22–inch board for
a walkway, which is almost certain to become greasy or oily,

279

constitutes negligence." And under the evidence in this case
as to the board, grease and oil, the court added: "It must be
conceded that if defendants knew or were charged with
knowledge that switchmen and other workmen generally in
the yard were habitually using the plank as a walkway in the
manner claimed by plaintiff, then the safety enclosure
might be entirely inadequate, and a jury question would
have been presented on the condition of the board and the
adequacy of the enclosure."
[§ 9]
We agree with this last quoted statement of the Utah court,
and since there was evidence to support a jury finding that
employees generally had habitually used the board as a
walkway, it was error for the trial judge to grant judgment
in favor of respondents.
[Concurring and dissenting opinions omitted]
Simblest v. Maynard
United States Court of Appeals, Second Circuit, 1970
427 F.2d 1
TIMBERS, DISTRICT JUDGE:
[§ 1]
We have before us another instance of Vermont justice—
this time at the hands of a federal trial judge who, correctly
applying the law, set aside a $17,125 plaintiff's verdict and
entered judgment n.o.v. for defendant, Rule 50(b), Fed. R.
Civ. P., in a diversity negligence action arising out of an
intersection collision between a passenger vehicle driven by
plaintiff and a fire engine driven by defendant in
Burlington, Vermont, during the electric power blackout
which left most of New England in darkness on the night
of November 9, 1965. We affirm.
I.
[§ 2]

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Plaintiff, a citizen and resident of New Hampshire, was 66
years of age at the time of the accident. He was a
distributor of reference books and had been in Burlington
on business for three days prior to the accident. He was an
experienced driver, having driven an average of some
54,000 miles per year since 1922. He was thoroughly
familiar with the intersection in question. His eyesight was
excellent and his hearing was very good.
[§ 3]
Defendant, a citizen of Vermont, had resided in Burlington
for 44 years. He had been a full time fireman with the
Burlington Fire Department for 17 years. He was assigned
to and regularly drove the 500 gallon pumper which he was
driving at the time of the accident. He was thoroughly
familiar with the intersection in question.
[§ 4]
The accident occurred at the intersection of Main Street
(U.S. Route 2), which runs generally east and west, and
South Willard Street (U.S. Routes 2 and 7), which runs
generally north and south. The neighborhood is partly
business, partly residential. At approximately the center of
the intersection there was an overhead electrical traffic
control signal designed to exhibit the usual red and green
lights.
[§ 5]
At the time of the accident, approximately 5:27 P.M., it was
dark, traffic was light and the weather was clear. Plaintiff
was driving his 1964 Chrysler station wagon in a westerly
direction on Main Street, approaching the intersection.
Defendant was driving the fire engine, in response to a fire
alarm, in a southerly direction on South Willard Street, also
approaching the intersection.
[§ 6]

281

Plaintiff testified that the traffic light was green in his favor
as he approached and entered the intersection; but that
when he had driven part way through the intersection the
power failure extinguished all lights within his range of
view, including the traffic light. All other witnesses, for
both plaintiff and defendant, testified that the power failure
occurred at least 10 to 15 minutes prior to the accident; and
there was no evidence, except plaintiff's testimony, that the
traffic light was operating at the time of the accident.
[§ 7]
Plaintiff also testified that his speed was 12 to 15 miles per
hour as he approached the intersection. He did not look to
his right before he entered the intersection; after looking to
his left, to the front and to the rear (presumably through a
rear view mirror), he looked to his right for the first time
when he was one-half to three-quarters of the way through the
intersection and then for the first time saw the fire engine
within 12 feet of him. He testified that he did not hear the
fire engine's siren or see the flashing lights or any other
lights on the fire engine.
[§ 8]
Plaintiff further testified that his view to the north (his
right) as he entered the intersection was obstructed by
various objects, including traffic signs, trees on Main Street
and a Chamber of Commerce information booth on Main
Street east of the intersection. All of the evidence, including
the photographs of the intersection, demonstrates that,
despite some obstruction of plaintiff's view to the north, he
could have seen the approaching fire engine if he had
looked between the obstructions and if he had looked to
the north after he passed the information booth. One of
plaintiff's own witnesses, Kathleen Burgess, testified that
"maybe five to ten seconds previous to when he was struck
he might have seen the fire truck," referring to the interval

282

of time after plaintiff passed the information booth until
the collision.
[§ 9]
Defendant testified that, accompanied by Captain Fortin in
the front seat, he drove the fire engine from the Mansfield
Avenue Fire Station, seven and one-half blocks away from
the scene of the accident, in the direction of the fire on
Maple Street. While driving in a southerly direction on
South Willard Street and approaching the intersection with
Main Street, the following warning devices were in
operation on the fire engine: the penetrator making a
wailing sound; the usual fire siren; a flashing red light
attached to the dome of the fire engine; two red lights on
either side of the cab; and the usual headlights. Defendant
saw plaintiff's car east of the information booth and next
saw it as it entered the intersection. Defendant testified that
he was traveling 20 to 25 miles per hour as he approached
the intersection; he slowed down, applied his brakes and
turned the fire engine to his right, in a westerly direction, in
an attempt to avoid the collision. He estimated that he was
traveling 15 to 20 miles per hour at the time of impact. A
police investigation found a 15 foot skid mark made by the
fire engine but no skid marks made by plaintiff's car.
[§ 10]
The fire engine struck plaintiff's car on the right side, in the
area of the fender and front door. Plaintiff's head struck the
post on the left side of his car, causing him to lose
consciousness for about a minute. He claims that this injury
aggravated a chronic pre-existing degenerative arthritic
condition of the spine.
[§ 11]
Other witnesses who virtually bracketed the intersection
from different vantage points were called. Frank Valz,
called by plaintiff, was looking out a window in a building

283

on the northeast corner of the intersection; he saw the fire
engine when it was a block north of the intersection; he
heard its siren and saw its flashing red lights. Kathleen
Burgess, another of plaintiff's witnesses (referred to above),
was driving in a northerly direction on South Willard Street,
just south of the intersection; seeing the fire engine when it
was a block north of the intersection, she pulled over to the
curb and stopped; she saw its flashing lights, but did not
hear its siren. Holland Smith and Irene Longe, both called
by defendant, were in the building at the southwest corner
of the intersection; as the fire engine approached the
intersection, they each heard its warning signals and saw its
flashing lights in operation.
[§ 12]
Defendant's motions for a judgment as a matter of law at
the close of plaintiff's case and at the close of all the
evidence having been denied and the jury having returned a
plaintiff's verdict, defendant moved to set aside the verdict
and the judgment entered thereon and for entry of
judgment n.o.v. in accordance with his motion for a
judgment as a matter of law. Chief Judge Leddy filed a
written opinion granting defendant's motion.
[§ 13]
On appeal plaintiff urges that the district court erred in
granting defendant's motion for judgment n.o.v. or, in the
alternative, in declining to charge the jury on the doctrine
of last clear chance. We affirm both rulings of the district
court.
II.
[§ 14]
In determining whether the motion for judgment n.o.v.
should have been granted, a threshold question is presented
as to the correct standard to be applied. This standard has
been expressed in various ways. Simply stated, it is whether

284

the evidence is such that, without weighing the credibility
of the witnesses or otherwise considering the weight of the
evidence, there can be but one conclusion as to the verdict
that reasonable men could have reached. See, e.g., Brady v.
Southern Railway Company, 320 U.S. 476, 479–80 (1943);
O'Connor v. Pennsylvania Railroad Company, 308 F.2d 911,
914–15 (2 Cir.1962). See also 5 Moore's Federal Practice ¶
50.02[1], at 2320–23 (2d Ed.1968); Wright, Law of Federal
Courts § 95, at 425 (2d Ed.1970). On a motion for
judgment n.o.v. the evidence must be viewed in the light
most favorable to the party against whom the motion is
made and he must be given the benefit of all reasonable
inferences which may be drawn in his favor from that
evidence. O'Connor v. Pennsylvania Railroad Company, supra, at
914–15; 5 Moore, supra, at 2325; Wright, supra, at 425.
[§ 15]
We acknowledge that it has not been settled in a diversity
action whether, in considering the evidence in the light
most favorable to the party against whom the motion is
made, the court may consider all the evidence or only the
evidence favorable to such party and the uncontradicted,
unimpeached evidence unfavorable to him. Under Vermont
law, all the evidence may be considered. Kremer v. Fortin, 119
Vt. 1, 117 A.2d 245 (1955) (intersection collision between
fire engine and passenger car). Plaintiff here urges that
under the federal standard only evidence favorable to him
should have been considered, citing Wilkerson v. McCarthy,
336 U.S. 53, 57 (1949). As plaintiff reads that case, the
court below should not have considered anything else, not
even the uncontradicted, unimpeached evidence
unfavorable to him. However, we are committed to a
contrary view in a diversity case. O'Connor v. Pennsylvania
Railroad Company, supra.
[§ 16]

285

The Supreme Court at least twice has declined to decide
whether the state or federal standard as to the sufficiency
of the evidence is controlling on such motions in diversity
cases. Mercer v. Theriot, 377 U.S. 152, 156 (1964) (per
curiam); Dick v. New York Life Insurance Company, 359 U.S.
437, 444–45 (1959). Our Court likewise has declined to
decide this issue in recent cases. Mull v. Ford Motor Company,
368 F.2d 713, 716 n. 4 (2 Cir.1966); Hooks v. New York
Central Railroad Company, 327 F.2d 259, 261 n. 2 (2
Cir.1964); Evans v. S.J. Groves & Sons Company, 315 F.2d
335, 342 n. 2 (2 Cir.1963). See 5 Moore, supra, at 2347–50.
[§§ 17 & 18]
Our careful review of the record in the instant case leaves
us with the firm conviction that, under either the Vermont
standard or the more restrictive federal standard, plaintiff
was contributorily negligent as a matter of law; and that
Chief Judge Leddy correctly set aside the verdict and
entered judgment for defendant n.o.v. O'Connor v.
Pennsylvania Railroad Company, supra, at 914, Presser Royalty
Company v. Chase Manhattan Bank, 272 F.2d 838, 840 (2
Cir.1959).
[§ 19]
Under the Vermont standard which permits all the
evidence to be considered, Kremer v. Fortin, supra, plaintiff
was so clearly guilty of contributory negligence that no
further dilation is required.
[§ 20]
Under the more restrictive federal standard—i.e.,
considering only the evidence favorable to plaintiff and the
uncontradicted, unimpeached evidence unfavorable to
him—while a closer question is presented than under the
Vermont standard, we nevertheless hold that plaintiff was
guilty of contributory negligence as a matter of law.
[§ 21]

286

In our view, applying the federal standard, the critical issue
in the case is whether the fire engine was sounding a siren
or displaying a red light as it approached the intersection
immediately before the collision. Upon this critical issue,
Chief Judge Leddy accurately and succinctly summarized
the evidence as follows:
"All witnesses to the accident, except the plaintiff,
testified that the fire truck was sounding a siren or
displaying a flashing red light. All of the witnesses
except Miss Burgess and the plaintiff testified that
the fire truck was sounding its siren and displaying a
flashing red light."
[§ 22]
The reason such evidence is critical is that under Vermont
law, 23 V.S.A. § 1033, upon the approach of a fire
department vehicle which is sounding a siren or displaying
a red light, or both, all other vehicles are required to pull
over to the right lane of traffic and come to a complete
stop until the emergency vehicle has passed. Since the
emergency provision of this statute supersedes the general
right of way statute regarding intersections controlled by
traffic lights, 23 V.S.A. § 1054, the lone testimony of
plaintiff that the traffic light was green in his favor as he
approached and entered the intersection is of no moment.
And since the emergency provision of 23 V.S.A. § 1033
becomes operative if either the siren is sounding or a red
light is displayed on an approaching fire engine, we focus
upon plaintiff's own testimony that he did not see the fire
engine's flashing light, all other witnesses having testified
that the red light was flashing.
[§ 23]
As stated above, plaintiff testified that he first saw the fire
engine when he was one-half to three-quarters of the way
through the intersection and when the fire engine was
within 12 feet of his car. At the speed at which the fire

287

engine was traveling, plaintiff had approximately one-third
of a second in which to observe the fire engine prior to the
collision. Accepting plaintiff's testimony that his eyesight
was excellent, and assuming that the fire engine's flashing
red light was revolving as rapidly as 60 revolutions per
minute, plaintiff's one-third of a second observation does
not support an inference that the light was not operating,
much less does it constitute competent direct evidence to
that effect. Opportunity to observe is a necessary ingredient
of the competency of eyewitness evidence. Plaintiff's
opportunity to observe, accepting his own testimony,
simply was too short for his testimony on the operation of
the light to be of any probative value whatsoever.
[§ 24]
Plaintiff's testimony that he did not see the fire engine's
flashing red light, in the teeth of the proven physical facts,
we hold is tantamount to no proof at all on that issue.
O'Connor v. Pennsylvania Railroad Company, supra, at 915.
As one commentator has put it, " ... the question of the
total absence of proof quickly merges into the question
whether the proof adduced is so insignificant as to be
treated as the equivalent of the absence of proof." 5 Moore,
supra, at 2320. If plaintiff had testified that he had not
looked to his right at all, he of course would have been
guilty of contributory negligence as a matter of law. We
hold that his testimony in fact was the equivalent of his
saying that he did not look at all.
[§ 25]
Chief Judge Leddy concluded that plaintiff was guilty of
contributory negligence as a matter of law: accordingly, he
set aside the verdict and entered judgment n.o.v. for
defendant. We agree.
[Discussion of last clear chance doctrine omitted]
Affirmed.

288

Having studied these three opinions and answered the questions
immediately preceeding the opinions, you are ready to go to the
computer to work through CALI CIV 04: Judgments as a Matter of
Law. The estimated completion time for CALI CIV 04 is two
hours, although this exercise can be divided into segments to be
completed
in
separate
sittings.

289

Exercise Ten - Evidence for
Civil Procedure Students
This exercise has two purposes. The first is to engage you actively
in legal analysis. Hence, the exercise contains some difficult
questions that require careful thought. The second is to provide a
survey of the rules of evidence in order to give you a deeper
understanding of subjects studied in the civil procedure course. Of
course you will study these topics in depth in your evidence course.
The intent here is not to anticipate that course, but rather to
provide a rudimentary understanding of evidence law as it relates to
civil procedure. Instances in which evidence rules illuminate
aspects of the civil procedure course are set forth in footnotes.
I. Some Basic Evidence Rules
The Federal Rules of Evidence were first adopted for the federal
courts in 1975, and have since provided the pattern for evidence
rules in a majority of states. For purposes of this computer
exercise, you need only be familiar with the sections of the Federal
Rules of Evidence described in this book.

290

A. The Requirement of Personal Knowledge64
Federal Evidence Rule 602 provides the following:
A witness may not testify to a matter unless
evidence is introduced sufficient to support
a finding that the witness has personal
knowledge of the matter. Evidence to prove
personal knowledge may, but need not,
consist of the witness' own testimony. This
rule is subject to the provisions of rule 703,
relating to opinion testimony by expert
witnesses.
The rule prevents a lay witness from testifying about an event that
could be perceived by the senses unless the witness actually
perceived the event. For example, if the first question asked to a
witness were, "State the color of defendant's car," the question
would be objectionable because the examiner has failed to produce
any evidence that the witness actually saw the defendant's car. The
witness's answer might be based on guesswork or secondhand
information. If the witness saw the car personally, then the
examining lawyer must "lay the foundation" by having the witness
so testify.
64 The requirement of personal knowledge is relevant to civil procedure because,

inter alia, it is one of the features that gives the summary judgment motion its teeth.
Suppose, for example, that plaintiff hears from a trusted source that defendant
called plaintiff a crack user. Plaintiff's attorney would be justified in filing a slander
complaint because she has "knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances" within the meaning of Fed. R. Civ. P.
11(b). If drafted so that it states all of the elements of slander [see Exercise Three,
part III.B], the complaint will withstand a motion to dismiss for failure to state a
claim. [see Exercise Four].
The summary judgment motion "pierces the pleadings." Suppose, in our example,
that defendant moves for summary judgment and supports the motion with
affidavits from himself and other persons present averring that the alleged
statement was never made. If plaintiff has had enough time for investigation and
discovery, then she must produce counter-affidavits or other Fed. R. Civ. P. 56
evidence (depositions, etc.), or the action will be dismissed. Moreover, under Rule
56(e)(1), the affidavits must be "made on personal knowledge" and set out "facts
that would be admissible in evidence" [see Exercise Eight, part I.A]

291

The personal knowledge requirement is analytically distinct from
the hearsay rule. If a witness makes an assertion about a fact that
can be perceived by the senses and does not purport to base her
knowledge on another's statement, then the correct objection is
lack of personal knowledge. If the examiner cures the personal
knowledge problem by having the witness testify that she read or
heard an out-of-court statement that asserted the fact in question,
then the correct objection is hearsay. For example, suppose that to
prove when a train arrived, a witness testifies "The train arrived at
8:05." If there is no evidence that the witness was in a position to
observe the train, then the testimony would be objectionable on
grounds that the witness lacked personal knowledge. A hearsay
objection would be inappropriate because there is no indication
that the witness is basing the testimony on the statement of
another. Suppose, then, that the witness is asked how she knows
and responds by saying "Mr. Bailey told me that the train arrived at
8:05." The requirement of personal knowledge has now been
satisfied (the witness has testified about something she perceived
with her senses—Bailey's statement). In the absence of a hearsay
exception, however, the testimony would be inadmissible hearsay.
B. The Hearsay Rule and Its Exceptions65
1. The Concept of Hearsay
The credibility of a witness depends upon the witness's perception,
memory, narrative ability, and sincerity. For example, suppose a
witness testifies "I saw Smith in the bar on February 1." The
witness might have been intoxicated, near-sighted, or simply too
far away to see clearly, so the statement might be inaccurate
65 Knowledge about the hearsay rule is helpful in understanding many aspects of

American civil procedure. For example, Fed. R. Civ. P. 56(e) requires that affidavits
supporting or opposing summary judgment set out facts that would be admissible
in evidence; often the most formidable obstacle to admission is the hearsay rule.
The pertinence of the hearsay rule to other aspects of civil procedure is separately
noted below. For a detailed discussion of hearsay–as well as the other rules of
evidence discussed in this exercise–see Roger C. Park, David P. Leonard & Steven
H. Goldberg, Evidence Law: A Student’s Guide to the Law of Evidence as Applied in
American Trials (2d ed. 2004).

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because of infirmities of perception. The witness might be
mistaken about the date because of defects in memory. The witness
might have misspoken, as by saying "bar" while meaning "car," so
that poor narrative ability made the utterance misleading. Or the
witness might be intentionally lying.
When a witness testifies in court, the witness is under oath, subject
to cross-examination, and present for observation of demeanor by
the trier of fact. These safeguards are thought to increase the
likelihood that the witness will try to tell the truth and that defects
in credibility will be exposed to the trier. The hearsay rule is
grounded on the belief that sometimes too much credence will be
given to statements made in situations in which these safeguards
are absent.
Not every out-of-court statement is hearsay. Under the Federal
Rules, hearsay is a statement made out of court that is offered for
the purpose of proving the truth of what is asserted in the
statement. See Fed. R. Evid. 801(c). An in-court statement (a
statement made by the witness while testifying) is not hearsay, and
an out-of-court statement is not hearsay if it is offered in evidence
for some purpose other than proving the truth of the matter
asserted in the statement. Normally (although not invariably)
statements that are offered for some purpose other than showing
their truth do not depend for value upon the credibility of the
out-of-court declarant; hence, nothing is lost by the absence of
cross-examination under oath.
This is not the place for discussion of all of the various meanings
that have been imputed to the phrase "truth of the matter
asserted." Even at this early stage, however, the student should
attempt to become familiar with the principal types of utterances
that courts deem not to be hearsay on grounds that they are not
"offered for the truth of what they assert." Most such utterances
fall within the following three categories:

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a. Statements Offered to Show Their Effect on the Reader
or Hearer
Suppose that a defendant is charged with burglary of a neighbor's
garage. As an alternate explanation of why he was in the garage, the
defendant testifies that a child told him that an intruder was in the
garage and asked him to investigate. The child's statement is not
hearsay if offered solely for the purpose of showing why defendant
entered the garage. The statement is not being offered to show its
truth (that an intruder was in fact in the garage) but only to show
its effect on the hearer. Even if the child was lying or mistaken, the
statement still has value in explaining defendant's conduct. Because
the statement does not depend for value on the credibility of the
child declarant, the absence of an opportunity to cross-examine the
declarant about the basis for the statement is of no consequence.
b. Legally Operative Language
To show that A made a contract with B, testimony is offered that
A said to B "I will pay $40,000 for 100 carloads of your widgets,"
and that B responded with "I accept your offer." Testimony about
these utterances is not hearsay. The mere fact that they were made
created a legal relationship, under the objective theory of contracts,
even if A or B is not credible. Consequently, the utterances are said
not to be offered for their truth, but merely to show that they were
made.
c. Statements Used Indirectly
Suppose A tells B that C committed a crime, and the words are
offered to show that A does not like C. Under traditional analysis,
A's utterance is considered not to be hearsay. When offered for the
purpose of showing A's dislike for C, the truth of the statement
does not matter. In fact, if the statement is false, the inference may
be even stronger evidence that A dislikes C.
Utterances like the one above are often characterized as
circumstantial evidence, which is another way of saying that they

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are not offered directly to show their truth, but indirectly to show
something else.66
One important category of indirect utterances are those that are
offered as prior inconsistent statements for the purpose of
impeaching a witness. Suppose a bystander tells an investigator
prior to trial that a traffic light was red, and then testifies at trial it
was green. The bystander's prior statement is not hearsay when
offered solely to impeach credibility. The statement, under
traditional analysis, is not being offered to prove the truth of its
assertion, but merely to show that the witness is not credible
because she said different things at different times.
2. Exceptions to the Hearsay Rule
Even though a statement is hearsay, it is admissible if it falls under
one of the exceptions to the hearsay rule. The Federal Rules of
Evidence list nearly 30 exceptions. This computer exercise deals
only with the ones set forth in these materials.
a. Present Sense Impression Exception
Rule 803(1) provides that hearsay is admissible if it is "A statement
describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately
thereafter." Example: "Look at that car running the red light."
The Advisory Committee's Note to Rule 803(1) states "The
underlying theory . . . is that substantial contemporaneity of event
and statement negative the likelihood of deliberate or conscious
misrepresentation."

66 Direct evidence states the proposition to be proved directly. When a witness

testifies “I saw defendant punch plaintiff,” that is direct evidence. Circumstantial
evidence requires an inference from the fact observed to the fact to be proved.
When a witness testifies “I heard a smack, turned quickly, saw plaintiff going down,
and saw defendant standing over him,” that is circumstantial evidence that
defendant punched plaintiff. Despite popular perception, circumstantial evidence
can be quite powerful. Would you, for example, believe defendant punched
plaintiff after hearing only the second witness statement above?

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b. Excited Utterance Exception
Rule 803(2) provides an exception for "A statement relating to a
startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition." Example:
"Oh, no. The car struck the pedestrian."
The rationale of this exception is that excitement is likely to
prevent deliberate fabrication.
c. Present State of Mind Exception
Rule 803(3) provides, in relevant part, that hearsay is admissible if it
is "A statement of the declarant's then existing state of mind,
emotion, sensation, or physical condition (such as intent, plan,
motive, design, mental feeling, pain, and bodily health), but not
including a statement of memory or belief to prove the fact
remembered or believed * * *." Examples of the exception include
such statements as "My leg hurts" offered to show that the leg
hurts (but not the statement of memory "My leg hurt"), or "I am
fond of John" offered to show the declarant's fondness for John,
or "I am going to Crooked Creek" offered to show that declarant
did later go there (but not the memory "I went to Crooked
Creek").
Although there are dangers of misrepresentation (for example, a
plaintiff may exaggerate pain), the exception can be justified on
grounds of necessity (determining mental or physical state without
use of statements by the subject is difficult) and the absence of
some of the hearsay dangers (for example, the danger that a
declarant's bad memory will lead to mistake is absent in a present
tense statement).
d. Dying Declaration Exception
Rule 804(b)(2) provides an exception for "[A] statement made by a
declarant while believing that the declarant's death was imminent,
concerning the cause or circumstances of what the declarant
believed to be impending death." The exception applies to civil
actions and to criminal prosecutions for homicide. Example: "Jill
shot me."

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The theory behind the dying declaration exception is that a person
knowing he is about to die is unlikely to tell falsehoods.
e. Declaration Against Interest Exception
In relevant part, Rule 804(b)(3) provides an exception for "A
statement which was at the time of its making so far contrary to the
declarant's pecuniary or proprietary interest, or so far tended to
subject the declarant to civil or criminal liability, or to render
invalid a claim by the declarant against another, that a reasonable
person in the declarant's position would not have made the
statement unless believing it to be true." Example: "I owe you
$1,000."
The theory is that a person is highly unlikely to make a statement
against his own interest unless that statement is true.
f. Admission of a Party Opponent67
Rule 801(d)(2) provides that a statement by a party is not hearsay
when offered against that party. For reasons not here relevant, the
rulemakers decided to treat admissions as a special category of
utterances that are not hearsay instead of treating them as hearsay
admissible under an exception. Under the Fed. R. Evid., an
admission is not hearsay even when offered to prove the truth of
its assertion.
The admissions exclusion is broad and important. Any statement
by a party clears the hearsay barrier when offered by an opposing
party. In addition, statements by an employee will sometimes be
vicariously admissible against an employer and statements by one
co-conspirator will sometimes be admissible against other
co-conspirators. These aspects of the admissions rule are beyond
the scope of this essay.
67 The admissions rule is helpful in understanding several aspects of the Federal

Rules of Civil Procedure. For example, it has an important effect upon the use of
interrogatory answers at trial. Rule 33(c) provides that answers to interrogatories
may be used "to the extent allowed by the Federal Rules of Evidence." The hearsay
rule poses no obstacle to use of an opposing party's answers; they are admissions of
a party opponent.

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g. Former Testimony Exception; Depositions
Two of the safeguards that are thought to make courtroom
testimony reliable are present during the taking of a deposition.
The deponent is under oath and is subject to cross-examination.
Nevertheless, courtroom testimony is considered to be superior to
deposition testimony. In the courtroom, the witness is available for
observation by the trier of fact, and the solemnity of the courtroom
may encourage the witness to tell the truth. Moreover, the
cross-examination that occurs during a deposition or other former
testimony may not be an adequate substitute for courtroom crossexamination. The main purpose of cross-examination during a
deposition is usually the discovery of information, not the
revelation of defects in the witness's credibility. For these reasons,
depositions are not freely admissible when a nonparty deponent is
available to testify in court, though deposition testimony does have
a more favored status than ordinary out-of-court statements.
Should the witness become unavailable, depositions (and certain
other instances of former testimony) are generally admissible as a
hearsay exception under Rule 804(b)(1).
h. Business Records Exception
The business records exception is commonly used. It allows, for
example, the introduction by a business of account books showing
that a defendant is indebted to it. Without this exception, a
business would have a tough time proving that a customer actually
purchased its product and owes money. Third parties may also use
the exception for a variety of purposes; for example, a personal
injury plaintiff may use the exception to introduce hospital records
pertinent to an injury.
Business records are said to be reliable for a number of reasons: the
business relies upon them, people making entries have a duty to be
accurate, the records are likely to be checked systematically, and
regularity in keeping records makes the record-keeper develop the
habit of precision.
The federal business records rule is set forth in Fed. R. Evid.
803(6), which provides a hearsay exception for

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A memorandum, report, record, or data
compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or
near the time by, or from information
transmitted by, a person with knowledge, if
kept in the course of a regularly conducted
business activity, and if it was the regular
practice of that business activity to make the
memorandum, report, record, or data
compilation * * *.
i. Other Exceptions
Many other exceptions to the hearsay rule, ranging from trivial
(inscriptions on tombstones) to important (public records), exist.
This essay does not purport to be comprehensive, but describes
only exceptions and exclusions that are particularly important or
that present interesting challenges in interpretation.
C. Relevancy and Its Counterweights
Federal Evidence Rule 402 declares that irrelevant evidence is
inadmissible. Under the Federal Rules, however, evidence is rarely
irrelevant, because Fed. R. Evid. 401 deems evidence to be
"relevant" if it has "[A]ny tendency to make the existence of any
fact that is of consequence to determination of the action more
probable or less probable than it would be without the evidence."
This definition of relevance is a broad one. Under it, almost every
item of evidence that a rational lawyer might offer would be
relevant. For example, evidence that a defendant has been in prior
accidents tends slightly to support the inference that the defendant
is not a careful driver and then the further inference that the
accident at issue was defendant's fault. The prior accidents would
therefore be relevant under the definition of Rule 401.
Such evidence is, however, normally excluded. In a civil case, the
evidence would be inadmissible for two reasons. The evidence of
other accidents is offered to prove defendant has a character trait
of poor driving. Character evidence is not admissible in civil cases
(Fed. R. Evid. 404(a)), and in any event character ordinarily may
not be proved with evidence of specific acts of conduct (Fed. R.

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Evid. 405). Even without specific rules about character evidence,
however, the evidence may be inadmissible because of Rule 403,
discussed below.
Another example is the result of a polygraph test. Probably the
result, if obtained by a reliable operator, has enough value to satisfy
Rule 401's definition of relevance. Yet the jury might give the result
undue weight or be confused, and the evidence attacking or
supporting the validity of the test is likely to be lengthy and
tangential. One would expect the result to be excluded under Fed.
R. Evid. 403, which provides that
Although relevant, evidence may be excluded
if its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of
time, or needless presentation of cumulative
evidence.
Rule 403 is not the only rule designed to prevent the introduction
of evidence that is prejudicial or a waste of time; it is merely the
most general one. The Fed. R. Evid. also set forth specific rules for
certain recurring situations in which the balance of probative value
and prejudicial effect tips in favor of exclusion. See, e.g., Fed. R.
Evid. 404–405 (character evidence), Fed. R. Evid. 411 (evidence of
liability insurance). For purposes of this exercise, you need not
become acquainted with any of the relevance rules except Rules
401, 402, and 403. If you think that evidence ought to be excluded
under Rule 403 in the computer exercise, say so. If you are right
and there is also a more specific rule excluding the evidence, then
the computer will tell you.
D. The Opinion Rule
There are two aspects of the rule limiting the admission of opinion
testimony by lay (non-expert) witnesses. First, the lay witness must
not express an opinion about something that requires special skill,
knowledge, or education—for example, a lay witness could not
testify that the injury she received caused her to develop cancer.
Second, lay witnesses are sometimes prevented from expressing

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opinions even about matters that require no special skill. For
example, a lay witness would not ordinarily be permitted to testify
that one of the parties in an accident "was driving negligently" and
the other was not. The evidence would be excluded on grounds
that the testimony in that form would not be helpful to the trier of
fact. The jury, not the witness, should decide whether the driver
was negligent; in making the determination the jury would be
helped by specific testimony about what the driver was doing but
not by the witness's conclusion of negligence.
Courts have encountered difficulty in applying a rule that purports
to distinguish between "facts" and "opinions":
[The rule] is based on the simplistic
assumption that ‘fact’ and ‘opinion’ differ in
kind and are readily distinguishable. The
formula proved to be the clumsiest of tools
for regulating the examination of witnesses. *
* * Any conceivable statement, no matter
however seemingly specific, detailed, and
‘factual,’ is in some measure the product of
inference as well as observation and memory.
* * * The distinction between so-called ‘fact’
and ‘opinion’ is not a difference between
opposites or contrasting absolutes, but a mere
difference in degree with no recognizable
bright line boundary.
Kenneth S. Broun et al., McCormick on Evidence § 11, at 24 (6th ed.
2006).
The Federal Rules of Evidence adopt a pragmatic view of the
opinion rule that encourages specificity while still permitting lay
opinions when they will be helpful. Fed. R. Evid. 701, entitled
"Opinion Testimony by Lay Witnesses," provides
If the witness is not testifying as an expert, the
witness' testimony in the form of opinions or
inferences is limited to those opinions or
inferences which are (a) rationally based on the
perception of the witness, (b) helpful to a clear

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understanding of the witness' testimony or the
determination of a fact in issue, and (c) not
based on scientific, technical, or other
specialized knowledge within the scope of
Rule 702.
E. Lawyer–Client Privilege
The statements in the following text describe features of the
common law lawyer-client privilege as it exists in most American
jurisdictions. See generally Roger C. Park, David P. Leonard &
Steven H. Goldberg, Evidence Law: A Student’s Guide to the Law of
Evidence as Applied in American Trials §§ 8.03-8.12 (2d ed. 2004). The
Federal Rules of Evidence do not codify rules of privilege. Fed. R.
Evid. 501 merely provides that when the source of a substantive
rule of decision is state law, then state rules of privilege must be
followed in federal court; otherwise, the federal courts are
instructed to use "the principles of the common law as they may be
interpreted by the courts of the United States in the light of reason
and experience."
The lawyer-client privilege prevents a lawyer from testifying about
communications between lawyer and client made in confidence
during the course of the professional relationship. The privilege is
based upon the theory that justice will best be served if the client
confides freely in the lawyer, knowing that the lawyer cannot be
required to testify about what the client has said.
A communication is considered to be given in the course of a
professional relationship if the client has consulted a lawyer or a
lawyer's representative for the purpose of securing legal services
from the lawyer. The communications are protected even if the
client ultimately decides not to hire the lawyer. Moreover, the
privilege covers both disclosures of the client to the lawyer (or the
lawyer's representative) and advice given by the lawyer to the client.
The privilege does not apply unless the communication was
"confidential." If the client intended that the lawyer make the
communication public, then the communication is not privileged.
Similarly, if the client made a disclosure to the lawyer in front of

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third persons in circumstances indicating that the communication
was not intended to be confidential, the communication is not
privileged.
Moreover, the privilege applies only to communications between
the client and the lawyer (or the lawyer's representative). Not
everything that a lawyer learns while representing a client is
privileged. For example, suppose that a lawyer visits the scene of an
accident, observes the relative position of the automobiles, and
interviews eyewitnesses. Neither the lawyer's observations nor the
statements made by the eyewitnesses would be protected by the
privilege.
The fact that the lawyer-client privilege would not apply to these
observations and statements does not mean that the lawyer would
be free to disclose them voluntarily. First, they are work product.68
Second, the lawyer has an ethical duty not to divulge information
learned in the course of the professional relationship even if it falls
outside the scope of the lawyer-client privilege. Model Rule of
Professional Conduct 1.6(a) prohibits a lawyer from revealing
information relating to the representation of a client. The Rule also
provides six exceptions, including “to comply with other law or a
court order” [see Model Rule 1.6(b)], but these are not within the
scope of this exercise.
F. The Best Evidence Rule
Suppose that the wording of a written contract is of significance in
a lawsuit. May the party relying on the contract prove its contents
with oral testimony? If not, may a copy of the writing be
introduced in lieu of the original?
At common law, the best evidence rule supplied the answer to
these questions. Generally, it required the proponent to produce
the original writing or to make an acceptable excuse for not having
68 The statements of eyewitnesses are given qualified protection from discovery as

trial preparation materials as set forth in Fed. R. Civ. P. 26(b)(3). See Exercise
Seven, part I.B.3. The work product doctrine and the lawyer-client privilege

are distinct.

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it. Neither oral testimony nor a copy was admissible in the absence
of an excuse for not presenting the original.
One need hardly explain why the original of a writing is preferable
to oral testimony about its contents. The preference for an original
writing over a duplicate is more questionable. Modern methods of
copying are far more accurate than the hand-copying used at the
time of inception of the rule.
The Federal Rules of Evidence contain a version of the best
evidence rule, although it does not use the term best evidence rule.
The name has been retained in this exercise since it is the
traditional name for the rule. The rule retains a general preference
for the original while taking into account improvements in
methods of copying. Fed. R. Evid. 1002 provides the basic rule of
exclusion, stating that except where otherwise provided by rule or
statute, "To prove the content of a writing, recording, or
photograph, the original writing, recording, or photograph is
required * * * ."
Federal Evidence Rule 1003 creates an exception for duplicates
made by photocopy, carbon copy, or similar reliable methods; they
are admissible unless there is a genuine issue about the authenticity
of the original or other circumstances make use of the duplicate
unfair.
Rule 1004 deals with other situations in which the original is not
required, similar to the common law allowance to offer other than
the original of the writing with an adequate excuse for not
producing the original. Basically, the rule provides that the original
is not required when the person offering evidence of its contents
shows a good excuse for not producing the original, i.e., the
original is missing or unobtainable. In these circumstances, other
evidence of the contents of the original (including oral testimony
about what the document said) is admissible. Nonproduction
because the proponent has lost or destroyed the original in bad
faith is not accepted as a good excuse. Fed. R. Evid. 1004(1). Rule
1004 also provides an exception for unimportant documents on
collateral issues; neither the original nor an excuse for

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nonproduction is necessary when "The writing, recording, or
photograph is not closely related to a controlling issue." Fed. R.
Evid. 1004(4). For example, when a witness testifies that she knew
that the date of the collision was November 7 because the
newspaper contained a story about her mother on that day, the
newspaper need not be produced.
You should guard against the tendency to overgeneralize the best
evidence rule. No rule has ever invariably required the "best
evidence" to be offered on every matter. For example, a lawyer
may elect to call only one witness to a collision, despite the fact
that ten others were better placed to observe it; the rule simply has
no application in this situation, despite the fact that the lawyer is
not using the "best evidence" available. Similarly, a lawyer may elect
to use hearsay testimony that is admissible under an exception in
lieu of calling the actual witness. The federal best evidence rule
applies only to evidence of the contents of writings, recordings, or
photographs; it has nothing to do with other types of evidence.
G. Leading Questions
On direct examination, a lawyer ordinarily may not "lead" the
witness by asking a question that suggests the desired answer.
Thus, "Was defendant wearing a green plaid jacket?" would be
improper; "What was defendant wearing?" would not. There are,
however, many situations in which leading questions are permitted.
These include testimony about undisputed preliminary matters
("Were you present at the April 19 board meeting?"); here, leading
does no harm and speeds up the proceedings. Leading questions
are also permitted if the witness appears to need some assistance.
For example, if the attorney has unsuccessfully sought to elicit a
fact from the witness by non-leading questions ("Was anyone else
there?"), the attorney may then use a leading question ("Was Mr.
Hand there?"). In this instance, the trier has had the opportunity to
see that the witness cannot testify without leading, so it can
discount the witness's testimony accordingly.
Leading questions are also permitted on cross-examination, except
in relatively rare situations in which the witness being cross-

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examined is strongly partial toward the cross-examiner.
Accordingly, cross-examination of a witness with questions such as
"Isn't it true that the robber's face was completely covered?" would
ordinarily be permitted. Indeed, good cross-examination may be all
leading questions. There is little danger that the witness will be
overly influenced by suggestive questions on cross, and in any
event leading questions may be the only way to pin down an
uncooperative witness.
Fed. R. Evid. 611(c) sets forth the general rule and its exceptions as
follows:
Leading questions should not be used on the
direct examination of a witness except as may
be necessary to develop the witness'
testimony. Ordinarily leading questions should
be permitted on cross-examination. When a
party calls a hostile witness, an adverse party,
or a witness identified with an adverse party,
interrogation may be by leading questions.
II. Computer Exercise: CALI CIV 06
A. General Instructions
Read all of the material in this chapter before going to the
computer terminal. Also, check your civil procedure casebook to
see whether it has an introductory note on evidence. If it does, read
the note.
The computer will print out simulated trial testimony in question
and answer form. You will be asked to assume the role of the trial
judge and rule on objections to that testimony. Because you will
sometimes need to know what answer is expected in order to rule
on an objection, the computer will tell you both the attorney's
question and the answer that the witness would give if permitted.
Normally, of course, the witness would not answer unless the judge
overruled the objection. If necessary, the judge could hold a bench
conference beyond the hearing of the jury for the purpose of
finding out what answer the examining attorney was seeking.

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In the computer exercise you will be asked to select from choices
including “sustained” to sustain an objection (i.e., exclude the
evidence), and “overruled” if you decide to overrule an objection
(i.e., admit the evidence). You will be asked to explain your rulings.
Sometimes the computer will print out its own list of possible
justifications for your ruling; more often, it will ask you to choose a
justification from Display One or Display Two, both of which are
reproduced at the end of this written material for the exercise. Do
not refer to Display One or Display Two to answer a question
unless the computer tells you to do so. The displays are not
relevant to all of the objections, so reference to them at the wrong
time can be misleading.
Example
Computer: Plaintiff's lawyer continues the direct examination
of the witness as follows:
Q. After the collision, what happened?
A. The defendant got out of his car and came over to mine.
Q. Did he say anything?
A. Yes.
Q. What was it? OBJECTION
A. He said, "It wasn't my fault—the brakes went out."
Push "s" to sustain or "o" to overrule. Then push "return."
Student: "s"
Computer: You have ruled that the testimony is inadmissible.
Why must this testimony be excluded?
Look at DISPLAY ONE, push a number key to indicate your
answer, and then push "return." If you want to change your
mind and want to overrule the objection, push "o".
B. Background Facts About the Lawsuit
This case is a civil action to recover damages for personal injuries
sustained when an automobile driven by plaintiff was involved in

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an intersection collision with an automobile driven by defendant.
At a pre-trial conference, you learned that plaintiff will seek to
prove defendant ran a red light, drove his car knowing its brakes
were bad, drove at an excessive speed, and failed to keep a proper
lookout. Defendant will deny these acts of negligence and claim
that plaintiff was negligent in ignoring a police officer's warning
not to enter the intersection in which the collision occurred.
C. Display One and Display Two
DISPLAY ONE
1. Irrelevant/prejudicial
2. Best evidence rule
3. Leading question
4. Opinion rule
5. Hearsay
6. Privilege
7. No personal knowledge
(Push "o" if you have changed your mind and want to overrule
the objection.)
DISPLAY TWO
1. The statement falls under the dying declarations exception.
2. The statement falls under the declarations against interest
exception.
3. The statement falls under the business records exception.
4. The statement is the admission of a party.
5. The statement falls under the present sense impression
exception.
6. The statement is not offered to prove the truth of the
matter asserted.
7. The statement does not involve a spoken statement.

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8. The statement falls under the present state of mind
exception.
9. The statement falls under the excited utterance exception.
(Push "s" if you have changed your mind and want to sustain
the objection.)
You are now ready to go to the computer to work through CALI
CIV 06: Evidence for Procedure Students. Take this exercise with
you so you can refer to the rules of evidence discussed and Display
One and Display Two (but do not refer to the Displays on any
question unless the computer instructs you to do so, since they are
not relevant to several of the questions). The estimated completion
time for CALI CIV 06 is two-and-one-half hours, although this
exercise can be divided into segments to be completed in separate
sittings.

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Exercise Eleven - Preclusion
I. Introduction
A. Overview
Preclusion can be one of the most analytically difficult areas of civil
procedure. The basic doctrines of preclusion are relatively
straightforward, but in the application of concrete situations to
those doctrines lies the difficulty. One can easily say the balance of
the entire claim is precluded, but what is the full extent of the
claim? One can easily say that only an issue necessary to the result
is precluded, but when is an issue necessary? This exercise explores
these concepts.
The term preclusion is an umbrella for the related series of
doctrines that deal with deciding when a court will bar litigation of
a claim or issue because that claim or issue has already been
decided in a previous action. This entire area of the law comes to
us from common law decisions. It is not treated in the Federal
Rules of Civil Procedure.
Working with the common law decisions in preclusion is made
more difficult because terminology in the area is not uniform.
Courts and commentators can and do disagree, for example, on the
meaning of "res judicata." The majority use the term to apply only
to preclusion of entire claims, but the Restatement (Second) of
Judgments uses it more broadly to apply also to preclusion of
issues. Beyond these disagreements, some courts simply misuse the
terms. Accordingly, our first order of business is to explain the
meaning of the many terms in this area as they are used in this
exercise.
To avoid this dispute over the scope of res judicata, we will use
terms of clear meaning: claim preclusion and issue preclusion. Claim
preclusion bars claims; it is claim wide. Issue preclusion bars issues;
it is issue wide.
Both require two lawsuits—neither applies to a direct attack on a
judgment in the same proceeding. A judgment in the first lawsuit is

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asserted to preclude all or part of the second lawsuit. Preclusion
does not operate within a single lawsuit. A motion to vacate a
judgment cannot be defeated by application of preclusion.
Claim preclusion, or what most courts and commentators would
call res judicata, provides that a final, valid judgment on the merits
will prevent parties (and those in privity with them) from
relitigating the entire claim, i.e., all issues that were or should have
been litigated, in a second action. Typically, a plaintiff will have
split the claim, asserting only part of it in the first suit. The plaintiff
may bring a second suit on an additional theory of recovery or for
additional damages. Even though never litigated, these additional
theories or damages are precluded. Should the plaintiff have won
the first suit, the additional matters are sometimes said to have
merged into the first judgment. Should the plaintiff have lost the first
suit, the additional matters might be said to be barred by the first
judgment. Some might therefore refer to claim preclusion as
merger and bar. Claim preclusion covers the entire claim.
Issue preclusion, or what many would call collateral estoppel,
provides that a final, valid judgment on the merits will prevent
parties (and those in privity with them) from relitigating an issue
that was actually litigated and necessary to the prior judgment
should the same issue arise in a different claim. For example, A
sues B for negligence. A receives a judgment after trial. B then sues
A for negligence in the same incident. B will be precluded from
relitigating the issue of her negligence (and will therefore lose on
summary judgment in a contributory negligence state). Issue
preclusion covers only individual issues.
Both of these doctrines will be developed in more detail in the
following sections of this introductory essay, but first we mention
two doctrines that are related, yet distinct. Law of the case works
within a single case. It provides that once an issue is decided by an
appellate court, the decision will be binding on the lower court on
remand; it will also be binding through self-restraint by the
appellate court should the case return on a second appeal. Stare
decisis, or precedent, applies the result in a case to a second,
factually-similar case. The doctrine is based in principles of stability

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and consistency, and attempts to ensure that like-situated litigants
are treated alike. While preclusion doctrines require the same
parties and are binding even in different jurisdictions, a precedent
will be applied to different parties but will be treated as only
persuasive rather than binding in different jurisdictions.
B. Policy
Preclusion is supported by policies protecting both private and
public interests.
Policies protecting private litigants from being "twice vexed" by the
same claim are strong. First and foremost, the prevailing party has
a definite interest in the stability of the judgment. This means the
party can rely on a decision, such as ownership of property, in
planning for the future. Beyond this consideration, litigation is
always a burden, financially and emotionally; second litigation of
the same matter is an additional burden. Preventing relitigation also
serves the end of halting a potential means of harassment of a
person.
Public policies served by preclusion are equally or more weighty.
Preclusion is a necessity so that the judgment of a court is not a
mere empty gesture. The state has a definite interest in the end of
litigation, not only to protect its judgments but also to conserve
finite judicial resources. This promotes efficiency in a court system,
and makes room for the court to hear other parties' disputes. When
litigants understand that the court will apply preclusion, the
litigation will have an end. Persons other than the parties will also
be able to rely on judgments.
At the same time, promotion of these policies comes at a price.
The second claim or issue is precluded no matter what its merit.
The court may even be convinced that the first judgment was
wrong. It is still preclusive. "Res judicata reflects the policy that
sometimes it is more important that a judgment be stable than that
it be correct." John H. Friedenthal, Mary Kay Kane & Arthur R.
Miller, Civil Procedure § 14.3, at 655 (4th ed. 2005).

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C. Affirmative Defense
Claim preclusion and issue preclusion are affirmative defenses,
enumerated in Federal Rule 8(c)(1). Consequently, they must be
pleaded or they will be lost. The court will not likely raise the
defense on its own initiative. A party might also waive its right to
assert a preclusion defense by actions explicit or implicit in the first
litigation.
II. The Preclusion Doctrines
A. Claim Preclusion
Claim preclusion provides that a final, valid judgment on the merits
prevents relitigation of the entire claim, including all matters that
were or should have been litigated, by the same parties, plus others
in privity with them. The constituent elements of claim preclusion
are the following:
1) a final, valid judgment on the merits;
2) the same parties, plus others in privity
with them; and
3) the entire claim, including all matters that
were or should have been litigated.
We briefly examine each of these three elements in turn.
1. Final, Valid Judgment on the Merits
All courts agree that claim preclusion requires a final, valid
judgment. To be valid, a judgment must have been reached by a
court with proper subject matter and personal jurisdiction. The
judgment is valid when the court had jurisdiction, even though the
result of the case may be thought erroneous. To be final, the court
must have completed "all steps in the adjudication * * * short of
execution." Restatement (Second) of Judgments § 13 (1982).
Consequently, a judgment is final, for preclusion purposes, even
though it remains unexecuted. More importantly, most courts hold
a judgment of a trial court final even though the losing party takes
an appeal.

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Disagreement among courts and commentators is encountered
when the element of a final, valid judgment is expanded to include
"on the merits." See generally John H. Friedenthal, Mary Kay Kane &
Arthur R. Miller, Civil Procedure § 14.7 (4th ed. 2005). Most would
agree that the judgment must have been on the merits to support
claim preclusion, although agreement with that proposition is not
universal. The problem arises in the context of a pretrial dismissal
of a claim. While a dismissal for lack of jurisdiction certainly is not
on the merits, a dismissal for failure to state a claim is treated as on
the merits by most courts. While almost all courts agree that a
default judgment or a consent judgment can support claim
preclusion, they disagree whether voluntary dismissal or
involuntary dismissal for rule violation can support claim
preclusion. For example, is claim preclusion supported by
involuntary dismissal under Federal Rule 41(b) for failure to
prosecute? Such a result would appear to have nothing to do with
the merits, yet the rule itself provides otherwise:
If the plaintiff fails to prosecute or to comply with
these rules or a court order, a defendant may move to
dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this
subdivision (b) and any dismissal not under this rule–
except one for lack of jurisdiction, improper venue, or
failure to join a party under Rule 19–operates as an
adjudication on the merits.
Fed. R. Civ. P. 41(b). Such problems have prompted some
commentators to eliminate the requirement that the judgment be
"on the merits." Every court and commentator does agree that a
judgment reached after trial, summary judgment, or judgment as a
matter of law is on the merits.
2. Same Parties and Others in Privity
A judgment will not be preclusive unless the parties in the second
suit are identical to, or are in privity with, the parties in the first
suit. Any stranger to the first litigation cannot be bound by it. Two
suits with different parties may qualify for issue preclusion, but not
for claim preclusion. Little difficulty is presented in determining

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whether the same parties are involved; somewhat more difficulty is
presented in determining privity.
The answer historically has been that people were in privity only
when they acquired the same interest that had been litigated in the
first suit, i.e., the person was a successor in interest to a party.
Typically, the person might obtain the interest by inheritance, or by
assignment. Over the years, courts have extended the concept of
privity into other areas. A person who actually controlled the first
suit is in privity with the party, as when an insurance company
provides the defense for a policyholder who is the named party.
Privity will be found between legal representatives and the people
they represent, such as guardian and ward, trustee and beneficiary,
and the like. Commercial relationships may also support a finding
of privity, such as employer and employee. Some commentators
even go so far as to say that privity has been so expansively
interpreted that it now has become only a verbal symbol for any
type of relationship that a court will use to bind a nonparty to a
judgment.
One must keep in mind that, even though expanded over the years,
privity remains narrow. Persons similarly situated or of like
interests with parties are not in privity with them. All instances of
persons in privity involve a legal relationship.
3. Same Claim Barred, Including All Issues That Were
or Should Have Been Litigated
The preclusive effect covers the entire claim, including not only
issues that were litigated but also all issues that should have been
litigated. A plaintiff who sues on only one of two available theories
of recovery will be precluded from later proceeding on the other
theory. The preclusion might be called merger or bar, depending
on whether plaintiff won or lost the first action. The same can be
said for a plaintiff who seeks damages in the first action, and sues
again for additional damages in a second action. Even though
plaintiff legitimately discovers additional, unanticipated damages,
he will be precluded.

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Since the same claim is precluded, the question becomes when the
same claim is presented, or how expansively the claim in the first
suit will be defined.
Note first that we use the word "claim" instead of the phrase
"cause of action." While the cause of action was important at
common law, and remains of importance in the minority of
American jurisdictions that are code states, it has been rendered
obsolete in federal courts and the states that have patterned their
rules after the Federal Rules of Civil Procedure. Accordingly, we
refer only to claim.
Having said that, we also note that some states choose to define
claims broadly to encourage joinder and discourage multiple
litigation. Other states choose to define claims rather narrowly out
of concern for the perceived harshness of preclusion.
What test can be used to define the limits of a claim? Some courts
look at whether the same evidence would be used in both suits. Let
us suppose that B is employed by A. A fires B and in the course of
the exit interview, becomes agitated and strikes B in the face. B
sues A for race discrimination in the firing and the case proceeds to
judgment. In a second action, B sues A for breach of contract and
battery. The breach of contract theory would be supported by the
same evidence as the discrimination theory—the contract,
evaluations, etc.—so would be part of the same claim. The battery
would be supported by completely different evidence—the striking,
etc.—so would be a different claim and preclusion would not
apply.
Other courts attempt to determine whether the second action
would have the effect of destroying the first judgment. Using the
same hypothetical of A firing B, one would expect that neither
theory would be part of the same claim: no matter what the result
on the discrimination action, a later decision for or against breach
of contract or for or against battery would not destroy the first
judgment.
Probably the test most commonly used by courts wishing to
narrow the effect of claim preclusion asks whether the same

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primary right was violated by the same primary wrong. This is
known as the primary right-primary wrong test. In the above
hypothetical of A firing B, each of the separate theories would be a
primary right and a primary wrong, so neither of the other two
theories would be precluded. Courts adopting this test would likely
call the theories causes of action. Similarly, an auto accident might
produce both personal injury and property damage to a driver.
Under the right-wrong test, the right of not having personal injury
inflicted matches the wrong of not inflicting personal injury on
another. The property damage is a separate matching of rightwrong, and so a different claim. Or, a theory of restitution would
be considered different from a theory of damages for breach of the
same contract.
Today, many courts have abandoned these efforts in favor of a
transactional test. This test refuses to define a claim through
narrow legal theories, and instead determines the scope of a claim
by the transaction, i.e., the facts, presented. The transactional
approach looks to what a lay person would expect to be included in
a single litigation and fits perfectly into the scheme of the Federal
Rules of Civil Procedure. The transactional approach produces this
rule:
(1) When a valid and final judgment rendered
in an action extinguishes the plaintiff's claim
pursuant to the rule of merger or bar * * * the
claim extinguished includes all rights of the
plaintiff to remedies against the defendant
with respect to all or any part of the
transaction, or series of connected
transactions, out of which the action arose.
(2) What factual grouping constitutes a
"transaction," and what groupings constitute a
"series," are to be determined pragmatically,
giving weight to such considerations as
whether the facts are related in time, space,
origin, or motivation, whether they form a
convenient trial unit, and whether their
treatment as a unit conforms to the parties'

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expectations or business understanding or
usage.
Restatement (Second) of Judgments § 24 (1982).
What matters, therefore, is what theories or damages were
sufficiently factually related that they could have been brought in
the first suit. Should plaintiff have omitted theories of recovery
then available, plaintiff has split theories and will be subject to
claim preclusion. Should plaintiff have omitted elements of
damages that could have been brought in the first suit, she has split
damages, and will be subject to claim preclusion.
This transactional test for a claim produces different results in the
hypotheticals considered above. Consider first the firing of B by A.
B was fired only once, and was punched during the course of the
firing. That is one grouping of facts, only one transaction, and
therefore one claim. Plaintiff B cannot split it into two actions, and
claim preclusion will apply. The breach of contract and the battery
theories will be barred or merged into the first judgment. Similarly,
one auto accident produces one claim, including all types of
damages flowing from it, so a second action on property damage
would be precluded by the first judgment on personal injury. One
contract produces one claim, no matter whether the theory is
restitution or damages.
The transactional test gives broad scope to res judicata. It gives full
effect to the policies supporting the doctrine. See I.B, supra.
Exceptions exist when claim preclusion will not prevent splitting a
claim. See II.C, infra.
B. Issue Preclusion
While claim preclusion covers the entire claim, issue preclusion
prevents relitigation of an individual issue. Issue preclusion
provides that a final valid judgment prevents the same parties, plus
others in privity with them, from relitigation in another claim of
issues actually litigated and necessarily decided by that judgment,
unless unfairness would result. “When an issue of fact or law is
actually litigated and determined by a valid and final judgment, and
the determination is essential to the judgment, the determination is

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conclusive in a subsequent action between the parties, whether on
the same or a different claim.” Restatement (Second) of Judgments § 27
(1982). The constituent elements of issue preclusion (collateral
estoppel) are the following:
1) a final, valid judgment;
2) the same parties, plus others in privity with them;
3) an identical issue in the new claim;
4) the issue was actually litigated;
5) the issue was necessary to the judgment; and
6) no unfairness would result.
We briefly examine each of these six elements in turn.
1. Final, Valid Judgment on the Merits
As with claim preclusion [see II.B.1, supra] the first requirement for
issue preclusion is a final, valid judgment. The court must have had
jurisdiction, and the judgment must be final except for execution or
appeal.
The requirement of a judgment to support issue preclusion is both
narrower and broader than for claim preclusion, however. It is
narrower in that a default judgment or a consent judgment cannot
support issue preclusion because neither was litigated. It is broader
in that issues estopped need not involve the merits of the case. For
example, plaintiff sues defendant in a distant state. Defendant
appears and contests personal jurisdiction. Defendant loses the
jurisdictional challenge and does not fight the merits, allowing
plaintiff to obtain a default judgment. Plaintiff then sues in
defendant's home state to enforce the judgment. This is treated as a
different claim: the first claim is on the underlying transaction, and
the second is on the foreign judgment. Defendant will be precluded
from relitigating the issue of personal jurisdiction because it was
actually litigated and decided, even though it did not involve the
merits. On the other hand, should defendant have ignored the
process from the distant court, it could litigate the issue in the
home state because the issue would never have been litigated.

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2. Same Parties and Those in Privity
Traditionally, issue preclusion has required the same parties, or
privies, in both actions; this requirement was the same as claim
preclusion [see II.A.2, supra]. The reason a nonparty cannot be
bound by a judgment in which it did not participate is this would
violate due process. The reason is more difficult to discover when a
party to the first action is to be bound by a nonparty to the first
action. Certainly, the bound party had its day in court, so due
process is not offended. What then prevents binding a party by a
nonparty to the first action?
Historically, the doctrine of mutuality was thought to require the
identical parties in both suits. The doctrine was based on fairness,
i.e., any party seeking to take advantage of a favorable result in the
first case must have been at risk of an unfavorable result in the
same case. Accordingly, when the first suit was between A and B,
the second must also be between A and B; a second suit between A
and C would not serve for issue preclusion.
The doctrine of mutuality began to break down in the states in the
early 1940s. Today, although some states cling to mutuality, most
states and the federal courts have abandoned mutuality in favor of
ruling that issue preclusion may bind a person who was a party to
the first action, even though the opposing party in that action was
different from the opposing party in the second action. The person
to be precluded has had a day in court. Of course, due process still
prevents a nonparty to the first action from being bound. In a
simple example, when the first action is between A and B, and the
second action is between A and C, then A may be precluded in the
second action. C, as a nonparty to the first action, may not be
bound.
Nonmutual issue preclusion can work in two situations: defensive
collateral estoppel and offensive collateral estoppel. The policies
behind the two are quite different.
Defensive collateral estoppel would apply in this situation. A sues
B for patent infringement. Following full litigation, the court
adjudges the patent invalid. A then sues C for infringement of the

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same patent. C pleads collateral estoppel against A on the issue of
the validity of the patent. C is using collateral estoppel defensively,
to defeat plaintiff's claim. See Blonder–Tongue Labs., Inc. v. University of
Illinois Found., 402 U.S. 313, 91 S. Ct. 1434, 28 L.Ed.2d 788 (1971).
Similarly, a plaintiff who sues the employer (master) for a car
accident when the employee (servant) was driving will be
collaterally estopped on the issue of the employee's negligence by
an unfavorable judgment in the first action. Most courts recognize
nonmutual defensive collateral estoppel.
The policies behind the doctrine are strong. Preventing relitigation
of an issue litigated and decided against a plaintiff promotes
stability of judgments, economy of judicial resources, and
prevention of inconsistent results, and also protects the second
defendant from harassment by the plaintiff.
A more questionable situation is presented in offensive collateral estoppel, a situation in which plaintiff defeats defendant in the first
action and a new plaintiff seeks to take advantage of the first
judgment against the same defendant in a second action. The
Supreme Court approved use of offensive collateral estoppel in the
following situation. P sued D for issuing a false proxy statement; D
demanded a jury trial. Before the case went to trial, the Securities
and Exchange Commission sued D for issuing the same false proxy
statement. The SEC action went to a court trial and D lost. P then
successfully asserted that judgment as collateral estoppel in the jury
action on the issue of the falsity of the proxy statement (even
though defendant thereby lost the right to have a jury decide the
issue). See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S. Ct. 645,
58 L.Ed.2d 552 (1979).
Here the prior judgment was being used offensively by plaintiff
instead of defensively by defendant. Offensive collateral estoppel is
used most often in a mass tort situation. When the first plaintiff
proceeds to a successful judgment, the other plaintiffs in the
lawsuit pipeline can and do move for partial summary judgment on
the issue of liability.

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The policies for offensive collateral estoppel are quite different
from defensive collateral estoppel. Rather than encouraging
plaintiff to join all parties in the first suit, the incentive is for
potential plaintiffs to stay out of the first suit. Should the first
plaintiff be successful, another plaintiff can then file suit and assert
collateral estoppel. Should the first suit be unsuccessful, another
plaintiff can then file suit and start from the beginning; the second
plaintiff, as a nonparty to the first suit, cannot be collaterally
estopped. This different consequence raises fairness concerns.
Also, the policy of promoting efficiency to the court system may be
undermined instead of encouraged by offensive collateral estoppel,
since the incentive is to wait, see, and file additional suits instead of
joining the first suit.
Despite these policy differences between nonmutual defensive
collateral estoppel and nonmutual offensive collateral estoppel,
many courts today allow both.
3. Different Claim; Identical Issue
The claim must be different; otherwise, claim preclusion would
apply, since it covers issues that were or should have been litigated.
See II.A.3, supra. A different claim with a common issue would be
presented, for example, should a landlord sue on rent due for the
month of October and proceed to judgment, then bring a second
action for rent for the month of November. Each month is a
separate claim.
In many situations, the issue will be identical without question. At
other times, the court may decide that the issue is not identical
despite its close similarity. For example, a decision on tax treatment
in one year may not be the identical issue to tax treatment in
another year. Circumstances may also change. The burden of proof
may be different in the two actions. Of course, when the burden of
proof is more favorable to the party to be estopped, the issue may
be found identical: when a defendant is convicted of murdering a
relative in a criminal proceeding, that judgment can be used to
collaterally estop the same person as plaintiff/beneficiary in a suit
against the insurance company for the proceeds of a policy on the

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life of the deceased. Note in this example there is no mutuality of
the parties, yet defensive collateral estoppel would be applied.
4. Issue Must Have Been Actually Litigated
Collateral estoppel will apply only to an issue that actually was
litigated in the first action. That means, by definition, dispositions
such as default judgments, consent judgments, and voluntary
dismissals cannot qualify for collateral estoppel. Similarly, issues
that may appear in the final judgment, but which were not the
subject of contest in the action, will not support collateral estoppel.
Should a defendant admit an issue in the answer, or even fail to
contest it at trial, the issue would not have been litigated. On the
other hand, a judgment by summary judgment or by judgment as a
matter of law may qualify for collateral estoppel should the motion
have been contested.
When an issue was not actually litigated, the policy of finality of
judgments will be outweighed by the policies of fairness and
decision on the merits. A party may not litigate an issue in the first
action for various reasons, including 1) small amount in
controversy, 2) inconvenient forum, or 3) poor timing for the
litigation.
Whether an issue was litigated may be difficult to determine. The
decision may require looking at the record of the first action.
Should the record be unclear, the court will probably find the issue
was not litigated. This situation would arise often when the first
action was determined by a general verdict. For example, A sued B
for breach of contract and the defense pleaded was a denial and
also a release. The general verdict was for B, the defendant. Was
only the breach litigated, or was only the affirmative defense
litigated, or were both litigated? Extrinsic evidence may provide the
answer, but extrinsic evidence cannot contradict the record.
5. Necessary
Collateral estoppel will not be applied unless the decision on the
issue in the first action was necessary, i.e., essential, to the result.
For example, P sues D for negligence and D pleads contributory
negligence. The judgment is for D on a finding of no negligence. A

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further finding of contributory negligence against P is not
necessary to the result and accordingly is not preclusive. This
requirement is rooted in fairness, which is that a party should be
estopped only on essential issues from the first action because the
party may not have made a full effort on nonessential issues.
Further, the court may not have considered such nonessential
issues as closely as it did the necessary issues, and no appellate
review was likely pursued.
The party who prevailed may have lost some of the issues. These
issues cannot be used to estop the party in a second action because
necessarily they were not essential to the outcome of the case.
Recall the previous hypothetical of A suing B for breach of
contract with a denial and an affirmative defense of release. Should
the jury find by special verdict that the contract was valid but that
B had been released, B wins. The issue of the validity of the
contract cannot be the basis of preclusion against B in a second
action because B prevailed in the first.
Alternative findings in the first action pose a problem. Again, in the
previous hypothetical in which A sued B on a contract and B
pleaded an affirmative defense of release, should A prevail on a
general verdict, the judgment necessarily was against B on both the
contract and the release. Both would be collaterally estopped in a
second action. On the other hand, should B prevail on the general
verdict, one is not clear whether the contract or the release, or
both, afforded the basis for the decision. The situation may be
clarified should the court have employed a special verdict;
assuming the jury specially found for B on both the contract and
the release, as alternative findings both may be collaterally estopped
in a second action.
Some of the older opinions distinguish between mediate facts and
ultimate facts in whether collateral estoppel should apply. An
ultimate fact was one on which the action was based, such as an
element of the case; a mediate fact was a mere evidentiary one
from which an ultimate fact could be inferred. Ultimate facts were
appropriate for collateral estoppel; mere mediate facts were not.
Assume D is driving a car that strikes P1, and a half-hour later in a

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second accident strikes P2. P1 sues for negligence and by special
verdict the jury finds D had been drunk and was negligent. In the
action by P2, no preclusive effect will be given to the finding D
was drunk as that was only an evidentiary fact allowing an inference
to the ultimate fact that D did not use due care. This terminology is
outdated. Today's approach looks to whether a fact was necessary
to the result, not to how the fact fits into the hierarchy of the
inferential structure of the elements of the case.
6. Fairness
Even when all of the five above tests for collateral estoppel are
met, the court may still refuse to apply the doctrine should the
result appear to be unfair because of an inadequate "opportunity or
incentive to obtain a full and fair adjudication in the initial action."
Restatement (Second) of Judgments § 28(5)(c). Some examples of
situations in which a court has refused issue preclusion because of
unfairness include inadequate representation in the first action,
small amount in controversy in the first action, apparent
compromise by the jury in the first action, and unforeseeability of
additional action(s). Interestingly, one assertion of unfairness might
be that collaterally estopping a party in a second action would
deprive it of the right to jury trial. This type of unfairness did not
prevent the Supreme Court from approving use of offensive
collateral estoppel. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.
Ct. 645, 58 L.Ed.2d 552 (1979).
C. Exceptions to Preclusion
Situations exist in which the elements of one of the preclusion
doctrines fit, yet the court will refuse to apply the doctrine. While
we do not develop these situations in any depth as they are beyond
the scope of this brief note, they include when preclusion would
defeat a strong governmental policy, when preclusion was waived
by a party in the first action, when the law has changed in the
interim, and when the jurisdictional limitations of the first court
prevented the full claim from being litigated. This is especially true
when both the federal courts and state courts are involved. See

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generally Larry L. Teply & Ralph U. Whitten, Civil Procedure 99396, 1011-16 (4th ed. 2009).
III. Questions on Preclusion
Instructions. This section contains questions for you to answer to
test and strengthen your knowledge of the law of preclusion. Use
your scrolling feature so that the screen shows only the question.
Answer the question yes, no, or maybe and formulate your
reasoning, then scroll down to compare your answer to the
authors’ answer. P represents plaintiff and D represents defendant.
A. Claim Preclusion
Q–1. Part 1. P sues D for damages in construction of a house,
asserting theories of breach of warranty and negligence. D moves
to dismiss for lack of personal jurisdiction. The motion is granted,
and the case is dismissed. P later sues D using the identical
complaint in another state's court. D pleads res judicata. Does
claim preclusion apply?
Part 2. Instead, the motion to dismiss for lack of personal
jurisdiction is denied. Following jury trial, P obtains a judgment. Six
months later, D moves to vacate the judgment on the ground of
fraud. P pleads res judicata. Does claim preclusion apply?
Part 3. The motion to dismiss for lack of personal jurisdiction is
denied. Following jury trial, P obtains a judgment. D appeals. While
the appeal is pending, P files a second action for damages from
construction of the house, alleging a theory of strict liability. D
pleads res judicata. Does claim preclusion apply?
Answer to Q–1. Part 1.
No. Claim preclusion requires a final, valid judgment. While
some courts and commentators differ on whether the judgment
must be on the merits, all would agree that a dismissal for lack
of jurisdiction cannot support res judicata.
Part 2. No. This is a direct attack on a judgment within the
same action. Res judicata can apply only in a second action.

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Part 3. Yes. This is a situation in which P has split theories of
recovery, and res judicata will apply. The pendency of an appeal
does not affect the finality of the trial court's judgment.
This answer is based on a transactional definition of claim. A
primary right-primary wrong definition would likely produce
the opposite result. See II.A.3, supra.
Q–2. Part 1. P, purchaser of shares of D Corp. pursuant to a
prospectus issued by the corporation, sues on the ground that the
prospectus contains a false statement. P obtains a final judgment of
damages for $9,500; the judgment is satisfied. P2, a neighbor of P,
who purchased shares of D Corp. pursuant to the same prospectus,
sues on the ground that the prospectus contains the same false
statement. P2 pleads the first judgment as res judicata. Does claim
preclusion apply?
Part 2. P3, a nephew of P, obtains the shares from P by
inheritance. Dissatisfied with the amount of the judgment in the
first case of P v. D Corp., and being a nonparty to that case, P3 sues
D Corp. on the ground that the prospectus contained a false
statement. Does res judicata apply?
Answer to Q–2. Part 1.
No. Claim preclusion requires the same parties, or those in
privity with those parties, in both actions. In this hypothetical,
the first action is P v. D Corp. and the second action is P2 v. D
Corp. The common party in both suits is D Corp. This may
allow use of issue preclusion against D Corp., in a state that has
abandoned the requirement of mutuality, but claim preclusion
still strictly requires parties or those in privity with them in
both suits.
Similarly, the judgment against D Corp. in the first action may
support stare decisis, or precedent, in the second action, but
this is not res judicata.
Part 2. Yes. The nephew obtained the shares by inheritance
from P. Consequently, P3 is in privity with P. Since P was a

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party to the first action, P's privies are also bound by res
judicata. This is a situation in which P has split damages.
Q–3. P sues D in federal court for age discrimination because D
terminated her employment. Following a jury trial and verdict,
judgment is entered for D. P later files action against D in state
court for breach of employment contract and defamation. D pleads
the affirmative defense of res judicata. Does claim preclusion
apply?
Answer to Q–3.
Yes. Res judicata is claim wide, precluding all matters of fact
and law that were or should have been litigated. P was
terminated once: she has one claim, which arose in a single
transaction. She must assert all her theories of recovery in the
same action, instead of splitting her theories as she did in this
hypothetical. Both of the state law theories could have been
pleaded in separate counts in the federal action (Fed. R. Civ. P.
10(b)), and supplemental jurisdiction (28 U.S.C. § 1367) would
allow the federal court to hear the state law theories as well as
the federal law theory. See Exercise Six, part I.B. P's other
theories are barred by the unfavorable result in the first action.
P might argue that the defamation theory is a separate
transaction. If the defamation occurred at the time of
termination, clearly there is a single transaction. If the
defamation occurred later, as in an unfavorable job reference, P
might argue the separation in time makes this a separate
transaction, and so a separate claim. We would answer that this
is one common nucleus of fact, and a lay person would expect
all of it to be tried together. It is a single transaction, or series
of transactions. Therefore, it is a single claim. See Restatement
(Second) of Judgments § 24(2) (1982), in II.A.3, supra.
Note that the converse court situation might save P's
unpleaded theory. Should the first action have been brought in
state court, with P failing to plead a federal law theory, that
theory might be outside the operation of res judicata when the
federal theory could not have been brought in state court. This

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would apply when the federal theory involved exclusive federal
jurisdiction, not concurrent jurisdiction, as in this hypothetical.
This answer is based on a transactional definition of claim. A
primary right-primary wrong definition would likely produce
the opposite result. See II.A.3, supra.
Q–4. P sues D for punching him in the nose. P's proof on damages
is not entirely satisfactory, and the jury awards only $2000. Several
months later, P stumbles on additional evidence that supports a
new, substantial element of damages. P sues D for the additional
damages. Does res judicata apply?
Answer to Q–4.
Yes. P has split his damages, as well as his nose. Claim
preclusion includes all matters of fact and law that were or
should have been litigated. Certainly, all elements of damages
arising out of a single tort are included, and are merged into the
favorable result in the first action. This answer is the same
under both the transactional approach and the primary rightprimary wrong approach since both cases involve injury to the
person.
P may be able to obtain some relief by moving to vacate the
first judgment on the ground of newly discovered evidence, but
that would be a direct attack on the first judgment, and is not
relevant to a discussion of res judicata.
B. Issue Preclusion
Q–5. John and Mary Homeowners signed a contract with AAA
Builders to construct their dream home. When the Homeowners
moved in, they discovered shoddy work in several rooms and sued
AAA Builders for breach of warranty. The Homeowners obtained
a judgment. Some time later, AAA Builders sold its business to
BBB Builders. BBB studied the books and discovered that not all
of the payments from Homeowners had been collected. BBB
Builders sued Homeowners to collect the payments. Defendant
Homeowners defended on the ground of shoddy work. Does
collateral estoppel apply on the issue of the quality of the work?

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Answer to Q–5.
Yes. There is a final, valid judgment. The parties are the same
in both actions (BBB is in privity with AAA as the purchaser of
the business). The claim is different, but the issue of the quality
of the work is identical, was actually litigated, and was necessary
to the result in the first action. Issue preclusion/collateral
estoppel will apply.
Homeowners might also be able to defend on the ground that
BBB Builders's predecessor in interest AAA Builders failed to
plead a compulsory counterclaim (assuming the action was
brought in a federal court or a state that has compulsory
counterclaims), but that is not a collateral estoppel issue.
Q–6. P Corp. is in the business of selling freezers and frozen meat.
It requires buyers to sign a preprinted, standard form contract. D
signs a contract, but when the quality of the meat is unsatisfactory,
refuses to pay. P Corp. sues on the contract, and D defends that
the interest rate on the contract is usurious under state law. The
jury verdict is for D and judgment is entered. P Corp. later sues
D2, another buyer, on the same standard form contract. D2 pleads
that the interest rate is usurious and moves for summary judgment
on the grounds of collateral estoppel. Does collateral estoppel
apply?
Answer to Q–6.
Yes. The hypothetical presents a different claim (P Corp. v. D2
instead of P Corp. v. D) with an identical issue (the usurious
rate) that was actually litigated and necessary to the first
judgment. In those states that have abandoned mutuality,
collateral estoppel will be applied because the party to be
estopped, P Corp., was a party to the first action and had its
day in court. This is defensive collateral estoppel.
The answer would be different in states that retain the doctrine
of mutuality, since the parties in the two suits are not the same,
and there is no privity between the two defendants, even
though they have similar interests. Also, had the first judgment

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gone against D, the result could not be used against D2, since
D2 was not a party to the first action.
Q–7. Dumper, Inc. Is in the waste disposal business. Two lakefront
property owners on Lake Wishuwerhere sue Dumper, Inc. for
disposing of waste in their lake in violation of federal and state
waste disposal statutes and regulations. The defense is that no
dumping occurred. Following trial to the court, the judge finds that
the dumping did occur and orders judgment for plaintiffs. Hearing
of this result, the remaining 84 homeowners on the lake join
together to file suit against Dumper, Inc. for damages for the
unlawful dumping. Does collateral estoppel apply?
Answer to Q–7.
Yes. Dumper, Inc. defended the common issue of unlawful
dumping and lost. The issue in these different claims was
actually litigated and necessary to the result. No reason exists to
believe that a court would reach a different result in another
litigation. Accordingly, Dumper, Inc. will be collaterally
estopped from denying the unlawful dumping even though no
mutuality exists. This is offensive collateral estoppel.
Defendant might argue that unfairness would result because
the first action involved only two homeowners and the second
involves 84. This argument likely would not prevent collateral
estoppel because the defendant could easily have foreseen that
other owners would also seek to enforce their claims and
would have had every incentive to defend the first action
vigorously.
Defendant might also argue that the second group of owners
should not be allowed to lie in the weeds to await the outcome
of the first action and then take advantage of a favorable result.
Although a few courts have hinted of requiring such potential
additional plaintiffs to join or intervene in the first action, the
courts have not insisted on mandatory joinder or intervention.
Q–8. Part 1. Ten plaintiffs, join permissively to sue D University
for gender discrimination in its promotion policies. Following

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extensive negotiation, the university allows a consent judgment to
be entered against it. Additional plaintiffs then bring suit against
the university for the same promotion policies, and move for
partial summary judgment on the issue of discrimination, asserting
issue preclusion. Does issue preclusion/collateral estoppel apply?
Part 2. Same facts as part 1, except D University answers denying
any discrimination, and the case goes to trial. D University
concedes the issue following presentation of plaintiffs' case in
chief. Does collateral estoppel apply?
Part 3. Same facts as in part 1, except D University contests the
issue throughout trial, and the jury verdict is for plaintiffs. Does
collateral estoppel apply?
Answer to Q–8, parts 1–3.
Collateral estoppel requires that the issue have been actually
litigated. The facts in parts 1 and 2 show the issue was not fully
litigated, so no collateral estoppel can apply in the second
action. In part 3, the issue was fully litigated, so collateral
estoppel applies.
Q–9. P sued D Cabco for personal injuries and property damage
arising when one of Cabco's taxicabs collided with P's car. Cabco
defended on two grounds: 1) the driver was an independent
contractor instead of an agent, so no negligence could be imputed
to it, and 2) the driver was not negligent. By special verdict, the jury
found that the driver was an agent, but was not negligent, so
judgment was entered for D Cabco. A second suit had been filed
before the first action went to trial; it involves a collision between
the cab of the same driver and P2. P2 now argues that collateral
estoppel prevents D Cabco from denying the agency of the driver.
Does issue preclusion/collateral estoppel apply?
Answer to Q–9.
No. The issue of the agency of the cab driver was not necessary
or essential to the result in the first action. D Cabco won, so
issues found against it by definition cannot have been necessary
to the result. Issue preclusion/collateral estoppel cannot apply.

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Q–10. P purchased a ten-year-old used car "as is" from Dealer for
$995. A week later, the radio stopped working and P paid $125. to
fix it. He sued Dealer in small claims court for the $125., alleging
that Dealer should have a 30–day implied warranty on every car it
sells. Dealer denied any implied warranty and sent its sales manager
to court without a lawyer to defend the action. P won the $125. A
year later, P2 purchased a used car "as is" from Dealer for $19,995,
and later sued Dealer for $12,000 for various defects in the car on a
theory of 30–day implied warranty. Does collateral estoppel apply?
Answer to Q–10.
Maybe. The elements of collateral estoppel are satisfied in this
hypothetical: a final, valid judgment; the same party to be
estopped (offensive collateral estoppel); a common issue in the
two actions on different claims; issue actually litigated; issue
necessary to the result. A court will, however, refuse to apply
collateral estoppel when unfairness would result.
Defendant Dealer will argue that the first action involved such
a small amount that it had insufficient incentive to litigate
fully—it could not have foreseen the substantial consequences
in later actions. Also, it was not represented by an attorney in
the first action; granted, this was its own choice, but was again
a function of the small amount involved.
P would argue that the small amount in the first action does
not control because Dealer should have realized that the result
could have consequences beyond the individual action. Even
though there is disagreement, many jurisdictions recognize
small claims judgments can support preclusion. Similarly, the
absence of legal representation in the first action was a decision
by Dealer.
Given the small amount and the absence of legal
representation, fairness may prevent application of collateral
estoppel in this hypothetical, but the result is not clear.

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IV. Computer Exercise: CALI CIV 17
You are now ready for further work in the preclusion doctrines in
CIV 17: Preclusion. The computer-assisted exercise is selfcontained. The estimated completion time for CALI CIV 17 is
one-and-one-half hours, although this exercise can be divided into
segments to be completed in separate sittings.

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