Civil Procedure Cases

Pennoyer v. Neff (1877)

In an earlier case, Mitchell sues Neff for a debt. Neff is out of state and never hears about it, so Mitchell wins by default. Mitchell gets a writ of execution, sherif seizes Neff's land, sells it to Mitchell in order to pay Mitchell, who then turns around and sells it to Pennoyer. In this case, Neff sues Pennoyer to get his land back. The trial court ruled for Neff based upon a procedural error. Pennoyer appeals to the Supreme Court. Held Jurisdiction is subject to Constitutional due process (Amendment 14). Held One can be sued in a state simply by being within that state, even if the tort was committed in another state. Held If one commits a tort in a state and then leaves a state, there is no jurisdiction over the person.

Grace v. MacArthur (supplement)

Preston and Charlotte Grace (plaintiffs), citizens of Arkansas, brought an action against "Bankers Group", which included MacArthur, a citizen of Illinois, and Smith, a citizen of Tennessee, for breach of contract. MacArthur is controlling shareholder, chairman of the board, and president of Bankers Life and Casualty Co., an Illinois corporation and a defendant. Smith was served the complaint while in an airplane over Arkansas. MacArthur was served under Arkansas Act 347 of 1947, which says that the Arkansas Secretary of State can serve on anyone not qualified for doing business in Arkansas who has done any business in Arkansas. Is Smith under Arkansas jurisdiction when in an airplane over Arkansas? Held Yes; Smith was under Arkansas jurisdiction just as if being in a bus or a plane. Motion from Smith to quash is overruled. Does Act 347 apply to Smith, even if the contract was completed in Illinois, and the cause of action was not related to the alleged contract? Does this single transaction constitute "doing business" in Arkansas? Is Act 347 unconstitutional for discriminating against non-residents? Held Motion from MacArthur reserved until trial. MacArthur may have a point, but to rule on that now would be to do so without full knowledge of the facts, and an incorrect answer might mean the entire case may have to be retried.

Adam v. Saenger

Beaumont Export, a Texas corporation, filed suit in California Superior Court against Montes, who filed a cross-complaint on the plaintiff's attorney. Beaumont's complaint was dismissed, Montes won by default, so Montes assigned judgement to Adam in who filed a lawsuit in Texas to collect against Saenger, to whom Beaumont had sold its business. The Texas court found that Beaumont was not doing business in California at the time of the lawsuit. Is Beaumont subject to California jurisdiction? Held Yes; Beaumont submitted itself to California jurisdiction by taking the suit to California in the first place, and so submitted itself to any cross-complaint that might arise from the first suit.

National Equipment Rental, Ltd. v. Szukhent

Carnival Cruise Lines, Inc. v. Shute

International Shoe Co. v. Washington (1945)

Brought a company under the jurisdiction of a state because the company maintained salespeople in the state. Held Court creates the doctrine of minimum contacts and "traditional notions of fair play and substantial justice." If you're doing lots of business in a state, it might be enough for other, related suits to be in that jurisdiction.

McGee v. International Life Insurance Company (1957) (supplement)

Man in California dies and his wife tries to collect on his insurance policy from a company in Arizona that had been sold to a company in Texas. Held A state has jurisdiction over a company a contract of which had substantial connections to the state, expanding International Shoe.

Hanson v. Denckle (1958) (supplement)

Complicated case involving a trust and inheritance. Held Court creates the concepts of purposeful contacts.

Fisher Governor Company v. Superior Court (1959) (supplement)

A tort trial in California for a tort in Idaho: deaths from defective Fisher equipment. HeldA company must have more contacts than just sales and sales promotion for a state to have jurisdiction; otherwise, general nationwide sales would grant jurisdiction everywhere in the US.

Buckeye Boiler Company v. Superior Court (1969) (supplement)

A Buckeye tank exploded in California and injured plaintiff, who was then further injured at the hospital. Buckeye, as far as it knows, only sells tanks (different from the one that exploded) in California to Cochin, and has no other connections to California. Held There must be a balance among the plaintiff's interests in suing, the state's interest in having jurisdiction, and the defendant's inconvenience in appearing. California has jurisdiction. Buckeye gains economic benefits through Cochin; its inconvenience in appearing would be no more than would be required relating to Cochin, and plaintiff's suit against the hospital is also in California, so California as a forum is natural and will prevent conflicting results as might result from multiple forums.

Kulko v. Superior Court (supplement)

Held Supreme Court case that said a New York father paying for his child to go to California did not constitute "purposeful" minimum contacts, so California has no jurisdiction.

World-Wide Volkswagon Corp. v. Woodson (1980)

Held "Minimum contacts" protects against inconvenience; there must be come contact, ties, or relations, because despite any trends we won't abolish the federal system of states; foreseeability that a product will find its way to a state has never been a sufficient benchmark for personal jurisdiction, but rather whether by a defendant's actions it is foreseeable that he could be taken to court there; there is therefore no basis for Oklahoma jurisdiction over World-Wide or Seaway. Dissent (supplement) Minimum contacts doesn't sufficiently address a state's interests; when a manufacturer makes a car, it knowingly inserts that car into the stream of commerce, similar to actually having distributors in other states; Pennoyer et. al. concentrates too much on the defendant.

Keeton v. Hustler Magazine (1984) (supplement)

Libel suit by Keeton. Held Supreme Court ruled that the First Amendment provided no barrier against jurisdiction when minimum contacts are present; 10,000 copies of "Hustler" in New Hapshire that contained the alleged libel provided specific jurisdiction. Held It is irrelevant whether plaintiff has any relationship to jurisdiction, but rather whether defedant, the forum, and the litigation have a relationship.

Helicopteros Nacionales De Colombia, S.A. v. Hall (1984)

Colombia helicopter crash in Peru. Consorcio/WSH (the employers of deceased Americans) negotiated with Helicopteros in Houston, and Helicopteros bought parts in Fort Worth and sent its pilots there for training. Held Claim did not "arise out of" and are not related to defendant's activities within Texas, and the activities (a CEO travelling for a negotiation and acceptance of checks drawn on a Texas bank) are not the continuous and systematic business contacts found in Perkins. Purchases and related trips are not on their own a sufficient basis for state jurisdiction. Helicopteros is not subject to Texas jurisdiction.

Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1203 (1905)

Harris in North Carolina owed Balk in North Carolina, who owed Epstein in Maryland. Harris travelled to Maryland and Epstein attached Harris' debt to Balk, and Harris paid. Balk sued Harris, Harris claimed he had paid, and the North Carolina Supreme Court said Maryland was without jurisdiction on the attachment. "Attachment is a creature of local law." Held Obligations to pay debts travel with individuals and are not restricted to their location of creation (they have not situs). (Harris should have notified Balk, but this apparently happened.) Maryland had jurisdiction.

Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)

Heitner, not a resident of Delaware, owned one share of Greyhound Corp, a Delaware corporation. He sued Greyhound, its wholly owned subsidiary Greyhound Lines, Inc., and 28 present or former officers or directors of one or both corporations (not alleged to be residents or have any other contacts with Delaware), and asked Delaware to sequester the Greyhound stock of those persons. Does Delaware have jurisdiction over the stock in Delaware of officers and directors because they work for Greyhound, a Delaware corporation? Held In order to justify jurisdiction in rem, the basis for jurisdition must be sufficient to justify exercising "jurisdiction over the interest of persons in a thing". A state of course has jurisdiction over property when the property itself is the source of the issue. While Delaware may have jurisdiction over Greyhound (and presumably its property), however, it doesn't obviously have jurisdiction over the property of its directors/officers. Delaware has jurisdiction over the actions between Greyhound and its shareholders, but that doesn't mean that that the directors/officers are conducting activities within the state. Delaware in this case does not have in rem jurisdiction.

Rush v. Savchuk, 444 U.S. 320 (1980) (supplement)

(Discarded quasi in-rem.) Savchuk drove Rush and had an accident in Indiana, where they both lived, and injured Rush. Indiana had some law technicality that didn't allow a suit, so later Rush moved to Minnesota and sued. Rush attached Savcuck's insurance policy from Allstate, which did business in Michegan, on the theory that the insurance company was a debtor in the same way Harris was a debtor in Harris v. Balk. Held No jurisdiction. The Court reiterated the importance of the relationship among the defendant, the forum, and the litigation, and noted that the defendant and the accident had no relationship whatsoever with Minnesota.

Burger King v. Rudzewicz, 471 U.S. 462 (1985) (supplement)

Rudzewicz, in Detroit, Michegan, tried to buy a Burger King franchise in Detroit. Eventually Burger King, in Miami, Florida, sued Rudzewicz and he contested jurisdiction. Rudzewicz made payments to Florida, notices were sent to Florida, Burger King in Florida made certain overriding decisions, the contractd was to be interpreted under Florida law, and the contract stipulated that contacts would occur for 20 years. Florida jurisdiction was found using the standard cases, but McKaskle thinks Brennan seems to slightly reinterpret some of them.

Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)

Asahi sold tire valves to a Taiwanese company which placed the valves in tires sold in the United States. A motorcycle rider had an accident and sued the Taiwanese company, which sued Asahi. Held California does not have jurisdiction over a company simply because it entered components into a stream of commerce. "Mere foreseeability" and "mere awareness" that a component will reach an eventual forum does not mean that the company wishes to avail itself to the laws of that forum. There must first be additional purposeful conduct indicating an intent to serve the market in the forum state, such as advertising in the state, establishing channels for providing regular advice to customers in the state, or marketing the product through a distributor serving as a sales agent.

Burnham v. Superior Court of California, 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990)

(Read case and pay attention to what each justice thinks.) ... Other types of jurisdiction gain legitimacy by analogy to physical presence, so it seems strange not to allow physical presence.

Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

Central Hanover Bank gave notice of members' rights changing. (The bank brought a lawsuit against the beneficiaries. The State of New York says that trusts must periodically give an account in court of their actions, and this is done by bringing an action against the beneficiaries.) Is a New York Banking Law requiring for a trust with interstate members only notification via a New York newspaper compatible with the Fourteenth Amendment Due Process Clause? Held No; the notifications must continue to be published, but notifications must also be mailed to known members with known addresses. Due process would have no meaning without parties being notified so that they could take part in due process, and the notification must be realistically expected to convey the information to the intended recipient. Constitutionality is separate from a classification of in personam or in rem.

MacLeod v. MacLeod, 383 A.2d 39 (Maine 1978) (supplement)

Mr. and Mrs. MacLeod were married in New York and had a son the following year. Over 15 years later they separated while living in France, and a French court gave custody of the son to Mrs. MacLeod and told Mr. MacLeod, who working for the CIA in Thailand, to pay child support. Several years later Mrs. MacLeod tried to enforce the agreement, so she sued Mr. MacLeod in Maine, the state home of his parents, while he was visiting there. Mr. MacLeod has a Virginia driver's license. Should the Maine court dismiss on the ground of forum non conveniens because Mr. MacLeod has insufficient contacts? Held No, because Mrs. MacLeod has no alternative appropriate forum, but rather than reversing and forcing the Maine court to hear the case, it is sent to Virginia which is more appropriate because of Mr. MacLeod's driver's license and CIA headquarters.

Great Northern Railway Company v. Superior Court, 12 Cal.App.3d 105 (C.A. 1970) (supplement)

Great Northern, of Minnesota, has offices in Washington, and only about 63 miles of track in California. George Gibson was employed as a brakeman when he was killed in Washington by a collision with a side girder of a bridge. His widow, who lives in Washington, hired a California lawyer and got a California woman to be estate administratrix, who brought the case to trial in California. Does the resident of the administrator of an estate prevent a forum non conveniens in a state? Held No. "Unless the balance weighs strongly in favor of the defendant, the plaintiffs choice of a forum will rarely be disturbed," but in this case there is every reason (except domicile of the attorney) why the suit should go forward in Washington. Forum non conveniens is appropriate under CCP § 410.30.

Churchill v. Barach 863 F. Supp. 1266 (D. Nev. 1994) (supplement)

JoAnn Churchill sought to recover for alleged personal injuries, so she served papers on Baruch by leaving the summons with the doorman of Baruch's apartment building, and Baruch in turn received it. Federal Rules of Civil Procedure 4(e) allows for summons and complaint to be left "at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein." Does the doorman of an apartment constitute an appropriate person to meet the requirements of Rule 4(e)? Held Yes, a doorman meets the definition, especially since he usually greets callers and accepts packages for tenants. (The rules should be liberally construed in favor of the plaintiff.)

Neihaus v. Superior Court, 69 Cal App 3d 340 (1977) (supplement)

Rachel, a California resident, was riding in a car in Nevada when it was in a collision with a truck driven by Neihaus, a Nevada resident. Rachel filed a suit in California, and Neihaus successfully filed to quash it based upon lack of jurisdiction. Then Rachel attached to his insurance plan in California using quasi in rem, and Neihaus tried to quash it but failed. Neihaus then filed a defense, with a disclaimer saying he was not submitting to in personam jurisdiction. The California Supreme Court later found, after further motions by Neihaus to quash, that California cannot use quasi in rem to attach an insurance plan. Does Neihaus' disclaimer prevent in personam jurisdiction from applying when he makes a general appearance? Held No, by presenting a defense, making a general appearance, Neihaus submitted to in personam jurisdiction, without regard to the disclaimer.

Baldwin v. Ohio State Traveling Men's Ass'n, 283 U.S. 522 (1931) (supplement)

Baldwin appeared in a Missouri state court to dispute jurisdiction, but the case was not dismissed, so the trial was removed to United States Court for Western Missouri. Baldwin didn't show up, so there was a default entered against him. A second lawsuit was filed in Iowa to enforce the Missouri judgment, and under full faith and credit the judgment was upheld. Can Baldwin dispute jurisdiction again? Held No, jurisdiction was already settled in Missouri.

Carruth v. Superior Court, County of San Diego, 80 Cal.App.3d 215 (1978) (supplement)

Carruth and his law firm were sued in San Diego County for malicious prosecution. Code of Civil Procedure § 395 says that, for an injury to one's person, the venue must be at the place of the injury. Does emotional harm from malicious prosecution count as an injury to one's person, allowing venue to be changed? Held No, an emotional injury has no situs, and therefore it does not follow that an even relating to emotional injury should serve to indicate venue. Can the defendants change venue to Carruth's place of domicile, Fresno County? Held Yes; when an individual is sued along eith a corporation or (as here) a nonincorporated association, the individual may move to his/her residence.

Louisvile & Nashville RR. Co. v. Mottley, Supreme Court of the United States, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908)

Plaintiffs brought a suit in the US circuit court for the western district of Kentucky to impose specific performance on the defendant railroad. They had been injured on the railroad and in response had been given lifelong free tickets. These free rides ended when Congress passed a law preventing free tickets. Plaintiffs allege that 1) the statute doesn't apply to their situation, and 2) if it does apply, it violates the Fifth Amendment of the Constitution by depriving them of their property without due process of law. Does the federal court have jurisdiction? Held No, because even though the matter may eventually relate to Constitutional issues, the original cause for action does not arise under the Constitution.

Mas v. Perry, United States Court of Appeals for the Fifth Circuit, 489 F.2d 1396 (1974)

Mr. Mas, a citizen of France, and Mrs. Mas, a citizen of Missisippi, were both living in Louisiana as students. They rented an apartment from Perry and then sued after realizing he had installed two-way mirrors in their bedroom and bathroom and had been watching them during three of the first four months of their marriage. Mr. Mas was $5,000 and Mrs. Mas won $15,000. Do the Mases have complete diversity, allowing federal jurisdiction? Held Yes; Complete diversity is when no party on one side is of the same state citizenship of a party on the other side, and state citenzenship for diversity is the same as domicility: taking up residence in a state with the intention to remain there. To have state citizenship one must have US citizenship, and considering a spouse's residence to be that of her husband would make no sense here. Does the $5,000 award to Mr. Mas put him below the jurisdictional minimum? Held No; the couple initially wanted $100,000, and this apparently was the amount in contention in good faith.

Allstate Insurance Company v. Superior Court, 132 Cal.App.3d 670 (1982) (supplement)

Plaintiff sued in California a Delaware insurance company doing business in California, and because of complete diversification the action was removed to federal court. Plaintiff wanted to add a California individual as a defendant, and the judge denied this and dismissed the current action without prejudice. Can plaintiff therefore continue the action in a state court? Held No, plaintiff must file a new action. If the federal court did not remand the action but dismissed it without prejudice, that places the plaintiff in a legal position as if he had never brought the action.

Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10 L.Ed. 865 (1842)

Tyson made a bill of exchange to two other men, who endorsed it over to Swift. Tyson responded that the two men had not performed on a contract. New York local law said the defense against the two men was also good against Swift; general law said that it was not carried over to swift. Held The federal court should follow the general law.

Erie Railroad Co. v. Tompkins, Supreme Court of the United States, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)

A man was walking along a path beside a railroad track and was struck by a door or something hanging out of the train. The general law said that the railroad was liable, yet the law of Pennsylvania said that the railroad had no duty to those walking along such a path other than as towards trespassers. Held The law of the state must apply in federal courts except for matters governed by the Constitution or acts of Congress. Otherwise, the law would be discriminating in favor of those who succeed at forum shopping. "There is no federal general common law."

Guaranty Trust Co. v. New York, Supreme Court of the United States, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945)

Plaintiff filed a suit in equity in New York District Court regarding a fraud. The New York statute of limitations barred recovery, but the federal courts in equity suits followed a more flexible system of laches that might have allowed recovery. Held The state creatd the right to recover in the first place, so its rules of limitations should be followed. In all cases where a federal court exercises jurisdiction because of diversity, the outcome should be substantially the same as if brought in a state court, whether in equity or not. Therefore, if an issue, whether substantive or procedural, significantly affects the result of the litigation, the state rules must be followed.

Hanna v. Plumer, Supreme Court of the United States, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8

A citizen of Ohio sued a dead Massachusetts citizen in the District Court for the District of Massachusetts for an automobile accident in South Carolina. Federal Rule 4(d)(1) allowed summons to be left at house of estate executor (defendant) with his wife, but Massachusetts General Laws Chapter 197, Section 9 stated that the summons has to be delivered by hand to the estate executor. In Massachusetts, the statute of limitations would have expired. Held The Federal Rule must apply. "'Outcome-determinism' was never intended to serve as a talisman," and if it meant simply altering the outcome of the case then "every procedural variation is 'outcome-determinative.'" Erie was intended to keep the "character or result of a litigation" from differing materially, and to preventing forum shopping, neither of which applies here. The plaintiff could have had the same opportunities in state court, even though plaintiff would need to use different procedures. (Besides, Federal Rules of Civil Procedure have not yet been overruled in favor of state rules.)

Stewart Organization, Inc., v. Ricoh Corporation, 487 U.S. 22 (1988) (supplement)

An Alabama corporation had an agreement with a New Jersey company to market copiers, and the agreement had a forum-selection clause naming Manhattan. The Alabama plaintiff sued defendant in an Alabama district court. 28 U.S.C. § 1404(a) allowed for forum changes, while the state did not allow a change of venue. Held The Federal Rule must apply. "[A] district court sitting in diversity must apply a federal statute that [1] controls the issue before the court and that [2] represents a valid exercise of Congress' constitutional powers."

Van Dusen v. Barrack, 376 U.S. 612 (1965)

After an airplane crash, 40 of the over 100 suits were brought in federal court in the Eastern District of Pennsylvania, in which state liability was not limited. Defendants moved under § 1404(a) to move the case to the District of Massachusetts, in which state the other crash-related actions were taking place, and in shich state there is a $20,000 liability. Held The defendant can properly change the venue to Massachusetts, as the action could have been brought there originally. Section 1404(a) cannot be used for forum shopping, though, so if a defendant uses § 1404(a) the new venue must use the substantive law in the original, which is the substantive law of Pennsylvania. Changing venue should effectively just be "a change of courtrooms" with respect to state law. (Invocation of § 1404(a) by plaintiffs or dismissal under forum non conveniens was not considered.)

Piper Aircraft Co. v. Reyno, Supreme Court of the United States, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)

A charter plane crashed in Scotland. Everyone who died was Scottish. The aircraft was manufactured in Pennsylvania by Piper, and the propellers were manufactured in Ohio by Hartzell. Because the US has more liberal tort laws (such as allowing strict liability), an attorney assigned claims to his secretary, Reyno, and brought the case in US federal court. (It was removed to federal court because of diversity, then transferred to Pennsylvania via 1404(a).) Defendants motioned for a forum non conveniens because everyone involved was actually from Scotland, all witnesses were in Scotland, the crash was in Scotland, other related actions were occurring in Scotland, etc. Held A plaintiff may not defeat a motion to dismiss on the ground of forum non conveniens solely because the substantive law in the alternative forum would be less favorable to the plaintiff. If they could, transfer would hardly ever happen because plaintiffs usually choose the best forum to begin with. Van Dusen does not apply because it wasn't dealing with forum non conveniens

Zumbrun v. University of Southern California, 25 Cal. App. 3d 1 (1972) (supplement)

Plaintiff Zubrin at 63 enrolled in USC to learn gerontology and sociology. Because of a teacher strike against the US foreign policy in Cambodia, the teacher did not hold the class "Sociology 200" and gave the plaintiff was given a grade of "B". Plaintiff wanted more than a "B"—she wanted actual instruction. Plaintiff sued the non-profit corporation USC, its CEO, and members of the board, trustees, and faculty members as individuals and as their roles. The plaintiff failed a "Complaint for Breach of Fiduciary Duties, Unjust Enrichment, Punitive Damages and Other Relief." The court sustained demurers against all, and plaintiff appealed. Held The CEO is not liable personally for the actions of the non-profit corporation, so this claim must be thrown out. For the rest, the complaint must be refiled to separate the theories of actions: A) Breach of Contract: The relationship between plaintiff and school is contractual. B) Third Party Beneficiary: There is a lack of evidence to create a contractual relationship between teacher and school in which plaintiff is a third party beneficiary. C) Fraud, Negligence, and Conspiracy: There must be damages to have a public conpiracy. D) Fiduciary Liability: There are no facts to indicate an economic detriment over that of the contractual damages, if any.

Swann v. Burkett (supplement)

Molasky v. Garfinkle, United States District Court, Southern District of New York, 1974, 380 F.Supp. 549

The Molaskys sued defendants from conspiring to prevent plaintiffs from selling stock in Ancorp before sales of its stock were suspended and the company went bankrupt. Plaintiffs also sued Peat, Marwick, Mitchell & Co. for posing as independent public accountants and auditors. Count II, Peat, Marwick, violation of certain securities Acts, Held Count II may be dismissed pursuant to Rule 12(b)(6) because plaintiffs have not sold their shares and were not defrauded buyers or sellers of shares. Just because the company is bankrupt doesn't mean the stocks have no value. Count III, negligence, on "pendent" and diversity jurisdiction, Held dismissal of Count II removes pendent jurisdiction and, as far as diversity jurisdiction, partners of Peat, Marwick are from Missouri, removing full diversity.

Dino, Inc. v. Boreta Enterprises, Inc., 226 Cal.App.2d 336 (1964)

Plaintiff alleged that its business name "On Broadway" had aquired a secondary meaning and that by opening a business with the name "Off Broadway" defendant was violating Civil Code section 3369 for unfair competition. Defendant said that by alleging that the name had acquired a secondary meaning was to only state a conclusion of law rather than ultimate facts. Held The complaint is properly pleaded. The difference between conclusions of law and ultimate facts is a matter of degree. Although "the name has acquired a secondary meaning" sounds like a conclusion of law, the rest of the complaint fills in details such as the location, nature of business, length of time, etc. which support that conclusion.

Moya v. Northrup, 10 Cal.App.3d 276 (1970)

Plaintiff filed a complaint saying that defendants had, during the past four years in San Francisco, become indepted to plaintiff at their request. Is the complaint sufficient as to a cause of action? Held Yes, becaues in this case use of a common count adds leniency. Is the complaint sufficient, even though it doesn't state whether the contract was oral or written? Held Yes, again because of the common count, because even though oral and written contracts have different statutes of limitations, a statute of limitation affects the remedy, not the substantive right, so allowing the suit to proceed for now would not affect the outcome.

Mitchell v. E-Z Way Towers, Inc., United States Court of Appeals for the Fifth Circuit, 269 F.2d 126 (1959)

Plaintiff Secretary of Labor filed a complaint saying that defendant E-Z Way was not paying minimum wages and not keeping appropriate records. The trial court sustained a motion to dismiss the complaint for failure to state a cause of action after plaintiff refused to amend the complaint to include specific times and other details, as defendant has requested. Held The complaint should not have been dismissed for failure to state a claim, because it did not appear beyond all doubt that plaintiff could prove no set of facts. The trial court confused FRCP 12(b)(6), motion to dismiss for failure to state a claim, with 12(e), motion for a more definite statement, the latter of which is not grounds for dismissal.

Unioil, Inc. v. E.F. Hutton & Co., Inc. 809 F.2d 548 (9th Cir. 1986)

The Heck companies, Zelezny, Unioil, and their counsel Alioto and Barton, sued Hutton for stock manipulation, with Zelezny the only person representing the class of wronged shareholders. Alioto later learned that Zelezny wasn't a good representation of the class, as he hadn't really relied on the defendants in his purchasing, he purchased rather than sold shares, etc. Alioto also found out that it had a conflict of interest because it also represented Unioil and there might be a suit against Unioil. Plaintiffs tried to dismiss the entire action without prejudice under Fed.R.Civ.P. 41(a)(l). Held The plaintiffs should be charged $165,774.84 in expenses and attorneys' fees, and $294,141.10 in sanctions, for violating rule 11, Fed.R.Civ.P., because Alioto signed his name to the complaint without taking reasonable steps to verify the information. [The court also applied sanctions according to 41.2.]

Smeltzley v. Nicholson Manufacturing Company, 18 Cal.3d 932 (1977)

Plaintiff Smeltzley lost a leg whil working on a debarking machine made by Nicholson, so he filed a complaint stating a fictitious defendant. After the statute of limitations had run, he changed the name to that of Nicholson. Held An amendment is not barred by the statute of limitations as long it relates to the "same general set of facts" as the original complaint, even if it claims a different theory of action or even a completely different cause of action. This was just a technicality; a case should be tried on its merits. Held The amendment is valid even though the original didn't mention a debarking machine, because the original claim of unsafe working conditions included such an injury. Did plaintiff "sleep on his rights?" Held No, just because an amendment is made substituting a real name for a fictitious one after the statute of limitations has run out doesn't indicate that the plaintiff was dilatory or that the defendant was prejudiced. If the plaintiff would have proved the original facts he wouldn't have one, so doesn't that mean he's changing the essential facts? Held No, proving a set of alleged facts never wins a case—winning also involves proving other legal theories and duties, and the theories and duties alleged are what are being amended.

Lewis v. South San Francisco Yellow Cab Co., 93 Cal.App.2d 849 (1949)

Defendant used to dispatch for defendant cab company. Late one night she rode home with a driver she knew, with a sailor who had requested to ride in the cab with her. The sailor started kissing her against her protests. The cab driver disregarded her instructions to take her home, and took her someone else, and then told her to get out with the sailor. Plaintiff, fearing the sailor, got out of the car and ran, falling in a ditch and breaking her foot. She sued the cab company for injury to her foot as a proximate cause of her fear of the taxi driver. Held There is a nonsuit because the alleged facts don't support the theory. Plaintiff could have sued the cab company for the driver's failing to protect her from the passenger as a common carrier has a duty to do, but not for fear of the driver attacking her, because she did not fear that. Plaintiff did not amend her complaint. The defendant is entitled to a nonsuit if there is a "material variance", even though that might have been rectified by an amendment by the plaintiff.

McNulty v. Copp, 125 Cal. App. 2d 697 (1954)

Henry Copp died and Mrs. Anita McNulty Ahern recorded a deed purporting to give her land. Mrs. Ahern filed an action against her sister to get the land (Ahern had conveyed the wrong lots), and the sister (Mrs. Eldridge) cross-complained for fraud. Mrs. Eldridge also filed for damages to the use and possession of real property in the original action. In the meantime, there was a fire and Mrs. Ahern concealed the worth of some of the personal property damaged; Mrs. Eldridge filed suit for wrongful detention of personal property (i.e. to get the rents of Ahern's living there). Held The original action to get the deed back is res judicata in the real property action and prevents it from occurring, because the same wrongful act gave rise to both actions. Held The original action is not res judicata in the personal property action, because the damages sought are not related to the same breach involved in the original action.

Holmes v. David H. Bricker, Inc., 70 Cal.2d 786 (1969)

Plaintiffs purchased a used automobile from defendant with a warranty. Plaintiffs later crashed while going down a hill, causing personal injury and injury to the automobile. Plaintiffs sued for personal injuries citing "causes [theories] of action" of breach of express warranty, breach of other warranties, failure to test vehicle according to a vehicle code, negligent servicing, and fraudulent representation. Plaintiffs later sued for damage to the automobile claiming breach of warranty and fraudulent misrepresentation, the latter of which was dismissed. Held Because both the personal injuries and the damage to the automobile both sprang from a breach of warranty, which is a single contractual obligation, only one suit may be entertained for damages for this single breach of contract.

Federated Department Stores, Inc. v. Moitie, Supreme Court of the United States, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981)

The U.S. brought an action against Federated Department Stores for price-fixing. Class actions by Moitie and Brown were also brought on similar charges in federal court. The US won, but the District Court dismissed Moitie and Brown. The cases were refiled in state court, which noted that the actions were really identical to the original ones (even though disguised as state claims), removed the cases to federal court, which applied res judicata and dismissed the cases. Another action in the meantime won that changed the law and would have changed the outcome. Held res judicata applies. There is no principle of law, equity, or public policy that would make it not apply—even if other similar cases win. Concur There may be cases of "public policy" or "simple justice" that could prevent application of res judicata, but this is not one of them.

Martinez-Ferrer v. Richardson-Merrill, Inc., 105 Cal.App.3d 316 (1980)

Plaintiff Martinez-Ferrer (Raul) had taken the anti-cholesterol drug MER/29 in 1960, and it caused his eyes to swell and his vision to go down. He stopped using the product and his vision cleared up. In 1976 cataracts appeared from MER/29. Does res judicata consider the first injury and the later injury to be part of the same cause of action, thereby allowing the statute of limitations to prevent the latter suit? Held Normally it would, but in this case preventing the action would be a "miscarriage of justice." Even though the later injury stemmed from the same use of the drug, there was no way in 1960 Raul could have known about the later injury. Nuisance cases, which limit the statute of limitations when a condition is not known to be permanent, hold the same, as do progressive cases. The Restatement of Judgments, second lists exception to the normal prohibition against splitting causes of action. In fact, under these circumstances Raul could have sued for the first injuries without precluding a later suit.

Fauntleroy v. Lum, Supreme Court of the United States, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039 (1908)

The plaintiff dealt in cotton futures in Mississippi, and the defendant didn't pay what he owed. Arbitration gave an award to defendant without considering that Mississippi law doesn't allow enforcing of futures (considering them to be gambling), and the plaintiff brought an action in Missouri when defendant was there. The Missouri court realized that Mississippi courts didn't allow dealing in futures, but allowed the jury to say that the plaintiff should collect on the award from arbitration. The plaintiff tried to get Mississippi to honor that decision. Held Holmes: Mississippi should honor the Missouri decision and award the amount to the plaintiff, because the doctrine of full faith and credit means states should honor other states' decisions. It is incorrect to say that Mississippi doesn't have jurisdiction because of the illegality of futures. Mississippi has jurisdiction, even if it disagrees with the merits of the case (the illegality of futures), and it can't question the merits of the Missouri decision, even if Missouri misinterpreted Mississippi law.

Marrese v. American Academy of Orthopaedic Surgeons, Supreme Court of the United States, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985)

Physicians in Illinois were denied membership in an organization without a hearing, violating association laws in Illinois, so they filed a complaint in Illinois. One complaint was thrown out, and another was ruled against. The physicians then filed a federal antitrust suit in US District Court. The court dismissed the claim saying that the state action precluded the federal action for the same set of facts, even though the federal action could not have been brought at the state level. Held O'Conner: The District Court should not have barred the suit simply because the state action covered the same set of facts. 28 U.S.C. § 1738 says that state judgments will have full faith and credit in every US court as the "law and usage in the courts of such State." The fact that the federal action could not have been brought in the state court isn't the issue. The federal court should have first determined if the laws of the state of the first decision precluded the federal action. Whether there needs to be an exception to § 1738 does not therefore need to be considered.

Baker v. General Motors Corp., 522 U.S. 222, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998)

Elwell sued his employer, GM, in Michegan state court, and as part of the settlement he agreed not to testify at any trial against GM. Plaintiffs in a Missouri federal court called Elwell to testify. Held While Michegan can keep Elwell from volunteering to testify, it doesn't have the power to prevent other courts in trials with strangers and separate evidence from calling a particular witness.

Parklane Hosiery Co. v. Shore, Supreme Court of the United States, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)

Plaintiff brought suit against Parklane alleging issuing false information in a proxy statement. The SEC in the meantime sued Parklane, and a District Court, without a jury, determined the statements were false. Can collateral estoppel be used offensively against a defendant who has already lost an issue? Held Stewart: Yes. Sometimes offensive use of collateral estoppel is not appropriate because it discourages judicial economy by encouraging multiple suits. (Plaintiffs can wait and see if there is a favorable judgment against the defendant.) It could also be fair to the defendant because the defendant may not have an incentive to defend rigorously against a small claim. Neither of these conditions were present here, though. Does the Seventh Amendment's requirement of a jury trial mean that issue preclusion cannot apply here? Held Stewart: No, the facts have already been tried so there is nothing for a jury to do. Dissent Rehnquist: The Seventh Amendment speaks of "preserving" the right of trial by jury, and in 1791 collateral estoppel without mutuality was not allowed, so it shouldn't be now. Besides, the major judicial thrust has been in favor of jury trials, and a jury might come to a different conclusion than the court did in the absence of a jury.

State Farm Fire and Casualty Co. v. Century Home Components, Inc., 275 Ore. 97; 550 P.2d 1185 (1976) (supplement)

Defendant constructed prefabricated housing in a shed. Defendant's janitor dumped sawdust into a box that later caught fire and spread to a nearby warehouse and destroyed it. Over 50 complaints were filed. The first case found for the defendant, but then was reversed because of an error. The second produced a judgment for defendant. The third found for the plaintiff, and the first, when retried, found for the plaintiff. Should collateral estoppel cause the rest of the 50 complaints to be found against the defendant? Held No. Just because there are multiple plaintiffs doesn't mean collateral estoppel should not follow the first decision, even though it's possible that the first was an aberration, because of a general trust in the institution of trial by jury. This doesn't mean, however, that when an abberation is staring one in the face that issue preclusion should still hold. Here it is evident that different juries can legitimately draw different conclusions, so the defendant should be allowed to retry the issue in the other cases.

Kelly v. Trans Globe Travel Bureau, Inc., 60 Cal.App.3d 195, 131 Cal.Rptr. 488 (1976) (supplement)

Williams, a delivery person for Trans Globe got lost, picked up a hitchhiker, dropped off the hitchhiker, ran a red light, drove from pursuing police, and ran into plaintiff Kelly. In another trial, the delivery person was declared acting in the scope of an employee of Trans Globe for the purposes of determining worker's compensation, but this trial was not yet final. Kelly sued Trans Globe and asked for a directed verdict as whether Williams' was acting as an employee of Trans Globe, which would allow vicarious liability, because through collateral estoppel the issue had been decided in another court. Held The plaintiff's motion should be denied and collateral estoppel refused. The purpose of worker's compensation proceedings is to get things done quickly without a jury trial. In this case, the issue is important enough to warrant a jury trial, so the risk of lack of due process outweighs whatever inefficiency retrial of this issue with a jury would bring to the system. Dissent The majority correctly denied summary judgment and allowed the issue to be retried, but for different reasons: the other trial that decided the issue was not over; there were different parties here; the issues were different; and it would be senseless to overturn the jury's decision as they have held here that the Williams should not be considered in working the role of an employee at the time.

Rynsburger v. Dairymen's Fertilizer Cooperative, Inc., 266 Cal.App.2d 269 (1968) (supplement)

Dairymen's was a cooperative that removed fertilizer and processed it at several sites. Townspeople in Dairy Valley (now Cerrito) filed a suit claiming that Dairymen's site created a nuisance. Later La Palma, Cypress, and Lakewood filed actions for nuisance, and they were all joined and held at San Bernardino, which held that Dairymen's served a needed public service by removing manure; and complied with all the health and zoning stipulations set by the city. The original litigants renewed their original action, claiming that the San Bernadino decision did not collaterally estop the action because they were claiming that Dairymen's was a private nuisance, and the San Bernadino decision determined that they were not a public nuisance. Were the issues the same? Held Yes. While there is a technical statutory difference between a public and private nuisance, this action used the same facts, the same witnessess, and the lawyers did mostly the same work. In fact, the original complaint even said "public nuisance" in some places. One can't arbitrarily change a public nuisance complaint into a series of private nuisance complaints to get around res judicata. Were the parties the same? Held Yes, for res judicata purposes, because that doctrine stipulates that the parties may be the same or those in privy, meaning that the parties represent essentially the same legal right. Held res judicata applies and the original suit cannot be reinstantiated.

Johnson v. United States, 576 F.2d 606 (5th Cir. 1978) (supplement)

Sargeant Johnson, his wife, and two children moved to Georgia, where he was stationed. He talked to the chaplin about marriage problems, and later he was hospitalized for paranoid schizophrenia. He stopped taking medication and sexually assaulted his wife, so he was put in jail for a while. At the end of the month, he requested leave from his unit commander, who denied the request. The battalion commander allowed him leave after consulting the doctor. Johnson then went and killed Carroll Johns, shot and wounded his own wife, and then killed himself. Mrs. Johns and Mrs. Johnson filed suit against the United States under the Federal Tort Claims Act, the first in the US District Court for the Southern District of Georgia, the latter in the US District Court for the Middle District of Florida. The Georgia court held that Johnson had been negligently released. The Florida court ignored the Georgia finding of negligence and found no negligence. The Federal Tort Claims Act, which allows actions against the US government, says that state law should be used, and Georgia requires mutuality for collateral estoppel to be applied. Should state rules for collateral estoppel apply to all suits under the Federal Tort Claims Act because, like federal diversity cases, they are both required to follow state law, and federal diversity cases follow state rules of collateral estoppel? Held No, Federal Tort Claims Act follows state law for determining liability because that's what the statute says; claims in federal diversity cases arise under state law, so it's natural for state rules of collateral estoppel to apply there. Can federal collateral estoppel override the state rule in this case? Held Yes. Federal courts routinely override state procedural rules that are "clearly erroneous". Should collateral estoppel be precluded here because it is being used offensively? Held No. 1) there was no prejudice in the forum, 2) there was incentive for the defendant to vigorously defend themselves ($350,000 was at stake), 3) the case fully explored the questions at issue, and 4) it was foreseeable that the decision could be used to estop actions such as this one, based upon identical circumstances.

Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)

Defendant in a criminal case moved to suppress evidence because of illegal search and seizure, but the court did not allow it. The same person later filed suit as plaintiff against officers involved in the search, and the officers asked for collateral estoppel to prevent the alleged illegality of their search from being tried again. Is a decision in a criminal case res judicata over the same issue in a civil case? Held Yes, because the plaintiff had a fair opportunity to litigate the issue the first time.

United States Securities and Exchange Commission v. Monarch Funding Corp., 983 F.Supp. 442, 448 (S.D.N.Y.1997)

Defendant at a criminal trial was convicted of some things but acquitted of others. At sentencing, the judge established that the defendant did some of the things for which he had been acquitted. Held Determinations made during sentencing, even if the defendant has been acquitted of them, can be preclusive as long as there is careful consideration, because there is less proof required in sentencing than in conviction.

Teitelbaum Furs, Inc. v. Dominion Ins. Co., 58 Cal.2d 601, 25 Cal.Rptr. 559, 561-2, 375 P.2d 439 (1962)

A corporation's president was convicted for stealing goods and filling out insurance forms falsely. The corporation later sued the insurance company to recover on the policy for the loss of the goods. Held The conviction of the president estopps the company from retrying the issue of what happened to the goods (the insurance company does not therefore have to pay), because the president had a chance to fully present evidence in the original case, even though he chose not to testify.

Csohan v. United Benefit Life Ins. Co., Court of Appeals of Ohio, Cuyahoga County, 1964 33 Ohio Op.2d 36, 200 N.E.2d 345

Plaintiff, a resident of San Diego, California, filed against defendant insurance company in Ohio against the policy of plaintiff's deceased father. The insurance company then sued plaintiff and plaintiff's mother, who is not subject to jurisdiction in Ohio, in California using interpleader. The insurance company moved with a preliminary injunction to prevent plaintiff from participating in the Ohio action. Before the court could rule, the daughter got a TRO against insurance company from proceeding with the action in California. Held The preliminary injunction can be granted. The Ohio suit has precedence, but Ohio could not have a "final and complete adjudication" of the matter over both parties, so the Calfornia suit should go forward because it has both parties before it. [Usually "first come first served" holds sway.]

Pan American Airways, Inc. v. U.S. District Court (9th Cir. 1975) (handout)

At least 10 lawsuits were filed against McDonnell Douglas regarding an airplane crash outside Paris, France, and they were all transferred to Judge Hall in federal court in Los Angeles. Judge Hall announced his intention to send letters to next-of-kin of all remaining passengers, in essence inviting them to join as plaintiffs. Is this proper? Held No, this is effectively creating a class-action suit because of the mass of joined claims, but it doesn't satisfy the requirements of a class action. Dissent Nothing authorizes the judge to do this, but nothing prevents him, either. The letter would prevent defendants from settling with other potential plaintiffs who might not be well advised of their rights.

Lambert v. Southern Counties Gas Co., Supreme Court of California, 1959, 52 Cal.2d 347, 340 P.2d 608

Plaintiff's bulldozer was destroyed by fire when it hit a gas line. Plaintiff sued two parties on two counts: the ranch owner for negligently bulldozing where a gas line was located without knowing about it, and the gas company for placing the gas line too close to the surface. The gas company filed a demurrer stating that the bulldozer qualifies as a motor vehicle in Vehicle Code Section 402 (Held a bulldozer does qualify as a motor vehicle), which declares owners of motor vehicles liable for damage done by operators of the vehicle operating with the owner's permission. Because plaintiff alleges the ranch owner was liable in operating the bulldozer with the plaintiff's permission, does the plaintiff therefore allege contributory negligence on its own part via Section 402, allowing a demurrer? Held No. A plaintiff may plead inconsistent causes of action if each is complete in itself. A count sufficient in itself may not be defeated by importing allegations from another count to which the one count makes no reference.

United States for the Use and Benefit of D'Agostino Excavators, Inc. v. Heyward-Robinson Co., United States Court of Appeals for the Second Circuit, 1970, 430 F.2d 1077

Heyward subcontracted to D'Agostino (both New York Corporations) for "the Navy job" and "the Stelma job." There was one insurance policy for both jobs, payments were given in a lump sum without being separated for each, and Heyward could cancel both for breach of either. D'Agostino sued to recover payments for the Navy job, and Heyward counterclaimed for overpayments on the Navy job and the Stelma job. D'Agostino counterclaimed for payments due on the Stelma job. The jury awarded D'Agostino damages for both jobs. As the Stelma contract did not involve public work for the government under the Miller Act, it had no indpendent basis for federal jurisdiction. Held Frederick Van Pelt Bryan: The counter-claim for the Stelma job was compulsory under FRCP Rule 13(a) because it "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim" by being so closely related and inseparable from the Navy job claim, and therefore the District Court had jurisdiction. The courts should interpret FRCP Rule 13(a) liberally to allow consolodation of claims. Concur Friendly: Just because the two jobs were started at the same time don't make them related. If Heyward hadn't counterclaimed on the Stelma job and instead brought in a separate court, there would have been no jurisdiction. The holding was nevertheless correct, because the D'Agostino's Stelma counter-claim was permissible, and O'Connell should be overruled to provide jurisdiction for permissible counterclaims.

Fairview Park Excavating Co. v. Al Monzo Construction Co., United States Court of Appeals, Third Circuit, 1977, 560 F.2d 1122

Subcontractor Fairview (an Ohio corporation) sued general contractor Al Monzo (a Pennsylvania corporation), its boss Robinson township (a "citizen" or Pensnsylvania), and Monzo's insurer, Maryland Casualty Co. (a Maryland corporation) for payment. The diversity allowed the case in federal court. Monzo and Maryland Casualty counter-claimed against Fairview and cross-claimed against Township. Township counter-claimed against Monzo. In Pennsylvania, a municipal corporation is liable to a contractor but not a subcontractor, so Fairview's case against Monzo was dismissed. Monzo's cross-claim was then dismissed because of lack of diversity. Held Once diversity is established, a claim cannot be dismissed if a party is dismissed unless that dismissal is on jursidictional grounds.

American Motorcycle Association v. Superior Court, Supreme Court of California, 1978, 20 Cal.Sd 578, 146 Cal.Rptr. 182, 578 P.2d 899

Glen Gregos, a teenager, was paralyzed in a bike racing accident. He sued the American Motorcycle Association (AMA) and the Viking Motorcycle Club (Viking), the sponsors of the event, for negligence. The AMA then filed a cross-complaint against Glen's parents for directly participating in Glen's decision to enter the race and signing the parental consent form, knowing Greg's training and skills. The AMA claimed that even if the AMA showed passive negligence, the parents showed active negligence. Held Torriner: Under the new comparative negligence standards in California, showing parent negligence would reduce the damages required of the AMA. Held Torriner: California Code of Civil Procedure Section 428.10 allows a defendant to file a cross-claim, even if the person is not a party to the action, as long as the cause of action arises out of the same transaction or occurrence or asserts a claim in the controversy. Section 1048, after all, allows the court to create separate trials if needed. Held

Owen Equipment & Erection Co. v. Kroger, Supreme Court of the United States, 1978, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274

James Kroger, a citizen of Iowa, was electrocuted when a steel crane hit a power line while walking near the crane. Kroger's widow sued the Omaha Public Power District (OPPD), a Nebraska corporation, so the suit was brought in the US District Court for the District of Nebraska. OPPD filed a third-party complaint against Owen, an Iowa corporation, claiming that Owen's negligence was a proximate cause of death. The OPPD claim was dismissed, and the plaintiff amended the complaint to include Owen. [fix to address the fact that OPPD dropped out and to address ancillary jurisdiction] Can a defendant case in federal court solely from diversity jurisdiction file a cross-complaint against a party that would destroy complete diversity? Held Steward: No. Full diversity is not a constitutional requirement but a requirement of Congressional statute, and to allow a cross-complaint to destroy diversity would flout the statutory requirement. 1) The claim against Owen is not ancillary but completely different from the claim against OPPD in that the liability of one was not dependent on the liability of the other. 2) The plaintiff chose the federal forum and therefore must choose its limitations. Dissent White: The majority doesn't uphold convenience, judicial economy, and fairness—the case is already before the court. The fact that the plaintiff couldn't have brought the case with both defendants in the first place is beside the point—it's a defendant wanting to bring in another party, not the plaintiff.

State Farm Fire & Casualty Co. v. Tashire, Supreme Court of the United States, 1967, 386 U.S. 523, 87 S.Ct. 1199, 18 L.Ed.2d 270

A Greyhound bus collided with a pickup truck, killing two passengers on the bus and injuring 31, including the bus driver, the truck driver, and the truck's passenger. One of the dead and 10 passengers were Canadians, the rest Americans. Four injured passengers sued Greyhound, a California corporation; Thereon Nauta, the bus driver; Ellis Clark, the truck driver; and Kenneth Glasgow, the truck passenger who was also the owner of the truck. State farm claimed it had a policy on Ellis Clark that provided a maximum of $20,000 and provided him legal defense, paid the $20,000 to the court, 1) asked the court to require all other claimants to settle their claims against Clark in a single proceeding, and 2) asked the court to discharge State Farm from any further liability, including representing Clark further. (Alternatively, State Farm wanted the court to determine that the policy didn't apply to defendants operating other people's trucks and refund State Farm the money.) Greyhound wanted this charge expanded to relieve Greyhound from liability. Held Fortas: State Farm correctly filed interpleader under 28 U.S.C.A. § 1335, and does not have to wait for reduction of Clark's claims to judgment. Held State Farm and Greyhound may not expand the interpleader to apply to other passengers, because this would force the other plaintiffs to change their venue just because one of the defendants happened to have insurance.

Provident Tradesmens Bank & T Co. v. Patterson, 390 U.S. 102 (1967) (supplement)

Dutcher owned an automobile and gave its keys to Cionci who, driving with Lynch and Harris, crossed the median and struck Smith. Smith, Cionci, and Lynch were killed, and Harris was severely injured. Dutcher had a policy with Lumbermens Mutual Casualty Company with a $100,000 cap. Provident, administrator of the Lynch estate, sued the estate of Cionci in a diversity action and got a judgment for $50,000, although Cionci has no money to pay it. Smith's administratrix and Harris both sued Cionci, Dutcher, and Lynch in state court, but these cases have not went to trial. If Cionci was driving with Dutcher's "permission", it would owe money on behalf of Cionci, but Cionci had taken a route not authorized by Dutcher. Tradesmens sued Cionci and Lumbermens in a diversity action for a declaration that Cionci was driving with Dutcher's permission. Pennsylvania law said that Cionci was presumed to have Dutcher's permission in the absence of other evidence, which Dutcher could provide except that under the Pennsylvania "Dead Man Rule" Dutcher cannot speak about what he told Cianci because he has an "adverse" interest, so the District Court issued directed verdicts for the plaintiffs. Lumbermens appealed and the Court of Appeals reversed: because Dutcher was an indespensible party but could not be joined without destroying diversity, the action was dismissed. Held The Court of Appeals should have allowed the action. Analyzing the four criteria in FRCP 19: Plaintiffs: They might have had an alternate forum in the trial court, but by the appeal it is less likely that's available. Defendants: If defendants would have wanted to join Dutcher, they would have done so at the trial court. If they lose here, they'll still be able to litigate the issues in each of the general lawsuits. Dutcher: It's not clear that, regarding the insurance payments, that Dutcher would be bound to the results and therefore hurt by the outcome because the insurance money is already paid to plaintiffs. If Dutcher is sued directly, he can always raise the permission issue defensively. Even if the Court of Appeals was worried about Dutcher, they could have phrased the judgment to pay the monies after the suits pending against Dutcher are settled. There might have been an efficiency argument at the trial level, but on appeal "there was no reason then to throw away a valid judgment."

Haas v. Jefferson National Bank of Miami Beach, 442 F.2d 394 (5th Cir. 1971)

Haas and Glueck bought shares of Jefferson, but they were issued in Glueck's name. Glueck later tried to get the bank to transfer half of them to Haas, but the bank refused because Glueck owed them money, so Glueck used the certificates as collateral in another loan at another bank. Haas sued Jefferson in district court to get the certificates, and the court forced Haas to join Glueck as an indispensible party, and then dismissed the case before trial because of lack of diversity from the Glueck joinder. Held Glueck is indispensible under FRCP 19(a) as he has facts pertinent to the issue and leaving him out would expose Jefferson to multiple or inconsistent obligations through multiple litigations. Held The district court correctly dismissed the case without Glueck at this early stage. Diversity is required even in the presence of indespensible parties. 1) A judgment rendered in Glueck's absence would be prejudicial to Glueck and Haas. 2) Relief can't be shaped without prejudicing Glueck, because the ownership of the stocks must first be determined. 3) The judgment wouldn't be adequate to Glueck, and 4) There is an alternate forum: Haas can litigate against Glueck in Ohio state courts.

Atlantis Development Corp. v. United States, United States Court of Appeals, Fifth Circuit, 1967, 379 F.2d 818

A set of coral reefs 10 miles off the coast of Florida had been visible for over 100 years. Atlantis surveyed and built structures on them. The US Corps of Engineers asserted that they were government property and that permission was needed to build there. The US government sued Acme General Constructors, Inc. and J.H. Coppedge Company for tresspassing. Atlantis tried to intervene because it said that it had a right to build there, but the district court didn't allow it. Held Atlantis should be allowed to intervene. 1) Atlantis' interests will be impaired without being represented. 2) Atlantis claims an interest in the property: the right to control, use, and develop the reefs without interference from the US government. 3) A disposition in the main suit will, through stare decisis (although only in exceptional circumstances), impair Atlantis' ability to protect its interest.

Bustop v. Superior Court, Court of Appeal of California, 1977, 69 Cal.App.3d 66, 137 Cal.Rptr. 793

In Crawford v. Board of Education the California Supreme Court declared the LA Unified School District segregated and ordered it to desegragate. The District created a plan for desegregation that included bussing students to schools other than those near where they reside. Bustop, a non-profit organization representing the predominantly white students at the District, tried to intervene, saying that the desegregation order didn't necessitate student reassignment, but both parties opposed. Held Bustop represents the interests of individuals not currently represented by either party, so allowing Bustop in wouldn't create a proliferation of unrelated parties. Held Allowing Bustop in wouldn't require new evidence. Held Busstop should be allowed to intervene. As long as the District's desegregation plans are within the court's desegregation order, the court can prevent Bustop from intervening, but the Crawford opinion had provisions for intervention if the plan didn't meet the criteria in the future, and Bustop should be allowed in now in case that happens.

Hansberry v. Lee, Supreme Court of the United States, 1940, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22

An agreement of landowners stated that, if 95 percent signed the agreement, each signer could not for a particular amount of time rent or sold to African Americans. Plaintiff sued defendant saying that 95 percent had signed the agreement, that defendant was one of of the signers, and that they had allowed African Americans to occupy the land. Plaintiff claimed that Burke v. Kleiman, 277 Ill.App. 519 had held that 95 percent had signed, and that was res judicata in this case even though defendant was not a party to that suit because Burke was a class suit. The decision in Burke as probably factually erroneous. Held Although it is possible that results in a class action suit could be res judicata, Burke was not a class suit. The agreement didn't purport to create a joint obligation or liability—it created several obligations. Each signer is not in a class just because he/she is in the same suit as another party. To hold res judicata would violate Fourteenth Amendment rights of due process.

Eisen v. Carlisle & Jacquelin, Supreme Court of the United States, 1974, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732

Eisen sued the brokerage firm of Carlisle & Jacquelin for monopolizing odd-lot trading and set a high differential, and also sued the New York Stock Exchange for allowing it to happen. The plaintiff's claim was only for $70, and he tried to introduce a class action on behalf of himself and all other odd-lot traders. Electronic records could be located to give addresses of over two million other odd-lot traders affected, which at current postage rates would cost $225,000. The District Court said that the suit could not be maintained as a class action. The Court of Appeals in Eisen I held that the District Court's decision was final and appealable, and in Eisen II the District Court reversed the original decision. The court in Eisen II held that, because calculation of damages would be difficult, damages would be put into a fund for future odd-lot traders using "fluid class recovery." It said that, because the high costs of notification under might preclude an otherwise meritorious class action claim, instead of notifying all two million potential members, the plaintiff would only have to notify member firms of the Exchange, 2,000 or so odd-lot traders with high volume, 5,000 others selected at random, and then run a publication in the Wall Street Journal and some other publications. Finally, because this still amounted to $21,720, a preliminary hearing was held that determined Eisen was "more than likely" to win, and therefore put 90% of the notice costs ($19,548) to the defendant. The Court of Appeals in Eisen III overruled again and said that the case could not continue as a class action. Held Powell: The Court of Appeals in Eisen III had jurisdiction to review the District Court's decision in Eisen II requiring 90% of the cost to go to the defendants, because it was one of the "small class" of decisions that are not "tentative, informal, or incomplete," but was nevertheless a collateral matter. Held The plaintiff must notify all potential class action members with known addresses, because FRCP Rule 23(c)(2) clearly says as much. Mullane only allowed a lower standard because addresses were not known. Held The plaintiff must bear the full cost of notice. Nothing in Rule 23 gives the court the authority to make a preliminary decision on the merits and impose costs on the defendant before trial. Held As the plaintiff does not want to pay the $225,000 notification costs, the case must be dismissed.

Eisen v. Carlile & Jacquelin, 52 F.R.D. 253 (1971) (Eisen District Court) (supplement)

Held The plaintiff easily meets the requirements of adequate representation by 1) having a qualified, experienced attorney; 2) no collusion or interests against other class action members; and 3) the plaintiff can be an adequate, forceful advocate. Held Manageability of the suit as a class action is a little more dificult, but still feasible. 1) Computation of damages: the court can find a way to arrive at a compensation value. 2) Mechanics of administration: the plaintiff can send notice only to some potential class members. 3) Distribution of recovery: the court can use some sort of "fluid class recovery" to pay damages to future odd-lot traders.

Eisen v. Carlile & Jacquelin, 479 F.2d 1005 (2d. Cir. 1973) (Eisen III) (supplement)

The average odd-lot differential turned out to be $5.18. Held This case is simply unmanageable as a class action, and should be dismissed. Held The "fluid recovery" concept is illegal and inadmissible as a solution to manageability. It dispenses with the notion of giving damages to individual members and treats the "class as a whole," getting the case into court and then dispensing damages to some future members of the class, which may or may not coincide with any of the members before the trial. This is not found anywhere within Rule 23, and if it were it would be unconstitutional. This isn't like the drug cases, in which the case had been tried and there was a settlement; here the case has not been tried and the parties are very much in opposition. Dicta Congress should allow the court to change a 23(b)(3) damages case into a 23(b)(2) injunctive relief case when it feels justice would be better served.

Cartt v. Superior Court, 50 Cal. App. 3d 960 (1975)

Cartt, a schoolteacher making under $15,000 a year, alleged that Standard Oil Company of California had Chevron F-310 gasoline would reduce emissions, but instead did not reduce emissions and maybe damaged automobiles. She sought to join in a class all Standard credit card members who had seen advertisements and had purchased the gasoline within certain dates. Damages to each member would be a few dollars at most. Many class members are probably on a list of 700,000 credit card members, but half of that list probably has people who are not members and many class members probably no longer have cards. It would take about an hour each to go through and find out which card holders had purchased gasoline. The court said that Cartt must bear the $68,715 cost of mailing notices to all card members. Cartt would rather make Standard stuff envelopes. The FTC in the meantime issued a cease and desist order against Standard for deceptive advertising, and this was being appealed. Held The court should reconsider. Cases in which it would be infeasible to bring an action separately because of such low damages per person is just the sort of case class actions are for. Held Eisen IV is not applicable here, because in that case there were identified addresses of class members. Held Eisen IV says that notice is required to ensure the class action effect is binding upon all class members, but that doesn't mean the suit can't go forward if it can't be guaranteed that the case would be res judicata. Held Notice is to ensure integrity of the class. There is a distinction between adequate notice and manageability. Held A mini-hearing on the merits that might force Standard to bear some of the costs of envelope stuffing shouldn't be rejected out of hand, as it might be able to economically take place by looking at public records and FTC proceedings.

Saylor v. Lindsley, United States Court of Appeals, Second Circuit, 1972, 456 F.2d 896

The Tonopah Mining Company of Nevada was selling stock of Tonopah Nicaragua Company to Mines Incorporated. The notice didn't point out that the sale was only a step in the ultimate transfer to La Luz Mines, Limited. Plaintiff stockholder contended that defendants in obtaining SEC excemptions had concealed the true beneficiary of the transfers would be La Luz. Saylor's attorney, Mr. Markowitz, entered a stipulation of settlement parties from Tonopah, which had been dissolved. Saylor opposed the settlement. Held The settlement should not have been approved over the plaintiff's opposition when there was doubt whether there had been truly adversary discovery prior to the settlement. The attorney did not give notice to the plaintiff of finishing settlement negotiations until two months later. Two defendants had not even been served. Only two depositions were taken, from two people (one president of La Luz) not disposed to help recovery.

Vasquez v. Superior Court, Supreme Court of California, 1971, 4 Cal.Sd 800, 94 Cal.Rptr. 796, 484 P.2d 964

Thirty-seven named plaintiffs brought a class action against Bay Area Meat Company for fraud in the sale of food and freezers. The trial court dismissed the complaint for failing to state a cause of action, not allowing the case to be a class action for fraud. Held The plaintiffs may have their writ of mandate to compel the trial court to let the case proceed. Held The plaintiffs have no remedy from appeal because the first case hasn't issued a final judgment on the other causes of action. Held The allegations are sufficient to state a class action. 1) Ascertainability of the class: The purchasers of freezers and food can easily be determined from defendants' books. 2) Community of interest: Each plaintiff isn't required to litigate facts particular to his/her circumstances for recovery, so a civil action can occur. The alleged misrepresentations were part of a memorized speech given to all buyers. A formula was used to give representations of savings. As for reliance, California doesn't require direct evidnence for false reliance, so a presumption of reliance can be used for the entire class. For damages, that each plaintiff will be required to prove damages to some extent will not preclude a class action, according to Daar. Held At around $1,000, the requested damages per person are not too large for a class action.

In re Northern District of California Dalkon Shield IUD Products Liability Litigation, United States Court of Appeals, Ninth Circuit, 1982, 693 F.2d 847

From 1970-1974, about 2.2 million Dalkan Shield IUD products were used, which internally damaged many women. By 1981, approximately 3,258 related actions had been filed and 1,573 were pending. Held "The California liability class does not satisfy the typicality requirement of Rule 23(a)(3) or the Rule 23(b)(3) requirement that the class action be superior to other available means of adjudication. 23(a) Commonality: The 50 jurisdictions in these cases have different standards of punitive damages. Typicality: No plaintiff is accepting the role of typical plaintiff. Adequacy of representation: The lead counsel resigned, and no replacement has been appointed. 23(b)(1)(B) McDonnell Douglas prohibits Rule 23(b)(l)(B) certification of mass tort actions for punitive damages unless separate punitive awards inescapably will affect later awards, and there is no evidence of a limited fund. Rule 23(b)(3) For products liability, individual issues may outweigh common issues, because there is no single happening, no single set of operative facts, and no single proximate cause. Payton and Agent Orange say that neither causation nor damages may be determined in class proceedings. 23(a) For breach of warranty, there must be representative plaintiffs for each type of warranty, assurance, or medical advice, which is difficult for a class action.

In Re Rhone-Poulenc Rorer, Inc., United States Court of Appeals, Seventh Circuit, 1995, 51 F.3d 1293

Over 2,000 hemophiliacs died from AIDS and half of the 20,000 US hemophiliac population might have been infected with HIV from drug companies that manufacture blood solids not properly screening or heating blood in the early 1980s before HIV was known to cause AIDS. Around 300 lawsuits had been filed, but many potential cases were nearing the statute of limitations. Wadleigh claimed either that A) the companies were liable because they negligently didn't screen for Hepatitis B, which would have "serendipitously" guarded against HIV, or that B) the drug companies negligently delayed screening and heating the blood after HIV was discovered to cause AIDS. The district court judge certified Wadleigh as a class action to determine negligence via a special verdict, and then use collateral estoppel to block religitation of negligence. The defendants sought a mandamus to rescind the order certifying a class action. Held Posner: The mandamus is granted, and the suit cannot be certified as a class action. 1) A class action would unecessarily force the defendants to stake the outcome on one suit. This would be allowable if individual damages would be less than expenses, but here the potential damages for each case are in the millions of dollars. If allowed to individually go to trial, about 25 might win and get a total of maybe $125 million in damages. If a class action is allowed, 5,000 plaintiffs might participate bringing liability of up to $25 billion, "blackmailing" the defendant into settling. 2) The negligence standards are not the same across the US for the diverse plaintiffs, especially for the first novel claim of serendipitous negligence. 3) By dividing the trial into a special verdict for determination of negligence and later trials for damages means that different juries will be determining negligence than will be determining damages, which is incongruous.

Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985) (handout)

Plaintiffs tried to certify a nation-wide class of persons entitled to Phillips gas royalties from land in 11 states. Les than 2.7% of the 33,000 class members are residents of Kansas, and less than 0.0025 of the leases are in Kansas. Can a state hold jurisdiction over nonresident members of a plaintiff class if the members have no minimum contacts with the state? Held Yes, for a money judgment, if the class is adequately represented, the members are given notices, and the members are allowed to opt out. An absent plaintiff is different than an absent defendant, and in class actions a class plaintiff cannot be counter-sued. Can the forum apply its own law to claims of non-residents without minimum contacts? Held Not when the forum law conflicts in a material way with any other law that could apply.

Amchem Products, Inc. v. Windsor, United States Supreme Court, 1997, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689

Asbestos cases were just recently becoming increasingly common because of the long gestation period, and asbestos companies wanted to settle them but remove the possibility of future suits. A consortium of companies negotiated a settlement deal in which they would settle the existing cases if this new settlement were allowed. This new settlement was a complaint, answer, and settlement all the same day, certifying a class of all future asbestos-related sufferers to be paid from a fund. Held Ginsberg, Rehnquist, Scalia, Kennedy, Souter, Thomas: Although classes can be certified solely for settlement, and although the arrangement here may be fair, this class does not meet the rules of FRCP Rule 23. The future class is so diverse, it doesn't meet the Rule 23(b)(3) requirement that common questions predominate. Similarly, the future class doesn't meet the Rule 23(a)(4) requirement that the named parties adequately represent the class. Meeting the notice requirement for the future plaintiffs is problematic, although that may or may not prevent the class from being certifid here. Dissent Breyer, Stevens: The majority doesn't realize the difficulty and importance of settling these asbestos cases. The District Court is in a better position to know if settlement is appropriate here.

Pacific T & T Co. v. Superior Court of San Diego Cty., 2 Cal. 3d 161 (1970) (supplement)

Defendant was accused of a felony and charges were later dropped, but he claimed as a result of the arrest at work he was fired. He accused Pacific of tapping his phone, and during discovery asked questions relating to 1) Pacific procedures and policies of unauthorized wiretaps, 2) Pacific's knowledge of the illegality of wiretapping, 3) Pacific's working with the police department, and 4) Pacific's monitoring of other subscriber's telephone lines. The superior court issued an order compelling answering 97 of the questions. Does Pacific have to answer the questions? Held Yes, as long as the questions are relevant to the subject matter, and doubts as to relevance should be resolved in favor of permitting discovery. If defendants admit that they monitored plaintiff's phone line, thereby narrowing the issue, do they still have to answer the questions about tapping other subscriber's lines, for example? Held Yes, the rule is whether the questions are relevant to the subject matter, not that they are relevant to the issues. The questions might bring out a motive, or illustrate malice, or draw into question some of the defendant's defences.

Schlagenhauf v. Holder, 379 U.S. 104 (1964) (supplement)

A Greyhound bus ran into a tractor/trailer. The tractor was owned by Contract Carriers, Inc., and the trailer was owned by National Lead Company. Passengers in the bus sued Greyhound, Holder (the driver of the bus), Constract Carriers, National Lead, and Corkhill (the driver of the tractor). Greyhound cross-complained against Contract Carriers and National Lead for the way the truck was driven, and Contract Carriers filed a reply stating that Schlagenhauf wasn't mentally or physically capable of driving the bus. Contract and National then petitioned the district court to have Schlagenhauf examined under Rule 35 by specialists in 1) internal medicine, 2) opthamology, 3) neurology, and 4) psychiatry, and named nine possible specialists from which to choose for these four categories. The district court compelled examination by all nine. Schlagenhauf, who had been in another accident before, did not deny that his mental or physical health was bad. Would applying Rule 35 to a defendant be an unconstitutional invasion of privacy, because the only way it applies to plaintiffs is that the plaintiff, by the action, waives his/her such right? Held Goldberg: No, Rule 35 applies to both plaintiffs and defendants as a method to discover information, not because of a waiver of rights, as part of trying to redress the plaintiff's injuries. The plaintiff doesn't waive any rights by coming to trial. Was the mental or condition of Schlagenhauf "in controversy", and was "good cause" shown for the examinations? No, these are special conditions of Rule 35, not just meaningless boilerplate language, showing a higher standard required than the other discovery rules. Schlagenhauf did not assert his mental or physical condition in support or defense of a claim. The eyesight examination was the only one for which specific reasons were given, but since the rest were invalid the entire case is remanded for reconsideration of all examinations. Allowing the examinations here would allow them for all automobile accidents. Dissent Black, Clark: When someone is in two accidents, slamming into a tractor-trailer that was visible, people ask, "Is the driver blind or is he crazy?" Alleging that Schlagenhauf had mental or physical problems brought the issue into controversy, especially as he didn't deny the allegations. Dissent Douglas: All Rule 35 examinations should be denied here. What was in controversy was the negligence of the driver, not his mental or physical health. Those issues are relevant, and so questions may be brought up in depositions, but they aren't in controversy as far as Rule 35 goes.

Vinson v. Superior Court, Supreme Court of California, 1987, 43 Cal.Sd 833, 239 Cal.Rptr. 292, 740 P.2d 404

Plaintiff sued defendant for intentional infliction of emotional distress through sexual harrassment. Defendant requested a mental examination of plaintiff. Plaintiff replied that this would be an invasion of her privacy, that her sexual history not be made subject to discovery, and that her attorney be present during the mental examination. Is plaintiff's mental condition "in controversy?" Held Mosk: Yes, the plaintiff brought it into controversy by alleging emotional distress. Although Schlagenhauf held that one party's unsubstantiated allegations cannot put another party's mental condition in controversy, here the plaintiff put her own mental condition in controversy by the allegations. Has a "good cause" been shown for discovery of plaintiff's mental condition? Held Yes, defendant has shown that examining the mental condition of the plaintiff will test whether her allegations of emotional distress are true. Does plaintiff's right to privacy preclude discovery of her sexual history? Held Yes. Plaintiff has an in abstracto right to privacy, but that doesn't preclude discovery of items in controversy. Here her sexual history is not in controversy, and plaintiffs should not be presented with a "Catch 22" dilemma of ignoring sexual harrassment or subjecting their own sexual history to examination. Should plaintiff be allowed to have counsel present during the examination? Held No. There has been no evidence that the examination would go beyond its required bounds, and if the plaintiff is worried she may have the session unobtrusively taped.

Burke v. Superior Court of Sacramento County, 71 Cal. 2d 276 (1969) (supplement)

Rauch filed a suit against Westby and caused a writ of attachment to be issued upon real estate owned by Westby. Judgment was for Westby and Burke, receiver of some of Westby's affairs. Burke sued Rauch for expenses regarding the wrongful attachment, claiming that the attachment was valid on its face and couldn't be contested except through defending and winning on the merits. Burke asked during discovery if Rauch contended that Westby could have dissolved the attachment prior to defending the action. Rauch claimed the question was ambiguous, that it asked for a legal opinion on the only question to be decided, and was a shotgun question. Held The question was not ambigious. It asked for a yes or no answer as to Rauch's contention. Held A question in discovery may not be rejected by asserting it calls for a conclusion of law. Discovery is meant to get uncontested issues out of the way before court, and if the respondent doesn't intend to contest something in court, the question should be answered. Held This was not a shotgun question. Shotgun interrogatories have many subinterrogatories, making it difficult for the person answering them to spend a large amount of time to ascertain they haven't overlooked some special intricate interrelations between the subinterrogatories.

Flora Crane Service, Inc. v. Superior Court, 234 Cal. App. 2d 767 (1965)

Petitioner alleged that Maccon Masonry Materials, Inc. was just an alter ego for Conrad C. Eustace. Petitioner filed interrogatories asking Maccon to describe all books and records and itemize by value all assets and liabilities. Is the iterrogatory too broad? Held No, it is ""reasonably calculated to lead to the discovery of admissible evidence" (CCP Section 2016(b)). If petitioner had asked for the documents themselves, the respondant would probably have asked that they first be identified. At the most, the interrogatory might be amended to include be more specific, but this interrogatory should be reasonably interpreted. Is the interrogatory oppressive? Held No, this question is legitimate to find out if Maccon is really the alter ego of Eustace, and Maccon should have such documents as balance sheets.

Upjohn Co. v. United States, Supreme Court of the United States, 1981, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584

Held To whom in a corporation the attorney-client privilege must be applied should be determinined on a case-by-case basis, but it's beyond the simple "control group" (group of people controlling the corporation) delimited by the lower court. Held Communications and notes that reveal the attorney's mental processes in evalutating the communications take more than "substantial need" and "undue hardship" to discover.

Hickman v. Taylor, Supreme Court of the United States, 1947, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451

Rigby v. Beech Aircraft Co., United States Court of Appeals, Tenth Circuit, 1977, 548 F.2d 288

Dr. Rigby was piloting a plane with his wife and two children when the plane crashed. He was injured and his wife was killed. He sued Beech for faulty construction of the auxillary 31-gallon fuel cells. The plane had two main 40-gallon fuel cells and two auxillary 31-gallon fuel cells. The pre-trial order stating contested issues only mentioned the auxillary cells. The trial court excluded testimony regarding the main fuel cells. Held The trial court was correct in excluding evidence relating to the main fuel cells, as they were sufficiently different from the auxillary fuel cells, and only the auxillary fuel cells were mentioned in the pre-trial order.

Adickes v. S.H. Kress & Co., Supreme Court of the United States, 1970, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142

Ms. Adickes, a white school teacher from New York, took a group of black girls to a library in Hattiesburg, Mississippi, and they were kicked out. They then went Kress' restaurant, where a waitress took their order but then kicked them out because they were a "mixed group" and the owner didn't want a riot to start. A policeman on the sidewalk arrested Adickes for vagrancy. Adickes requests relief under 42 U.S.C.A. § 1983, which prohibits violating constitutional rights under color of law on the basis of race, because her not being served in the restaurant and being arrested outside was part of a conspiracy between the restaurant and the police. Kress was granted summary judgment under FRCP 56 at the appeals court, so Adickes appealed to the Supreme Court. Held Harlan: 42 U.S.C.A. § 1983 applies to private persons if they collaborate with the police. Held The respondant has not met the burden of proof for a summary judgment by not showing there are no undisputed facts. Adickes has claimed that there was a policeman inside the restaurant while the group's order was being taken, and that he subsequently left. This could allow a jury to infer that there was a "meeting of the minds" that petitioner should not be served and should be arrested outside. The respondant has not claimed that there was no policeman inside.

Celotex Corp. v. Catrett, Supreme Court of the United States, 1986, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265

Held The moving party in a summary judgment motion does not have to produce affidavits proving a negative, if it can show that the other party has not brought any evidence on the allegations. A motion for summary judgment may rely on "pleadings, depositions, answers to interrogatories, and admissions on file."

Beacon Theatres, Inc. v. Westover, Supreme Court of the United States, 1959, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988

Fox West Coast Theatres had exclusive deals to distribute movies in San Bernadino, California. Beacon Theatres opened a drive-in theatre 11 miles away and sued Fox for violation of anti-trust laws. Fox then sued Beacon for "duress and coersion" by its suits and charges, and asked that an injunction be issued against Beacon to stop them from initiating suits, and also for a declaration that Fox was not violating any anti-trust laws. Beacon counter-claimed that there was no competition between the theatres so that injunctive relief would be improper, and that Fox was conspiring to restrain and monopolize trade. Beacond demanded a jury trial FRCP 38(b), but the District Court found the issues to be equitable and did not allow a jury trial. Held Black: Injunctive relief is only available on a showing of irreparable harm and inadequacy of legal remedies, and to determine the adequacy of legal remedies a jury trial must be allowed. Dissent Stewart, Harlan, Whittaker: Beacon certainly has the right to a jury trial for its expanded counter-claims, but that does not infer a right to a jury trial for the original claims by Fox. "Inadequacy of legal remedy" simply means that there is not a legal avenue of remedy, not that a jury must first make a legal determination.

People of California v. Huey P. Newton, Alameda County, California, 1972, 44 So.Cal.L.Rev. 951

[only jury selection dialogue]

Sabella v. Southern Pacific Co., Supreme Court of California, 1969, 70 Cal.2d 311, 74 Cal.Rptr. 534, 449 P.2d 750

Plaintiff was helping cut damaged freight cars into scrap when he fell from the roof of one and hurt his back. He sued plaintiff charging negligence of the crane operator and negligence of the defendant in general in not providing a safe working environment. The plaintiff's attorney accused witnesses of perjury, referred to the difference in wealth between plaintiff and defendant, and indirectly appealed to the jurors to put themselves in the plaintiff's position. Plaintiff's attorney also accused the defendant of refusing to help plaintiff get a job and generally out to defeat his claim; to these latter points the defendant objected but made no request for jury instructions to ignore that line of argument. The trial court ruled for the plaintiff but reduced the award. Held Mosk: The judgment is affirmed. The actions by the plaintiff's attorney are deplorable, but the defense had an opportunity to ask for jury instructions of ignoring the attorney's statements, and by not doing so waived the right to do so. Defendant objected and asked for jury instructions for much less infractions by the plaintiff's attorney during the trial. Overall, the defense had a chance to ask for jury instructions, and the plaintiff should not be punished for deplorable actions by his attorney. Dissent Traynor: The judgment should be reversed because defendant was deprived of the right to a fair trial. Though defendant might not have explicitly asked that the jury be asked to ignore the closing argument's language, the defendant repeatedly objected to the language and asked that a mistrial be declared. Even a jury admonition would not have cured the harm done at the trial. Consequently, failure to request a jury admonition should not preclude the a challenge of misconduct on appeal.

Tanner v. United States, Supreme Court of the United States, 1987, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90

Tanner was convicted of conspiring to defraud the United States and mail fraud. A couple of jury members came forward to say that several jury members regularly drank beer, wine, and mixed drinks, falling asleep at times during proceedings. The jurors allegedly sold and smoked marijuana and ingested cocaine. Should a new trial be ordered? Held O'Conner: No. Federal Rules of Evidence Rule 606(b) does not allow the admission of jury testimony to impeach a verdict unless it is related to extraneous influences. Intoxication is an internal influence, like a virus or sleepiness, to which jurors cannot bring evidence. Otherwise jury results would not be as final and would be subject to attack. Should there be a post-verdict evidentiary hearing to determine if the jurors were competent? Held No, the voir dire provides this before trial, as does juror testimony before a trial; afterwards, others besides jury members can come forward with evidence. Dissent Marshall, Brennan, Blackmun, Stevens: Rule 606(b) allows jury testimony on activities outside of deliberation. Even if it didn't, intoxication is obviously an outside influence and testimony of such should be allowed.

Smith v. Covell, 100 Cal. App. 3d 947 (1980) (supplement)

Mr. and Mrs. Smith sued Covell for an automobile accident. The jury returned a verdict for the plaintiffs, awarding $10,000 for injuries to Mrs. Smith and zero to Mr. Smith. Held There must be a reversal and retrial for damages because of several factors, taken separately or collectively, that prejudiced the jury. 1) There was evidence of a concealed bias and an objective fact likely to have improperly influenced the jury: the foreman in talking to other jurors compared Mr. Smith's injuries to his own back injuries. 2) The jury was improper in considering wedding vow obligations for Mr. Smith's cause of action for loss of consortium, disregarding the court's instructions. 3) Defense shouldn't have made inferences based upon plaintiff's not calling a witness—the defense could have called the witness if they wanted. 4) Defendants made opening statements alleging events that could not be sustained by the facts and unsubstantiated by the evidence. 5) Defense asked plaintiff questions for impeachment that called for hearsay: asking Mrs. Smith if her doctor had ever told her that her pain was just her way of getting attention. 6) Defendant suggested the plaintiffs were wealthy when their financial status was not relevant.

Mann v. Hunt, New York Supreme Court, Appellate Division, Third Department, 1953, 283 App.Div. 140, 126 N.Y.S.2d 823

Defendant struck another automobile and testified that no one was in it, and that he first saw the plaintiff seven minutes later coming across the street. Another witness agreed. The plaintiff claimed to have been inside the car, had injuries to prove it, and another witness claimed to have been having a conversation with the plaintiff at the time of the accident. The jury ruled for the defendant, but the judge set aside the verdict as being against the weight of the evidence. Held The order is affirmed. It was in the discretion of the judge, based upon his entire experiences, to set aside the verdict if he felt it was against the weight of the evidence. The appeals judges cannot reverse the decision just because they would have done differently. The plaintiff must first demonstrate the order was not reasonably grounded.

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