Civil Procedure Hornbook - Summary


…procedural aspects of the civil justice system operate. In that the Anglo-American judicial system is based on the adversarial model.  This differs from systems in civil law countries where the inquisitorial model prevails.  Under the inquisitorial system, the court conducts an active and independent in inquiry into the merits of each case. The main feature of the adversary system that influences the development of particular procedures is that the parties (or their lawyers) control and shape the litigation. The traditional view is that the judge sits solely to decide disputed questions, most commonly questions of law and procedure.  Issues not raised, objections not mentioned, and points not made are, with very few exceptions, waived.  The case proceeds only   in response to the demands of the litigants.  Necessarily, then, the adversary model places enormous emphasis and responsibility on the lawyers; the court maintains a relatively passive role throughout the proceedings.


1.2   General Description of the Court System


Each of the fifty states and the District of Columbia has its own judicial system. In addition, there is a separate Federal Court system, as well as courts for each of the United States territories and possessions.


For example, the tactical considerations that must be explored in choosing between a federal and state court are varied.  An attorney might prefer a federal to a state forum in order to take advantage of certain features of the Federal Rules of Civil Procedure, most notably their liberal discovery procedures; the attorney may believe that federal judges and juries are of a higher caliber than their state counterparts or she may desire to utilize a congested Federal court calendar to wage a battle of attrition against her adversary.  Conversely, a lawyer may prefer a state forum because he expects a state to be more sympathetic to his client and his case, especially if the client is a local resident, or the lawyer may want to avoid one of the distinctive features of federal practice such as liberal discovery or the power of a federal judge to comment to the jury on the evidence. Finally, many attorneys simply are more experienced and comfortable litigating in one court system rather than other.


Most judicial systems in the United States… Judicial systems became tri-partite, composed of a trial court, a court that engages in the initial appellate review, but is final for most cases, and a court of last resort.


The federal trial Courts are denominated United States District Courts.  There are 91 judicial districts in the United States, each having its own courts.  Additionally, there are district courts for Puerto Rico, Virgin Islands, Guam, and the Northern Mariana Islands. Every state, as well as the District of Columbia, has at least one judicial district, and many larger states are divided into two or three, or even ( in the cases of Texas, New York and California) four judicial districts. Congress’ decision to divide a particular state into more than one judicial district depends on population, geography, and caseload.  Districts that cover an entire state or a large geographical area, as for example, Alaska….


The federal district courts exercise general trial competence (referred to as original jurisdiction). Thus, they act as the initial tribunal for almost all cases, civil and criminal, in the Federal court system. The Federal district court’s authority to hear a particular case commonly is concurrent or parallel to that of the state trial courts so that litigants often can choose whether to sue in federal or state court.


Page 6  A losing litigant in a federal district court generally may appeal a final decision to the United States Court of Appeals for the circuit in which the district is located.  At  present there are eleven numbered circuits, each embracing a largely geographic contiguous area, including anywhere from three to ten states and territories.  Each court of appeals has four or more judges who sit in panels of three to review the cases.



Chapter 2

When deciding where to file suit one of the first questions that must be answered is whether the chosen Court has the power or competence…  subject-matter jurisdiction.


Perhaps the most common method of limiting judicial power is by providing that certain courts can adjudicate only controversies involving more than stated amount.  For example, in California, most matters involving less than $25,000 are restricted to the Municipal Courts; most matters involving more than $25,000 are assigned to the Superior Court.


The most common purpose of venue rules is to limit the plaintiffs forum choice in order to ensure that the locality of the lawsuit has some logical relationship either to the litigants or to the subject matter of the dispute.


Venue must be carefully distinguished from jurisdiction. Jurisdiction deals with the power of the court to hear and dispose of a given case.  Venue is of a distinctly lower level of importance; it is simply a statutory device designed to facilitate and balance the objectives of optimum convenience for parties and witnesses and efficient allocation of judicial resources.




2.2 The Nature of the Federal Courts


To understands the nature of the subject matter limitations on the federal court system…  Article III, Section I of the Constitution states:


The 1789 Judiciary Act


The practical effect of this proposition is that there is a presumption against federal jurisdiction: whereas the ability to hear case is presumed in state courts general jurisdiction.


The early case of Capron v. Van Noorden illustrates the way in which the foregoing principles are applied.  In Capron, plaintiff brought a tort action against defendant in the North Carolina federal court.  The plaintiff appealed from the jury's verdict for the defendant, alleging, among other things, that the trial court lacked subject-matter jurisdiction because the pleadings, although identifying the defendant as a citizen of North Carolina, were silent as to the citizenship of the plaintiff.  Since federal jurisdiction would exist only if the plaintiff were of diverse citizenship from the defendant, and since diversity had not been demonstrated, the Supreme Court reversed the judgment.  This case strikingly exemplifies the paramount importance attached to the limitations on federal court jurisdiction: the plaintiff, who had chosen the federal forum, was permitted to challenge, for the first time on appeal, the jurisdiction of the court of his own selection.  The Supreme Court, in effect, declared that allowing unscrupulous or careless plaintiffs to escape adverse jury verdicts, thus wasting precious judicial resources, was of less concern than the possibility of extending federal jurisdiction beyond its constitutional and statutory limits.


The major areas in which the federal courts presently exercise subject-matter jurisdiction are federal question cases and diversity of citizenship cases. In addition, federal jurisdiction is exercised suits in which the United States is a party, in admiralty and maritime cases, in actions between two or more states…. This means that most cases over which federal courts have jurisdiction also, can be heard in the state courts.


2.4 Federal Question Jurisdiction--The Well-Pleaded Complaint Rule


For a litigant to invoke general Federal question jurisdiction it is necessary both that the case “arise under” the Constitution… and this fact appear on the face of a well-pleaded complaints


well-pleaded complaints


…the doctrine that the federal issue raised by the complaint must be a substantial one.


2.5 Diversity of Citizenship Jurisdiction--In General


…giving the United States circuit courts jurisdiction over cases in which “the suit is between a citizen of the State where the suit is brought, and a citizen of another state,”  The most obvious qualification is the explicit statutory requirement that certain monetary amount minimum must be in controversy.


The classical rationale for diversity, enunciated by Chief Justice Marshall in Bank of United States v. Deveaux emphasized the avoidance of actual prejudice to out of state litigants in state courts, ….  However, the real concern of the supporters of diversity at the Constitutional Convention and in the First Congress may have focused more on economic advantage than on avoidance of abstract regional or state Prejudice. The federal courts offered a means for protecting commercial groups from class bias on the part of democratically inclined state legislatures which otherwise might pressure state courts into decisions hostile to commercial, manufacturing, and speculative land interests. hostility among the classes.


there are two areas which the federal courts traditionally have refused to exercise jurisdiction…. These are domestic relations and probate cases.  A federal court will not grant a divorce, make an award of alimony, or settle a controversy over the custody of a child.


Probate; federal court cannot probate a will


2.6 Diversity of Citizenship Jurisdiction-Application of Diversity Requirements


rule of complete diversity, there is no diversity jurisdiction when any party on one side of the dispute is a citizen of the same state as any party on the other side.


…by a procedure known as realignment.  The court is obliged to scrutinize the nature of the controversy and if necessary to realign the parties to reflect the actual clash of interests in the case. The citizenship of the parties as realigned will determine….


two basic requirements.  First, the party must be domiciled within a state.  Second, the party must be a citizen of the United States.   Both requirements must be satisfied.


The mere fact of residence in a given state does not establish domicile,…  Domicile, in other words, has both a physical and a mental dimension-it is the place where a person has a true and fixed home and principal establishment, and to which, whenever she is absent, she intends to return. Thus a person may have only one domicile at any one time, despite the ownership of multiple residences (such as seasonal homes) or involvement in different businesses. Further, a domicile once established continues unless and until a new one is acquired.


Because the test for domicile contains an element of intention to remain, resolution of a contested or doubtful citizenship question can be rather complex, involving a number of evidentiary factors, no one of which is necessarily controlling.  These factors may include: current residence; voting or automobile registration; location of personal or real property or other economic interests, such as businesses; location of brokerage and bank accounts; place employment; membership in unions, churches, clubs, and other associations; participation in civic affairs; and sometimes even a personal declaration of domicile.


Because the activities of many corporate enterprises are widely and equally dispersed, and because Section 1332(c) clearly requires that every corporation must have one--and only one--principal place of business, a major problem arises concerning how to identify that site.  Three tests have been developed by the federal courts.  The “corporate nerve center” test looks to the place where corporate policy is made, the locus of the executive and administrative functions of the corporation.  The “corporate muscle” test identifies the corporation’s principle place of business with the site of its major production or service activities, which generally is equivalent to the location of its major corporate assets.  A more recently developed test, and an increasing popular one, is the “corporate activities” test.  This test is a hybrid of the other two.


2.7 Diversity of Citizenship Jurisdiction-Devices to Create and Destroy Diversity


2.8 Amount-in-Controversy Requirements


Satisfaction of a minimum amount in Controversy has been one of  the prerequisites for federal subject-matter jurisdiction from the earliest days of the national judiciary. Most recently the requirement was increased again to its present level of more than $75,000.  Nor can “costs” or interest” comprise part of the requisite amount.   However, attorney fees, can make up part of the jurisdictional amount.  The purpose of the successive enactments of a jurisdictional amount requirement has been to set a figure “not so high as to covert the Federal courts into courts of big business nor so low as to fritter away their time in trial of  petty controversies.


The impact of this legislation has been negligible, however, since the courts generally have refused  to exercise the discretion given them as long as the plaintiff can show  a shred of good faith in bringing the action.


2.9 Amount-in-Controversy Requirements--The Effect Additional Claims and Additional Parties


The modern civil action often is a multi-claim, multi-party controversy…a series of aggregation rules have been developed.


Modern civil litigation also permits counterclaims by the defendant against the plaintiff, cross-claims by one party against a coparty, and claims against third parties.


1961  Horton v. Liberty Mutual Insurance Company


2.10 Actions in Which the United States Is a Party and Admiralty and Maritime Cases


In addition to federal question and diversity jurisdiction, the two other major areas of federal judicial power are cases involving the United States and admiralty and maritime cases.


…doctrine of sovereign immunity, which prevents the federal government from being sued without its consent.


For, it is one thing to provide method by which a citizen may be compensated for a wrong done to him by the Government.  It is a far different matter to permit a court to exercise its compulsive powers to restrain the Government acting, or to compel it to act.***  The Government as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents disputed question of property or contract right.


Federal jurisdiction over admiralty and maritime cases….


2.11 Removal jurisdiction


Removal jurisdiction permits defendant to force the plaintiff to litigate certain actions in federal court, rather than in the state forum originally selected.  In a case involving parties of diverse citizenship, removal protects a nonresident defendant against any local bias that might be encountered in the state court because of the defendant being a “foreigner.”


The Constitution contains no mention of removal jurisdiction. Nevertheless, constitutionality of federal removal jurisdiction consistently has been upheld.*


The basic principles controlling removal are spelled out in Section 1441(a)….  First, cases may be removed only from a state to a federal court; there is no procedure for transferring a case instituted in a federal court to a state court or from a state court in one state to a state court in another. Second, the general removal statute is limited to civil actions; criminal, and perhaps penalty, cases are not removable except as otherwise provided by statute. Finally, the right of removal is limited to defendants. The principle that only defendants may remove is rigorously adhered to.


2.12 Supplemental jurisdiction-History


Two forms of federal jurisdiction, known as ancillary jurisdiction and pendent jurisdiction were developed by the federal courts in order to address the need to decide certain nonfederal matters… These two doctrines have expanded the otherwise limited nature of federal court subject-matter jurisdiction….


Freeman v. Howe Freeman, a United States marshal, had filed a federal diversity action and had seized certain railroad cars, under writs of attachment issued by the federal court.  Subsequently, the railroad’s mortgagees, who were citizens of the same state as Freeman, successfully brought a replevin action against him in state court.  On review of the state court decision, the Supreme Court held that the state court had no power to interfere with property under the control of a federal court.  However, if the state court was powerless to grant the relief sought by the mortgagees, and if they were unable to invoke federal diversity jurisdiction, the mortgagees would be without a forum in which to press their claims to the railroad cars.  Therefore, the Court held that the mortgagees cold assert their claim in federal court.  According to the Court, the claim of the mortgagees was “not an original suit, but ancillary and dependent, supplementary merely to the original suit out of which it had arisen ***,”  Under this conception, then, a controversy was not ancillary unless it had a “direct relation to property of assets actually or constructively drawn into the court’s possession or control by the principal suit.”


Turning to pendent jurisdiction…


2.13 Supplemental Jurisdiction--Joinder of Claims


Ancillary and pendent jurisdiction; they also were criticized as representing an unwarranted expansion of federal subject-matter jurisdiction.  The 1989 Supreme Court decision in Finley v. United States dramatically diminished federal court access to pendent and ancillary jurisdiction.


Justice Scalia determined that the concepts of ancillary and pendent jurisdiction represented an “unconstitutional usurpation of power”


2.14 Supplemental Jurisdiction--Joinder of Parties


In later years, however, a number of lower federal courts expanded its scope to permit the addition of parties with respect to whom federal subject matter jurisdiction otherwise would not have existed.  This notion of pendent party jurisdiction was applied in at least three different contexts.




2.15 Venue Requirements


As noted earlier, venue requirements are purely statutory and vary from jurisdiction to jurisdiction, although all are designed to identify a convenient forum for the resolution of particular types of disputes.  Despite the variety of approaches taken, some generali-zations can be offered.


…factor is the exclusive basis of venues. In others, it is sufficient that any one of several facets is satisfied. Some of these factors serve functional goals; (1) where the subject matter of the action is located, (2) where the cause of action arose, (3) where the defendant resides, does business, or retains an agent, (4) where the plaintiff resides, or (5) in suits involving governmental bodies, where the seat of government is located. 


By contrast, nonfunctional criteria used in fixing venue are illustrated by those statutes that lay venue (1) where some fact connected with the case occurred, (2) where the defendant may be found, (3) where the defendant may be served with process, (4) in the country designated in the plaintiff’s complaint, or (5) in any country at all.


Pg. 82  there is large paragraph that needs to be entered here.


2.16 Local and Transitory Actions


The distinction between “local" and “transitory” actions.  The concept of local action generally includes actions concerning real property particularly suits to gain possession of land, to foreclose a lien, or to quiet title.  Other actions affecting realty--such as trespass or breach of contract to convey--often are subsumed under the concept as well.  Because these types of actions involve a particular piece of land that is necessarily  located within a given region, they have been deemed to be peculiarly “local.”  Standing in sharp contrast are those actions that theoretically might have arisen anywhere, such as a battery or the breach of a mercantile contract; these have been deemed to be “transitory.”


2.17 Forum Non Conveniens and Transfer


Venue systems also must make provision for changes of venue when actions are brought in places that, for one reason another are inappropriate.


In federal courts, the problem of transfer when venue is improper is somewhat more difficult, since transfer often will have to be to an entirely different state.


forum non conveniens doctrine, which permits a court having jurisdiction, over an action to refuse to exercise its jurisdiction when the litigation could be brought more appropriately in another forum.




3. 1 Overview


Before a court can hear and decide a particular case, it not only must have jurisdiction over the subject matter of the dispute, it must also must have jurisdiction cover the persons or property involved in the action.  Personal jurisdiction.  Historically, personal jurisdiction was asserted on the basis of the presence of the person or thing involved in the litigation within the forum's territorial boundaries or the consent of party.  More modern law allows the assertion of personal  jurisdiction based upon a review of the relationship that exists among the place where the underlying transaction took place, the parties, and the territory of the state where suit is brought.


The persons whose rights will be affected have been given adequate notice and an opportunity to be heard.




1. Traditional Bases of Jurisdiction


3.2 The Jurisdictional Categories


Three Categories of jurisdiction over a defendant evolved: in personam, in rem, and quasi in rem.


Jurisdiction over the property itself-jurisdiction in rem.


Common law courts exercised a third type of jurisdiction, which has been characterized as "attachment jurisdiction.” A court would issue a writ of attachment directing the sheriff to seize and hold a defendant's goods in order to secure that defendant's presence at a trial in which personal claims against him were to be adjudicated.  At first, the attachment served merely to compel the defendant to appear, and the attachment served merely to compel the defendant to appear, and the trial was not allowed to proceed in his absence. Later on, the defendant's continued absence resulted in the attached property being turned over to the plaintiff in satisfaction of the latter's claim.  This third type of jurisdiction evolved, in the American context, into quasi in rem jurisdiction.


American tribunals asserted quasi in rem jurisdiction over property located within the forum in order to adjudicate a personal dispute that usually was unrelated to the property itself.  Quasi in rem jurisdiction was a hybrid, combining elements of both jurisdiction in rem and jurisdiction in personam.  Like in rem jurisdiction, quasi in rem jurisdiction was based on a court's power over a defendant's property rather than his person.  Like in personam jurisdiction, quasi in rem jurisdiction gave the court authority the authority to adjudicate personal claims against the defendant with the judgment strictly limited by the value of property. The differences between these forms of jurisdiction are highlighted by reviewing the Supreme Court' decision in Pennoyer v. Neff, which is discussed in the next section.


2.  The Rule of Physical Presence


3.3 Pennoyer v. Neff


The territoriality principle of jurisdiction…the 1877 decision Pennoyer v. Neff.  Pennoyer was the second of two actions involving Neff, a resident of California. In 1866, Mitchell, an Oregon attorney, sued Neff in Oregon state court to recover unpaid legal fees. Mitchell published notice of the commencement of the action In an Oregon newspaper, pursuant to a state statute authorizing ('service by publication" for actions against nonresident defendants. was not personally served. When Neff failed to appear for trial, Mitchell obtained a default judgment against him. To satisfy that judgment, the court attached a tract of Oregon land that Neff had purchased under the Oregon Donation Laws. The land then was sold to Pennoyer at a sheriff s execution sale and the proceeds awarded to Mitchell.


Nine years later, Neff brought an action in ejectment against Pennoyer in the Oregon federal court, seeking to recover the land. Neff claimed ownership based on the Oregon Donation Laws; Pennoyer asserted his ownership rights on the basis of the deed issued as a result of the judicial sale. In reply, Neff argued that the Oregon state court had lacked jurisdiction over both him and his property and thus the judgment in Mitchell v. Neff was invalid and Pennoyer's ownership claim must fail.


The Supreme Court upheld Neff’s claim and nullified the Oregon court's sale of Neff’s land to Pennoyer. In the majority opinions Justice Field enunciated a "field theory" of state court jurisdiction that was to survive for almost a century. He based his theory on two interrelated “principles of public law": first, 'that every State possesses exclusive jurisdiction and sovereignty over persons and property within its Territory;” and second, "that no state can exercise direct jurisdiction and authority over persons or property without its territory." Thus, each state would be excessively powerful over the persons and property inside borders and absolutely powerless over all persons and property outside those borders.


A state court could enter a binding personal judgment against an unwilling nonresident defendant if, and only if, he was personally served with process within the state….


Jurisdiction Over Persons: Exceptions to the Rule of Physical Presence


3.4 The Presence Test: Some Problems and Limitations


Pennoyer rule of presence allowed the physical presence of defendant in the forum to be a sufficient basis for acquiring personal jurisdiction over tat individual, no matter how brief his stay might be. The metaphysics of this principle permitted a nonresident defendant to served with process even while traveling through the state by car or flying over it in an airplane. 


Perhaps more troubling, the Pennoyer rule proved useless as more and more civil controversies came to involve multistate elements.


3.5 Jurisdiction Based on Consent


Thus perhaps the biggest exception to Pennoyer rule was the notion, still valid today, that a defendant not present in the state may consent to the jurisdiction of its courts.


3.6 Jurisdiction Based on Domicile and Residence


An individual defendant's domicile was the first exception to the Pennoyer' rule of physical presence. Domicile was determined by two factors: the intent of individual to make a particular location a permanent home, and facts indicating that the party had physically located there.


3.7 Jurisdiction Based on Corporate Presence and “Doing Business”


As corporations began to carry on their activities beyond the state in which they were incorporated, however, courts were forced to evolve new jurisdictional theories while still abiding by the principles set out by the Pennoyer Court.  The first was the consent theory, discussed earlier.  The second was the theory of corporate presence, which filled the gaps the consent theory did not cover. From those two theories emerged yet a third one--the "doing business" notion of jurisdiction--which was the foundation for both presence and consent.


…corporate presence had to be evidenced by continuous dealings in the State.


…the thesis that a corporation had no legal existence outside the state of its incorporation.  Moreover, how much business constituted sufficient business for purposes of finding corporate presence….


4. Jurisdiction Over Property


3.8 In Rem and Quasi in Rem Jurisdiction: Traditional Doctrine


quasi in rem actions are brought against  known persons, rather than against property. By asserting quasi in rem jurisdiction, plaintiffs “seek to subject certain property of those persons to the discharge of the claims asserted.”   Page 115  but can’t find this text.


…a quasi in rem judgment affects only the interests in designated property of known persons who are parties to the proceedings.  A court may invoke quasi in rem jurisdiction in two distinct ways. It may assert quasi in rem jurisdiction over specific property….    A second application of the quasi in rem concept… quasi in rem jurisdiction often in referred to as attachment jurisdiction.  Rather the plaintiff seeks to use local property belonging to the defendant as a jurisdictional vehicle for litigating a personal claim unrelated to the property.


8.9 Problems With Traditional Doctrine: Quasi in Rem Jurisdiction Under Stress


International Shoe Company v. State of Washington shifted the focus of in personam jurisdiction from a state's physical power over the defendant' to the defendant’s minimum contacts with the state.  In Hanson v. Denckla, the Supreme Court placed a limit on the expansion of in personam jurisdiction by requiring that the contacts take the form of a purposeful affiliation, between the defendant and the forum. …they left in rem and quasi in rem jurisdiction, untouched.


But the determination of the situs of intangible property, such as notes, bonds, and debts, has been a source of difficulty and confusion to the courts.  The situs of intangibles is a legal fiction and the “determination of situs for one purpose has no necessary bearing on its determination for another purpose."  For example, although the situs of an insurance policy is ordinarily the location of the policy itself, for purposes of taxing the cash surrender value of the policy, the situs is the taxpayers residence, which may not be where the certificate is located.




1. Constitutional Requirements


3.10 The Basic Rule of International Shoe: The Minimum Contacts and Fair Play and Substantial Justice Requirements


Recognizing that the Pennoyer rule was anachronistic, the Supreme Court in a 1945 decision, International Shoe Company v. State of Washington, adopted a new, more flexible standard for the assertion of personal jurisdiction, based upon a jurisdictional theory and standards better suited to a progressively more mobile society.


[I skipped a paragraph here, page 122]


3.11 Refinements of the Basic Standard: The Requirement of a Purposeful Act and Foreseeability


The application of the minimum-contacts-fair-play-and substantial-justice standard allowed courts and state legislatures to effect a considerable expansion of state jurisdictional power. A good example is McGee v. International Life Insurance Company.


In Kulko v. Superior Court and World-Wide Volkswagen Corporation v. Woodson.


2. Statutory Requirements


12 The Growth and Use of Long-Arm Statutes


…state legislatures to enact comprehensive jurisdictional statutes based on the defendant’s conduct in the forum.  These long-arm or single-act statutes predicate jurisdiction over the nonresidents upon a variety of contacts with the forum, including the transaction of business in the state, the commission of any one of a series of enumerated acts within the state, such as the commission of a tort….


(1) Any person, whether or not a citizen or resident of the state who in person or through an agent does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction the courts of this State as to any cause of action arising from the doing of any said acts:


(a) The transaction of any business within this State;


(b) The commission of a tortuous act within this state; The ownership, use, or possession of any real estate situated in this State;


(c)  The ownership, use, or possession of any real estate situated in this state;


(d) Contracting to insure any person, property or risk located within this State at the time of contracting.


3.13 Particular Applications of Long-Arm Statutes




3.14 International Shoe Triumphant: A Uniform Standard for Jurisdiction


The Supreme Court hinted that there was an discrepancy between using a minimum contacts analysis to evaluate the propriety of asserting in personam jurisdiction while retaining the fictional "situs of the res" concept to determine the validity of quasi in rem jurisdiction.


It was not until 1977 that the Supreme Court finally ruled in Shaffer v. Heitner that the International Shoe standard should be applied to the assertion of all forms of jurisdiction. As is explored below, the Shaffer decision does not eliminate the three jurisdictional categories; rather, it abolishes the discrepancy that existed in the constitutional test used for each category.


[I skipped two paragraphs here re Shaffer v. Heitner]


3.15 International Shoe Applied to in Rem and Quasi in Rem Jurisdiction


3.16 The Seizure of Property: Requirements and Definition




3.17 The Current Viability of Consent, Domicile, and Transitory Presence Theories


The Pennoyer decision recognized three corollaries to its general theory of territorial power: a state may exercise jurisdiction over defendants who have consented to its jurisdiction, who are domiciled within the state, or who have personally been served while transitorily present within the forum state's borders.  Each of these satellite rules continued to be followed after International Shoe, despite the fact….

“transitory presence.”




3.18 Source of Governing Law




1. Due Process Requirements


8.19 The Requirement of Reasonable Notice


Due process demands that the defendant have notice of the institution of proceedings against him.  The constitutional obligation to provide the defendant with proper notice an opportunity to be heard is an additional aspect of the due process limitation on a court’s ability to exercise jurisdiction.


[I skipped a paragraph here. Page 171]


3.20 S Service of Process as a Means of Notice


The traditional manner of providing notice is “personal service"--in hand delivery of the summons to the defendant by a sheriff, marshal, or someone similarly authorized by law.


3.21  The Timing of Notice and the Opportunity to Be Heard


Due process requires that a defendant be afforded the opportunity to be heard.


2. Service of Process Requirements and Limits


3.22 The Etiquette and Sufficiency of Service of Process


The formalities of service of process may vary from state to state and must be closely followed. The custom in most states is that process must include both a copy of the summons and the complaint.







1 The Rules of Decision Act and Swift v. Tyson


When the subject matter of the suit did not involve the interpretation or application of the Constitution, a treaty, or Federal Statute, so that the reference to the “laws of the several states'” was applicable the federal courts differed as to whether that language included decisions of state courts as well as state statutes and Swif v. Tyson


4.2 Erie Railroad Company v. Tompkins


Two profoundly important events occurred in 1938 that were to change fundamentally both the nature of civil procedure in the federal courts and the distribution of judicial power to make rules  decision between the federal government and the states. The first was the adoption of the Federal Rules of Civil Procedure, which for the first time a unified set of rules to govern procedure in all the federal courts.   The second was the Supreme Court’s decision in Erie Railroad Company v. Tompkins, which has been called “one of the most important cases at law in American legal history.


…each side recommended application of its particular interpretation of Swift. Nonetheless, the Supreme Court reversed the lower federal court, stating that “there is no federal general common law," and remanded the case to the Second Circuit for a determination and application of Pennsylvania state law. On remand, the Court of Appeals held that the railroad was not liable, and Tompkins lost his $30,000 award.


Three reasons were given by Justice Brandeis for overruling Swift under Section 34.  First, the Justice noted “recent research of a competent scholar, and second, failure of federal courts to develop a uniform national law.  In attempting to promote the uniformity of law throughout the United States.


…overruling ninety-six years of federal practice under Swift.


This last section of the Erie opinion, holding that the Swift construction of Section 34 was; itself unconstitutional is at once the most important and most controversial reason given by Justice Brandeis for the decision.


Erie Railroad Company v. Thompkins must be regarded as one of the most significant opinions in the history of American jurisprudence.  The decision returns to the states a power that for nearly a century had been exercised by the federal judiciary.


4.3  Evolution of the Erie Doctrine


The conceptual basis for the holding in Erie Railroad Company v. Tompkin's has been reformulated substantially by three landmark Supreme Court decisions. The first of these was Guaranty Trust Company v. York, decided in 1945.


defense of laches,


The Court ruled that federal courts sitting in diversity of citizenship cases must rely upon state law in determining substantive rights, even in equity matters.


Viewed this way, Erie reflects an attempt to achieve vertical uniformity, that is, the consistent application of local substantive law in both state and federal courts within the same state.  The goal of horizontal uniformity of federal law throughout the federal court system that had been advocated by Swift Y. Tyson had been abandoned. In addition, Justice Frankfurter wanted to eliminate major incentives for litigants of diverse citizenship to forum shop-at least between state and federal courts.


In 1958 the Supreme Court reformulated the Erie doctrine again in Byrd v. Blue Ridge Rural Electric Cooperative, Inc.  In that case, the Supreme Court found that the mere possibility that a Federal practice may alter the outcome of a diversity case is not conclusive in deciding whether to apply federal or state law. Instead, it devised an analysis calling for a comparison of the significance of the competing federal and state policies at issue in a particular case.


In 1965, the Supreme Court reviewed the Erie doctrine again in Hanna v. Plumer.32


4.4  The Erie Doctrine and the Federal Rules


Prior to the promulgation of the Federal Rules of Civil Procedure in 1938.


Taken together the decision in Erie and the Court's promulgation of the Federal Rules indicate that a federal court sitting in diversity jurisdiction should apply tbe substantive law of the state in which it was located, and the procedural law prescribed in the Federal Rules.


This concern was greatly increased by three decisions handed down, by the Court on the same day in1949: Woods v. Interstate Realty Company, Cohen v. Beneficial Industrial Loan Corporation, and Ragan v. Merchants Transfer & Warehouse Company. In each of these cases the federal courts were told to apply state law.  Page 211.


“hardly a one of the heralded Federal Rules can be considered safe from attack by shrewd lawyers and obedient lower tribunals”  said Judge Charles Clark.  In retrospect, these statements were overreactions. Although…


In theory at least, matters governed by a Federal Rule no longer are subject to the Erie-York outcome determination or forum-shopping analysis.  If the Federal Rule covers the specific matter in question, and it is a valid exercise of the power delegated by Congress to the Supreme Court under Articles I and III, it will be controlling; stake provisions to the contrary will not replace the procedures established by the Rule. Only when there is no Federal Rule directly governing the disputed matter or when both state and federal law may be applied concurrently is it necessary to test the competing state and federal practices against the twin aims--avoidance of forum-shopping and the inequitable administration of the laws.


4.5  Determining Which State’s Law Controls


4.6  Determining the Content of State Law


4.7 Federal Common Law


The decision in Erie Railroad Company v. Tompkins clearly stated that "except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state, and that "there is no federal general common law ", But this language should not be read too broadly.


The federal common law that has developed since Erie three basic ways... first, federal common law displaces state statutory as well as state decisional law; second, whenever federal common law governs a particular issue, it must be applied whether the case is in a state or in a federal court.   …diversity of citizenship is not required for them to be heard in federal court.  Finally, federal courts are not free to develop federal common law on all matters of “general” as distinguished from "local" law as was true under Swift, but are restricted to matters of substantial national concern that fall….


The areas in which federal courts have applied federal common law the most frequently include: (1) admiralty and maritime cases (2) interstate disputes; (3) proceedings raising matters of international relations;(4) actions involving gaps in federal statutory provisions; and (5) cases concerning the legal relations and proprietary interests of the United States.


Another substantive area in which federal common law has been been applied involves disputes arising between two or more States.


B. STATE COURTS Federal Law in State Courts




In the United States today there are essentially two types of pleading, known generally as 'fact' pleading and “notice” pleading.”  A majority of states have adopted notice pleading.  This chapter will explore two forms of pleading in some detail.


5.2 The Function and Effectiveness of Modern Pleading


Pleadings have two functions. First, they permit elimination from consideration of contentions that have no legal significance. Thus, if a plaintiff sets forth an alleged claim for which the law provides no redress, that matter should be disposed of immediately.


The second purpose of modern pleading is to guide the parties and the court in the conduct of cases. A litigant cannot prepare for trial until she has been informed adequately of the opponent's contentions.   Equally vital is notice to the court.


5.3  Types of Pleadings


Modern rules limit the number and types of pleadings. The initial pleading is the complaint or petition in which plaintiff sets forth her allegations and prayer for relief. The complaint is followed by the answer  in which defendant may deny allegations made in the complaint and, in addition, may set forth affirmative allegations regarding defenses and counteractions.




  1. Code Pleading


5.4  Pleading a Cause of Action: A Definition


A litigant under the codes typically is required to allege “a plain and concise statement of the facts constituting each cause of action (defense or counterclaim) without unnecessary repetition.  This apparently simple formulation has proven to be deceptive, however, because the courts have had substantial problems defining the terms "cause of action" and “facts."  So serious are these difficulties that they have cut deeply into the hoped for effectiveness of code pleading reform.


First was the so-called “primary right" theory that under this view a cause of action is related to the nature of the injury alleged to have been suffered. Thus, a person has one primary right to be free from damage to her real estate, another to be free from breach of contract,….


The second important view of a cause of action is the so-called “aggregate of operative facts" theory.  Under this position a cause action is defined not by the substantive law to be applied, or the nature of relief sought, or the type of harm suffered, but solely by the events that give rise to a claim or claims for relief. For pleading purposes, one need only set forth the related set of facts. The pleader, upon proving those facts, may obtain every type of relief the law provides.


5.5  The Uncertain Meaning of “Facts" in the Code Pleading System


2. Notice Pleading


5.7 The Basic Requirements of Notice Pleading


5.8 Adjustment of Federal and State Courts to Notice Pleading


3. Truthfulness in Pleading


5.11 Devices to Assure Candor in Pleading


This section will explore the two most common methods to promote candor in pleading: the attorney signature requirement and verification.


The 1983 Rule required signatures on all pleadings and motions, and was extended to cover discovery requests and responses.  A person, by signing, attested that he (1) had read the document, (2) had concluded after reasonable inquiry into both the facts and the law, that to the best of his knowledge, information and belief the pleadings or motion was well grounded, and (3) had acted in good faith, without any improper motivation.


The second device that various jurisdictions use to ensure candor in pleading is a verification requirement.