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civil procedure

Questions and Answers of Civil Procedure

6. Suppose a plaintiff brings suit in a forum with which she has no other connection.Should that forum be able to entertain a suit against plaintiff if defendant asserts the claim as a part of the
5. Can a court assert jurisdiction over a citizen who is absent from the country?In BLACKMER v. UNITED STATES, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932), petitioner, a United States citizen,
4. According to the territorial principle identified in Pennoyer, does defendant’s length of time in the forum state affect the court’s power to assert in personam jurisdiction? Does the reason
3. The concepts of jurisdiction found in the Pennoyeropinion were derived from nineteenth-century international law. In the traditional international model, a citizen of Country A might have been
2. Traditional analysis distinguishes three types of jurisdiction. In a proceeding in personam, the court exercises its power to render a judgment for or against a person by virtue of his presence
1. The colorful characters and scandalous facts surrounding Pennoyer v. Neff have been chronicled by Professor Perdue:Our story begins with a young man, Marcus Neff, heading across the country by
5. When a court has rendered a judgment in a contested action, the current view is that a judgment, otherwise valid and final, generally precludes the parties from litigating the question of the
4. Since it is clear in the principal case that in the suit before the Court there was no diversity of citizenship and the writ of error was to the Supreme Court of Iowa, what was the basis for
3. Suppose that the issue of jurisdiction is raised in a case and erroneously decided. Is this a factor arguing for or against the application of res judicata in a second action?
2. Was the fact that the question of jurisdiction was a doubtful one at the time the first Homestead Company case arose relevant to the Supreme Court’s decision in the second case?
1. Was it critical to the Court’s opinion in Des Moines that the first case had been heard and determined by the Supreme Court itself? Would the case have been decided differently if no review had
3. Should the standard of review be the same for findings of fact based on demeanor evidence as for documentary evidence? In ANDERSON v. CITY OF BESSEMER CITY, 470 U.S. 564, 105 S.Ct. 1504, 84
2. Is the question whether certain conduct is negligent one of law or of fact? Legal scholars have long debated the issue without resolution. In any event, the issue ordinarily is left to the jury.
1. Would the Court of Appeals have reached the same result if the judgment appealed from had been based on the verdict of a jury rather than the findings of a judge? Why is there any difference
3. When Lavender is remanded to the Missouri Supreme Court, what should that court do? In this connection, do you agree with the United States Supreme Court that it was unnecessary to determine
2. In PENNSYLVANIA R. CO. v. CHAMBERLAIN, 288 U.S. 333, 339, 53 S.Ct. 391, 393, 77 L.Ed. 819, 822–23 (1933), the Supreme Court, in approving a directed verdict for defendant, said:* * * At most
1. Why does a trial judge or an appellate court have the power to take a case away from the jury or to set aside its verdict? Does the existence of this power necessarily mean that a jury cannot
2. The issue of jury misconduct is complicated by the doctrine, recognized in most jurisdictions but enforced with varying strictness, that a jury verdict may not be impeached by evidence that comes
1. Why is it misconduct for a juror “to relate to the other jurors his own personal experience as original evidence of material facts to be considered in their deliberation”?In HEAD v. HARGRAVE,
6. ALLEN v. UNITED STATES, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), which the trial court in Diniero quoted to the jury, involved a variation on what has come to be called the “dynamite
5. The use of special verdicts and general verdicts with interrogatories is sometimes criticized as atomizing the jury’s deliberations and making a unanimous result more difficult to reach. Assume
4. Do you think the judge’s explanation of the interrogatory was clear? Read it again very carefully before you decide. Then reflect upon the fact that it was delivered orally to the jurors, even
3. Could the jury have properly reached a decision for plaintiff without resolving the issue that the judge said in his explanation he intended the interrogatory to present? If it could not, was it
2. Could the judge simply have rewritten the interrogatory in clearer language and resubmitted it? What reasons mitigate against allowing that practice?
1. Do you believe the interrogatory as first given to the jury was ambiguous? What are the possible meanings of the question? Could the jury answer the question “No” under any of these meanings
3. In Troupe, cited at the end of the principal case, Judge Frank, in a concurring opinion, said, at 234 F.2d at 260 61:On the negligence issue, the judge, at defendant’s request, charged, “It is
2. What factors are relevant in determining whether to place the burden of persuasion on the issue of contributory negligence on one party rather than the other? Are these same factors involved when
1. The opinion in this case speaks of the “burden of proof of contributory negligence.” In this book, we use the term “burden of persuasion” when we are referring to the kind of burden
3. In KENNEDY v. SILAS MASON CO., 334 U.S. 249, 256–57, 68 S.Ct. 1031, 1034, 92 L.Ed. 1347, 1350–51 (1948), Justice Jackson, speaking for the Court, said: “[S]ummary procedures, however
2. A motion for summary judgment may be useful even though the moving party believes it will be unsuccessful. What advantage did defendant in Alderman gain by moving for summary judgment, rather than
1. If very specific allegations of all of the facts giving rise to plaintiff’s cause of action were required to be set forth in the complaint, would it have been possible to handle the Alderman
4. Is the court in DiMichel correct in not allowing videotapes to be disclosed until after plaintiff has been deposed? If the court is truly following a policy of open discovery, why does it matter
3. Is the holding in DiMichel limited to videotaped evidence or does it apply to other types of impeachment evidence as well? Suppose plaintiff is deposed and testifies that prior to the accident
2. The court in DiMichel held that materials prepared in anticipation of trial normally are exempt from discovery, unless a party can show a substantial need and an undue hardship. Do you agree that
1. Discovery was not available at common law; to the contrary, the common law courts in England “recognized no rule requiring prior notice of intended evidence to be given to the opponent or
5. Suppose that both Temple and Synthes do not want the doctor and the hospital to be added as parties and the court does not order that they be added. Could the doctor and the hospital join the
4. When this case returns to the district court, could the court order Synthes to file a third-party complaint against the doctor and the hospital under Federal Rule 14(a)? Should a court ever have
3. What do you make of the Fifth Circuit’s concern with the potential for inconsistent judgments? Does the Supreme Court find that this concern is not warranted? Or does it find that there are
2. Although the Court’s opinion in Temple did not specify the citizenship of Dr. LaRocca and the hospital, they were in fact citizens of Louisiana, and so all plaintiffs were citizens of states
1. Why do you think Temple did not name Dr. LaRocca and the hospital as defendants in his federal suit? Why would Temple seek to duplicate his time and effort by litigating a suit in federal court at
5. Suppose that after the motion to dismiss had been granted Case discovered a letter agreement dated after the contract and signed by all of the parties stipulating that the insurance agency
4. What was the effect of the dismissal in Case? Should plaintiff have been permitted to amend the complaint and start again? Could plaintiff interpose a new and slightly altered complaint that would
3. Suppose a valid legal theory did exist that would have entitled Case to some relief, but that Case neglected to invoke it in his pleading. Would the court have been justified in dismissing the
2. Which of the objectives of pleading discussed in the Outline of a Civil Action, pp. 10 12, supra, was most significantly involved in this case?
1. Can you identify the different claims that Case alleged in his complaint?
5. You will later become familiar with state statutes that confer upon their courts power to summon out-of-state motorists to defend actions arising out of their operating automobiles within the
4. When the case is reconsidered by the West Virginia Circuit Court on remand, Barton’s lawyer must prove his allegations if Barton is to avoid trial in West Virginia. What problems do you foresee
3. In thinking about the cases you read, try to consider how the court might approach the problem presented by a particular case with certain facts changed. For example, should service in West
3. In what court was the Capron suit commenced? Under the First Judiciary Act of 1789, Congress established two levels of courts below the Supreme Court: the district courts and the circuit courts.
2. Read Article III, § 2 of the United States Constitution, which is set out in the Supplement. What specific language in that Section is pertinent to the Supreme Court’s opinion in Capron?
1. The Supreme Court of the United States regarded the defect in this case as extremely serious. Does the fact that it was the plaintiff who brought the case to the Supreme Court make this
4. In Avista Mgmt., Inc. v. Wausau Underwriters Ins. Co., 2006 WL 1562246 (M.D. Fl.2006), the parties could not agree on where to hold a deposition and sought the court’s intervention. In response,
3. Studies show that a party’s willingness to accept a court’s adverse judgment often depends on whether the court’s process is regarded as fair. Perceptions of procedural fairness are linked
2. Courts typically serve two interrelated social goals. The first is conflict resolution, whereby “in the interests of preserving the peace, society offers through the courts a mechanism for the
1. The procedural rules that you are studying may seem to be “natural” or “neutral,” but in practice they reflect complex political choices among a range of policies and goals. In the

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