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 ASPEN CASEBOOK SERIES

Civil Procedure
Theory and Practice
Fourth Edition

Linda J. Silberman
New York University School of Law

Allan R. Stein
Rutgers University School of Law—Camden

Tobias Barrington Wolff

University of Pennsylvania Law School

©) Wolters Kluwer
Law & Business
Copyright © 2013 CCH Incorporated.

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Silberman, Linda J.
Civil procedure : theory and practice / Linda J. Silberman, New York University School of
Law; Allan R. Stein, Rutgers School of Law-Camden; Tobias Barrington Wolff, University
of Pennsylvania Law School. — Fourth Edition.
pages cm.— (Aspen casebook series)
Includes index.
ISBN 978-1-4548-2270-7
ered ety ag ae States. I. Stein, Allan R., 1953- II. Wolff, Tobias Barrington.
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To my father, Alfred Silberman (1914-1996), who made all things possible for me.
I wish he could have seen this book.
—L.J.S.

To my father, Victor Stein, whose passion for justice and reverence for the rule of
law drew all his children to follow his path.
—A.R.S.

To Samuel Emerson Wolff, born December 22, 2005, with the hope that fairness
and justice will expand and thrive in the world he is entering.
—T.B.W.
SUMMARY OF CONTENTS

Contents
Preface to the Fourth Edition
Acknowledgments

Chapter 1: Introduction
Chapter 2: Personal Jurisdiction and Other Court-Access Rules
Chapter 3: Subject Matter Jurisdiction
Chapter 4: The Law Applied in Federal Court
Chapter 5: Anatomy of a Litigation: Pleading, Discovery, and
Adjudication 573
Chapter 6: Remedies and Forms of Relief 767
Chapter 7: Prior Adjudication 825
Chapter 8: The Boundaries of the Lawsuit: Joinder of Claims
and Parties 955
Chapter 9: Appeals 1115
Chapter 10: Alternative Dispute Resolution 1173

Table of Cases i223

Index Taso
 | ut . woibesibafi sant t
amis!) te wbient, didewad off tw asiabatiod sfT ‘astgnd
< tetha = al
CONTENTS

Preface to the Fourth Edition XXVIi

Acknowledgments XxIx

Chapter 1 Introduction 1
A. Outline of a Lawsuit 1
1. What Is Civil Procedure? 1
2. Dispute Resolution by Courts Versus Other Agencies 2
a State Versus Federal Systems 2
4. The Adversary System 3
5. Stages of a Lawsuit 4
a. Investigation 4
b. Fee Arrangements 4
c. Subject Matter Jurisdiction— Federal Court
or State Court? 4
d. Personal Jurisdiction 6
e. Service of Process 6
f. Pleadings i}
g. Remedies 8
h. Pretrial Discovery 8
i. Summary Judgment 9
j. Trial 9
k. Appeal 11
1. Enforcement of Judgments i
m. Finality |B
B. Illustration of the Stages of a Lawsuit—
New York Times y. Sullivan 12
1. The Context of the Lawsuit 13
The Lawsuit Begins 14
Notes and Questions in,
3. The Defendant’s First Response 19
Notes and Questions 21
4. The Discovery Process 21
Notes and Questions IP)
Notes and Questions 26
Notes and Questions 30
a. The Motion to Dismiss Bg
Notes and Questions oie!
6. The Answer 34
Notes and Questions 35
 Contents

Th Pretrial Discovery on the Merits a0

Notes and Questions ad
Notes and Questions 40
8. Note on Settlement, Burden of Proof, and Summary Judgment 40
a. Settlement 40
b. Burden of Proof 4]
c. Summary Judgment 42
Gee the lial 43
Note and Questions 45
10. Post-Trial Proceedings 45
Note and Questions 46
11. The Appeals 46
Reading a Civil Procedure Case 47
1. Stare Decisis and the Legal Method 47
2. Reading a Sample Case 49
Rose v. Giamatti 50
Notes and Questions ai

Chapter 2 Personal Jurisdiction and Other Court-Access

Rules 59

A. Traditional Bases of Jurisdiction: Power, Presence, Domicile,

and Consent
1. | Power over the Person or Property of the Defendant
Pennoyer v. Neff
Notes and Questions
2. Raising Jurisdictional Objections
3. Domicile and Consent
a. Domicile
b. Consent
Hess v. Pawloski
Notes and Questions
4. Jurisdiction over Out-of-State Corporations
The “Minimum Contacts” Standard: The Expansion of
Personal Jurisdiction
International Shoe Co. v. Washington
Notes and Questions
1. Specific-Act Statutes: Constitutionality
McGee y. International Life Insurance Co.
Notes and Questions
2. Specific-Act Statutes: Statutory Interpretation
Notes and Questions
The Supreme Court Imposes Limits: The Requirement of
a Purposeful Act
1. | Note on Hanson vy. Denckla
2. Portable Tort Cases
Contents xiii

World-Wide Volkswagen Corp. v. Woodson 93

Notes and Questions 101
3. Defamation and Targeted Wrongdoing 105
Calder v. Jones 105
Notes and Questions 108
4. The Commercial Contract Cases 119
Burger King Corp. v. Rudzewicz 120
Notes and Questions 129
5. “Minimum Contacts” and “Reasonableness” Revisited 131
Asahi Metal Indus. Co. v. Superior Court of
California 131
Notes and Questions 138
D. Contemporary Specific Jurisdiction 142
J. McIntyre Machinery, Ltd. v. Nicastro 142
Notes and Questions LZ
E. General Jurisdiction 163
1. —_Introduction 163
2. Issues of Interpretation: General Jurisdiction 164
a. Noncorporate Defendants 164
b. Parents and Subsidiaries 165
c. Registration of an In-State Agent by a Foreign
Corporation 166
3. Note on Perkins v. Benguet Consolidated Mining
Co. and Helicopteros Nacionales de Colombia
S.A. v. Hall 167
Notes and Questions 169
4. | Contemporary General Jurisdiction 170
Goodyear Dunlop Tires Operations, S.A. v. Brown 170
Notes and Questions 175
F. The Specialized Problem of Nationwide Jurisdiction 180
Note on Application of Federal Rule 4(k)(2) 182
Notes and Questions 182
G. Property-Based Jurisdiction 186
Shaffer v. Heitner 189
Notes and Questions 200
Note on Security Attachments 204
H. Transient Service 206
Burnham y. Superior Court of California 206
Notes and Questions 216
I. Comparative Jurisdiction Regimes 218
1. The European Regulation on Jurisdiction and the
Recognition and Enforcement of Judgments 218
2. International Initiatives and Harmonization 223
a. Why Litigants Care About Choice of Forum: Choice of Law
and Other Matters 224
1. | Convenience 224
oe Values and Bias ~~ 205
 Contents

SS Procedural Advantages pi,

4. Choice of Law 226
Allstate Insurance v. Hague 228
Notes and Questions 235
Phillips Petroleum Co. v. Shutts 236
Notes and Questions 246
Sun Oil Co. v. Wortman 248
Notes and Questions 2a
i Notice and the Mechanics of Service of Process Zo)
1. | The Constitutional Requirement of Notice P's)
Mullane v. Central Hanover Bank & Trust Co. 256
Notes and Questions 262
2. The Mechanics of Service of Process 267
a. Structure of Fed. R. Civ. P. 4 267
i. The Summons and Provisions for Service 267
ii. Waiver of Service 269
iii. Service in a Foreign Country 270
iv. Territorial Limits of Service 241
v. Try Your Hand DAD,
b. State Service of Process Statutes 22
c. Immunity from Process 273
d. Service of Process and Statutes of Limitations 274
1s Local Actions, Venue, Forum Non Conveniens, and Transfer 215
If Formal State and Federal Venue Statutes 276
a. Venue Rules in State Courts 276
b. Venue Rules in Federal Courts 276
D A Note on the Local Action Rule 278
B: Forum Non Conveniens 278
Piper Aircraft Co. v. Reyno 281
Notes and Questions 289
Note on State Forum Non Conveniens Doctrine 298
4. Transfer Within the Federal System 300
a. Section 1404 Transfer 300
Ferens et ux. v. John Deere Co. 301
Notes and Questions 310
b. Section 1406 Transfer or Dismissal 311
c. Section 1407 Transfer 311

Chapter 3 Subject Matter Jurisdiction 313

A. Introduction Sie)
B. Justiciability 314
1. Standing to Sue 315
a. Personal Stake in the Controversy 315
b. “Causation” and ‘“‘Redressability” 317
c. Prudential Barriers oily
d. Role of Congressional Legislation 318
Contents
XV

Disputes Appropriate for Judicial Resolution 318

a. Advisory Opinions 319
b. Political Questions 319
33 Questions of Timing 320
fi Diversity Jurisdiction 320
I. Rationale; Complete Diversity Requirement 320
Strawbridge v. Curtiss 320
Notes and Questions 321
a. Exceptions to Diversity Jurisdiction 324
i. Domestic Relations 324
. Probate a2)
Determining Citizenship; Joinder Issues 326
Time Frame for Determination 326
og Natural Individuals S20
Corporations 328
Direct Actions Against Insurance Companies 331
oa9
Unincorporated Associations 3 332
Carden y. Arkoma Associates S32
Notes and Questions 340
Alienage Jurisdiction 344
a. Citizens of States Not Recognized by the United States 346
b. American Citizens Living Abroad 346
c. Dual Nationals 347
d. Alien Corporations 347
Amount in Controversy 348
a. Calculating the Amount in Controversy 348
b. The Pertinence of Counterclaims 350
c. Attorneys’ Fees 35!
d. Aggregation of Claims ool
e. Class Actions 333
Diversity Jurisdiction and Complex Litigation 354
a. The Multiparty, Multiforum Trial Jurisdiction Act 354
b. The Class Action Fairness Act 332
D. Federal Question Jurisdiction 356
Note on Concurrent Jurisdiction of State Courts 300
i ‘Arising Under” Federal Law S59
a. The Role of a Federal Defense Sb
Louisville & Nashville Railroad Co. v. Mottley 58)
Notes and Questions 361
b. The Scope of ‘Arising Under”’ 362
Smith vy. Kansas City Title & Trust Co. 363
Merrell Dow Pharmaceuticals Inc. v. Thompson 366
Notes and Questions abe
~ Grable & Sons Metal Products v. Darue V3
Notes and Questions 319
c. Implied Rights of Action 381
d. The Distinction Between “Jurisdiction” and ‘‘Merits” 383
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