Civil Procedure

freer perdue 00 fmt cx 3/14/16 7:51 AM Page i

freer perdue 00 fmt cx 3/14/16 7:51 AM Page ii

Civil ProcedureCases, Materials, and Questions

seventh edition

Richard D. FreerRobert Howell Hall Professor of Law Emory University School of Law

Wendy Collins Perdue Dean and Professor of Law

University of Richmond School of Law

Carolina Academic PressDurham, North Carolina

freer perdue 00 fmt cx 3/14/16 7:51 AM Page iii

Copyright © 2016Richard D. Freer and Wendy Collins Perdue

All Rights Reserved

Clothbound ISBN 978-1-61163-911-7Looseleaf ISBN 978-1-61163-953-7

LCCN 2016934808

Carolina Academic Press, LLC700 Kent Street

Durham, NC 27701Telephone (919) 489-7486

Fax (919) 493-5668www.caplaw.com

Printed in the United States of America

freer perdue 00 fmt cx 3/14/16 7:51 AM Page iv

Dedication

We dedicate this work to Sherman Cohn— model scholar, teacher,mentor, and friend— in celebration of his fifty years on the facultyat Georgetown University Law Center.

freer perdue 00 fmt cx 3/14/16 7:51 AM Page v

freer perdue 00 fmt cx 3/14/16 7:51 AM Page vi

Contents

Preface xixNotes on Form xxi

Acknowledgments xxiii

Chapter 1 · An Introduction to the Civil Action and Procedure 3A. The Study of Procedure 3B. Federalism 5C. Overview of the Structure of a Court System 7

1. Trial Courts 72. Intermediate Appellate Courts 83. Supreme Courts 84. Appellate Practice and the Doctrine of Precedent 9

D. The Adversary System 10E. Alternatives to Litigation 13F. A Brief History of Our English Judicial Roots 15G. General Topics of Civil Procedure 18

1. Selecting the Forum (Chapters 2–6, 10) 192. Learning About the Opponent’s Case (Chapters 7 & 8) 203. Adjudication With or Without a Jury (Chapter 9) 214. Preclusion, Joinder, and Supplemental Jurisdiction (Chapters 11–13) 215. Appeal (Chapter 14) 216. Litigation Alternatives (Chapter 15) 227. A Quick Note on Materials 22

Chapter 2 · Personal Jurisdiction 23A. Introduction and Integration 23B. Constitutional Limits on Personal Jurisdiction 24

1. The Fountainhead —Pennoyer v. Neff 24Pennoyer v. Neff 24

Notes and Questions 312. Interim Developments 34Hess v. Pawloski 36

Notes and Questions 383. The Modern Era 38

vii

freer perdue 00 fmt cx 3/14/16 7:51 AM Page vii

International Shoe Co. v. Washington 38Notes and Questions 44

Note on McGee, Hanson, and Gray 46World-Wide Volkswagen v. Woodson 49

Notes and Questions 58Personal Jurisdiction in Federal Court 62Note on Keeton, Calder, and Walden 64Why Litigants Care About Where Litigation Occurs 66Burger King Corp. v. Rudzewicz 67

Notes and Questions 79Note on Asahi and the “Stream of Commerce” 81J. McIntyre Machinery, Ltd. v. Nicastro 83

Notes and Questions 974. General Jurisdiction 99Daimler AG v. Bauman 99

Notes and Questions 1085. Explicit Consent and Forum Selection Provisions 1116. In Rem and Quasi-in-Rem Jurisdiction 113Shaffer v. Heitner 113

Notes and Questions 1237. Transient Presence (“Tag” Jurisdiction) 126

Jurisdiction over Businesses 1308. Personal Jurisdiction and the Internet 132Revell v. Lidov 132

Notes and Questions 138C. A Different Perspective 140

1. The Purposes of Personal Jurisdiction 1402. Personal Jurisdiction in Other Countries 142

Chapter II, Jurisdiction 142D. Statutory Limits on Personal Jurisdiction 143

Official Code of Georgia Annotated 145Notes and Questions 145

Chapter 3 · Notice and Opportunity to Be Heard 147A. Introduction and Integration 147B. Notice 147

1. The Constitutional Requirement 147Mullane v. Central Hanover Bank & Trust Co. 147

Notes and Questions 1532. Statutory Requirements 157National Development Co. v. Triad Holding Corp. 159

Notes and Questions 1623. Immunity, Evasion, and “Sewer Service” 165

C. Opportunity to Be Heard 166

viii CONTENTS

freer perdue 00 fmt cx 3/14/16 7:51 AM Page viii

Connecticut v. Doehr 167Notes and Questions 175

Chapter 4 · Subject Matter Jurisdiction 181A. Introduction and Integration 181B. State Courts and General Subject Matter Jurisdiction 181C. Federal Courts and Limited Subject Matter Jurisdiction 182

1. The Constitutional Grants and Role of Congress 182Notes and Questions 182

2. Plaintiff’s Burden to Establish Federal Subject Matter Jurisdiction 1833. Diversity of Citizenship and Alienage Jurisdiction 184

a. Introductory Note 184b. The Complete Diversity Rule 186Strawbridge v. Curtiss 186

Notes and Questions 187c. Determining Citizenship of Individuals 188Mas v. Perry 188

Notes and Questions 191d. Determining Citizenship of Entities 195

i. Corporations 195Randazzo v. Eagle-Picher Industries, Inc. 196

Notes and Questions 197Hertz Corporation v. Friend 199

Notes and Questions 206ii. Non-Incorporated Businesses 207Belleville Catering Co. v. Champaign Market Place L.L.C. 208

Notes and Questions 210e. Representative Suits and Assignments of Claims 212f. The Domestic Relations and Probate Exceptions 214g. The Amount in Controversy Requirement 215

Notes and Questions 2164. Federal Question Jurisdiction 219

a. Introductory Note 219b. Narrow Interpretations of the Jurisdictional Statute 220

i. The Well-Pleaded Complaint Rule 220Louisville & Nashville Railroad Co. v. Mottley 220

Notes and Questions 222ii. Well-Pleaded Complaint Problems Raised by

Declaratory Judgments 224iii.Centrality of the Federal Issue to the Claim 226Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing 229Notes and Questions 235

5. Supplemental Jurisdiction 238

CONTENTS ix

freer perdue 00 fmt cx 3/14/16 7:51 AM Page ix

6. Removal Jurisdiction 239Notes and Questions 241

Chapter 5 · Venue 247A. Introduction and Integration 247B. Local and Transitory Actions 248C. State Venue Provisions 249

Maryland Code Annotated 249Notes and Questions 251

D. Venue in Federal Court 252The Basic Rules 252

Notes and Questions 253Bates v. C & S Adjusters, Inc. 255

Notes and Questions 258E. Change of Venue 259

1. Transfer of Civil Cases in State Courts 2592. Transfer of Civil Actions in Federal Court 260

a. Where Can Cases Be Transferred? 260b. Goldlawr Transfers 261c. Choice of Law 261d. Standard for Transfer Under §§ 1404 and 1406 263e. The Effect of a Forum Selection Clause 265f. Multidistrict Litigation 266

F. Forum non Conveniens 267Piper Aircraft Co. v. Reyno 267

Notes and Questions 276

Chapter 6 · Raising Jurisdictional and Related Challenges 281A. Introduction and Integration 281B. The Traditional and Modern Approaches to Challenging

Personal Jurisdiction 282Notes and Questions 283

C. Collateral and Direct Attacks on Personal Jurisdiction 285Baldwin v. Iowa State Traveling Men’s Association 286

Notes and Questions 287D. Challenging Federal Subject Matter Jurisdiction 288

Chapter 7 · Pleadings and Judgments Based on Pleadings 293A. Introduction and Integration 293B. Historical Overview of the Evolution of Pleadings 294C. The Complaint 297

1. Requirements 297a. Elements of the Complaint 297

i. A “short and plain statement of the grounds for the court’s jurisdiction” 297

x CONTENTS

freer perdue 00 fmt cx 3/14/16 7:51 AM Page x

ii. A “short and plain statement of the claim showing that the pleader is entitled to relief” 297

iii.A “demand for the relief sought, which may include relief in the alternative or different types of relief” 298

b. Form of Pleadings 298c. Legal Sufficiency 299

Notes and Questions 301d. Factual (or “Formal”) Sufficiency: The Debate Over Specificity 302

i. Code Pleading 303ii. Federal Rules Pleading 304Dioguardi v. Durning 304

Notes and Questions 306Bell Atlantic Corporation v. Twombly 307

Notes and Questions 315The Iqbal Case 317

Notes and Questions 321Swanson v. Citibank, N.A. 322

Notes and Questions 328iii.The Common Counts 329

e. Heightened Specificity Requirements in Certain Cases 329Leatherman v. Tarrant County 329

Notes and Questions 332f. Pleading Inconsistent Facts and Alternative Theories 334

2. Voluntary Dismissal 335Notes and Questions 336

3. Involuntary Dismissal 337Notes and Questions 338

D. Defendant’s Options in Response 3391. Motions 339

Questions 3402. The Answer 340

a. Responses to the Plaintiff’s Allegations 340i. Admissions 341ii.. Denials 341iii.Denials for Lack of Knowledge or Information 342

b. Affirmative Defenses 342Notes and Questions 344

3. Claims by the Defendant 3454. Failure to Respond: Default and Default Judgment 345

Notes and Questions 345E. Amended Pleadings 347

1. Basic Principles Under Rule 15(a) 347Notes and Questions 347

2. The Problem of Variance Under Rule 15(b) 349

CONTENTS xi

freer perdue 00 fmt cx 3/14/16 7:51 AM Page xi

Notes and Questions 3503. Amendment and the Statute of Limitations Under Rule 15(c) 351

a. Amendment to Claims or Defenses 351Marsh v. Coleman Company 351

Notes and Questions 355b. Amendment Changing a Party 355

F. Supplemental Pleadings 356G. Veracity in Pleading: Rule 11 and Other Devices 356

1. Rule 11 356Model Rules of Professional Conduct 358

Notes and Questions 359Rector v. Approved Federal Savings Bank 361

Notes and Questions 3662. Other Sanctions 368

Chapter 8 · Discovery 371A. Introduction and Integration 371B. Required Disclosures 374

1. Required Initial Disclosures (Rule 26(a)(1)) 375Questions 375

2. Required Disclosures Concerning Expert Witnesses (Rule 26(a)(2)) 3753. Required Pretrial Disclosures (Rule 26(a)(3)) 376

C. Discovery Tools 3761. Depositions (Rules 30, 31) 377

Questions 3782. Interrogatories (Rule 33) 378

Questions 3793. Production of Documents and Things (Rule 34) 379

Questions 3794. Medical Examination (Rule 35) 380

Questions 3805. Requests for Admission (Rule 36) 381

Questions 3816. Practice Problem 381

D. Scope of Discovery 3811. General Scope 381

a. “Relevant to a claim or defense.” 382United Oil Co. v. Parts Associates, Inc. 382

Questions 387b. “Nonprivileged.” 389c. “Proportional.” 391

2. Issues Concerning Discovery of ESI 392Zubulake v. UBS Warburg LLC 393

Notes and Questions 398

xii CONTENTS

freer perdue 00 fmt cx 3/14/16 7:51 AM Page xii

3. Work Product 399Hickman v. Taylor 400

Notes and Questions 4074. Experts 411Ager v. Jane C. Stormont Hospital & Training School for Nurses 412

Notes and Questions 4185. Discovery in the International Context 4206. Review Problem 422

E. Timing and Pretrial Disclosures, Conferences, and Orders 4231. Timing 4232. Pretrial Conferences and Orders 424

F. Sanctions 428Washington State Physicians Insurance Exchange & Association v.Fisons Corp. 428Notes and Questions 441

Chapter 9 · Adjudication With and Without a Trial or a Jury 445A. Introduction and Integration 445B. The Right to a Jury 445

1. Scope of the Constitutional Right 445a. “Actions at Common Law” and the Historical Test 447Chauffeurs Local 391 v. Terry 447

Notes and Questions 456b. The Complications of Merger and the Federal Rules 461c. Juries in Non-Article III Courts 462d. Juries in State Courts 463

2. Selection and Size of the Jury 464a. The Venire and Voir Dire 464b. Peremptory Challenges 465J.E.B. v. Alabama 466

Notes and Questions 481c. Two Views of Voir Dire and Peremptory Strikes 484

Marc Mezibov and H. Louis Sirkin, The Mapplethorpe Obscenity Trial 484

Morris Hoffman, 10 Trial Mistakes 488d. Jury Size 488

3. Jury Nullification and Its Limits 489C. Summary Judgment — Adjudication Without Trial 490Anderson v. Liberty Lobby, Inc. 493

Notes and Questions 501Coble v. City of White House 505

Notes and Questions 510D. Controlling and Second-Guessing Juries 514

1. Judgment as a Matter of Law (Directed Verdict and JNOV) 514

CONTENTS xiii

freer perdue 00 fmt cx 3/14/16 7:51 AM Page xiii

Lavender v. Kurn 515Notes and Questions 520

2. New Trials 523Dadurian v. Underwriters at Lloyd’s of London 524

Notes and Questions 5303. Other Techniques for Controlling Juries 532

a. Admissibility of Evidence 532b. Jury Instructions 534c. Form of the Verdict 535d. Judicial Comment 536e. Juror Misconduct 536

Chapter 10 · What Law Applies in Federal Court 541A. Introduction and Integration 541B. Determining What Law Applies 543

1. The Erie Doctrine 543Erie Railroad Co. v. Tompkins 543

Notes and Questions 549Note: Constitutional Bases of Erie 552

2. Early Efforts to Describe When State Law Applies 554Byrd v. Blue Ridge Rural Electrical Cooperative, Inc. 557

Notes and Questions 5603. The Federal Rules of Civil Procedure 562Hanna v. Plumer 562

Note on Understanding Hanna 570a. What Happens When There Is a Federal Rule of Civil

Procedure on Point — The Rules Enabling Act Prong 571i. Determining Whether a Federal Directive Is on Point 572ii. Determining Whether a Federal Directive Is Valid 574

b. What Happens When There Is No Federal Rule of Civil Procedure on Point — The Rules of Decision Act Prong 575Notes and Questions 575

c. Applying the Hanna Structure 577Gasperini v. Center for Humanities, Inc. 577

Notes and Questions 589Note on “SLAPP” Suits 590Shady Grove Orthopedic Association v. Allstate Insurance Co. 592

Notes and Questions 613C. Determining the Content of State Law 614Deweerth v. Baldinger 615

Notes and Questions 617D. Federal Common Law 619E. Federal Law in State Court 620

xiv CONTENTS

freer perdue 00 fmt cx 3/14/16 7:51 AM Page xiv

Chapter 11 · The Preclusion Doctrines 621A. Introduction and Integration 621B. Claim Preclusion 623

1. Scope of a Claim 623a. In General 623Carter v. Hinkle 623

Notes and Questions 627b. Contract Cases 630

2. Parties or Persons in Privity 631a. Who Can Be Bound? 631Taylor v. Sturgell 631

Notes and Questions 636b. Configuration of the Parties 637

Notes and Questions 6383. Valid, Final Judgment on the Merits 638

a. Validity 638b. Finality 638c. On the Merits 639

Notes and Questions 6404. Exceptions to the Operation of Claim Preclusion 641

Notes and Questions 642C. Issue Preclusion 644

1. Same Issue Litigated and Determined 644Cromwell v. County of Sac 645

Notes and Questions 6482. Issue Determined Was Essential to the Judgment 650Rios v. Davis 650

Notes and Questions 6523. Valid, Final Judgment on the Merits 6544. Against Whom Can Issue Preclusion Be Asserted? 654

Notes and Questions 6545. By Whom Can Issue Preclusion Be Asserted? 655

a. Mutuality and Exceptions 655b. Rejection of Mutuality for Defensive Use 656

Notes and Questions 658c. Rejection of Mutuality for Offensive Use 660Parklane Hosiery Co. v. Shore 660

Notes and Questions 6635. Exceptions to the Operation of Issue Preclusion 665

Notes and Questions 666D. Problems of Federalism 667

1. State-to-State 6682. State-to-Federal 6683. Federal-to-State 6704. Federal-to-Federal 670

CONTENTS xv

freer perdue 00 fmt cx 3/14/16 7:51 AM Page xv

Chapter 12 · Scope of Litigation—Joinder and Supplemental Jurisdiction 673A. Introduction and Integration 673B. Real Party in Interest, Capacity, and Standing 675

Notes and Questions 676C. Claim Joinder by Plaintiffs 677

1. Procedural Aspects 6772. Jurisdictional Aspects 678United Mine Workers v. Gibbs 678

Notes and Questions 682D. Permissive Party Joinder by Plaintiffs 685

1. Procedural Aspects 685Schwartz v. Swan 686

Notes and Questions 6892. Jurisdictional Aspects 694

Notes and Questions 695E. Claim Joinder by Defendants 698

1. Counterclaims 698a. Compulsory Counterclaims 698

i. Procedural Aspects 698Dindo v. Whitney 698Carteret Savings & Loan Assn. v. Jackson 700

Notes and Questions 701ii. Jurisdictional Aspects 704

Notes and Questions 705b. Permissive Counterclaims 705

i. Procedural Aspects 705Notes and Questions 706

ii. Jurisdictional Aspects 7062. Crossclaims 708

a. Procedural Aspects 708Notes and Questions 708

b. Jurisdictional Aspects 709Notes and Questions 709

F. Overriding Plaintiff’s Party Structure 7101. Impleader (Third-Party Practice) 711

a. Procedural Aspects 711Markvicka v. Brodhead-Garrett Co. 712

Notes and Questions 714b. Jurisdictional Aspects 715Owen Equipment & Erection Co. v. Kroger 716

Notes and Questions 7232. Compulsory Joinder (Necessary and Indispensable Parties) 725

a. Procedural Aspects 725Haas v. Jefferson National Bank 725

xvi CONTENTS

freer perdue 00 fmt cx 3/14/16 7:51 AM Page xvi

Temple v. Synthes Corp. 729Notes and Questions 730

b. Jurisdictional Aspects 733Notes and Questions 734

3. Intervention 736a. Procedural Aspects 736

Notes and Questions 737b. Jurisdictional Aspects 739

Notes and Questions 740

Chapter 13 · Special Multiparty Litigation: Interpleader and the Class Action 743

A. Introduction and Integration 743B. Interpleader 743

1. Background 7432. The Two Types of Interpleader in Federal Court 745Pan American Fire & Casualty Co. v. Revere 745

Notes and Questions 7493. The Limits of Interpleader to Avoid Duplicative Litigation 753State Farm Fire & Casualty Co. v. Tashire 753

Notes and Questions 757C. The Class Action 759

1. Background 7592. Policy and Ethical Issues 7593. Constitutional Considerations 762Hansberry v. Lee 764

Notes and Questions 7674. Practice Under Federal Rule 23 769

a. Background 769b. Filing and Certification of a Class Action 770c. Requirements for Certification Under Rule 23 771

i. Prerequisites of Rule 23(a) 771Notes and Questions 773

ii. Types of Class Actions Under Rule 23(b) 775Notes and Questions 778

d. Notice to Class Members of the Pendency of the Action 780Notes and Questions 781

e. Court’s Role in Dismissal and Settlement 7825. Subject Matter Jurisdiction 785Exxon Mobil Corp. v. Allapattah Services 786

Notes and Questions 795Note on Jurisdiction Under CAFA 796

6. Personal Jurisdiction 797Notes and Questions 799

CONTENTS xvii

freer perdue 00 fmt cx 3/14/16 7:51 AM Page xvii

Chapter 14 · Appellate Review 801A. Introduction and Integration 801B. Appellate Jurisdiction in the Federal Courts 802

1. Section 1291 8022. Collateral Order Doctrine 804Cunningham v. Hamilton County 805

Notes and Questions 8113. Section 1292 815

Notes and Questions 8154. Rule 23(f) 8165. Rule 54(b) 817

Notes and Questions 8176. Mandamus 8187. Appealability of Discovery Orders 8208. Mechanics and Timing of Filing an Appeal 8219. Appellate Jurisdiction of the United States Supreme Court 822

C. Appeals in State Courts 822D. Standards of Review 823

Notes and Questions 825E. Review of Judgments Outside of the Appeal Process 828

Chapter 15 · Alternative Models of Dispute Resolution 831A. Introduction and Integration 831B. Models of Greater Judicial Control 831

John H. Langbein, The German Advantage in Civil Procedure 831Notes and Questions 842

Sempier v. Johnson & Higgins 842Notes and Questions 848

C. Models of Non-Judicial Resolution 8511. Brief Overview 8512. Court-Annexed Versus Contractual ADR 8523. Expansion of Contractual Arbitration 8524. Dispute Resolution Without Adjudication 854

Hiroshi Wagatsuma & Arthur Rosett, The Implications of Apology: Law and Culture in Japan and in the United States 854

Notes and Questions 859

Table of Cases 865Table of Scholarly Commentary 883Index 901

xviii CONTENTS

freer perdue 00 fmt cx 3/14/16 7:51 AM Page xviii

Preface

Civil Procedure is a challenging course both for students and teachers. Of all thefirst year subjects, it is the most alien to students’ pre-law school lives. As a result,the course sometimes seems to students to be unconnected to the “real world.” Iron-ically, of all the first year courses, Civil Procedure is the most connected to the “realworld” of what lawyers do. Graduates routinely report that Civil Procedure is centralto their work.

Thus one challenge for professors (and casebook authors) is to bridge the gap instudent experience. The book addresses this issue by including many problems andhypotheticals which are intended to make the material more concrete. We also includenotes and questions that explore the strategic and ethical choices that real lawyersface.

A second challenge is that the course includes significant amounts of detail, butat the same time raises such fundamental questions as the role of justice, fairnessand efficiency in the adjudication of rights. Students sometimes miss the richness ofthe course because they fail to see how its various aspects fit together — they maycome away with a knowledge of individual trees but not an overall sense of the forest.This book seeks to avoid that result by stressing integration. The chapters are arrangedin related blocks and each chapter begins with a section called “Introduction and In-tegration” which provides an overview and indicates how the section fits with othertopics.

In some areas, we have arranged material differently from what seems to be thecommon approach. We do this to facilitate the integrative function. The first part ofthe book addresses where litigation can proceed and includes personal jurisdiction,subject matter jurisdiction, and venue. We have also included notice and service ofprocess in this part because of its close relationship to personal jurisdiction.

Next, the book moves to the phases of a lawsuit — pleading, discovery, and adju-dication (with and without a jury). Joinder is covered later because we do not believethis topic is necessary to understanding the basic steps of litigation and, by delayingit, we can cover it with the related issues of preclusion. Covering pleading and dis-covery back-to-back highlights that they are both methods of information exchange.The chapter on adjudication includes both summary judgment and judgment as amatter of law. We place the Erie chapter after the chapter on adjudication. We believestudents may better understand Gasperini if they have studied Rule 59.

xix

freer perdue 00 fmt cx 3/14/16 7:51 AM Page xix

Next are three chapters on preclusion and joinder. We view them as a unit on“packaging” of litigation. We begin with preclusion. That chapter, which exploresthe goals of efficiency and finality, lays the foundation for the joinder chapters. Al-though we introduce supplemental jurisdiction briefly in the chapter on subjectmatter jurisdiction, we defer detailed analysis until the joinder chapters. This seemsparticularly necessary because students cannot understand § 1367 without first study-ing the joinder rules. Following joinder, we address appeals.

This course stresses civil procedure as part of the litigation process — a publiclyfunded system of dispute resolution. We feel that students should consider whetherthe litigation system is a good way to resolve disputes. The last chapter of the bookraises questions about alternative dispute resolution and comparative law. We feelthat these issues are well treated at the end of the course, after the students have seenthe litigation process fully.

Recent years have seen remarkable change in civil procedure. Much of this hasbeen generated by the Supreme Court. In 2011, the Court returned to personal ju-risdiction for the first time since 1990 with two major decisions: J. McIntyre Ma-chinery Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), which embraced a cramped viewof specific jurisdiction, and Goodyear Dunlop Tires Operations, S.A. v. Brown, 131S. Ct. 2846 (2011), which suggested major retrenchment in general jurisdiction.The Court confirmed the retrenchment of general jurisdiction in Daimler AG v.Bauman, 134 S. Ct. 746 (2014) and offered its first discussion since 1984 of “effects”jurisdiction with Walden v. Fiore, 134 S. Ct. 1115 (2014). In subject matter juris-diction, the Court refined federal question jurisdiction over state-law claims inGunn v. Minton, 133 S. Ct. 1059 (2013) and clarified removal procedure in DartCherokee Basin Operating Co., LLC, v. Owens, 135 S. Ct. 547 (2014). Atlantic Ma-rine Construction Co., Inc. v. U.S. District Court, 134 S. Ct. 568 (2013), is a majordecision concerning enforceability of forum selection clauses through transferunder 28 U.S.C. § 1404(a). In pleadings, the Court makes an important distinctionbetween legal and factual sufficiency in Johnson v. City of Shelby, 134 S. Ct. 346(2014), which may moderate the impact of Twombly and Iqbal. In Tolan v. Cotton,134 S. Ct. 1861 (2014), the Court appears to give force to the hackneyed sayingthat a judge ruling on summary judgment must view evidence in the light mostfavorable to the nonmoving party.

The Court has continued its remarkable interest in the class action. Comcast Corp.v. Behrend, 133 S. Ct. 1426 (2013) is an important decision concerning certificationof damages classes under Rule 23(b)(3). On the heels of Wal-Mart Stores, Inc. v.Dukes, 131 S. Ct. 2541 (2011), it front-loads a great deal of litigation into the certi-fication stage. Yet, in securities fraud cases, the Court has rejected some efforts torequire substantive showings at the certification stage. See, e.g., Amgen v. ConnecticutRetirement Plans, 133 S. Ct. 1184 (2013). The Court has also continued its embraceof arbitration. In American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304(2013), it upheld a form contractual waiver of class arbitration even though the costof pursuing individual litigation would be prohibitive. The decision, following AT&T

xx PREFACE

freer perdue 00 fmt cx 3/14/16 7:51 AM Page xx

Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), which reached the same con-clusion in a consumer class action, raises significant questions of access to justice.

The Rules Advisory Committee has been active as well. This edition addresses theamendments going into effect December 1, 2015. Principal among these is the changeto the scope of discoverability, which moves “proportionality” to center stage as partof the definition of what information may be discovered. Reflecting its increasingimportance, we have expanded the discussion of discovery of electronically storedinformation, ESI, including the newly-promulgated version of Rule 36(e) regardingpreservation of ESI.

Finally, though Congress has not been active in federal jurisdiction or procedurein recent years, its broad changes to removal jurisdiction and venue in the Jurisdictionand Venue Clarification Act of 2011 have now generated case law worthy of discussionin this edition. In particular, we note the emerging split of authority regarding whetherthe legislative abolition of the “local action” rule affected venue or subject matter ju-risdiction.

Notes on Form

We indicate textual deletions from opinions and other materials by “* * *.” Wehave not noted deletions of citations from opinions. Our additions to cases are en-closed in brackets. Our footnotes are denoted by asterisks. We have retained the orig-inal numbering of footnotes appearing in opinions. We have adopted a short formof citing the several classic treatises to which we refer throughout the book. Withapologies to the contributing authors on the two standard multi-volume treatises,we refer to them, respectively, as Moore’s Federal Practice And Wright & Miller,Federal Practice And Procedure. Charles Alan Wright & Mary Kay Kane,Law Of Federal Courts (7th ed. 2011) is cited Wright & Kane, Federal Courts;and Richard D. Freer, Civil Procedure (3d ed. 2012) is cited Freer, Civil Pro-cedure.

PREFACE xxi

freer perdue 00 fmt cx 3/14/16 7:51 AM Page xxi

freer perdue 00 fmt cx 3/14/16 7:51 AM Page xxii

xxiii

Acknowledgments

Acknowledgments by Professor Freer

My friends and Emory colleagues Tom Arthur, Robert Schapiro, and George Shep-herd have contributed greatly to the development of this book. Beyond the Emorycommunity, we are in the particular debt of Colleen Murphy, Mike Vitiello, and JimDuane, who have gone far beyond the call of friendship in offering suggestions. Andwe have benefited greatly from contributions by Vince Alexander, John Beckerman,Lenni Benson, Debra Cohen, Stan Cox, Jeff Dobbins, Charlotte Goldberg, HeatherKolinsky, Glenn Koppel, Ben Madison, and Rocky Rhodes.

I acknowledge with gratitude the generosity of the late Judge Robert Howell Hall,who endowed the professorship which I am honored to hold. I am grateful for thecontinued support of Emory University School of Law. And, as with all my work, Iremain indebted to Louise, Collin, and Courtney.

Acknowledgments by Dean Perdue

I am grateful for the support I have received from my colleagues over the years,particularly those who share my passion for procedure and have offered invaluableideas and encouragement on this and earlier editions. That group includes ShermanCohn, Carrie Menkel-Meadow, Naomi Mezey, Nina Pillard, Phil Schrag, and DavidVladeck.

My deepest thanks go to my family, David, Bill, and Ben. Although my sons oc-casionally questioned my choice of topic (“Why don’t you do something useful —like write a book about baseball?”), and my efficiency (“You’re not done yet?”), theirlove and good humor were essential to keeping my sanity and perspective.

—————

We acknowledge with gratitude the numerous helpful suggestions from users ofprior editions. We also acknowledge the permission of the following copyright holdersto quote material contained in the book. Any errors that occurred in editing orreprinting are our responsibility, not that of the copyright holder:

Hoffman, Morris, Ten Trial Mistakes, The Docket, Spring 1994 at 10. Copyright© 1994 by the National Institute for Trial Advocacy. Reprinted by permission.

Langbein, John, The German Advantage in Civil Procedure, 52 U. Chi. L. Rev.823-866 (1985). Copyright © 1985 by the University of Chicago. Reprinted by per-mission.

freer perdue 00 fmt cx 3/14/16 7:51 AM Page xxiii

Mezibov, Marc, and H. Louis Sirkin, The Mapplethorpe Obscenity Trial, Litig.,Summer 1992, at 12, 13-15, 71. Copyright © 1992 by the American Bar Association.Reprinted by permission.

Wagatsuma, Hiroshi, and Arthur Rosett, The Implications of Apology: Law andCulture in Japan and the United States, 20 Law and Society Review 461-495 (1986).Copyright © 1986 by the Law and Society Association. Reprinted by permission.

xxiv ACKNOWLEDGMENTS

freer perdue 00 fmt cx 3/14/16 7:51 AM Page xxiv