Civil Procedure - cap-press.com

Civil Procedure

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Civil ProcedureCases, Materials, and Questions

eighth edition

Richard D. FreerCharles Howard Candler Professor of Law

Emory University School of Law

Wendy Collins PerdueDean and Professor of Law

University of Richmond School of Law

Robin J. EffronProfessor of Law

Brooklyn Law School

Carolina Academic PressDurham, North Carolina

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Copyright © 2020Carolina Academic Press, LLCAll Rights Reserved

ISBN 978-1-5310-1408-7e-ISBN 978-1-5310-1409-4LCCN 2019949828

Carolina Academic Press700 Kent StreetDurham, North Carolina 27701Telephone (919) 489-7486Fax (919) 493-5668www.cap-press.com

Printed in the United States of America

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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.

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Contents

Preface xix

Notes on Form xxiii

Acknowledgments xxv

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 73. Supreme Courts 84. Appellate Practice and the Doctrine of Precedent 8

D. The Adversary System 9E. Alternatives to Litigation 12F. A Brief History of Our English Judicial Roots 15G. General Topics of Civil Procedure 17

1. Selecting the Forum (Chapters 2–5, 10) 182. Obtaining Provisional Remedies (Chapter 6) 193. Learning About the Opponent’s Case (Chapters 7 & 8) 204. Adjudication With or Without a Jury (Chapter 9) 205. Preclusion, Joinder, and Supplemental Jurisdiction (Chapters 11–13) 216. Appeal (Chapter 14) 217. Litigation Alternatives (Chapter 15) 218. 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 24Notes and Questions 31

2. Interim Developments 34Hess v. Pawloski 36Notes and Questions 38

3. The Modern Era 38International Shoe Co. v. Washington 39

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Notes and Questions 44Note on McGee, Hanson, and Gray 46World-Wide Volkswagen v. Woodson 49Notes and Questions 58Personal Jurisdiction in Federal Court 62Note on Keeton, Calder, and Walden 64Why Litigants Care about Where Litigation Occurs 66Note on Burger King Corp. v. Rudzewicz 67Note on Asahi and the “Stream of Commerce” 73J. McIntyre Machinery, Ltd. v. Nicastro 75Notes and Questions 89

4. General Jurisdiction 91Daimler AG v. Bauman 92Notes and Questions 100

5. Specific Jurisdiction in the Era of Limited General Jurisdiction 104Bristol-Myers Squibb Co. v. Superior Court of California 104Notes and Questions 113

6. Personal Jurisdiction and the Internet 115Telemedicine Solutions LLC v. Woundright Technologies, LLC 116Notes and Questions 122

7. Explicit Consent and Forum Selection Provisions 1238. In Rem and Quasi-in-Rem Jurisdiction 1259. Transient Presence (“Tag” Jurisdiction) 131

Jurisdiction over Businesses 135C. Statutory Limits on Personal Jurisdiction 138

Official Code of Georgia Annotated 139Notes and Questions 140

D. Challenging Personal Jurisdiction 1411. The Traditional and Modern Approaches to Challenging

Personal Jurisdiction 1412. Collateral and Direct Attacks on Personal Jurisdiction 142

Baldwin v. Iowa State Traveling Men’s Association 144Notes and Questions 145

E. A Different Perspective 1461. The Purposes of Personal Jurisdiction 1462. Personal Jurisdiction in Other Countries 148

EU Council Regulation Chapter II, Jurisdiction 149

Chapter 3 • Notice and Opportunity to Be Heard 151A. Introduction and Integration 151B. Notice 151

1. The Constitutional Requirement 151Mullane v. Central Hanover Bank & Trust Co. 151Notes and Questions 157

2. Statutory Requirements 161

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National Development Co. v. Triad Holding Corp. 163Notes and Questions 166

3. Immunity, Evasion, and “Sewer Service” 169C. Opportunity to Be Heard 170

Chapter 4 • Subject Matter Jurisdiction 175A. Introduction and Integration 175B. State Courts and General Subject Matter Jurisdiction 175C. Federal Courts and Limited Subject Matter Jurisdiction 176

1. The Constitutional Grants and Role of Congress 176Notes and Questions 176

2. Plaintiff ’s Burden to Establish Federal Subject Matter Jurisdiction 1783. Diversity of Citizenship and Alienage Jurisdiction 179

a. Introductory Note 179b. The Complete Diversity Rule 181Strawbridge v. Curtiss 181Notes and Questions 181

c. Determining Citizenship of Individuals 183Mas v. Perry 183Notes and Questions 186

d. Determining Citizenship of Entities 190i. Corporations 190Randazzo v. Eagle-Picher Industries, Inc. 191Notes and Questions 192Hertz Corporation v. Friend 194Notes and Questions 201ii. Unincorporated Associations 202Belleville Catering Co. v. Champaign Market Place L.L.C. 203Notes and Questions 205

e. Representative Suits and Assignments of Claims 207f. The Domestic Relations and Probate Exceptions 208g. The Amount in Controversy Requirement 210

Notes and Questions 2104. Federal Question Jurisdiction 213

a. Introductory Note 213b. Narrow Interpretations of the Jurisdictional Statute 214

i. The Well-Pleaded Complaint Rule 214Louisville & Nashville Railroad Co. v. Mottley 214Notes and Questions 216ii. Well-Pleaded Complaint Problems Raised by

Declaratory Judgments 219iii. Centrality of the Federal Issue to the Claim 221Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing 223

Notes and Questions 229

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5. Supplemental Jurisdiction 2336. Removal Jurisdiction 233

Notes and Questions 2357. Remand to State Court 239

D. Challenging Federal Subject Matter Jurisdiction 240

Chapter 5 • Venue 243A. Introduction and Integration 243B. Local and Transitory Actions 244C. State Venue Provisions 245

Maryland Code Annotated 245Notes and Questions 246

D. Venue in Federal Court 247The Basic Rules 247Notes and Questions 248Bates v. C & S Adjusters, Inc. 250Notes and Questions 253

E. Change of Venue 2541. Transfer of Civil Cases in State Courts 2542. Transfer of Civil Actions in Federal Court 254

a. Where Can Cases Be Transferred? 255b. Goldlawr Transfers 256c. Choice of Law 256d. Standard for Transfer Under §§ 1404 and 1406 257e. The Effect of a Forum Selection Clause 259f. Multidistrict Litigation 260

F. Forum non Conveniens 261Piper Aircraft Co. v. Reyno 261Notes and Questions 270

Chapter 6 • Provisional Remedies and Other Remedies Topics 277A. Introduction and Integration 277B. Maintaining the Status Quo 278

1. Attachment, Garnishment, Replevin and Other Tools of Equity 278Connecticut v. Doehr 280Notes and Questions 289

2. Temporary Restraining Orders and Preliminary Injunctions 291Alliance for the Wild Rockies v. Cottrell 293Notes and Questions 301

Chapter 7 • Pleadings and Judgments Based on Pleadings 305A. Introduction and Integration 305B. Historical Overview of the Evolution of Pleadings 306C. The Complaint 309

1. Requirements 309

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a. Elements of the Complaint 309i. A “short and plain statement of the grounds for the court’s

jurisdiction” 309ii. A “short and plain statement of the claim showing that the

pleader is entitled to relief” 309iii. A “demand for the relief sought, which may include relief

in the alternative or different types of relief” 310b. Form of Pleadings 310c. Legal Sufficiency 311

Notes and Questions 313d. Factual (or “Formal”) Sufficiency: The Debate Over Specificity 314

i. Code Pleading 315ii. Federal Rules Pleading 316Dioguardi v. Durning 316Notes and Questions 318Bell Atlantic Corporation v. Twombly 319Notes and Questions 327The Iqbal Case 330Notes and Questions 333Swanson v. Citibank, N.A. 335Notes and Questions 341iii. The Common Counts 341

e. Heightened Specificity Requirements in Certain Cases 342Leatherman v. Tarrant County 342Notes and Questions 345

f. Pleading Inconsistent Facts and Alternative Theories 3472. Voluntary Dismissal 348

Notes and Questions 3493. Involuntary Dismissal 350

Notes and Questions 351D. Defendant’s Options in Response 351

1. Motions 352Notes and Questions 353

2. The Answer 355a. Responses to the Plaintiff ’s Allegations 355

i. Admissions 355ii. Denials 355iii. Denials for Lack of Knowledge or Information 356

b. Affirmative Defenses 357Notes and Questions 358

3. Claims by the Defendant 3604. Failure to Respond: Default and Default Judgment 360

Notes and Questions 360E. Amended Pleadings 363

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1. Basic Principles under Rule 15(a) 363Notes and Questions 363

2. The Problem of Variance under Rule 15(b) 365Notes and Questions 365

3. Amendment and the Statute of Limitations under Rule 15(c) 366a. Amendment to Claims or Defenses 366Marsh v. Coleman Company 367Notes and Questions 370

b. Amendment Changing a Party 371F. Supplemental Pleadings 372G. Veracity in Pleading: Rule 11 and Other Devices 372

1. Rule 11 372Model Rules of Professional Conduct 374Notes and Questions 375Rector v. Approved Federal Savings Bank 377Notes and Questions 382

2. Other Sanctions 384

Chapter 8 • Discovery 387A. Introduction and Integration 387B. Required Disclosures 390

1. Required Initial Disclosures (Rule 26(a)(1)) 391Questions 391

2. Required Disclosures Concerning Expert Witnesses (Rule 26(a)(2)) 3923. Required Pretrial Disclosures (Rule 26(a)(3)) 392

C. Discovery Tools 3921. Depositions (Rules 30, 31) 393

Questions 3942. Interrogatories (Rule 33) 395

Questions 3953. Production of Documents and Things (Rule 34) 396

Questions 3964. Medical Examination (Rule 35) 396

Questions 3975. Requests for Admission (Rule 36) 397

Questions 3976. Practice Problem 398

D. Scope of Discovery 3981. General Scope 398

a. “Relevant to a claim or defense.” 398United Oil Co. v. Parts Associates, Inc. 398Notes and Questions 404

b. “Nonprivileged.” 405c. “Proportional.” 408

2. Issues Concerning Discovery of ESI 409

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Zubulake v. UBS Warburg LLC 409Notes and Questions 415

3. Work Product 417Hickman v. Taylor 417Notes and Questions 424

4. Experts 428Ager v. Jane C. Stormont Hospital & Training School for Nurses 429Notes and Questions 435

5. Discovery in the International Context 4376. Review Problem 439

E. Timing and Pretrial Disclosures, Conferences, and Orders 4411. Timing 4412. Pretrial Conferences and Orders 441

F. Sanctions 446Washington State Physicians Insurance Exchange & Association v. Fisons Corp. 446


Chapter 9 • Adjudication With and Without a Trial or a Jury 463A. Introduction and Integration 463B. Trial and the Right to a Jury 463

1. Scope of the Constitutional Right 463a. “Actions at Common Law” and the Historical Test 465Chauffeurs Local 391 v. Terry 465Notes and Questions 474

b. The Complications of Merger and the Federal Rules 479c. Juries in Non-Article III Courts 481d. Juries in State Courts 481

2. Selection and Size of the Jury 482a. The Venire and Voir Dire 482b. Peremptory Challenges 483J.E.B. v. Alabama 484Notes and Questions 499

c. Two Views of Voir Dire and Peremptory Strikes 502The Mapplethorpe Obscenity Trial, Marc Mezibov and H. Louis

Sirkin 50210 Trial Mistakes, Morris Hoffman 506

d. Jury Size 5073. Jury Nullification and Its Limits 507

C. Summary Judgment — Adjudication without Trial 508Anderson v. Liberty Lobby, Inc. 511Notes and Questions 520Coble v. City of White House 524Notes and Questions 529

D. Controlling and Second-Guessing Juries 532

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1. Judgment as a Matter of Law (Directed Verdict and JNOV) 532Lavender v. Kurn 534Notes and Questions 539

2. New Trials 542Dadurian v. Underwriters at Lloyd’s of London 542Notes and Questions 548

3. Other Techniques for Controlling Juries 551a. Admissibility of Evidence 551b. Jury Instructions 552c. Form of the Verdict 553d. Judicial Comment 554e. Juror Misconduct 555

4. Motions to Set Aside a Judgment or Order (Rule 60) 557

Chapter 10 • What Law Applies in Federal Court 561A. Introduction and Integration 561B. Determining What Law Applies 563

1. The Erie Doctrine 563Erie Railroad Co. v. Tompkins 563Notes and Questions 569Note: Constitutional Bases of Erie 572

2. Early Efforts to Describe When State Law Applies 574Byrd v. Blue Ridge Rural Electrical Cooperative, Inc. 577Notes and Questions 580

3. The Federal Rules of Civil Procedure 582Hanna v. Plumer 582Note on Understanding Hanna 591

a. What Happens When There Is a Federal Rule of Civil Procedure on Point — The Rules Enabling Act Prong 591i. Determining Whether a Federal Directive Is on Point 591ii. Determining Whether a Federal Directive Is Valid 593

b. What Happens When There Is No Federal Rule of Civil Procedure on Point — The Rules of Decision Act Prong 595Notes and Questions 595

c. Applying the Hanna Structure 596Gasperini v. Center for Humanities, Inc. 597Notes and Questions 608Note on “SLAPP” Suits 610Shady Grove Orthopedic Association v. Allstate Insurance Co. 611Notes and Questions 632

C. Determining the Content of State Law 633Deweerth v. Baldinger 634Notes and Questions 636

D. Federal Common Law 638E. Federal Law in State Court 639

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Chapter 11 • The Preclusion Doctrines 641A. Introduction and Integration 641B. Claim Preclusion 643

1. Scope of a Claim 643a. In General 643Carter v. Hinkle 643Notes and Questions 647

b. Contract Cases 6502. Parties or Persons in Privity 651

a. Who Can Be Bound? 651Taylor v. Sturgell 652Notes and Questions 656

b. Configuration of the Parties 657Notes and Questions 658

3. Valid, Final Judgment on the Merits 658a. Validity 658b. Finality 659c. On the Merits 659

Notes and Questions 6604. Exceptions to the Operation of Claim Preclusion 662

Notes and Questions 662C. Issue Preclusion 665

1. Same Issue Litigated and Determined 665Cromwell v. County of Sac 666Notes and Questions 668

2. Issue Determined Was Essential to the Judgment 671Rios v. Davis 671Notes and Questions 673

3. Valid, Final Judgment on the Merits 6744. Against Whom Can Issue Preclusion Be Asserted? 674

Notes and Questions 6755. By Whom Can Issue Preclusion Be Asserted? 675

a. Mutuality and Exceptions 675b. Rejection of Mutuality for Defensive Use 677

Notes and Questions 679c. Rejection of Mutuality for Offensive Use 681Parklane Hosiery Co. v. Shore 681Notes and Questions 684

6. Exceptions to the Operation of Issue Preclusion 686Notes and Questions 687

D. Problems of Federalism 6881. State-to-State 6892. State-to-Federal 6893. Federal-to-State 6914. Federal-to-Federal 691

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Chapter 12 • Scope of Litigation — Joinder and Supplemental Jurisdiction 693A. Introduction and Integration 693B. Real Party in Interest, Capacity, and Standing 695

Notes and Questions 696C. Claim Joinder by Plaintiffs 697

1. Procedural Aspects 6972. Jurisdictional Aspects 698

United Mine Workers v. Gibbs 698Notes and Questions 702

D. Permissive Party Joinder by Plaintiffs 7051. Procedural Aspects 705

Schwartz v. Swan 706Notes and Questions 709

2. Jurisdictional Aspects 714Notes and Questions 716

E. Claim Joinder by Defendants 7181. Counterclaims 718

a. Compulsory Counterclaims 718i. Procedural Aspects 718Dindo v. Whitney 718Carteret Savings & Loan Assn. v. Jackson 720Notes and Questions 721ii. Jurisdictional Aspects 724Notes and Questions 725

b. Permissive Counterclaims 726i. Procedural Aspects 726Notes and Questions 726ii. Jurisdictional Aspects 727

2. Crossclaims 728a. Procedural Aspects 728

Notes and Questions 728b. Jurisdictional Aspects 730

Notes and Questions 730F. Overriding Plaintiff ’s Party Structure 730

1. Impleader (Third-Party Practice) 731a. Procedural Aspects 731Markvicka v. Brodhead-Garrett Co. 732Notes and Questions 734

b. Jurisdictional Aspects 736Owen Equipment & Erection Co. v. Kroger 736Notes and Questions 743

2. Compulsory Joinder (Necessary and Indispensable Parties) 746a. Procedural Aspects 746Haas v. Jefferson National Bank 746

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Temple v. Synthes Corp. 749Notes and Questions 751

b. Jurisdictional Aspects 754Notes and Questions 755

3. Intervention 757a. Procedural Aspects 757

Notes and Questions 758b. Jurisdictional Aspects 760

Hypothetical 761

Chapter 13 • Special Multiparty Litigation: Interpleader and the Class Action 763

A. Introduction and Integration 763B. Interpleader 763

1. Background 7632. The Two Types of Interpleader in Federal Court 765

Pan American Fire & Casualty Co. v. Revere 765Notes and Questions 769

3. The Limits of Interpleader to Avoid Duplicative Litigation 773State Farm Fire & Casualty Co. v. Tashire 773Notes and Questions 777

C. The Class Action 7781. Background 7782. Policy and Ethical Issues 7793. Constitutional Considerations 782

Note on Hansberry v. Lee 7834. Practice under Federal Rule 23 786

a. Background 786b. Filing and Certification of a Class Action 787c. Requirements for Certification under Rule 23(a) and 23(b) 788

Rule 23(a) 788Rule 23(b) 789Wal-Mart Stores, Inc. v. Dukes 792Notes and Questions 806

d. Notice to Class Members of the Pendency of the Action 811Notes and Questions 812

e. Court’s Role in Dismissal and Settlement 8135. Subject Matter Jurisdiction 816

Exxon Mobil Corp. v. Allapattah Services 817Notes and Questions 826Note on Jurisdiction under CAFA 827

6. Personal Jurisdiction 828Note on Phillips Petroleum Co. v. Shutts 828Notes and Questions 830

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D. Multidistrict Litigation 831Notes and Questions 832

Chapter 14 • Appellate Review 835A. Introduction and Integration 835B. Appellate Jurisdiction in the Federal Courts 836

1. Section 1291 8362. Collateral Order Doctrine 838

Cunningham v. Hamilton County 839Notes and Questions 845

3. Section 1292 849Notes and Questions 849

4. Rule 23(f) 8505. Rule 54(b) 851

Notes and Questions 8526. Mandamus 8537. Appealability of Discovery Orders 8548. Mechanics and Timing of Filing an Appeal 8559. Appellate Jurisdiction of the United States Supreme Court 856

C. Appeals in State Courts 857D. Standards of Review 857


Chapter 15 • Alternative Models of Dispute Resolution 863A. Introduction and Integration 863B. Models of Non-Judicial Resolution 863

1. Brief Overview 8632. Arbitration 864

a. Court-Annexed versus Contractual ADR 865b. Expansion of Contractual Arbitration 865AT&T Mobility LLC v. Concepcion 868Notes and Questions 877

3. Litigation and Arbitration in the International Realm 879C. Other Models of Judicial Control: A Comparative Approach 880

The German Advantage in Civil Procedure, John H. Langbein 880Notes and Questions 890Sempier v. Johnson & Higgins 891Notes and Questions 896

D. Dispute Resolution without Adjudication 899The Implications of Apology: Law and Culture in Japan and in the United States, Hiroshi Wagatsuma and Arthur Rosett 900


Table of Cases 911

Table of Scholarly Commentary 929

Index 947

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xix

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 includesignificant amounts of original text to provide background, as well as notes and ques-tions that explore the strategic and ethical choices that real lawyers face.

A second challenge is that the course includes significant amounts of detail, butat the same time raises fundamental questions about justice, fairness, and efficiencyin the adjudication of rights. Students sometimes miss the richness of the coursebecause they fail to see how its various aspects fit together— they may come awaywith a knowledge of individual trees but not an overall sense of the forest. This bookseeks to avoid that result by stressing integration. The chapters are arranged inrelated blocks and each chapter begins with a section called “Introduction and In-tegration” which provides an overview and indicates how the subject fits with othertopics. This integrative text allows the professor to assign chapters in any order shechooses.

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 forum selection, and includes personal jurisdiction, subject matterjurisdiction, and venue. We have include notice and service of process in this partbecause of its close relationship to personal jurisdiction.

A new Chapter 6 addresses remedies, and focuses on provisional remedies, in-cluding temporary restraining orders and preliminary injunctions. This topic providesa nice pivot to the next part of the book, which addresses phases of litigation: pleading,discovery, and adjudication (with and without a jury). Joinder is covered later, becausewe do not believe this topic is necessary to understanding the basic steps of litigationand, by delaying it, we can cover it with the related issues of preclusion and supple-mental jurisdiction. Covering pleading and discovery back-to-back highlights thatthey are both methods of information exchange. The chapter on adjudication includesboth summary judgment and judgment as a matter of law. We place the Erie chapter

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xx PREFACE

after the chapter on adjudication. (We believe students may better understandGasperini if they have studied Rule 59.)

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 subject matterjurisdiction, we defer detailed analysis until the joinder chapters. This seems partic-ularly necessary, because students cannot understand §1367 without first studyingthe 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.

The Supreme Court has been remarkably active in Civil Procedure over the pastdecade. In 2011, it returned to personal jurisdiction after a 21-year absence with J.McIntyre Machinery Ltd. v. Nicastro, 564 U.S. 873 (2011), which embraced a crampedview of specific jurisdiction, and Goodyear Dunlop Tires Operations, S.A. v. Brown,564 U.S. 915 (2011), which suggested major retrenchment in general jurisdiction.The Court confirmed the retrenchment of general jurisdiction in Daimler AG v. Bau-man, 571 U.S. 117 (2014), and BNSF Ry. Co. v. Tyrell, 137 S. Ct. 1549 (2017). Thegap created by the restriction of general jurisdiction (at least with regard to corpo-rations) has required plaintiffs to attempt to rely increasingly on specific jurisdiction.This reliance sometimes raises the issue of relatedness: whether the plaintiff ’s claimis sufficiently related to the defendant’s contacts with the forum. The Court issuedan important (and seemingly cramped) view of relatedness in Bristol-Myers Squibbv. Superior Court, 137 S. Ct. 1773 (2017). Moreover, it issued its first discussionsince 1984 of “effects” jurisdiction with Walden v. Fiore, 471 U.S. 462 (2014).

In subject matter jurisdiction, the Court has refined federal question jurisdictionover state-law claims in Gunn v. Minton, 568 U.S. 251 (2013), and clarified removalprocedure in Dart Cherokee Basin Operating Co., LLC, v. Owens, 574 U.S. 81 (2014).Atlantic Marine Construction Co., Inc. v. U.S. District Court, 571 U.S. 49 (2013),is a major decision concerning enforceability of forum selection clauses throughtransfer under 28 U.S.C. §1404(a). In pleadings, the Court makes an important dis-tinction between legal and factual sufficiency in Johnson v. City of Shelby, 574 U.S.10 (2014), which may moderate the impact of Twombly and Iqbal. In Tolan v. Cotton,572 U.S. 650 (2014), the Court appears to give force to the hackneyed saying that ajudge ruling on summary judgment must view evidence in the light most favorableto the nonmoving party.

The Court has been especially interested over the past decade in the class action.Comcast Corp. v. Behrend, 569 U.S. 27 (2013) is an important decision concerning

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PREFACE xxi

certification of damages classes under Rule 23(b)(3). On the heels of Wal-Mart Stores,Inc. v. Dukes, 564 U.S. 338 (2011), it front-loads a great deal of litigation into thecertification stage. Yet, in securities fraud cases, the Court has rejected some effortsto require substantive showings at the certification stage. See, e.g., Amgen v. Con-necticut Retirement Plans, 568 U.S. 455 (2013). The Court has also continued its em-brace of arbitration. In American Express Co. v. Italian Colors Restaurant, 570 U.S.228 (2013), it upheld a form contractual waiver of class arbitration even though thecost of pursuing individual litigation would be prohibitive. The decision, followingAT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), which reached the sameconclusion in a consumer class action, raises significant questions of access to justice.

The Rules Advisory Committee has been active as well. This edition covers the2015 amendments to the Federal Rules of Civil Procedure. Principal among these isthe change to the scope of discoverability, which moves “proportionality” to centerstage as part of the definition of what information may be discovered. Reflecting itsincreasing importance, we have expanded the discussion of discovery of electronicallystored information, ESI, including the 2015 version of Rule 37(e) regarding loss ofESI. This edition discusses the proposed amendment to Rule 30(b)(6), which (absentintervention by the Court or Congress) will take effect on December 1, 2020.

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Notes on Form

We indicate textual deletions from opinions and other materials by “* * *.” We havenot noted deletions of citations from opinions. Our additions to cases are enclosedin brackets. Our footnotes are denoted by asterisks. We have retained the originalnumbering of footnotes appearing in opinions. We have adopted a short form of citingthe classic treatises to which we refer throughout the book. With apologies to the con-tributing authors on the two standard multi-volume treatises, we refer to them, re-spectively, as Moore’s Federal Practice and Wright & Miller, Federal Practiceand Procedure. Charles Alan Wright & Mary Kay Kane, Law of FederalCourts (7th ed. 2011) is cited Wright & Kane, Federal Courts; and Richard D.Freer, Civil Procedure (4th ed. 2017) is cited Freer, Civil Procedure.

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xxv

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 am grateful for the continued support of Emory University School of Law. And,as with all my work, I remain indebted to Louise, Collin, and Courtney.

Acknowledgments by Dean Perdue

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.

Acknowledgments by Professor Effron

I am indebted to my colleagues at Brooklyn Law School for their support. I ben-efited from many productive conversations with a number of scholars and friendswhile working on this edition, particularly Alexandra Lahav, Maria Glover, SamuelBray, and Pam Bookman. And although Dan Markel was taken from us before I hadthe opportunity to work on this book, he remains a source of inspiration in my lifeas a teacher and scholar.

Most of all, I am grateful for the love and support of my family. I thank Sam forhis patience and encouragement, and I thank Maura and Eleanor who have taughtme that it is possible to master the art of forum shopping before one can even speakin full sentences.

—————

We acknowledge with gratitude the numerous helpful suggestions from users of prioreditions. We also acknowledge the permission of the following copyright holders toquote material contained in the book. Any errors that occurred in editing or reprintingare 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.

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xxvi ACKNOWLEDGMENTS

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 permission.

Mezibov, Marc, & H. Louis Sirkin, The Mapplethorpe Obscenity Trial, Litig., Summer1992, at 12, 13–15, 71. Copyright © 1992 by the American Bar Association.Reprinted by permission.

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

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