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Author:  	Mr. Shannon Bangle (sbangle@mail.utexas.edu)
School:		University of Texas School of Law
Course:		Civil Procedure
Year:		1995-1996
Professor:	M. Tigar
Book:		Tigar’s Supplement (no book was used)

I. - THE IDEAL OF THE ADVERSARY SYSTEM

Connecticut v. Doehr
 (CITE AS: 501 U.S. 1,  111 S.CT. 2105, **2107)

 A Connecticut statute authorizes a judge to allow the prejudgment attachment of real estate without prior notice or hearing upon the plaintiff's verification that there is probable cause to sustain the validity of his or her claim.  Petitioner DiGiovanni applied to the State Superior Court for such an attachment on respondent Doehr's home in conjunction with a civil action for assault and battery that he was seeking to institute against Doehr in the same court.  The application was supported by an affidavit in which DiGiovanni, in five one-sentence paragraphs, stated that the facts set forth in his previously submitted complaint were true;  declared that the assault by Doehr resulted in particular injuries requiring expenditures for medical care;  and stated his "opinion" that the foregoing facts were sufficient to establish probable cause.  On the strength of these submissions, the judge found probable cause and ordered the attachment.  Only after the sheriff attached the property did Doehr receive notice of the attachment, which informed him of his right to a postattachment hearing.  Rather than pursue this option, he filed a suit in the Federal District Court, claiming that the statute violated the Due Process Clause of the Fourteenth Amendment.  That court upheld the statute, but the Court of Appeals reversed, concluding that the statute violated due process because, inter alia, it permitted ex parte attachment absent a showing of extraordinary circumstances, see, e.g., Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406, and the nature of the issues at stake in this case increased the risk that attachment was wrongfully *2 granted, since the fact-specific event of a fist fight and the question of assault are complicated matters that do not easily lend themselves to documentary proof, see id., at 609-610, 94 S.Ct., at 1901.
Held:  The judgment is affirmed.
   Justice WHITE delivered the opinion of the Court with respect to Parts I, II, and III, concluding that:
1. Determining what process must be afforded by a state statute enabling an individual to enlist the State's aid to deprive another of his or her property by means of a prejudgment attachment or similar procedure requires (1) consideration of the private interest that will be affected by the prejudgment measure;  (2) an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards;  and (3) principal attention to the interest of the party seeking the prejudgment remedy, with due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections.  Cf. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18.  Pp. 2111-2112.   	
2. Application of the Mathews factors demonstrates that the Connecticut statute, as applied to this case, violates due process by authorizing prejudgment attachment without prior notice and a hearing.  Pp. 2112-2116.   (a) The interests affected are significant for a property owner like Doehr, since attachment ordinarily clouds title;  impairs the ability to sell or otherwise alienate the property;  taints any credit rating;  reduces the chance of obtaining a home equity loan or additional mortgage;  and can even place an existing mortgage in technical default where there is an insecurity clause.  That these effects do not amount to a complete, physical, or permanent deprivation of real property is irrelevant, since even the temporary or partial impairments to property rights that such encumbrances entail are sufficient to merit due process protection.  See, e.g., Peralta v. Heights **2108 Medical Center, Inc., 485 U.S. 80, 85, 108 S.Ct. 896, 899, 99 L.Ed.2d 75.  Pp. 2112-2113.
   (b) Without preattachment notice and a hearing, the risk of erroneous deprivation that the State permits here is too great to satisfy due process under any of the interpretations of the statutory "probable cause" requirement
 offered by the parties.  If the statute merely demands inquiry into the sufficiency of the complaint, or, still less, the plaintiff's good-faith belief that the complaint is sufficient, the judge could authorize deprivation of the
 defendant's property when the claim would fail to convince a jury, when it rested on factual allegations that were sufficient to state a cause of action but which the defendant would dispute, or in the case of a good-faith standard,
 even when the complaint failed to state a claim upon which relief could be granted.  Even if the *3 provision requires a finding of probable cause to believe that judgment will be rendered in the plaintiff's favor, the reviewing judge in a case like this could make no realistic assessment based on the plaintiff's one-sided, self-serving, and conclusory affidavit and complaint, particularly since the issue does not concern ordinarily uncomplicated matters like the existence of a debt or delinquent payments that lend themselves to documentary proof.  See Mitchell, supra, 416 U.S., at 609, 94 S.Ct., at 1901.  Moreover, the safeguards that the State does afford--an "expeditious" postattachment notice and an adversary hearing, judicial review of an adverse decision, and a double damages action if the original suit is commenced without probable cause--do not adequately reduce the risk of erroneous deprivation under Mitchell, since none of the additional factors that diminished the need for a predeprivation hearing in that case--that the plaintiff had a vendor's lien to protect, that the likelihood of recovery involved uncomplicated, documentable matters, and that the plaintiff was required to post a bond--is present here.  Although a later hearing might negate the presence of probable cause, this would not cure the temporary deprivation that an earlier hearing might have prevented.  Pp. 2113-2115.
   (c) The interests in favor of an ex parte attachment, particularly DiGiovanni's interests, are too minimal to justify the burdening of Doehr's ownership rights without a hearing to determine the likelihood of recovery. Although DiGiovanni had no existing interest in Doehr's real estate when he sought the attachment, and his only interest was to ensure the availability of assets to satisfy his judgment if he prevailed on the merits of his action, there were no allegations that Doehr was about to transfer or encumber his real estate or take any other action during the pendency of the suit that would render his property unavailable to satisfy a judgment.  Absent such allegations, there was no exigent circumstance permitting the postponement of notice or hearing until after the attachment was effected.  Moreover, the State's substantive interest in protecting DiGiovanni's de minimis rights cannot be any more weighty than those rights themselves, and the State cannot seriously plead additional financial or administrative burdens involving predeprivation hearings when it already claims to provide an immediate post- deprivation hearing.  P. 2115. 
3. Historical and contemporary practices support the foregoing analysis.  Attachment measures in both England and this country have traditionally had several limitations that reduced the risk of erroneous deprivation, including requirements that the defendant had taken or threatened some action that would place satisfaction of the plaintiff's potential award in jeopardy, that the plaintiff be a creditor, as opposed to the victim of a tort, and that the plaintiff post a bond.  Moreover, a survey of current state attachment provisions reveals that nearly every *4 State requires either a preattachment hearing, a **2109 showing of some exigent circumstance, or both, before permitting an attachment to take place.  Although the States for the most part no longer confine attachments to creditor claims, this development only increases the importance of the other limitations.  Pp. 2115- 2116.
  WHITE, J., delivered the opinion for a unanimous Court with respect to Parts I and III, the opinion of the Court with respect to Part II, in which REHNQUIST, C.J., and MARSHALL, BLACKMUN, STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined, and an opinion with respect to Parts IV and V, in which MARSHALL, STEVENS, and O'CONNOR, JJ., joined.  REHNQUIST, C.J., filed an opinion concurring in part and concurring in the judgment, in which BLACKMUN, J., joined, post, p. 2120.  SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 2123.

II. - PLEADING, COSTS OF LITIGATION, REMEDIES & LIMITATIONS

ONE: BASIC PRINCIPLES OF PLEADING

Conley v. Gibson

Surowitz v. Hilton Hotels Corp.

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit
 (CITE AS: 507 U.S. 163,  113 S.CT. 1160, **1160)

  *163 Petitioner homeowners filed suit under 42 U.S.C. s 1983 against respondents--local officials acting in their official capacity, a county, and two municipal corporations--alleging that the conduct of local police officers in searching their homes for narcotics violated the Fourth Amendment, and asserting that the basis for municipal liability was the failure adequately to train the police officers involved.  The Federal District Court dismissed the complaints because they failed to meet the "heightened pleading standard" adopted by the Court of Appeals, which requires that complaints
 against municipal corporations in s 1983 cases state with factual detail and particularity the basis for the claim.  The Court of Appeals affirmed.
  **1161 Held:  A federal court may not apply a "heightened pleading standard"--more stringent than the usual pleading requirements of Federal Rule of Civil Procedure 8(a)--in civil rights cases alleging municipal liability under s 1983.  First, the heightened standard cannot be justified on the ground that a more relaxed pleading standard would eviscerate municipalities' immunity from suit by subjecting them to expensive and time-consuming discovery in every s 1983 case.  Municipalities, although free from respondeat superior liability under s 1983, see Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611, do not enjoy absolute or qualified immunity from s 1983 suits, id., at 701, 98 S.Ct., at 2041; Owen v. City of Independence, 445 U.S. 622, 650, 100 S.Ct. 1398, 1415, 63 L.Ed.2d 673.  Second, it is not possible to square the heightened standard applied in this case with the liberal system of "notice pleading" set up by the Federal Rules.  Rule 8(a)(2) requires that a complaint include only "a short and plain statement of the claim showing that the pleader is entitled to relief."  And while Rule 9(b) requires greater particularity in pleading certain actions, it does not include among the enumerated actions any reference to complaints alleging municipal liability under s 1983.  Pp. 1161-1163.  954 F.2d 1054 (CA5 1992), reversed and remanded.  REHNQUIST, C.J., delivered the opinion for a unanimous Court.

TWO: CONTROL OF LITIGATION THROUGH FEES AND SANCTIONS

Chambers v. NASCO, Inc.
 (CITE AS: 501 U.S. 32,  111 S.CT. 2123, **2125)

  *32 Petitioner Chambers, the sole shareholder and director of a company that operated a television station in Louisiana, agreed to sell the station's facilities and broadcast license to respondent NASCO, Inc.  Chambers soon changed his mind and, both before and after NASCO filed this diversity action for specific performance in the District Court, engaged in a series of actions within and without that court and in proceedings before the Federal
 Communications Commission, the Court of Appeals, and this Court, which were designed to frustrate the sale's consummation.  On remand following the Court of Appeals' affirmance of judgment on the merits for NASCO, the District Court, on NASCO's motion and following full briefing and a hearing, imposed sanctions against Chambers in the form of attorney's fees and expenses totaling almost $1 million, representing the entire amount of NASCO's litigation costs paid to its attorneys.  The court noted that the alleged sanctionable conduct was that Chambers had (1) attempted to deprive the court of jurisdiction by acts of fraud, nearly **2126 all of which were performed outside the confines of the court, (2) filed false and frivolous pleadings, and (3) "attempted, by other tactics of delay, oppression, harassment and massive expense to reduce [NASCO] to exhausted compliance."  The court deemed Federal Rule of Civil Procedure 11--which provides for the imposition of attorney's fees as a sanction for the improper filing of papers with a court--insufficient to support the sanction against Chambers, since the Rule does not reach conduct in the foregoing first and third categories, and since it would have been impossible to assess sanctions at the time the papers in the second category were filed because their falsity did not become apparent until after the trial on the merits.  The court likewise declined to impose sanctions under 28 U.S.C. s 1927, both because the statute's authorization of an attorney's fees sanction applies only to attorneys who unreasonably and vexatiously multiply proceedings, and therefore would not reach Chambers, and because the statute was not broad enough to reach "acts which degrade the judicial system."  The court therefore relied on its inherent power in imposing sanctions.  In affirming, the Court of Appeals, inter alia, rejected Chambers' argument that a federal court sitting in diversity must look to state law, not *33 the court's inherent power, to
 assess attorney's fees as a sanction for bad-faith conduct in litigation.
 Held:  The District Court properly invoked its inherent power in assessing as a sanction for Chambers' bad-faith conduct the attorney's fees and related expenses paid by NASCO.  Pp. 2131-2140.
(a) Federal courts have the inherent power to manage their own proceedings and to control the conduct of those who appear before them.  In invoking the inherent power to punish conduct which abuses the judicial process, a court must exercise discretion in fashioning an appropriate sanction, which may range from dismissal of a lawsuit to an assessment of attorney's fees.  Although the "American Rule" prohibits the shifting of attorney's fees in most cases, see Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 259, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141, an exception allows federal courts to exercise their inherent power to assess such fees as a sanction when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons, id., at 258-259, 260, 95 S.Ct. at 1622-1623, 1623, as when the party practices a fraud upon the court, Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 580, 66 S.Ct. 1176, 1179, 90 L.Ed. 1447, or delays or disrupts the litigation or hampers a court order's enforcement, Hutto v. Finney, 437 U.S. 678, 689, n. 14, 98 S.Ct. 2565, 2573, n. 14, 57 L.Ed.2d 522. Pp. 2132-2133.
(b) There is nothing in s 1927, Rule 11, or other Federal Rules of Civil Procedure authorizing attorney's fees as a sanction, or in this Court's decisions interpreting those other sanctioning mechanisms, that warrants a conclusion that, taken alone or together, the other mechanisms displace courts' inherent power to impose attorney's fees as a sanction for bad-faith conduct. Although a court ordinarily should rely on such rules when there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the rules, the court may safely rely on its inherent power if, in its informed discretion, neither the statutes nor the rules are up to the task.  The District Court did not abuse its discretion in resorting to the inherent power in the circumstances of this case.  Although some of Chambers' conduct might have been reached through the other sanctioning mechanisms, all of that conduct was sanctionable.  Requiring the court to apply the other mechanisms to discrete occurrences before invoking the inherent power to address remaining instances of sanctionable conduct would serve only to foster extensive and needless satellite litigation, which is contrary to the aim of the rules themselves.  Nor did the court's reliance on the inherent power thwart the mandatory terms of Rules 11 and 26(g).  Those Rules merely require **2127 that "an appropriate sanction" be imposed, without specifying which sanction is required.  Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228, distinguished.  Pp. 2133-2136.  *34
c. There is no merit to Chambers' assertion that a federal court sitting in diversity cannot use its inherent power to assess attorney's fees as a sanction unless the applicable state law recognizes the "bad-faith" exception to the general American Rule against fee shifting.  Although footnote 31 in Alyeska tied a diversity court's inherent power to award fees to the existence of a state law giving a right thereto, that limitation applies only to fee-shifting rules that embody a substantive policy, such as a statute which permits a prevailing party in certain classes of litigation to recover fees. Here the District Court did not attempt to sanction Chambers for breach of contract, but rather imposed sanctions for the fraud he perpetrated on the court and the bad faith he displayed toward both NASCO and the court throughout the litigation.  The inherent power to tax fees for such conduct cannot be made subservient to any state policy without transgressing the boundaries set out in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, and Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8, for fee shifting here is not a matter of substantive remedy, but is a matter of vindicating judicial authority.  Thus, although Louisiana law prohibits punitive damages for a bad-faith breach of contract, this substantive state policy is not implicated.  Pp. 2136-2138.
(d) Based on the circumstances of this case, the District Court acted within its discretion in assessing as a sanction for Chambers' bad-faith conduct the entire amount of NASCO's attorney's fees.  Chambers' arguments to the contrary are without merit.  First, although the sanction was not assessed until the conclusion of the litigation, the court's reliance on its inherent power did not represent an end run around Rule 11's notice requirements, since Chambers received repeated timely warnings both from NASCO and the court that his conduct was sanctionable.  Second, the fact that the entire amount of fees was awarded does not mean that the court failed to tailor the sanction to the particular wrong, in light of the frequency and severity of Chambers' abuses of the judicial system and the resulting need to ensure that such abuses were not repeated.  Third, the court did not abuse its discretion by failing to require NASCO to mitigate its expenses, since Chambers himself made a swift conclusion to the litigation by means of summary judgment impossible by continuing to assert that material factual disputes existed.  Fourth, the court did not err in imposing sanctions for conduct before other tribunals, since, as long as Chambers received an appropriate hearing, he may be sanctioned for abuses of process beyond the courtroom.  Finally, the claim that the award is not "personalized" as to Chambers' responsibility for the challenged conduct is flatly contradicted *35 by the court's detailed factual findings concerning Chambers' involvement in the sequence of events at issue.  Pp. 2138-2140.
  894 F.2d 696 (CA5 1990), affirmed.
  WHITE, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN,
 STEVENS, and O'CONNOR, JJ., joined.  SCALIA, J., filed a dissenting opinion,
 post, p. 2140.  KENNEDY, J., filed a dissenting opinion, in which REHNQUIST,
 C.J., and SOUTER, J., joined, post, p. 2141.

Evans v. Jeff D.
 (CITE AS: 475 U.S. 717, *717,  106 S.CT. 1531, **1532)

  The Civil Rights Attorney's Fees Awards Act of 1976 (Fees Act) provides that "the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee" in enumerated civil rights actions.  Respondents brought a class action against petitioners (the Governor and other public officials of Idaho responsible for the education and treatment of mentally handicapped children) in Federal District Court on behalf of children who have been or will be placed in petitioners' care.  It was alleged that deficiencies in both the educational programs and health care services provided respondents violated the Federal and State Constitutions and various federal and state statutes. Injunctive relief and an award of costs and attorney's fees were sought. Ultimately, the District Court approved a settlement granting the injunctive relief sought conditional on respondents' waiver of any claim for attorney's fees.  The Court of Appeals invalidated the fee waiver, left standing the remainder of the **1533 settlement, and remanded to the District Court to determine what attorney's fees were reasonable, holding that the historical background of Federal Rule of Civil Procedure 23(e), which gives a district court power to approve settlements of class actions, and of the Fees Act, compelled the conclusion that a stipulated waiver of attorney's fees obtained solely as a condition for obtaining relief for the class should not be accepted by the court.
  Held:
  1. The District Court had the power, in its discretion, to approve the waiver of attorney's fees.  Pp. 1538-1543.
(a) The language of the Fees Act, as well as its legislative history, indicates that Congress bestowed on the "prevailing party" a statutory eligibility for a discretionary award of attorney's fees in specified civil rights actions.  Neither the statute nor the legislative history suggests that Congress intended to forbid all waivers of attorney's fees.  Congress neither bestowed fee awards upon attorneys nor rendered them nonwaivable or nonnegotiable;  instead, it added them to the remedies available to combat civil rights violations, a goal not invariably inconsistent *718 with conditioning settlement on the merits on a waiver of statutory attorney's fees.  Pp. 1538-1540.
 (b) A general proscription against waiver of attorney's fees in exchange for a settlement on the merits would itself impede vindication of civil rights, at least in some cases, by reducing the attractiveness of settlement.  It is not implausible to anticipate that parties to a significant number of civil rights cases would refuse to settle if liability for attorney's fees remained open, thereby forcing more cases to trial, unnecessarily burdening the judicial
 system, and disserving civil rights litigants.  Pp. 1540-1543.
  2. The District Court did not abuse its discretion in approving a waiver of attorney's fees that secured broad injunctive relief greater than that which respondents could reasonably have expected to achieve at trial.  There is nothing in the record to indicate that Idaho has adopted a statute, policy, or practice insisting on a fee waiver as a condition of settlement in civil rights litigation in conflict with the Fees Act.  Nor does the record indicate that petitioners' request to waive fees was a vindicative effort to deter attorneys from representing plaintiffs in civil rights suits against Idaho.  Pp. 1543- 1545.  743 F.2d 648 (CA9 1984), reversed.
  STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and
 WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined.  BRENNAN, J., filed a
 dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. ---.

Venegas v. Mitchell
 (CITE AS: 495 U.S. 82, *82,  110 S.CT. 1679, **1679)

  In connection with petitioner Venegas' civil rights suit under 42 U.S.C. s 1983, he and respondent Mitchell, an attorney, entered into a contingent-fee contract providing that, inter alia, Mitchell would receive a percentage of any gross recovery, which would be offset by any court-awarded attorney's fees, and would be allowed to intervene in the action to protect the fee award.  Venegas obtained a judgment and was awarded **1680 attorney's fees, $75,000 of which was attributable to work done by Mitchell.  The fees were awarded under s 1988, which enables civil rights plaintiffs to employ reasonably competent lawyers without cost to themselves by authorizing the payment of a "reasonable attorney's fee" by a losing party to a prevailing party.  After Venegas obtained different counsel to handle his appeal, Mitchell filed a motion for leave to intervene, requesting that the District Court confirm a lien on the judgment for $406,000 in fees that were purportedly due him under the contract.  Among other things, the court held that he was not entitled to intervene, but it refused to disallow or reduce the contingent fee, holding that it was reasonable and not a windfall to Mitchell.  The Court of Appeals reversed the District Court's holding denying intervention, but agreed that s 1988 does not prevent a lawyer from collecting a reasonable contingent fee even if it exceeds the statutory fee award and that Mitchell's fee was reasonable and not a windfall.
  Held:
1. Section 1988 does not invalidate contingent-fee contracts that would require a prevailing plaintiff to pay his attorney more than the statutory award against the defendant.  Neither the section's language nor its legislative history supports the view that it prevents an attorney and client from entering into a contingent-fee agreement.  Moreover, this Court, in holding that it is the prevailing party, rather than the lawyer, who is eligible for fees, has recognized that it is the party's right to waive, settle, or negotiate that eligibility, Evans v. Jeff D., 475 U.S. 717, 730, 106 S.Ct. 1531, 1538, 89 L.Ed.2d 747 and has implicitly accepted that statutory fee awards can coexist with private fee arrangements, cf., Blanchard v. Bergeron, 489 U.S. 87, 94-95, 109 S.Ct. 939, 944-945, 103 L.Ed.2d 67;  Blum v. Stenson, 465 U.S. 886, 894-895, 104 S.Ct. 1541, 1546-1547, 79 L.Ed.2d 891. Since a s 1983 cause of action also belongs to, and can be waived by, the injured party, a contrary finding would place these plaintiffs in the peculiar position of *83 having more freedom to negotiate a waiver of their causes of action with their adversaries than a fee with their own attorneys.  The fact that Blanchard v. Bergeron, supra, does not permit a contingent-fee agreement to impose a ceiling on the amount of the statutory fee award does not mean that such an agreement should also be ignored for the benefit of the client so that he need pay only the statutory award.  Blanchard dealt with what the losing party must pay the plaintiff, not with the contractual obligations of plaintiffs and their attorneys, and entitlement to a s 1988 award does not belong to the attorney.  Also unpersuasive is Venegas' argument that requiring him to pay more than the reasonable fee authorized by Congress would greatly reduce his recovery and would impose a cost on him that the defendant should pay, since the amount payable under a fee agreement is not necessarily measured by the "reasonable attorney's fee" that a defendant must pay under s 1988, and since depriving prevailing plaintiffs of the option of promising to pay more to secure their counsel of choice would not furthers 1988's general purpose of enabling them to secure competent counsel.  Pp. 1682-
 1684.
2. Venegas offers no reason to accept his contention, rejected by the lower courts, that, even if contingent fees exceeding statutory awards are not prohibited per se by s 1988, the fee in this case is unreasonable under both federal and state law.  P. 1684.  867 F.2d 527 (CA9 1989), affirmed.
  WHITE, J., delivered the opinion for a unanimous Court.

3: REMEDIES

Honda Motor Co. v. Oberg
 (CITE AS: 114 S.CT. 2331, *2332)

  After finding petitioner Honda Motor Co., Ltd., liable for injuries respondent Oberg received while driving a three-wheeled all-terrain vehicle manufactured and sold by Honda, an Oregon jury awarded Oberg $5,000,000 in punitive damages, over five times the amount of his compensatory damages award.  In affirming, both the State Court of Appeals and the State Supreme Court rejected Honda's argument that the punitive damages award violated due process because it was excessive and because Oregon courts have no power to correct excessive verdicts under a 1910 Amendment to the State Constitution, which prohibits judicial review of the amount of punitive damages awarded by a jury "unless the court can affirmatively say there is no evidence to support the verdict."  The latter court relied heavily on the fact that the State's product liability punitive damages statute and the jury instructions in this case provided at least as much guidance as those upheld in Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1.  The court also declined to interpret Haslip to hold that due process requires the amount of a punitive damages award to be subject to postverdict or appellate review, and noted that Oregon courts are not powerless because they may vacate a judgment if there is no evidence supporting the jury's decision, and because appellate review is available to test the sufficiency of jury instructions.
  Held:  Oregon's denial of review of the size of punitive damages awards violates the Fourteenth Amendment's Due Process Clause.  Pp. 2335-2342.
(a) The Constitution imposes a substantive limit on the size of punitive damages awards.  Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1;  TXO Production Corp. v. Alliance Resources, 509 U.S. ----, 113 S.Ct. 2711, 125 L.Ed.2d 366.  The opinions in these cases strongly emphasized the importance of the *2333 procedural component of the Due Process Clause, and suggest that the analysis here should focus on Oregon's departure from traditional procedures.  P. 2335.
(b) Judicial review of the size of punitive damages awards was a safeguard against excessive awards under the common law, see, e.g., Blunt v. Little, 3 F.Cas. 760, 761-762, and in modern practice in the federal courts and every State, except Oregon, judges review the size of such awards.  See, e.g., Dagnello v. Long Island R. Co., 289 F.2d 797, 799-800, n. 1.  Pp. 2335-2338.
c. There is a dramatic difference between judicial review under the common law and the scope of review available in Oregon.  At least since the State Supreme Court definitively construed the 1910 Amendment in Van Lom v. Schneiderman, 187 Or. 89, 210 P.2d 461, Oregon law has provided no procedure for reducing or setting aside a punitive damages award where the only basis for relief is the amount awarded.  No Oregon court for more than half a century has inferred passion or prejudice from the size of a damages award, and no court in more than a decade has even hinted that it might possess the power to do so. If courts had such power, the State Supreme Court would have mentioned it in responding to Honda's arguments in this very case.  The review that is provided ensures only that there is evidence to support some punitive damages, not that the evidence supports the amount actually awarded, thus leaving the possibility that a guilty defendant may be unjustly punished.  Pp. 2338-2339.
(d) This Court has not hesitated to find proceedings violative of due process where a party has been deprived of a well-established common law protection against arbitrary and inaccurate adjudication.  See, e.g., Tumey  v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749.  Punitive damages pose an acute danger of arbitrary deprivation of property, since jury instructions typically leave the jury with wide discretion in choosing amounts and since evidence of a defendant's net worth creates the potential that juries will use their verdicts to express biases against big businesses.  Oregon has removed one of the few procedural safeguards which the common law provided against that danger without providing any substitute procedure and without any indication that the danger has in any way subsided over time.  Hurtado v. California, 110 U.S. 516, 538, 4 S.Ct. 111, 122, 28 L.Ed. 232;  International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 distinguished.  Pp. 2339- 2341.
(e) The safeguards that Oberg claims Oregon has provided--the limitation of punitive damages to the amount specified in the complaint, the clear and convincing standard of proof, preverdict determination of maximum allowable punitive damages, and detailed jury instructions--do not adequately safeguard against arbitrary awards.  Nor does the fact that a jury's arbitrary decision to acquit a defendant charged with a crime is unreviewable offer a historic basis for such discretion in civil cases.  The Due Process Clause says nothing about arbitrary grants of freedom, but its whole purpose is to prevent arbitrary deprivations of liberty or property.  Pp. 2341-2342.  316 Or. 263, 851 P.2d 1084 (1993), reversed and remanded.
  STEVENS, J., delivered the opinion of the Court, in which BLACKMUN, O'CONNOR,
 SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined.  SCALIA, J., filed a
 concurring opinion.  GINSBURG, J., filed a dissenting opinion, in which
 REHNQUIST, C.J., joined.

Weinberger v. Romero-Barcelo
(CITE AS: 456 U.S. 305, *305,  102 S.CT. 1798, **1799)

 The Navy, in the course of using an island off the Puerto Rico coast for air- to-ground weapons training, has discharged ordnance into the waters surrounding the island, when pilots missed land targets and accidentally bombed the waters or intentionally bombed water targets.  Respondents sued in Federal District Court to enjoin the Navy's operations, alleging violation of, inter alia, the Federal Water Pollution Control Act (FWPCA).  The District Court, while finding that the discharges have not harmed the quality of the water, held that the Navy had violated the FWPCA by discharging ordnance into the waters without first obtaining a permit from the Environmental Protection Agency, and ordered the Navy to apply for a permit but refused to enjoin the operations pending consideration of the permit application.  The Court of Appeals vacated and remanded with instructions to order the Navy to cease the violation until it obtained a permit, holding that the FWPCA withdrew the District Court's equitable discretion to order relief other than an immediate prohibitory injunction.
Held:  The FWPCA does not foreclose completely the exercise of a district court's discretion, but, rather than requiring the court to issue an injunction for any and all statutory violations, permits the court to **1800 order relief it considers necessary to secure prompt compliance with the Act, which relief can include, but is not limited to, an order of immediate cessation. Pp. 1802-1807.
(a) The grant of jurisdiction to a court to ensure compliance with a statute does not suggest an absolute duty to grant injunctive relief under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.  Pp. 1802-1803.
(b) Here, an injunction is not the only means of ensuring compliance, T. V. A. v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117, distinguished, since the FWPCA provides, for example, for fines and criminal penalties.  While the FWPCA's purpose in preserving the integrity of the Nation's waters is to be achieved by compliance with the Act, including compliance with the permit requirements, in this case the discharge of the ordnance has not polluted *306  the waters, and, although the District Court refused to enjoin the discharge, it neither ignored the statutory violation nor undercut the purpose and function of the permit system.  The FWPCA's prohibition against discharge of pollutants can be overcome by the very permit the Navy was ordered to seek.  Pp. 1803-1805.
c. The statutory scheme as a whole contemplates the exercise of discretion and balancing of equities, and suggests that Congress did not intend to deny courts the discretion to rely on remedies other than an immediate prohibitory injunction.  Pp. 1805-1806.
(d) The provision of the FWPCA permitting the President to exempt federal facilities from compliance with the permit requirements does not indicate congressional intent to limit the court's discretion.  The Act permits the exercise of a court's equitable discretion, whether the source of pollution is a private party or a federal agency, to order relief that will achieve compliance with the Act, whereas the exemption permits non-compliance by federal agencies in extraordinary circumstances.  Pp. 1806-1807.
(e) Nor does the legislative history suggest that Congress intended to deny courts their traditional equitable discretion.  Pp. 1806-1807.  643 F.2d 835 (1st Cir.), reversed and remanded.

4: STATUTES OF LIMITATIONS

Delaware State College v. Ricks
 (CITE AS: 449 U.S. 250,  101 S.CT. 498, **500)

  *250 The Board of Trustees of petitioner Delaware State College formally voted to deny tenure to respondent professor on the basis of recommendations of the College's tenure committee and Faculty Senate.  During the pendency of respondent's grievance before the Board's grievance committee, the Trustees on June 26, 1974, told him that pursuant to College policy he would be offered a 1-year "terminal" contract that would expire June 30, 1975.  Respondent signed the contract, and on September 12, 1974, the Board notified him that it had denied his grievance.  After the appropriate Delaware agency had waived its primary jurisdiction over respondent's employment discrimination charge under Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission (EEOC), on April 28, 1975, accepted his complaint for filing.  More than two years later, the EEOC issued a "right to sue" letter, and respondent filed this action in the District Court on September 9, 1977.  The complaint alleged, inter alia, that the College had discriminated against him on the basis of his national origin in violation of both Title VII and 42 U.S.C. s 1981.  Title VII requires that a complaint be filed with the EEOC within 180 days (300 days under certain circumstances) "after the alleged unlawful employment practice occurred," 42 U.S.C. s 2000e-5(e).  Under the applicable Delaware statute of limitations, cases under 42 U.S.C. s 1981 must be filed within three years of the unfavorable employment decision.  The District Court dismissed both the respondent's claims as untimely.  It held that the only unlawful employment practice alleged was the College's decision to deny respondent tenure, and that the limitations periods for both claims had commenced to run by June 26, 1974, when the Board officially notified him that he would be offered a 1-year "terminal" contract.  The Court of Appeals reversed, holding that the limitations period for both claims did not commence to run until the "terminal" contract expired on June 30, 1975.
Held :  Respondent's Title VII and s 1981 claims were untimely.  Pp. 503-506.
(a) The allegations of the complaint do not support respondent's "continuing violation" argument that discrimination motivated the College not only in denying him tenure but also in terminating his employment *251 on June 30, 1975.  The only discrimination alleged occurred-and the filing limitations periods therefore commenced-at the time the tenure decision was made and communicated to respondent.  This is so even though one of the effects of the denial of tenure-the eventual loss of a teaching position-did not occur until later.  Pp. 503-504.
(b) Nor can the final date of employment be adopted, for policy reasons and simplicity, as the date when the limitations **501 periods commenced.  Where, as here, the only challenged practice occurs before the date of termination of employment, the limitations periods necessarily commenced to run before that date.  Pp. 504-505.
c. The date when respondent was notified that his grievance had been denied, September 12, 1974, cannot be considered to be the date of the unfavorable tenure decision.  The Board had made clear well before then that it had formally rejected respondent's tenure bid, and entertaining a grievance complaining of the tenure decision does not suggest that the prior decision was in any respect tentative.  Nor does the pendency of a grievance, or some other method of collateral review of an employment decision, toll the running of the limitations periods, Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427.  Pp. 505-506.
(d) The District Court's conclusion that the limitations periods had commenced to run by June 26, 1974, when the Board notified respondent that he would be offered a "terminal" contract, was not erroneous.  In light of the earlier recommendations of the tenure committee and the Faculty Senate that respondent not receive tenure and the Board's formal vote to deny tenure, the conclusion that the College had established its official position-and made that position apparent to respondent-no later than June 26, 1974, was justified.  P. 506.  605 F.2d 710, reversed and remanded.

United States v. Kubrick
 (CITE AS: 444 U.S. 111, *111,  100 S.CT. 352, **353)

A provision of the Federal Tort Claims Act (FTCA), 28 U.S.C. s 2401(b), bars any tort claim against the United States unless it is presented in writing to the appropriate federal agency "within two years after such claim accrues." In 1968, several weeks after having an infected leg treated with neomycin (an antibiotic) at a Veterans' Administration (VA) hospital, respondent suffered a hearing loss, and in January 1969 was informed by a private physician that it was highly possible that the hearing loss was the result of the neomycin treatment.  Subsequently, in the course of respondent's unsuccessful administrative appeal from the VA's denial of his claim for certain veterans' benefits based on the allegation that the neomycin treatment had caused his deafness, another private physician in June **354 1971 told respondent that the neomycin had caused his injury and should not have been administered.  In 1972, respondent filed suit under the FTCA, alleging that he had been injured by negligent treatment at the VA hospital.  The District Court rendered judgment for respondent, rejecting the Government's defense that respondent's claim was barred by the 2-year statute of limitations because it had accrued in January 1969, when respondent first learned that his hearing loss had probably resulted from the neomycin, and holding that respondent had no reason to suspect negligence until his conversation with the second physician in June 1971, less than two years before the action was commenced.  The Court of Appeals affirmed, holding that if a medical malpractice claim does not accrue until a plaintiff is aware of his injury and its cause, neither should it accrue until he knows or should suspect that the doctor who caused the injury was legally blameworthy, and that here the limitations period was not triggered until the second physician indicated in June 1971 that the neomycin treatment had been improper.
Held:  A claim accrues within the meaning of s 2401(b) when the plaintiff knows both the existence and the cause of his injury, and not at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice.  Hence, respondent's claim accrued in *112 January 1969 when he was aware of his injury and its probable cause, and thus was barred by the 2- year statute of limitations.  Pp. 357-361.
(a) Section 2401(b) is the balance struck by Congress in the context of tort claims against the Government, and should not be construed so as to defeat its purpose of encouraging the prompt presentation of claims.  Moreover, s 2401(b), being a condition of the FTCA's waiver of the United States' immunity from suit, should not be construed to extend such waiver beyond that which Congress intended.  P. 357.
(b) There is nothing in the FTCA's language or legislative history that provides a substantial basis for the Court of Appeals' construction of s 2401(b).  Nor did the prevailing case law at the time the FTCA was passed lend support to the notion that tort claims in general or malpractice claims in particular do not accrue until a plaintiff learns that his injury was negligently inflicted.  P. 358.
c. For statute of limitations purposes, a plaintiff's ignorance of his legal rights and his ignorance of the fact of his injury or its cause should not receive equal treatment.  P. 359.
(d) A plaintiff such as respondent, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community, and to excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute.  Whether or not he is competently advised, or even whether he is advised, the putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort plaintiffs must make.  P. 360.  581 F.2d 1092, reversed.

III - THE LIMITED JURISDICTION OF HTE FEDERAL DISTRICT COURTS

1: JUDICIAL PROTECTION OF FEDERAL RIGHTS
Bivens v. Siz Unknown Named Agents of Federal Bureau of Narcotics
 (CITE AS: 403 U.S. 388,  91 S.CT. 1999, **2000)

 	 *388 Petitioner's complaint alleged that respondent agents of the Federal Bureau of Narcotics, acting under color of federal authority, made a warrantless entry of his apartment, searched the apartment, and arrested him on narcotics charges.  All of the acts were alleged to have been done without probable cause.  Petitioner's suit to recover damages from the agents was dismissed by the District Court on the alternative grounds (1) that it failed to state a federal cause of action and (2) that respondents were immune from suit by virtue of their official position.  The Court of Appeals affirmed on the first ground alone.
Held:
1.  Petitioner's complaint states a federal cause of action under the Fourth Amendment for which damages are recoverable upon proof of injuries resulting from the federal agents' violation of that Amendment.  P. 2005.
 2.  The Court does not reach the immunity question, which was not passed on by the Court of Appeals.  Pp. 2001--2005.  409 F.2d 718, reversed and remanded.

Cort v. Ash
 (CITE AS: 422 U.S. 66,  95 S.CT. 2080, **2081)

Respondent stockholder brought this action seeking damages in favor of petitioner **2082 Bethlehem Steel Corp., a Delaware corporation, and injunctive relief because of advertisements in connection with the 1972 Presidential election that petitioner corporate directors had authorized from general corporate funds in alleged violation of 18 U.S.C. s 610, which prohibits corporations from making contributions or expenditures in connection with specified federal elections. Respondent alleged jurisdiction under 28 U.S.C. s 1331 and sought to state a private claim for relief under 18 U.S.C. s 610, and also invoked pendent jurisdiction for an ultra vires claim under Delaware law. The District Court's denial of a preliminary injunction was upheld on appeal, following which respondent dropped the pendent claim rather than post security for expenses under state law before proceeding with that claim. The District Court then granted petitioners' motion for summary judgment. The Court of Appeals reversed, holding that the passage of the election had not mooted the case since damages were sought and that 'a private cause of action, whether brought by a citizen to secure injunctive relief or by a stockholder to secure injunctive or derivative damage relief (is) proper to remedy violation of s 610.' After the Court of Appeals decision Congress enacted the Federal Election Campaign Act Amendments of 1974 (hereinafter the Amendments), under which, inter alia, the Federal Election Commission can receive citizen complaints of statutory violations and where warranted request the Attorney General to seek injunctive action.
Held:
1. The Amendments constitute an intervening law that relegates to the Commission's cognizance respondent's complaint as citizen or stockholder for injunctive relief against any alleged violations of s 610 in future elections, since this Court must examine this case according to the law existing at the time of its decision. United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49; Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476. Pp. 2086--2087.
2. Respondent stockholder's derivative suit with regard to the alleged 1972 violation cannot be implied under 18 U.S.C. s 610, and respondent's remedy, if any, must be under Delaware's corporation law. Pp. 2087--2091.  (a) Section 610 was primarily concerned, not with the internal relations between corporations and stockholders, but with corporations as a source of aggregated wealth and therefore of potential corrupting influence; thus this statute differs from other criminal statutes in which private causes of action have been inferred because of a clearly articulated federal right in the plaintiff, e.g., Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, or a pervasive legislative scheme governing the relationship between the plaintiff class and the defendant class in a particular regard, e.g., J.I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423. Pp. 2087--2090.  (b) The legislative history of s 610 suggests no congressional intention to vest in corporate shareholders a federal right to damages for a violation of the statute. Pp. 2089--2091.  (c) A private remedy would not further the statutory purpose of dulling corporate influence on federal elections since any compelled repayment to the corporation might well not deter the initial violation. P. 2090.  (d) The cause of action is one traditionally relegated to state law in an area of primarily state concern. In addition to the ultra vires claim urged by respondent the alleged misuse of corporate funds might, under the law of some States, give rise to a cause of action for breach of a fiduciary duty. Pp. 2090--2091.  496 F.2d 416, reversed.

Filartiga v. Pena-Irala

2. SUPPLEMENTAL, PENDENT & ANCILLARY JURISDICTION

United Mine Workers of America v. Gibbs

Owen Equipment and Erection Co. v. Kroger
 (CITE AS: 437 U.S. 365,  98 S.CT. 2396, **2398)

 	Respondent, a citizen of Iowa, sued for damages based on the wrongful death of her husband, who was electrocuted when the boom of a steel crane next to which he was walking came too close to a high-tension electric power line.  The action was brought in federal court on the basis of diversity of citizenship against a Nebraska corporation (OPPD), whose negligent operation of the power line was alleged to have caused decedent's death.  OPPD then filed a third-party complaint against petitioner company which owned and operated the crane, alleging that petitioner's negligence proximately caused the death. Respondent was thereafter granted leave to amend her complaint by naming petitioner, which she alleged to be a Nebraska corporation with its principal place of business in Nebraska, as an additional defendant.  OPPD successfully moved for summary judgment, leaving petitioner as the sole defendant.  Though in its answer petitioner admitted that it was a corporation organized and existing under the laws of Nebraska, during trial it was disclosed that petitioner's principal place of business was in Iowa.  Since both parties were thus Iowa citizens, petitioner moved to dismiss on the basis of lack of federal jurisdiction.  After the jury had returned a verdict for respondent, the District Court denied petitioner's motion to dismiss.  The Court of Appeals affirmed, holding that under Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218, the District Court had jurisdictional power, in its discretion, to adjudicate the claim, which arose from the "core of 'operative facts' giving rise to both [respondent's] claim against OPPD and OPPD's claim against [petitioner]," and that the District Court had properly exercised its discretion because petitioner had concealed its Iowa citizenship from respondent.
Held:  The District Court had no power to entertain respondent's lawsuit against petitioner as a third-party defendant since diversity jurisdiction was lacking.  Gibbs, supra, distinguished.  Pp. 2401-2405.
 	(a) A finding that federal and nonfederal claims arise from a "common nucleus of operative fact," the Gibbs test, does not suffice to establish that a federal court has power to hear nonfederal as well as *366 federal claims, since, though the constitutional power to adjudicate the nonfederal claim may exist, it does not follow that statutory authorization has been granted.  Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276; Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511.  Pp. 2401-2402.
 	(b) Here the relevant statute, 28 U.S.C. s 1332(a)(1), which confers upon federal courts jurisdiction over civil actions where the amount in controversy exceeds $10,000 and is between citizens of different States, requires complete diversity of citizenship, and it is thus congressionally mandated that diversity jurisdiction is not available when any plaintiff is a citizen of the same State as any defendant, a situation that developed in this case when respondent amended her complaint.  Pp. 2402-2403.
c. Under the Court of Appeals' ancillary-jurisdiction theory a plaintiff could defeat the statutory requirement of complete diversity simply by suing only those defendants of diverse citizenship and waiting for them to implead nondiverse defendants.  P. 2403.
 (d) In determining whether jurisdiction over a nonfederal claim exists, the context in which that claim is asserted is crucial.  Here the nonfederal claim was simply not ancillary to the federal one, as respondent's claim against petitioner was entirely separate from her original claim against OPPD, and petitioner's liability to her did not depend at all upon whether or not OPPD was also liable.  Moreover, the nonfederal claim here was asserted by the plaintiff, who voluntarily chose to sue upon a state-law claim in federal court, whereas ancillary jurisdiction typically involves claims by a defendant party haled into court against his will, or by another person whose rights might be irretrievably lost unless he could assert them in an ongoing action in federal court.  Pp. 2403-2404.

Finley v. United States
 (CITE AS: 490 U.S. 545,  109 S.CT. 2003, **2004)

Petitioner's decedents were killed when their plane struck electric power lines on its approach to a city-run airfield in San Diego.  She filed the present action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. s 1346(b), claiming that the Federal Aviation Administration had been negligent in its operation and maintenance of runway lights and in its performance of air traffic control functions.  Petitioner subsequently moved to amend her complaint to add state tort-law claims against both the city and the utility company that maintained the power lines.  The District Court granted the motion and asserted "pendent" jurisdiction under Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218, concluding that "judicial economy and efficiency" favored trying the actions together, and that the claims arose "from a common nucleus of operative facts."  The Court of Appeals reversed on interlocutory appeal, categorically rejecting pendent-party jurisdiction under the FTCA.
Held:  The text of the FTCA--which provides in pertinent part that the federal district courts shall have jurisdiction over "civil actions on claims against the United States"--defines jurisdiction in a manner that does not reach defendants other than the United States.  This Court's decision in Aldinger  v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276, made explicit the nontransferability of Gibbs to the context of pendent-party jurisdiction. Aldinger, Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511, and Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274, establish that a grant of jurisdiction over claims involving particular parties does not confer jurisdiction over additional claims by or against different parties, even if consideration of the additional claims would promote "judicial economy and efficiency," and all of the claims "derive from a common nucleus of operative fact."  Nor do the circumstances here suffice to establish "ancillary" jurisdiction.  The unavailability of jurisdiction over the additional claims is unaltered by the exclusivity of federal jurisdiction under the FTCA, even though that may sometimes require separate **2005 suits in state and federal court.  Finally, the 1948 revision of the Judicial Code, which changed the relevant language of the FTCA from "any claim against the United States" to its present form, does not suggest an affirmative grant of pendent-party jurisdiction, but is more naturally understood as a stylistic *546 change reflecting the terminology of the Federal Rules of Civil Procedure.  See Fed.Rule Civ.Proc. 2.  Pp. 2005-2011.
  Affirmed.
  SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined.  BLACKMUN, J., filed a dissenting opinion, post, p. 2011.  STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 2012.

IV - JOINDER OF CLAIMS AND PARTIES

Hansberry v. Lee

Eisen v. Carlisle & Jaquelin
 (CITE AS: 417 U.S. 156, *156,  94 S.CT. 2140, **2142)

Petitioner brought a class action under Fed.Rule Civ.Proc. 23 on behalf of himself and all odd-lot traders on the New York Stock Exchange for a certain four-year period, charging respondent brokerage firms, which handled 99% of the Exchange's odd-lot business, and respondent Exchange with violating the antitrust and securities laws.  There followed a series of decisions by the District Court and the Court of Appeals.  The District Court ultimately decided that the suit could be maintained as a class action, and, after finding that some two and a quarter million members of the prospective class could be identified by name and address with reasonable effort and that it would cost $225,000 to send individual notice to all of them, proposed a notification scheme providing for individual notice to only a limited number of prospective class members and notice by publication to the remainder.  The District Court then held a preliminary hearing on the merits, and after finding that petitioner was 'more than likely' to prevail at trial, ruled that respondents should bear 90% of the costs of the notification scheme.  The Court of Appeals reversed and ordered the suit dismissed as a class action, disapproving the District Court's partial reliance on publication notice.  The Court of Appeals held that Rule 23(c)(2) required individual notice to all identifiable class members; that the District Court had no authority to hold a preliminary hearing on the merits for the purpose of allocating notice costs; that the entire notice expense should fall on petitioner; and that the proposed class action was unmanageable under Rule 23(b)(3)(D).  Petitioner contends **2143 that the Court of Appeals had no jurisdiction to review the District Court's orders, and further, that the Court of Appeals decided the above issues incorrectly.
Held:
1.  The District Court's resolution of the notice problems constituted a 'final' decision within the meaning of 28 U.S.C. s 1291 and was therefore appealable as of right under that section. Pp. 2148--2150.  (a) Section 1291 does not limit appellate review to 'those *157 final judgments which terminate an action . . .,' but rather the requirement of finality is to be given a 'practical rather than a technical construction.' Cohen v. Beneficial Indus.  Loan Corp., 337 U.S. 541, 545--546, 69 S.Ct. 1221, 1225--1226, 93 L.Ed. 1528.  Pp. 2149--2150.
  (b) The District Court's decision that respondents could lawfully be required to bear the costs of notice involved a collateral matter unrelated to the merits of petitioner's claims and was 'a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it,' Cohen, supra, at 546--547, 69 S.Ct., at 1225--1226. P. 2150.
2.  The District Court's resolution of the notice problems failed to comply with the notice requirement of Rule 23(c)(2).  Pp. 2150--2152.  (a) The express language and intent of Rule 23(c)(2) leave no doubt that individual notice must be sent to all class members who can be identified through reasonable effort, Here there was nothing to show that individual notice could not be mailed to each of the two and a quarter million class members whose names and addresses were easily ascertainable, and for these class members individual notice was clearly the 'best notice practicable' within the meaning of Rule 23(c)(2).  Pp. 2150--2151.  (b) The facts that the cost of sending individual notices would be prohibitively high to petitioner, who has only a $70 stake in the matter, or that individual notice might be unnecessary because no prospective class member has a large enough stake to justify separate litigation of his individual claim, do not dispense with the individual-notice requirement, since individual notice to identificable class members is not a discretionary consideration to be waived in a particular case but an unambiguous requirement of Rule 23.  Pp. 2151--2152.  (c) Adequate representation in itself does not satisfy Rule 23(c)(2), since the Rule speaks to notice as well as to adequacy of representation and requires that both be provided.  Otherwise no notice at all, published or otherwise, would be required in this case.  P. 2152.
3.  Petitioner must bear the cost of notice to the members of his class, and it was improper for the District Court to impose part of the cost on respondents.  Pp. 2152--2153.  (a) There is nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether *158 it may be maintained as a class action, and, indeed, such a procedure contravenes the Rule by allowing a representative plaintiff to secure the benefits of a class action without first satisfying the requirements of the Rule. Pp. 2152--2153.  (b) A preliminary determination of the merits may substantially prejudice a defendant, since it is unaccompanied by the traditional rules and procedures applicable to civil trials.  P. 2153. (c) Where, as here, the relationship between the parties is truly adversary, the plaintiff must pay for the cost of notice as part of the ordinary burden of financing his own suit.  P. 2153.
Vacated and remanded.

V. LIMITS ON FEDERAL JUDICIAL POWER: CASE OR CONTROVERSY

Warth v. Seldin
 (CITE AS: 422 U.S. 490,  95 S.CT. 2197, **2200)

This action for declaratory and injunctive relief and damages was brought by certain of the petitioners against respondent town of Penfield (a suburb of Rochester, N.Y.), and respondent members of Penfield's Zoning, Planning, and Town Boards, claiming that the town's **2201 zoning ordinance, by its terms and as enforced, effectively excluded persons of low and moderate income from living in the town, in violation of petitioners' constitutional rights and of 42 U.S.C. ss 1981, 1982, and 1983. Petitioners consist of both the original plaintiffs--(1) Metro-Act of Rochester, a not-for-profit corporation among whose purposes is fostering action to alleviate the housing shortage for low- and moderate-income persons in the Rochester area; (2) several individual Rochester taxpayers; and (3) several Rochester area residents with low or moderate incomes who are also members of minority racial or ethnic groups--and Rochester Home Builders Association (Home Builders), embracing a number of residential construction firms in the Rochester area, which unsuccessfully sought to intervene as a party-plaintiff, and the Housing Council in the Monroe County Area (Housing Council), a not-for-profit corporation consisting of a number of organization interested in housing problems, which was unsuccessfully sought to be added as a party-plaintiff. The District Court dismissed the complaint on the ground, inter alia, that petitioners lacked standing to prosecute the action, and the Court of Appeals affirmed. Held: Whether the rules of standing are considered as aspects of the constitutional requirement that a plaintiff must make out a 'case or controversy' within the meaning of Art. III, or, apart from such requirement, as prudential limitations on the courts' role in resolving disputes involving 'generalized grievances' or third parties' legal rights or interests, none of the petitioners has met the threshold requirement of such rules that to have standing a complainant must clearly allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers. Pp. 2205--2215.
  *491 (a) As to petitioner Rochester residents who assert standing as persons of low or moderate income and, coincidentally, as members of minority racial or ethnic groups, the facts alleged fail to support an actionable causal relationship between Penfield's zoning practices and these petitioners' alleged injury. A plaintiff who seeks to challenge exclusionary zoning practices must allege specific, concrete facts demonstrating that such practices harm him, and that he personally would benefit in a tangible way from the court's intervention. Here, these petitioners rely on little more than the remote possibility, unsubstantiated by allegations of fact, that their situation might have been better had respondents acted otherwise, and might improve were the court to afford relief. Pp. 2207--2210.
  (b) With respect to petitioners who assert standing on the basis of their status as Rochester taxpayers, claiming that they are suffering economic injury through increased taxes resulting from Penfield's zoning practices having forced Rochester to provide more taxabated low- or moderate-cost housing than it otherwise would have done, the line of causation between Penfield's actions and such injury is not apparent. But even assuming that these petitioners could establish that the zoning practices harm them, the basis of their claim is that the practices violate the constitutional and statutory rights of third parties--persons of low and moderate income who allegedly are excluded from Penfield. Hence, their claim falls squarely within the prudential standing rule that normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves. Pp. 2210--2211.
  (c) Petitioner Metro-Act's claims to standing as a Rochester taxpayer and on behalf of its members who are Rochester taxpayers or persons of low or moderate income, are precluded for the reasons applying to the denial of standing to the individual petitioner Rochester taxpayers and persons of low and moderate income. In addition, with respect to Metro-Act's claim to standing because 9% **2202 of its membership is composed of Penfield residents, prudential considerations strongly counsel against according such residents or Metro-Act standing, where the complaint is that they have been harmed indirectly by the exclusion of others, thus attempting, in the absence of a showing of any exception allowing such a claim, to raise the putative rights of third parties. Trafficante v. Metro-politan Life Ins., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415, distinguished. Pp. 2212--2213.
  *492 (d) Petitioner Home Builders, which alleges no monetary injury to itself, has no standing to claim damages on behalf of its members, since whatever injury may have been suffered is peculiar to the individual member concerned, thus requiring individualized proof of both the fact and extent of injury and individual awards. Nor does Home Builders have standing to claim prospective relief, absent any allegation of facts sufficient to show the existence of any injury to members of sufficient immediacy and ripeness to warrant judicial intervention. Pp. 2213--2214.
  (e) Petitioner Housing Council has no standing, where the complaint and record do not indicate that any of its members, with one exception, has made any effort involving Penfield, has taken any steps toward building there, or had any dealings with respondents. With respect to the one exception, this petitioner averred no basis for inferring that an earlier controversy between it and respondents remained a live, concrete dispute. Pp. 2214--2215.
Affirmed.

City of Los Angeles v. Lyons
(CITE AS: 461 U.S. 95,  103 S.CT. 1660, **1661)

 	Respondent filed suit in Federal District Court against petitioner city of Los Angeles and certain of its police officers, alleging that in 1976 he was stopped by the officers for a traffic violation and that although he offered no resistance, the officers, without provocation or justification, seized him and applied a "chokehold," rendering him unconscious and causing damage to his larynx.  In addition to seeking damages, the complaint sought injunctive relief against petitioner, barring the use of chokeholds except in situations where the proposed victim reasonably appeared to be threatening the immediate use of deadly force.  It was alleged that, pursuant to petitioner's authorization, police officers routinely applied chokeholds in situations where they were not threatened by the use of any deadly force;  that numerous persons had been injured as a result thereof;  that respondent justifiably feared that any future contact he might have with police officers might again result in his being choked without provocation;  and that there was thus a threatened impairment of various rights protected by the Federal Constitution.  The District Court, on the basis of the pleadings, ultimately entered a preliminary injunction against the use of chokeholds under circumstances that did not threaten death or serious bodily injury.  The Court of Appeals affirmed.
Held:
1. The case is not rendered moot even though while it was pending in this Court, city police authorities prohibited use of a certain type of chokehold in any circumstances and imposed a 6-month moratorium on the use of another type of chokehold except under circumstances where deadly force was authorized.  The moratorium by **1662 its terms was not permanent, and thus intervening events have not irrevocably eradicated the effects of the alleged misconduct.  Pp. 1664-1665.
2. The federal courts are without jurisdiction to entertain respondent's claim for injunctive relief.  O'Shea v. Littleton, Rizzo v. Goode,   (a) To satisfy the "case or controversy" requirement of Art. III, a plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct, and the injury or threat of injury must be "real and immediate," not "conjectural" or "hypothetical."  "Past exposure to illegal conduct *96 does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects."  O'Shea, supra, 414 U.S., at 495-496, 94 S.Ct., at 675-676.  Pp. 1665-1666.   (b) Respondent has failed to demonstrate a case or controversy with petitioner that would justify the equitable relief sought.  That respondent may have been illegally choked by the police in 1976, while presumably affording him standing to claim damages against the individual officers and perhaps against petitioner, does not establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer who would illegally choke him into unconsciousness without any provocation.  If chokeholds were authorized only to counter resistance to an arrest by a suspect, or to thwart an effort to escape, any future threat to respondent from petitioner's policy or from the conduct of police officers would be no more real than the possibility that he would again have an encounter with the police and that he would either illegally resist arrest or the officers would disobey their instructions and again render him unconscious without any provocation. The equitable doctrine that cessation of the challenged conduct (here the few seconds while the chokehold was being applied to respondent) does not bar an injunction is not controlling, since respondent's lack of standing does not rest on the termination of the police practice but on the speculative nature of his claim that he will again experience injury as the result of that practice even if continued.  The rule that a claim does not become moot where it is capable of repetition, yet evades review, is likewise inapposite.  Pp. 1667- 1670.
  (c) Even assuming that respondent's pending damages suit affords him Art. III standing to seek an injunction as a remedy for the claim arising out of the 1976 events, nevertheless the equitable remedy is unavailable because respondent failed to show irreparable injury--a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again.  Nor will respondent's injury allegedly suffered in 1976 go unrecompensed;  for that injury he has an adequate damages remedy at law. Recognition of the need for a proper balance between state and federal authority counsels restraint in the issuance of injunctions against state officers engaged in the administration of the State's criminal laws in the absence of irreparable injury which is both great and immediate.  Pp. 1670- 1671.
Reversed.

VI - LIMITS OF FEDERAL JUDICIAL POWER 

1: BASES OF PERSONAL JURISDICTION

Shaffer v. Heitner
(CITE AS: 433 U.S. 186,  97 S.CT. 2569, **2570)

Appellee, a nonresident of Delaware, filed a shareholder's derivative suit in a Delaware Chancery Court, naming as defendants a corporation and its subsidiary, as well as 28 present or former corporate officers or directors, alleging that the individual defendants had violated their duties to the corporation by causing it and its subsidiary to engage in actions (which occurred in Oregon) that resulted in corporate liability for substantial damages in a private antitrust suit and a large fine in a criminal contempt action. Simultaneously, appellee, pursuant to Del.Code Ann., Tit. 10, s 366 (1975), filed a motion for sequestration of the Delaware property of the individual defendants, all nonresidents of Delaware, accompanied by an affidavit identifying the property to be sequestered as stock, options, warrants, and various corporate rights of the defendants. A sequestration order was issued pursuant to which shares and options belonging to 21 defendants (appellants) were "seized" and "stop transfer" orders were placed on the corporate books. Appellants entered a special appearance to quash service of process and to vacate the sequestration order, contending that the ex parte sequestration procedure did not accord them due process; that the property seized was not capable of attachment in Delaware; and that they did not have sufficient contacts with Delaware to sustain jurisdiction of that State's courts under the rule of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. In that case the Court (after noting that the historical basis of in personam jurisdiction was a court's power over the defendant's person, making his presence within the court's territorial jurisdiction a prerequisite to its rendition of a personally binding judgment against him, Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565) held that that power was no longer the central concern and that "due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice' " (and thus the focus shifted to the relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States on which the rules of Pennoyer had rested). The Court of Chancery, rejecting appellants' arguments, upheld the s 366 procedure of compelling the *187 personal appearance of a nonresident defendant to answer and defend a suit brought against him in a court of equity, which is accomplished by the appointment of a sequestrator to seize and hold the property of the nonresident located in Delaware subject to court order, with release of the property being made upon the defendant's entry of a general appearance. The court held that the limitation on the purpose and length of time for which sequestered property is held comported with due process and that the statutory situs of the stock (under a provision making Delaware the situs of ownership of the capital stock of all corporations existing under the laws of that State) provided a sufficient basis for the exercise of quasi in rem jurisdiction by a Delaware court. The Delaware Supreme Court affirmed, concluding that International Shoe raised no constitutional barrier to the sequestration procedure because "jurisdiction under s 366 remains . . . quasi in rem founded on the presence of capital stock (in Delaware), not on prior contact by defendants with this forum."
Held:
1. Whether or not a State can assert jurisdiction over a nonresident must be evaluated according to the minimum-contacts standard of International Shoe Co. v. Washington, supra. Pp. 2581-2585.
  (a) In order to justify an exercise of jurisdiction in rem, the basis for jurisdiction **2571 must be sufficient to justify exercising "jurisdiction over the interests of persons in the thing." The presence of property in a State may bear upon the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation, as for example, when claims to the property itself are the source of the underlying controversy between the plaintiff and defendant, where it would be unusual for the State where the property is located not to have jurisdiction. Pp. 2581-2582.
  (b) But where, as in the instant quasi in rem action, the property now serving as the basis for state-court jurisdiction is completely unrelated to the plaintiff's cause of action, the presence of the property alone, i. e., absent other ties among the defendant, the State, and the litigation, would not support the State's jurisdiction. Pp. 2582-2583.
  (c) Though the primary rationale for treating the presence of property alone as a basis for jurisdiction is to prevent a wrongdoer from avoiding payment of his obligations by removal of his assets to a place where he is not subject to an in personam suit, that is an insufficient justification for recognizing jurisdiction without regard to whether the property is in the State for that purpose. Moreover, the availability of attachment procedures and the protection of the Full Faith and Credit Clause, also militate against that rationale. P. 2583.
  (d) *188 The fairness standard of International Shoe can be easily applied in the vast majority of cases. P. 2584.
  (e) Though jurisdiction based solely on the presence of property in a State has had a long history, "traditional notions of fair play and substantial justice" can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that do not comport with the basic values of our constitutional heritage. Cf. Sniadach v. Family Finance Corp.,  Wolf v. Colorado .
2. Delaware's assertion of jurisdiction over appellants, based solely as it is on the statutory presence of appellants' property in Delaware, violates the Due Process Clause, which "does not contemplate that a state may make binding a judgment . . . against an individual or corporate defendant with which the state has no contacts, ties, or relations." International Shoe, supra, 326 U.S., at 319, 66 S.Ct., at 160. Pp. 2585-2587.
  (a) Appellants' holdings in the corporation, which are not the subject matter of this litigation and are unrelated to the underlying cause of action, do not provide contacts with Delaware sufficient to support jurisdiction of that State's courts over appellants. P. 2585.
  (b) Nor is Delaware state-court jurisdiction supported by that State's interest in supervising the management of a Delaware corporation and defining the obligations of its officers and directors, since Delaware bases jurisdiction, not on appellants' status as corporate fiduciaries, but on the presence of their property in the State. Moreover, sequestration has been available in any suit against a nonresident whether against corporate fiduciaries or not. Pp. 2585-2586.
  (c) Though it may be appropriate for Delaware law to govern the obligations of appellants to the corporation and stockholders, this does not mean that appellants have "purposefully avail(ed themselves) of the privilege of conducting activities within the forum State," Hanson v. Denckla. Appellants, who were not required to acquire interests in the corporation in order to hold their positions, did not by acquiring those interests surrender their right to be brought to judgment in the States in which they had "minimum contacts." Pp. 2586-2587.
Reversed.

Calder v. Jones
 (CITE AS: 465 U.S. 783, *783,  104 S.CT. 1482, **1483)

 	Respondent, a professional entertainer who lives and works in California and whose television career was centered there, brought suit in California Superior Court, claiming that she had been libeled in an article written and edited by petitioners in Florida and published in the National Enquirer, a national magazine having its largest circulation in California.  Petitioners, both residents of Florida, were served with process by mail in Florida, and, on special appearances, moved to quash the service of process for lack of personal jurisdiction.  The Superior Court granted the motion on the ground that First Amendment concerns weighed against an assertion of jurisdiction otherwise proper under the Due Process Clause of the Fourteenth Amendment.  The California Court of Appeal reversed, holding that a valid basis for jurisdiction existed on the theory that petitioners intended to, and did, cause tortious injury to respondent in California.
Held:
1. Jurisdiction by appeal does not lie, but under 28 U.S.C. s 2103 the jurisdictional statement will be treated as a petition for certiorari, which is hereby granted.  P. 1486.
2. Jurisdiction over petitioners in California is proper because of their intentional conduct in Florida allegedly calculated to cause injury to respondent in California.  Pp. 1486 - 1488.
  **1484 (a) The Due Process Clause permits personal jurisdiction over a defendant in any State with which the defendant has "certain minimum contacts ... such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' "  International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).  In judging minimum contacts, a court properly focuses on "the relationship among the defendant, the forum, and the litigation."  Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977).  P. 1486.
  (b) Here, California is the focal point both of the allegedly libelous article and of the harm suffered.  Jurisdiction over petitioners is therefore proper in California based on the "effects" of their Florida conduct in California.  P. 1486.
  (c) Petitioners are not charged with mere untargeted negligence, but rather their intentional, and allegedly tortious, actions were expressly aimed at California.  They wrote and edited an article that they *784 knew would have a potentially devastating impact upon respondent, and they knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the magazine has its largest circulation.  Under these circumstances, petitioners must "reasonably anticipate being haled into court there" to answer for the truth of the statements made in the article.  P. 1487.
  (d) While petitioners' contacts with California are not to be judged according to their employer's activities there, their status as employees does not insulate them from jurisdiction, since each defendant's contact with the forum State must be assessed individually.  P. 1487.
  (e) First Amendment concerns do not enter into the jurisdictional analysis. Such concerns would needlessly complicate an already imprecise inquiry. Moreover, the potential chill on protected First Amendment activity stemming from defamation actions is already taken into account in the constitutional limitations on the substantive law governing such actions.  P. 1487.
Affirmed.

Burger King Corp. v. Rudzewicz
 (CITE AS: 471 U.S. 462,  105 S.CT. 2174, **2176)

Appellant is a Florida corporation whose principal offices are in Miami.  It conducts most of its restaurant business through a franchise operation, under which franchisees are licensed to use appellant's trademarks and service marks in leased standardized restaurant facilities for a period of 20 years.  The governing contracts provide that the franchise relationship is established in Miami and governed by Florida law, and call for payment of all required monthly fees and forwarding of all relevant notices to the Miami headquarters.  The Miami headquarters sets policy and works directly with the franchisees in attempting to resolve major problems.  Day-to-day monitoring of franchisees, however, is conducted through district offices that in turn report to the Miami headquarters.  Appellee is a Michigan resident who, along with another Michigan resident, entered into a 20-year franchise contract with appellant to operate a restaurant in Michigan.  Subsequently, when the restaurant's patronage declined, the franchisees fell behind in their monthly payments.  After extended negotiations among the franchisees, the Michigan district office, and the Miami headquarters proved unsuccessful in solving **2177 the problem, headquarters terminated the franchise and ordered the franchisees to vacate the premises.  They refused and continued to operate the restaurant.  Appellant then brought a diversity action in Federal District Court in Florida, alleging that the franchisees had breached their franchise obligations and requesting damages and injunctive relief.  The franchisees claimed that, because they were Michigan residents and because appellant's claim did not "arise" within Florida, the District Court lacked personal jurisdiction over them.  But the court held that the franchisees were subject to personal jurisdiction pursuant to Florida's long-arm statute, which extends jurisdiction to any person, whether or not a citizen or resident of the State, who breaches a contract in the State by failing to perform acts that the contract requires to be performed there.  Thereafter, the court entered judgment against the franchisees on the merits.  The Court of Appeals reversed, holding that "[j]urisdiction under these circumstances would offend the fundamental fairness which is the touchstone of due process."
Held:  The District Court's exercise of jurisdiction pursuant to Florida's long-arm statute did not violate the Due Process Clause of the Fourteenth Amendment.  Pp. 2181-2190.
  *463 (a) A forum may assert specific jurisdiction over a nonresident defendant where an alleged injury arises out of or relates to actions by the defendant himself that are purposefully directed toward forum residents, and where jurisdiction would not otherwise offend "fair play and substantial justice."  Jurisdiction in these circumstances may not be avoided merely because the defendant did not physically enter the forum.  Pp. 2181-2185.
  (b) An individual's contract with an out-of-state party cannot alone automatically establish sufficient minimum contacts in the other party's home forum.  Instead, the prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing, must be evaluated to determine whether a defendant purposefully established minimum contacts within the forum.  Pp. 2185-2186.
  (c) Here, appellee established a substantial and continuing relationship with appellant's Miami headquarters, and received fair notice from the contract documents and the course of dealings that he might be subject to suit in Florida.  The District Court found that appellee is an "experienced and sophisticated" businessman who did not act under economic duress or disadvantage imposed by appellant, and appellee has pointed to no other factors that would establish the unconstitutionality of Florida's assertion of jurisdiction.
Reversed and remanded.

2: LITIGATING PERSONAL JURISDICTION

Insurance Company of Ireland Ltd. v. Compagnie de Bauxites de Guinee
 (CITE AS: 456 U.S. 694, *694,  102 S.CT. 2099, **2100)

Federal Rule of Civil Procedure 37(b)(2)(A) provides that a district court, as a sanction for failure to comply with discovery orders, may enter "[a]n order that the matters regarding which the [discovery] order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order." Asserting diversity jurisdiction, respondent, a Delaware corporation with its principal place of business in the Republic of Guinea, filed suit against various insurance companies in the United States District Court for the Western District of Pennsylvania to recover on a business interruption policy.  When certain of the defendants (a group of foreign insurance companies, including petitioners) raised the defense of lack of personal jurisdiction, respondent attempted to use discovery in order to establish jurisdictional facts.  After petitioners repeatedly failed to comply with the court's orders for production of the requested information, the court warned them that unless they complied by a specified date, it would assume, pursuant to Rule 37(b)(2)(A), that it had personal jurisdiction.  When petitioners again failed to comply, the court imposed the sanction, and the Court of Appeals affirmed, concluding that imposition of the sanction fell within the trial court's discretion under Rule 37(b)(2)(A) and that the sanction did not violate petitioners' due process rights.
Held:
1. Rule 37(b)(2)(A) may be applied to support a finding of personal jurisdiction without violating due process.  Unlike subject-matter jurisdiction, which is an Art. III as well as a statutory requirement, the requirement that a court have personal jurisdiction flows from the Due Process Clause and protects an individual liberty interest.  Because it protects an individual interest, it may be intentionally waived, or for various reasons a defendant may be estopped from raising the issue.  Due process is violated by a rule establishing legal consequences of a failure to produce evidence only if the defendant's behavior will not support the presumption that "the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in *695     the asserted defense." Hammond Packing Co. v. Arkansas.  A proper application of Rule 37(b)(2)(A) will, as a matter of law, support such a presumption.  Pp. 2103-2107.
2. The District Court did not abuse its discretion in applying Rule 37(b)(2)(A) in this case.  The record establishes that imposition of the sanction here satisfied the Rule's requirements that the sanction be both "just" and specifically related to the particular "claim" that was at issue in the discovery order. 
Affirmed.

3: INTERNATIONAL LITIGATION

Asahi Metal Industry Co. v. Superior Court
 (CITE AS: 480 U.S. 102, *102,  107 S.CT. 1026, **1026)

Petitioner manufactures tire valve assemblies in Japan and sells them to several tire manufacturers, including Cheng Shin Rubber Industrial Co. (Cheng Shin).  The sales to Cheng Shin, which amounted to at least 100,000 assemblies annually from 1978 to 1982, took place in Taiwan, to which the assemblies were shipped from Japan.  Cheng Shin incorporates the assemblies into its finished tires, which it sells throughout the world, including the United States, where 20 percent of its sales take place in California.  Affidavits indicated that petitioner was aware that tires incorporating its assemblies would end up in California, but, on the other hand, that it never contemplated that its sales to Cheng Shin in Taiwan would subject it to lawsuits in California. Nevertheless, in 1979, a  product liability suit was brought in California Superior Court arising from a motorcycle accident allegedly caused by defects in a tire manufactured by Cheng Shin, which in turn filed a cross- complaint seeking indemnification from petitioner.  Although the main suit was eventually settled and dismissed, the Superior Court denied petitioner's motion to quash the summons issued against it.  The State Court of Appeal then ordered that the summons be quashed, but the State Supreme Court reversed, finding that petitioner's intentional act of placing its assemblies into the stream of commerce by delivering them to Cheng Shin in Taiwan, coupled with its awareness that some of them would eventually reach California, were sufficient to support state court jurisdiction under the Due Process Clause.
Held:  The judgment is reversed, and the case is remanded.  Justice O'CONNOR, delivered the opinion of the Court as to Parts I and II-B, concluding that the state court's exercise of personal jurisdiction over petitioner would be unreasonable and unfair in violation of the Due Process Clause.  Pp. 1033-1034.
  (a) The burden imposed on petitioner by the exercise of state court jurisdiction would be severe, since petitioner would be required not only to traverse the distance between Japan and California, but also to submit its dispute with Cheng Shin to a foreign judicial system.  Such unique burdens should have significant weight in assessing the reasonableness of extending personal jurisdiction over national borders.  Pp. 1033-1034.
  (b) The interests of Cheng Shin and the forum State in the exercise of jurisdiction over petitioner would be slight, and would be insufficient to justify the heavy burdens placed on petitioner.  The only surviving question is whether a Japanese corporation should indemnify a Taiwanese corporation on the bases of a sale made in Taiwan and a shipment of goods from Japan to Taiwan. The facts do not demonstrate that it would be more convenient for Cheng Shin to litigate its claim in California rather than in Taiwan or Japan, while California's interests are diminished by Cheng Shin's lack of a California residence and by the fact that the dispute is primarily about indemnity rather than the safety of consumers.  While the possibility of being sued in California might create an additional deterrent to petitioner's manufacture of unsafe assemblies, the same effect would result from pressures placed on petitioner by Cheng Shin, whose California sales would subject it to state tort law.  P. 1034.
  (c) The procedural and substantive policies of other nations whose interests are affected by the forum State's assertion of jurisdiction over an alien defendant must be taken into account, and great care must be exercised when considering personal jurisdiction in the international context.  Although other nations' interests will differ from case to case, those interests, as well as the Federal Government's interest in its foreign relations policies, will always be best served by a careful inquiry into the reasonableness of the particular assertion of jurisdiction, and an unwillingness to find an alien defendant's serious burdens outweighed where, as here, the interests of the plaintiff and the forum State are minimal.  P. 1034.
Justice O'CONNOR, joined by THE CHIEF JUSTICE, Justice POWELL, and Justice SCALIA, concluded in Parts II-A and III that, even assuming, arguendo, that petitioner was aware that some of the assemblies it sold to Cheng Shin would be incorporated into tires sold in California, the facts do not establish minimum contacts sufficient to render the State's exercise of personal jurisdiction consistent with fair play and substantial justice as required by the Due Process Clause.  Since petitioner does not do business, have an office, agents, employees, or property, or advertise or solicit business in California, and since it did not create, control, or employ the distribution system that brought its assemblies to, or design them in anticipation of sales in, California, it did not engage **1028 in any action to purposely avail itself of the California market.  The "substantial connection" between a defendant and the forum State necessary for a finding of minimum contacts must derive from an action purposely directed toward the forum State, and the mere placement of a product *104 into the stream of commerce is not such an act, even if done with an awareness that the stream will sweep the product into the forum State absent additional conduct indicating an intent to serve the forum state market.  
Justice BRENNAN, joined by Justice WHITE, Justice MARSHALL, and Justice BLACKMUN, agreed with the Court's conclusion in Part II-B that the exercise of jurisdiction over petitioner would not comport with "fair play and substantial justice," but disagreed with the Part II-A's interpretation of the stream-of- commerce theory, and with the conclusion that petitioner did not purposely avail itself of the California market.  As long as a defendant is aware that the final product is being marketed in the forum State, jurisdiction premised on the placement of a product into the stream of commerce is consistent with the Due Process Clause, and no showing of additional conduct is required. Here, even though petitioner did not design or control the distribution system that carried its assemblies into California, its regular and extensive sales to a manufacturer it knew was making regular sales of the final product in California were sufficient to establish minimum contacts with California.  Pp. 1035-1037.
Justice STEVENS, joined by Justice WHITE and Justice BLACKMUN, agreed that the California Supreme Court's judgment should be reversed for the reasons stated in Part II-B of the Court's opinion, but did not join Part II-A, for the reasons that (1) the Court's holding that the State's exercise of jurisdiction over petitioner would be "unreasonable and unfair" alone requires reversal, and renders any examination of minimum contacts unnecessary;  and (2) even assuming that the "purposeful availment" test should be formulated here, Part II-A misapplies it to the facts of this case since, in its dealings with Cheng Shin, petitioner has arguably engaged in a higher quantum of conduct than the mere placement of a product into the stream of commerce.  P. 1038.
O'CONNOR, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Part I, the opinion of the Court with respect to Part II-B, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined, and an opinion with respect to Parts II-A and III, in which REHNQUIST, C.J., and POWELL and SCALIA, JJ., joined.  BRENNAN, J., filed an opinion concurring in part and concurring in the judgment, in which WHITE, MARSHALL, and BLACKMUN, JJ., joined, post.
STEVENS, J., filed an opinion concurring in part and concurring in the judgment, in which WHITE and BLACKMUN, JJ., joined, post, p. ---.  *105 Graydon Shaw Staring, San Francisco, Cal., for petitioner.
  Ronald R. Haven, Sacramento, Cal., for respondent.

4: THE REQUIREMENT OF NOTICE
Greene v. Lindsey
 (CITE AS: 456 U.S. 444, *444,  102 S.CT. 1874, **1875)

A Kentucky statute permits service of process in forcible entry or detainer actions to be made by posting a summons "in a conspicuous place on the premises," if the defendant or a member of the defendant's family over 16 years of age cannot be found on the premises.  Service of process under this statute was made on appellee tenants in a public housing project by posting a summons on the door of each of their apartments.  Appellees claim that they never saw the summonses and did not know of the eviction proceedings until they were served with writs of possession, executed after default judgments had been entered against them and their opportunity for appeal had lapsed.  They then filed a class action in Federal District Court against appellant public officials, seeking declaratory and injunctive relief under 42 U.S.C. s 1983 and alleging that the notice procedures employed violated the Due Process Clause of the Fourteenth Amendment.  The District Court granted summary judgment for appellants, holding that such notice procedures did not deny due process.  The Court of Appeals reversed.
Held :  In failing to afford appellees adequate notice of the proceedings against them before issuing final orders of eviction, the State deprived them of property without due process of law required by the Fourteenth Amendment.
(a) "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co.
(b) In light of the fact that appellees were deprived of a significant interest in property and, indeed, of the right to continued residence in their homes, it does not suffice to recite that because the action was in rem, it was only necessary to serve notice "upon the thing itself."  The sufficiency of the notice must be tested with reference to its ability to inform people of the pendency of proceedings that affect their interests.  Pp. 1878-1879.
c. Notices posted on the doors of tenants' apartments were "not infrequently" removed before they could be seen by the tenants.  Whatever *445 the efficacy of posting notice on a door of a person's home in many cases, it is clear that, in the circumstances of this case, merely posting notice on the apartment door did not satisfy minimum standards of due process.  Pp. 1879- 1880.
(d) Neither the statute nor the practice of process servers provides for even a second attempt at personal service.  The failure to effect personal service on the first visit hardly suggests that the tenant has abandoned his interest in the apartment such that mere pro forma notice might be constitutionally adequate.  P. 1880.
(e) Notice by mail in the circumstances of this case would go a long way toward providing the constitutionally required assurance that the State has not allowed its power to be invoked against a person who has had no opportunity to present a defense.  Pp. 1880-1881.
Affirmed.

Mennonite Board of Missions v. Adams
 (CITE AS: 462 U.S. 791, *791,  103 S.CT. 2706, **2707)

An Indiana statute requires the county auditor to post notice in the county courthouse of the sale of real property for nonpayment of property taxes and to publish notice once each week for three consecutive weeks.  Notice by certified mail must be given to the property owner, but at the time in question in this case there was no provision for notice by mail or personal service to mortgagees of the property.  The purchaser at a tax sale acquires a certificate of sale that constitutes a lien against the property for the amount paid and is superior to all prior liens.  The tax sale is followed by a 2-year period during which the owner or mortgagee may redeem the property.  If no one redeems the property during this period, the tax sale purchaser may apply for a deed to the property, but before the deed is executed the county auditor must notify the former owner that he is entitled to redeem the property.  If the property is not redeemed within 30 days, the county auditor may then execute a deed to the purchaser who then acquires an estate in fee simple, free and clear of all liens, and may bring an action to quiet title.  Property on which appellant held a mortgage was sold to appellee for nonpayment of taxes.  Appellant was not notified of the pending sale and did not learn of the sale until more than two years later, by which time the redemption period had run and the mortgagor still owed appellant money on the mortgage.  Appellee then filed suit in state court seeking to quiet title to the property.  The court upheld the tax sale statute against appellant's contention that it had not received constitutionally adequate notice of the pending tax sale and of its opportunity to redeem the property after the sale.  The Indiana Court of Appeals affirmed.
Held:  The manner of notice provided to appellant did not meet the requirements of the Due Process Clause of the Fourteenth Amendment.  Pp. 2709 - 2712.
(a) Prior to an action that will affect an interest in life, liberty, or property protected by the Due Process Clause, a State must provide "notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action **2708 and afford them an opportunity to present their objections."  Notice by publication is not reasonably calculated to inform interested parties who can be notified by more effective means such as personal service or mailed notice.  Mullane v. Central Hanover Bank & Trust Co.
(b) Since a mortgagee clearly has a legally protected property interest, he is entitled to notice reasonably calculated to apprise him of a pending tax sale.  Constructive notice to a mortgagee who is identified in the public record does not satisfy the due process requirement of Mullane. Neither notice by publication and posting nor mailed notice to the property owner are means "such as one desirous of actually informing the [mortgagee] might reasonably adopt to accomplish it."  Mullane, supra, at 315, 70 S.Ct., at 657.  Personal service or notice by mail is required even though sophisticated creditors have means at their disposal to discover whether property taxes have not been paid and whether tax sale proceedings are therefore likely to be initiated.  Pp. 2712 - 2710.
Reversed and remanded.

5: VENUE AND FORUM NON CONVENIENS

Piper Aircraft Co. v. Reyno
 (CITE AS: 454 U.S. 235,  102 S.CT. 252, **255)

Respondent, as representative of the estates of several citizens and residents of Scotland who were killed in an airplane crash in Scotland during a charter flight, instituted wrongful-death litigation in a California state court against petitioners, which are the company that manufactured the plane in Pennsylvania and the company that manufactured the plane's propellers in Ohio. At the time of the crash the plane was registered in Great Britain and was owned and operated by companies organized in the United Kingdom.  The pilot and all of the decedents' heirs and next of kin were Scottish subjects and citizens, and the investigation of the accident was conducted by British authorities.  Respondent sought to recover from petitioners on the basis of negligence or strict liability (not recognized by Scottish law), and admitted that the action was filed in the United States because its laws regarding liability, capacity to sue, and damages are more favorable to respondent's position than those of Scotland.  On petitioners' motion, the action was removed to a Federal District Court in California and was then transferred to the United States District Court for the Middle District of Pennsylvania, pursuant to 28 U.S.C. s 1404(a).  The District Court granted petitioners' motion to dismiss the action on the ground of forum non conveniens.  Relying on the test set forth in Gulf Oil Corp. v. Gilbert, and analyzing the "private interest factors" affecting the litigants' convenience and the "public interest factors" affecting the the forum's convenience, as set forth in Gilbert, the District Court concluded that Scotland was the appropriate forum.  However, the Court of Appeals reversed, holding that the District Court had abused its discretion in conducting the Gilbert analysis and that, in any event, dismissal is automatically barred where *236 the law of the alternative forum is less favorable to the plaintiff than the law of the forum chosen by the plaintiff.
Held :
1. Plaintiffs may not defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the chosen forum.  The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry.  Canada Malting Co. v. Paterson Steamships, Ltd., 285 U.S. 413, 52 S.Ct. 413, 76 L.Ed. 837.  Pp. 261-265.
(a) Under Gilbert, supra, dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a **256 heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice.  If substantial weight were given to the possibility of an unfavorable change in law, however, dismissal might be barred even where trial in the chosen forum was plainly inconvenient, and the forum non conveniens doctrine would become virtually useless.  Such an approach not only would be inconsistent with the purpose of the forum non conveniens doctrine, but also would pose substantial practical problems, requiring that trial courts determine complex problems in conflict of laws and comparative law, and increasing the flow into American courts of litigation by foreign plaintiffs against American manufacturers.  Pp. 262-264.
(b) Nor may an analogy be drawn between forum non conveniens dismissals and transfers between federal courts pursuant to 28 U.S.C. s 1404(a), which was construed in Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945, as precluding a transfer if it resulted in a change in the applicable law.  The statute was enacted to permit change of venue between federal courts, and although it was drafted in accordance with the doctrine of forum non conveniens, it was intended to be a revision rather than a codification of the common law.  District courts were given more discretion to transfer under s 1404(a) than they had to dismiss on grounds of forum non conveniens.  Van Dusen v. Barrack, supra, distinguished.  Pp. 264-265.
2. The District Court properly decided that the presumption in favor of the plaintiff's forum choice applied with less than maximum force when the plaintiff or (as here) the real parties in interest are foreign.  When the plaintiff has chosen the home forum, it is reasonable to assume that the choice is convenient;  but when the plaintiff or real parties in interest are foreign, this assumption is much less reasonable and the plaintiff's choice deserves less deference.  Pp. 265-266.
3. The forum non conveniens determination is committed to the trial court's sound discretion and may be reversed only when there has been a clear abuse of discretion.  Here, the District Court did not abuse its discretion in weighing the private and public interests under the Gilbert analysis and thereby determining that the trial should be held in Scotland.
(a) In analyzing the private interest factors, the District Court did not act unreasonably in concluding that fewer evidentiary problems would be posed if the trial were held in Scotland, a large proportion of the relevant evidence being located there.  The District Court also correctly concluded that the problems posed by the petitioners' inability to implead potential Scottish third-party defendants--the pilot's estate, the plane's owners, and the charter company--supported holding the trial in Scotland.  Pp. 266-268.
(b) The District Court's review of the factors relating to the public interest was also reasonable.  Even aside from the question whether Scottish law might be applicable in part, all other public interest factors favor trial in Scotland, which has a very strong interest in this litigation.  The accident occurred there, all of the decedents were Scottish, and apart from petitioners, all potential parties are either Scottish or English.  As to respondent's argument that American citizens have an interest in ensuring that American manufacturers are deterred from producing defective products and that additional deterrence might be obtained by trial in the United States where they could be sued on the basis of both negligence and strict liability, any incremental deterrence from trial in an American court is likely to be insignificant and is not sufficient to justify the enormous commitment of judicial time and resources that would be required.  
Reversed.

Ferens v. John Deere Co.
 (CITE AS: 494 U.S. 516,  110 S.CT. 1274, **1275)

Petitioner husband lost a hand in Pennsylvania when it allegedly became caught in a harvester manufactured by respondent Deere, a Delaware corporation.  Petitioners, Pennsylvania residents, delayed taking legal action against Deere until after Pennsylvania's 2-year tort limitations period expired.  In the third year, they filed proper diversity suits (1) in a Federal District Court in Pennsylvania, raising contract and warranty claims as to which the applicable Pennsylvania limitations period had not yet run, and (2) in a Federal District Court in Mississippi, where Deere did business, alleging tort causes of action.  As to the latter suit, petitioners knew that the federal court had to apply the Mississippi state courts' choice-of-law rules, Klaxon Co. v. Stentor Electric Mfg. Co., under which Mississippi's 6-year tort statute of limitations would apply.  The Mississippi court then granted petitioners' motion to transfer the tort action to the Pennsylvania court under 28 U.S.C. s 1404(a), which allows such transfers "[f]or the convenience of parties and witnesses, in the interest of justice."  However, the Pennsylvania court declined to honor the Mississippi tort statute of limitations, ruling that, since petitioners had moved for transfer as plaintiffs, the rule in Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945--that, following a defendant-initiated s 1404(a) transfer, the transferee court must follow the choice-of-law rules prevailing in the transferor court--was inapplicable.  The court therefore dismissed the tort action under Pennsylvania's tort statute of limitations, and the Court of Appeals affirmed.
Held:  The policies underlying Van Dusen, as well as other considerations, require a transferee forum to apply the law of the transferor court, regardless of who initiated the transfer.  Pp. 1279-1284.
(a) The Van Dusen policy that s 1404(a) should not deprive parties of state-law advantages that exist absent diversity jurisdiction is not violated by applying that case's rule to transfers initiated by plaintiffs.  Applying the transferor law will not deprive plaintiffs of any state-law advantages. Moreover, although a defendant may lose a nonlegal advantage if the transferor law controls--e.g., Deere would lose whatever advantage inheres in forcing petitioners to litigate in Mississippi or not at all--that loss is slight, since a plaintiff always can sue in the favorable state court or in diversity and not seek a transfer.  Section 1404(a)  exists to eliminate inconvenience without altering permissible choices under the federal venue statutes, and it is not its purpose to protect a party's ability to use inconvenience as a shield to discourage or hinder litigation otherwise proper. Applying the transferor law in these circumstances is in full accord with the rule in Erie R. Co. v. Tompkins,  whereas applying the transferee law would seriously undermine Erie, since it would mean that initiating a s 1404(a) transfer changes the state law applicable in a diversity case, a result disapproved generally by this Court. See Van Dusen, supra.
(b) Applying the transferor State's law with respect to plaintiff-initiated s 1404(a) transfers does not contravene Van Dusen's policy against forum shopping, since, even without s 1404(a), a plaintiff already has the option of shopping for a forum with the most favorable law.  Applying the transferee law, by contrast, might create opportunities for forum shopping in an indirect way, since such application, to the extent that it discourages plaintiff-initiated transfers, might give States incentives to enact laws similar to Mississippi's long tort statute of limitations in order to bring in out-of-state business that would not be moved at the instance of the plaintiff.  P. 1282.
c. The Van Dusen policy mandating that the s 1404(a) transfer decision turn upon considerations of convenience rather than on the possibility of prejudice resulting from a change in the applicable law requires application of the transferor law when a plaintiff initiates the transfer.  If a law change were to occur following such a transfer, a district court would be at least reluctant, despite convenience considerations, to grant a transfer that would prejudice the defendant.  Hardship might occur because plaintiffs may find as many opportunities to exploit application of the transferee law as they would the transferor law.  If the transferee law were to apply, moreover, the plaintiff simply would not move to transfer unless the benefits of convenience outweighed the loss of favorable law.  The desire to punish the plaintiff who has chosen an inconvenient forum overlooks the facts that s 1404(a) exists for the benefit of witnesses and courts as well as the moving party, and that litigation **1277 in an inconvenient forum harms the entire judicial system. Pp. 1282-1283.
(d) Foresight and judicial economy also favor the simple rule that the transferor law should apply regardless of who makes the s 1404(a) motion. While applying the transferee law to plaintiff-initiated transfers would eliminate cases such as this in the future, that rule would produce undesirable complications and would result in litigation and uncertainty in cases presenting other situations--e.g., a transfer at the request of both parties or by the court on its own motion.  Pp. 1283-1284.
(e) Although requiring a district court in Pennsylvania to apply a Mississippi statute of limitations to a Pennsylvania cause of action might seem to be too generous to petitioners and even to reward them for manipulative conduct, that does not affect the outcome of this case, since Congress gave them the power to seek a s 1404(a) transfer, and Van Dusen already could require the same result.  Moreover, no alternative rule would be more acceptable.  Applying the transferee law would, in effect, tell petitioners that they should have continued litigating their separate actions in Pennsylvania and Mississippi, thereby causing the wastefulness of time, energy, and money that s 1404(a) was designed to prevent.  Allowing them simply to file in the convenient forum and then to request application of the law of the inconvenient forum would ignore the fact that s 1404(a) does not provide for an automatic transfer, but requires a showing of convenience and that the transfer is "in the interest of justice."  And there is no need to develop more sophisticated federal choice-of-law rules to cover all diversity actions involving transfers, since state conflicts rules already ensure generally that appropriate laws will apply, and, even if more elaborate federal rules would not run afoul of Klaxon and Erie, applying the transferor law effects the appropriate balance between fairness and simplicity.  P. 1284.
Reversed and remanded.
  KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and O'CONNOR, JJ., joined.  SCALIA, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 1284.
 
6: BRINGING IN THE PLAINTIFFS

Phillips Petroleum Co. v. Shutts
(CITE AS: 472 U.S. 797,  105 S.CT. 2965, **2966)

During the 1970's, petitioner produced or purchased natural gas from leased land located in 11 States.  Respondents, royalty owners possessing rights to leases from which petitioner produced the gas, brought a class action against petitioner in a Kansas state court, seeking to recover interest on royalty payments that had been delayed by petitioner.  The trial court certified a class consisting of 33,000 royalty owners.  Respondents provided each class member with a notice by first-class mail describing the action and informing each member that he could appear in person or by counsel, that otherwise he would be represented by respondents, and that class members would be included in the class and bound by the judgment unless they "opted out" of the action by returning a "request for exclusion."  The final class consisted of some 28,000 members, who reside in all 50 **2967 States, the District of Columbia, and several foreign countries.  Notwithstanding that over 99% of the gas leases in question and some 97% of the plaintiff class members had no apparent connection to Kansas except for the lawsuit, the trial court applied Kansas contract and equity law to every claim and found petitioner liable for interest on the suspended royalties to all class members.  The Kansas Supreme Court affirmed over petitioner's contentions that the Due Process Clause of the Fourteenth Amendment prevented Kansas from adjudicating the claims of all the class members, and that that Clause and the Full Faith and Credit Clause prohibited application of Kansas law to all of the transactions between petitioner and the class members.
Held:
1. Petitioner has standing to assert the claim that Kansas did not have jurisdiction over the class members who were not Kansas residents and had no connection to Kansas.  Whether it wins or loses on the merits, petitioner has a distinct and personal interest in seeing the entire plaintiff class bound by res judicata just as petitioner is bound.  The only way petitioner can assure itself of this binding effect is to ascertain that the forum court has jurisdiction over every plaintiff whose claim it seeks to adjudicate, sufficient to support a res judicata defense in a later suit by class members. The alleged injury petitioner would incur if the class-action judgment against it became final without binding the plaintiff class is sufficient to give petitioner standing on its own right to raise the jurisdiction claim in this Court. 
2. The Kansas trial court properly asserted personal jurisdiction over the absent plaintiff class members and their claims against petitioner.  The Due Process Clause requires notice, an opportunity to appear in person or by counsel, an opportunity to "opt out," and adequate representation.  It does not require that absent class members affirmatively "opt in" to the class, rather than be deemed members of the class if they did not "opt out."  The procedure followed by Kansas, where a fully descriptive notice is sent by first-class mail to each class member, with an explanation of the right to "opt out," satisfies due process.  The interests of the absent plaintiff class members are sufficiently protected by the forum State when those plaintiffs are provided with a request for exclusion that can be returned within a reasonable time to the trial court.  Pp. 2972-2977.
3. The Kansas Supreme Court erred in deciding that the application of Kansas law to all claims would be constitutional.  Kansas must have a "significant contact or aggregation of contacts" to the claims asserted by each plaintiff class member in order to ensure that the choice of Kansas law was not arbitrary or unfair.  Given Kansas' lack of "interest" in claims unrelated to that State, and the substantive conflict between Kansas law and the law of other States, such as Texas, where some of the leased land in question is located, application of Kansas law to every claim in this case was sufficiently arbitrary and unfair as to exceed constitutional limits. 
Affirmed in part, reversed in part, and remanded.

VII - DISCOVERY 

VIII- SUMMARY JUDGMENT

Adickes v. S. H. Kress & Co.

Celotex Corp. v. Catrett 
(CITE AS: 477 U.S. 317, *317,  106 S.CT. 2548, **2549)

In September 1980, respondent administratrix filed this wrongful-death action in Federal District Court, alleging that her husband's death in 1979 resulted from his exposure to asbestos products manufactured or distributed by the defendants, who included petitioner corporation.  In September 1981, petitioner filed a motion for summary judgment, asserting that during discovery respondent failed to produce any evidence to support her allegation that the decedent had been exposed to petitioner's products.  In response, respondent produced documents tending to show such exposure, but petitioner argued that the documents were inadmissible hearsay and thus could not be considered in opposition to the summary judgment motion.  In July 1982, the court granted the motion because there was no showing of exposure to petitioner's products, but the Court of Appeals reversed, holding that summary judgment in petitioner's favor was precluded because of petitioner's failure to support its motion with evidence tending to negate such exposure, as required by Federal Rule 56(e) of Civil Procedure and the decision in Adickes v. S.H. Kress & Co.
Held:
1. The Court of Appeals' position is inconsistent with the standard for summary judgment set forth in Rule 56(c), which provides that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."  Pp. 2552-2559.
(a) The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.  In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.  The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to *318 make a sufficient showing on an essential element of its case with respect to which it has the burden of proof.  Pp. 2552-2553.
(b) There is no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim.  On the contrary, Rule 56(c), which refers to the affidavits, "if any," suggests the absence of such a requirement, and Rules 56(a) and (b) provide that claimants and defending parties may move for summary judgment "with or without supporting affidavits."  Rule 56(e), which relates to the form and use of affidavits and other materials, does not require that the moving party's motion always be supported by affidavits to show initially the absence of a genuine issue for trial.  Adickes v. S.H. Kress & Co., supra, explained.  Pp. 2553-2554.
c. No serious claim can be made that respondent was "railroaded" by a premature motion for summary judgment, since the motion was not filed until one year after the action was commenced and since the parties had conducted discovery.  Moreover, any potential problem with such premature motions can be adequately dealt with under Rule 56(f).  Pp. 2554-2555.
 2. The questions whether an adequate showing of exposure to petitioner's products was in fact made by respondent in opposition to the motion, and whether such a showing, if reduced to admissible evidence, would be sufficient to carry respondent's burden of proof at trial, should be determined by the Court of Appeals in the first instance.  P. 2555.
Reversed and remanded.
  REHNQUIST, J., delivered the opinion of the Court, in which WHITE, MARSHALL, POWELL, and O'CONNOR, JJ., joined.  WHITE, J., filed a concurring opinion, post, p. ---.  BRENNAN, J., filed a dissenting opinion, in which BURGER, C.J., and BLACKMUN, J., joined, post, p. ---.  STEVENS, J., filed a dissenting opinion, post, p. ---.

 Anderson v. Liberty Lobby, Inc.
 (CITE AS: 477 U.S. 242, *242,  106 S.CT. 2505, **2506)

In New York Times Co. v. Sullivan, it was held that, in a libel suit brought by a public official (extended by later cases to public figures), the First Amendment requires **2507 the plaintiff to show that in publishing the alleged defamatory statement the defendant acted with actual malice.  It was further held that such actual malice must be shown with "convincing clarity."  Respondents, a nonprofit corporation described as a "citizens' lobby" and its founder, filed a libel action in Federal District Court against petitioners, alleging that certain statements in a magazine published by petitioners were false and derogatory. Following discovery, petitioners moved for summary judgment pursuant to Federal Rule of Civil Procedure 56, asserting that because respondents were public figures they were required to prove their case under the New York Times standards and that summary judgment was proper because actual malice was absent as a matter of law in view of an affidavit by the author of the articles in question that they had been thoroughly researched and that the facts were obtained from numerous sources.  Opposing the motion, respondents claimed that an issue of actual malice was presented because the author had relied on patently unreliable sources in preparing the articles.  After holding that New York Times applied because respondents were limited-purpose public figures, the District Court entered summary judgment for petitioners on the ground that the author's investigation and research and his reliance on numerous sources precluded a finding of actual malice.  Reversing as to certain of the allegedly defamatory statements, the Court of Appeals held that the requirement that actual malice be proved by clear and convincing evidence need not be considered at the summary judgment stage, and that with respect to those statements summary judgment had been improperly granted because a jury could reasonably have concluded that the allegations were defamatory, false, and made with actual malice.
Held:  The Court of Appeals did not apply the correct standard in reviewing the District Court's grant of summary judgment.  Pp. 2509-2515.
(a) Summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.  At the summary judgment stage, the trial judge's function is not himself to weigh the evidence and *243 determine the truth of the matter but to determine whether there is a genuine issue for trial.  There is no such issue unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.  In essence, the inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.  Pp. 2509-2512.
(b) A trial court ruling on a motion for summary judgment in a case such as this must be guided by the New York Times "clear and convincing" evidentiary standard in determining whether a genuine issue of actual malice exists, that is, whether the evidence is such that a reasonable jury might find that actual malice had been shown with convincing clarity.  Pp. 2512-2514.
c. A plaintiff may not defeat a defendant's properly supported motion for summary judgment in a libel case such as this one without offering any concrete evidence from which a reasonable jury could return a verdict in his favor and by merely asserting that the jury might disbelieve the defendant's denial of actual malice.  The movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict.  Pp. 2514-2515.
Vacated and remanded.
  WHITE, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined.  BRENNAN, J., filed a dissenting opinion, post, p. ---.  REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. ---.

IX - THE ERIE DOCTRINE & FEDERAL COMMON LAW

1: BASES OF ERIE DOCTRINE

Erie Railroad Company v. Tompkins

Byrd v. Blud Ridge Rural Electric Cooperative, Inc.

2: ERIE AND THE FEDERAL RULES

Hanna v. Plummer

Walker v. Armco Steel Corp.
 (CITE AS: 446 U.S. 740, *740,  100 S.CT. 1978, **1979)

An Oklahoma statute provides that an action shall not be deemed to be "commenced" for purposes of the statute of limitations until service of summons on the defendant, but further provides (s 97) that **1980 if the complaint is filed within the limitations period the action is deemed to have commenced from the date of that filing if the plaintiff serves the defendant within 60 days, even though such service occurs outside the limitations period.  Federal Rule of Civil Procedure 3 provides that a civil action is commenced by filing a complaint.  In this case, petitioner's personal injury action, based on diversity of citizenship, was brought against respondent in Federal District Court in Oklahoma, and although the complaint was filed within Oklahoma's 2- year statute of limitations, service on respondent was not effectuated until after the 2-year limitation period and the 60-day service period specified in s 97 had expired.  The District Court dismissed the complaint as barred by the Oklahoma statute of limitations, holding that s 97 was an integral part of such statute and that therefore under Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520, state law, not Rule 3, applied.  The Court of Appeals affirmed.
Held :  The action is barred by the Oklahoma statute of limitations.  Ragan, supra.  Pp. 1982-1986.
(a) The scope of Rule 3 is not sufficiently broad to control the issue before the District Court.  Hanna v. Plumer, distinguished.  There is no indication that the Rule was intended to toll a state statute of limitations, much less that it purported to displace state tolling rules for purposes of state statutes of limitations.  In diversity actions, Rule 3 governs the date from which various timing requirements of the Federal Rules begin to run, but does not affect state statutes of limitations.  Pp. 1984-1985.
(b) In contrast to Rule 3, the Oklahoma statute is a statement of a substantive decision by that State that actual service on, and accordingly actual notice to, the defendant is an integral part of the policies (establishment of a deadline after which the defendant may legitimately have peace of mind, and recognition that after a certain period of time it is unfair to require the defendant to attempt to piece together his defense to an old claim) served by the statute of limitations.  Rule 3 *741 does not replace such policy determinations found in state law, and that Rule and s 97 can exist side by side, each controlling its own intended sphere of coverage without conflict.  Pp. 1985-1986.
c. Although in this case failure to apply the state service law might not create any problem of forum shopping, the result would be an inequitable administration of the law.  There is no reason why, in the absence of a controlling federal rule, an action based on state law which concededly would be barred in the state courts by the state statute of limitations should proceed to judgment in federal court solely because of the fortuity that there is diversity of citizenship between the litigants.  P. 1986.
Affirmed.

Burlington Northern Railroad Co. v. Woods 
(CITE AS: 480 U.S. 1,  107 S.CT. 967, **967)

An Alabama statute requires an appellate court, upon affirming a money judgment without substantial modification, to impose a 10% penalty on any appellant who had obtained a stay of that judgment by executing a bond.  The statute's purposes are to penalize frivolous appeals and those interposed for delay, and to provide appellees with additional compensation for having to suffer the ordeal of appeal.  Upon affirming without modification a judgment for respondents in their federal diversity action arising from a motorcycle accident, the Eleventh Circuit imposed the Alabama statute's penalty on petitioner, which had posted bond to stay the judgment pending appeal.
Held:  The Alabama mandatory affirmance penalty statute has no application to **968 judgments entered by federal courts sitting in diversity.  Pp. 968-971.
(a) Rule 38 of the Federal Rules of Appellate Procedure affords federal courts of appeals plenary discretion to award damages to an appellee upon determining that the appeal is frivolous.  Federal Rule 38's discretionary mode of operation conflicts with the Alabama statute's mandatory operation. Furthermore, the purposes underlying Rule 38--to penalize frivolous appeals and to compensate injured appellees for the delay and added expense inherent therein--are sufficiently coextensive with the statute's purposes to indicate that the Rule occupies the statute's field of operation.  The fact that Alabama has a similar Appellate *2 Rule coexisting with the statute does not mean that a federal court could impose the mandatory statutory penalty while remaining free to exercise its Federal Rule 38 discretionary authority, since the statute would improperly limit the exercise of that discretion in instances in which the court wished to impose a penalty of less than 10%.  Pp. 969-971.
(b) Rule 38 must be applied under the analysis set forth in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8, since (a) it is a constitutional exercise of rulemaking authority in that it regulates matters that can reasonably be classified as procedural, and (b) it affects only the process of enforcing litigants' rights and not the rights themselves, and therefore does not violate the Rule Enabling Act's prohibition against affecting substantive rights (28 U.S.C. s 2072).  P. 971.
Reversed.

3: “REVERSE ERIE” AND FEDERAL COMMON LAW

Dice v. Akron

 O’Melveny & Myers v. FDIC
  (CITE AS: 114 S.CT. 2048, *2050)

Respondent Federal Deposit Insurance Corporation, receiver for an insolvent California savings and loan (S & L), caused the S & L to make refunds to investors in certain fraudulent real estate syndications in which the S & L had been represented by petitioner law firm.  The FDIC filed suit against petitioner in the Federal District Court and alleged state causes of action for professional *2051 negligence and breach of fiduciary duty.  Petitioner moved for summary judgment, alleging, inter alia, that knowledge of the fraudulent conduct of the S & L's officers must be imputed to the S & L, and hence to the FDIC, which, as receiver, stood in the S & L's shoes;  and thus the FDIC was estopped from pursuing its tort claims.  The court granted the motion, but the Court of Appeals reversed, indicating that a federal common-law rule of decision controlled.
Held:  The California rule of decision, rather than a federal rule, governs petitioner's tort liability.
(a) State law governs the imputation of corporate officers' knowledge to a corporation that is asserting causes of action created by state law.  There is no federal general common law, Erie R. Co. v. Tompkins, and the remote possibility that corporations may go into federal receivership is no conceivable basis for adopting a special federal common-law rule divesting States of authority over the entire law of imputation.  Pp. 2052-2053.
(b) California law also governs the narrower question whether corporate officers' knowledge can be imputed to the FDIC suing as receiver.  This Court will not adopt a judge-made federal rule to supplement comprehensive and detailed federal statutory regulation;  matters left unaddressed in such a scheme are presumably left to state law.  Title 12 U.S.C. s 1821(d)(2)(A)(i)--which states that "the [FDIC] shall ... by operation of law, succeed to--all rights, titles, powers, and privileges of the insured depository institution"--places the FDIC in the insolvent S & L's shoes to pursue its claims under state law, except where some provision in the extensive framework of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) specifically creates a special federal rule of decision. 
c. Judicial creation of a special federal rule would not be justified even if FIRREA is inapplicable to the instant receivership, which began in 1986. Instances where a special federal rule is warranted are few and restricted, limited to situations where there is a significant conflict between some federal policy or interest and the use of state law.  The FDIC has identified no significant conflict here, not even one implicating the most lightly invoked federal interest:  uniformity.  Pp. 2054-2056.
Reversed and remanded.
  SCALIA, J., delivered the opinion for a unanimous Court.  STEVENS, J., filed a concurring opinion, in which BLACKMUN, O'CONNOR, and SOUTER, JJ., joined.

X - JURY TRIAL

Beacon Theatres, Inc. v. Westover

Dairy Queen, Inc. v. Wood

XI - TRIAL PROCEDURE, STRATEGY & TACTICS

XII - CLAIM PRECLUSION & ISSUE PRECLUSION

1: CLAIM PRECLUSION

Federated Department Stores, Inc. v. Moitie
 (CITE AS: 452 U.S. 394, *394,  101 S.CT. 2424, **2425)

Seven private antitrust actions (including separate actions by each of the respondents) were brought by plaintiffs seeking to represent classes of retail purchasers against petitioners, owners of various department stores, for alleged price fixing.  The actions were consolidated in Federal District Court, which dismissed them for **2426 failure to allege an "injury" to the plaintiffs' "business or property" within the meaning of the Clayton Act. Plaintiffs in five of the actions appealed, but respondents chose instead to refile their two actions in state court, making allegations similar to those made in the prior complaints.  Petitioners removed these new actions to the District Court, which dismissed them under the doctrine of res judicata, and respondents appealed.  Because of this Court's intervening decision in Reiter v. Sonotone Corp., 442 U.S. 330, 99 S.Ct. 2326, 60 L.Ed.2d 931, the Court of Appeals thereafter reversed and remanded the five cases which had been initially decided with respondents' first actions, and later reversed the District Court's dismissal of respondents' subsequent actions.  The Court of Appeals held that because respondents' position was "closely interwoven" with that of the successfully appealing parties, the doctrine of res judicata must give way to "public policy" and "simple justice."
Held :  Res judicata bars relitigation of the unappealed adverse judgments against respondents as to their federal-law claims.  The res judicata consequences of a final, unappealed judgment on the merits are not altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.  There is no general equitable doctrine which countenances an exception to the finality of a party's failure to appeal merely because his rights are "closely interwoven" with those of another party who successfully appeals.  Cf. Reed v. Allen, 286 U.S. 191, 52 S.Ct. 532, 76 L.Ed. 1054.  Nor is there any principle of law or equity which sanctions rejection of the salutary principle of res judicata on the basis of "simple justice" or "public policy."  "[The] doctrine of res judicata is not a mere matter of practice or procedure ....  It is a rule of fundamental and substantial justice, 'of public policy and of private peace,' which should be cordially regarded *395 and enforced by the courts ...."  Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 299, 37 S.Ct. 506, 507, 61 L.Ed. 1148.
Reversed and remanded.

Marrese v. American Academy of Orthopedic Surgeons
 (CITE AS: 470 U.S. 373,  105 S.CT. 1327, **1328)

After being denied membership in respondent American Academy of Orthopaedic Surgeons, petitioner orthopaedic surgeons each filed an action in an Illinois Circuit Court, alleging that the denial of membership violated their associational rights under Illinois common law.  After the Illinois Appellate Court ultimately held that the complaint in one action failed to state a cause of action, the Circuit Court then dismissed the other complaint. Subsequently, petitioners filed an action in Federal District Court, alleging that the denial of membership constituted a boycott in violation of s 1 of the Sherman Act.  Respondent filed a motion to dismiss on the ground that claim preclusion barred the federal antitrust claim because the state actions concerned the same facts and were dismissed with prejudice.  The District Court denied the motion, holding, in reliance on federal law, that the state judgments did not bar the Sherman Act claim.  Thereafter, the District Court held respondent in criminal contempt for refusing to comply with a discovery order as to its membership application files.  Respondent then appealed from the contempt order, and, while this appeal was pending, the District Court certified its denial of the motion to dismiss for immediate appeal.  The Court of Appeals authorized an interlocutory appeal and ordered it consolidated with the appeal from the contempt order.  Ultimately, the Court of Appeals held that, as a matter of federal law, claim preclusion barred the federal antitrust action, and reversed the contempt order because the discovery order was invalid.
Held:
1. The Court of Appeals had jurisdiction to review the District Court's denial of the motion to dismiss.  The pendency of the appeal from the contempt order did not prevent the District Court from certifying such denial for immediate appeal.  Pp. 1330-1331.
2. The courts below erred in not considering Illinois law in determining the preclusive effect of the state judgments.  Pp. 1331-1335.
(a) Title 28 U.S.C. s 1738--which provides that state judicial proceedings "shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken"--requires a federal court to look *374 first to state law in determining the preclusive effects of a state-court judgment.  Kremer v. Chemical Construction Corp.  The fact that petitioners' antitrust claim is within the exclusive jurisdiction of the federal courts does not necessarily make s 1738 inapplicable in this case.  While a state court will have no occasion to address the question whether a state judgment has issue or claim preclusive effect in a later action that can be brought only in federal court, a federal court may nevertheless rely in the first instance on state preclusion principles to determine the extent to which an earlier state judgment bars subsequent litigation.  Pp. 1331-1333.
(b) Reference to state preclusion law may make it unnecessary to determine if a federal court, as an exception to s 1738, should refuse to give preclusive effect to a state-court judgment.  Here, unless application of Illinois preclusion law suggests **1329 that petitioners' federal antitrust claim is barred, there will be no need to decide if there is an exception to s 1738. This Court will not create a special exception to s 1738 for federal antitrust claims that would give state-court judgments greater preclusive effect than would the courts of the State rendering judgment, and that effectively holds as a matter of federal law that a plaintiff can bring state-law claims initially in state court only at the cost of forgoing subsequent federal antitrust claims.  Pp. 1333-1335.
Reversed and remanded.

Cooper v. Federal Reserve Bank of Richmond
(CITE AS: 467 U.S. 867,  104 S.CT. 2794)

 	The Equal Employment Opportunity Commission brought an action in Federal **2795 District Court against respondent Federal Reserve Bank, alleging that one of respondent's branches (the Bank) violated s 703(a) of Title VII of the Civil Rights Act of 1964 by engaging in employment discrimination based on race during a specified time period. Subsequently, four of the Bank's employees (the Cooper petitioners) were allowed to intervene as plaintiffs, and they alleged that the Bank's employment practices violated 42 U.S.C. s 1981, as well as Title VII, and that they could adequately represent a class of black employees against whom the Bank had discriminated. The District Court then certified the class pursuant to Federal Rules of Civil Procedure 23(b)(2) and (3), and ordered that notice be given to the class members. Among the recipients of the notice were the Baxter petitioners. At the trial both the Cooper petitioners and the Baxter petitioners testified, and the District Court held that the Bank had engaged in a pattern and practice of racial discrimination with respect to employees in certain specified pay grades but not with respect to employees above those grades, and found that the Bank had discriminated against two of the Cooper petitioners but not against the others. Thereafter, the Baxter petitioners moved to intervene, but the District Court denied the motion on the ground, as to one petitioner, that since she was a member of the class to which relief had been ordered, her rights would be protected in the later relief stage of the proceedings, and, as to the other petitioners, on the ground that they were employed in jobs above the specified grades for which relief would be granted. These latter Baxter petitioners then filed a separate action against the Bank in the District Court, alleging that each of them had been denied a promotion because of their race in violation of 42 U.S.C. s 1981. The District Court denied the Bank's motion to dismiss but certified its order for interlocutory appeal, which was then consolidated with the Bank's pending appeal in the class action. The Court of Appeals reversed on the merits in the class action, holding that there was insufficient evidence to establish a pattern or practice of racial discrimination in the specified grades, and that none of the Cooper petitioners had been discriminated against. The court further held that, under *868 the doctrine of res judicata, the judgment in the class action precluded the Baxter petitioners from maintaining their individual claims against the Bank.
Held: The Baxter petitioners are not precluded from maintaining their separate action against the Bank. While the Court of Appeals was correct in generally concluding that the Baxter petitioners, as members of the class represented in the class action, were bound by the adverse judgment in that action, the court erred on the preclusive effect it attached to that judgment. The judgment bars the class members from bringing another class action against the Bank alleging a pattern or practice of racial discrimination for the same time period and precludes the class members in any other litigation with the Bank from relitigating the question whether the Bank engaged in such a pattern or practice of racial discrimination during that same time period. But the judgment is not dispositive of the individual claims of the Baxter petitioners. Assuming that they establish a prima facie case of discrimination, the Bank will be required to articulate a legitimate reason for each of the challenged employment decisions, and, if it meets that burden, the ultimate question regarding motivation in the Baxter petitioners' individual cases will be resolved by the District Court. Permitting the Baxter petitioners to bring a separate action will not frustrate the purposes of Rule 23. To deny such permission would be tantamount to requiring that every class member be permitted to intervene to litigate the merits of his individual claim. Moreover, whether the issues framed by the named parties should be expanded to encompass the individual claims of additional class members is a matter that should be decided in the first instance by the District Court. Nothing in Rule 23 requires that the District Court **2796 make a finding with respect to each and every matter on which there is testimony in a class action. Rule 23's purpose in providing a mechanism for the expeditious decision of common questions might be defeated by an attempt to decide a host of individual claims before any common question relating to liability has been resolved adversely to the defendant. Pp. 2799-2802.
Reversed and remanded.

2: ISSUE PRECLUSION

Parklane Hosiery Company, Inc. v. Shore
439 U.S. 322 (1979)

    Respondent brought this stockholder's class action in the District Court for  damages **647 and other relief against petitioners, a corporation, its  officers, directors, and stockholders, who allegedly had issued a materially  false and misleading proxy statement in violation of the federal securities  laws and Securities and Exchange Commission (SEC) regulations.  Before the  action came to trial the SEC sued the same defendants in the District Court  alleging that the proxy statement was materially false and misleading in  essentially the same respects as respondent had claimed.  The District Court  after a nonjury trial entered a declaratory judgment for the SEC, and the Court  of Appeals affirmed.  Respondent in this case then moved for partial summary  judgment against petitioners, asserting that they were collaterally estopped  from relitigating the issues that had been resolved against them in the SEC  suit.  The District Court denied the motion on the ground that such an  application of collateral estoppel would deny petitioners their Seventh  Amendment right to a jury trial.  The Court of Appeals reversed.  Held :     1. Petitioners, who had a "full and fair" opportunity to litigate their  claims in the SEC action, are collaterally estopped from relitigating the  question of whether the proxy statement was materially false and misleading.  Pp. 648‑652.
    (a) The mutuality doctrine, under which neither party could use a prior  judgment against the other unless both parties were bound by the same judgment,  no longer applies.  See Blonder‑Tongue Laboratories, Inc. v. University of  Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788.  Pp. 648‑650.     (b) The offensive use of collateral estoppel (when, as here, the plaintiff  seeks to foreclose the defendant from litigating an issue that the defendant  has previously litigated unsuccessfully in an action with another party) does  not promote judicial economy in the same manner that is promoted by defensive  use (when a defendant seeks to prevent a plaintiff from asserting a claim that  the plaintiff has previously litigated and lost against another defendant), and  such offensive use may also be unfair to a defendant in various ways.  Therefore, the general rule should be that in cases where a plaintiff could  easily have joined in the *323 earlier action or where the application of  offensive estoppel would be unfair to a defendant, a trial judge in the  exercise of his discretion should not allow the use of offensive collateral  estoppel.  Pp. 650‑652.
    (c) In this case, however, the application of offensive collateral estoppel  will not reward a private plaintiff who could have joined in the previous  action, since the respondent probably could not have joined in the injunctive  action brought by the SEC.  Nor is there any unfairness to petitioners in such  application here, since petitioners had every incentive fully and vigorously to  litigate the SEC suit;  the judgment in the SEC action was not inconsistent  with any prior decision;  and in the respondent's action there will be no procedural opportunities available to the petitioners that were unavailable in  the SEC action of a kind that might be likely to cause a different result.  Pp.  651‑652.
    2. The use of collateral estoppel in this case would not violate  petitioners' Seventh Amendment right to a jury trial.  Pp. 652‑655.     (a) An equitable determination can have collateral‑estoppel effect in a  subsequent legal action without violating the Seventh Amendment.  Katchen v.  Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391.  Pp. 652‑653.     (b) Petitioners' contention that since the scope of the Seventh Amendment  must be determined by reference to the common law as it existed in 1791, at  which time collateral estoppel was permitted only where there was mutuality of  parties, is without merit, for many procedural devices developed since 1791  that have diminished the civil jury's historic domain have been found not to  violate the Seventh Amendment. **648 See, e. g., Galloway v. United  States, 319 U.S. 372, 388‑393, 63 S.Ct. 1077, 87 L.Ed. 1458.  Pp. 653‑654.     565 F.2d 815, affirmed.
   Jack B. Levitt, New York City, for petitioners.
   Samuel K. Rosen, New York City, for respondent.

Lytle v. Household Manufacturing, Inc.
494 U.S. 545 (1990)

  *545 Petitioner Lytle, an Afro‑American, filed an action under both  Title VII of the Civil Rights Act of 1964 and 42 U.S.C. s 1981, alleging  that respondent Schwitzer Turbochargers had terminated his employment because  of his race and had retaliated against him for filing a charge with the Equal  Employment Opportunity Commission by subsequently providing inadequate  references to prospective employers.  He requested a jury trial on all issues  triable by a jury.  After concluding that Title VII provided the exclusive  remedy, the District Court dismissed the s 1981 claims and conducted a  **1333 bench trial on the Title VII claims.  It granted Schwitzer's motion to  dismiss the discriminatory discharge claim pursuant to Federal Rule of Civil  Procedure 41(b) at the close of Lytle's case in chief and entered a judgment  for Schwitzer on the retaliation claim after both parties had presented all  their evidence.  The Court of Appeals affirmed but noted that the dismissal of  the s 1981 claims was "apparently erroneous" because the Title VII and s 1981  remedies were separate, independent, and distinct.  Nonetheless, it ruled that  the District Court's findings with respect to the Title VII claims collaterally  estopped Lytle from litigating his s 1981 claims because the elements of a  cause of action under the two statutes are identical.  It rejected Lytle's  claim that the Seventh Amendment‑‑which preserves the right to trial by jury  for suits involving legal, as opposed to equitable, claims‑‑precluded according  collateral‑estoppel effect to the District Court's findings, reasoning that the  judicial interest in economy of resources overrode Lytle's interest in  relitigating the issues before a jury.
  Held:
  1. The Seventh Amendment precludes according collateral‑estoppel effect to a  district court's determinations of issues common to equitable and legal claims  where the court resolved the equitable claims first solely because it  erroneously dismissed the legal claims.  Pp. 1335‑1338.
  (a) But for the dismissal of Lytle's s 1981 legal claims, he would have been  entitled to a jury trial on all issues common to them and his Title VII  equitable claims, Curtis v. Loether, 415 U.S. 189, 196, n. 11, 94 S.Ct.  1005, 1009, n. 11, 39 L.Ed.2d 260 *546 and the jury would have been required  to resolve the legal claims before the court considered the equitable claims,  Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510‑511, 79 S.Ct. 948, 956‑  957, 3 L.Ed.2d 988;  Dairy Queen, Inc. v. Wood, 369 U.S. 469, 473, 82 S.Ct.  894, 897, 8 L.Ed.2d 44.  The holding in Parklane Hosiery Co. v. Shore, 439  U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552‑‑that a court's determinations of issues  in an equitable action could collaterally estop relitigation of the same issues  in a subsequent legal action without violating a litigant's right to a jury  trial‑‑cannot be extended to the present situation.  Although the trial court  had no legal issues before it when it made its findings, relitigation in this  case would not in effect constitute a second, separate action, because it was  only the court's erroneous dismissal of the s 1981 claims that enabled it to  resolve the equitable claims first.  It would be anomalous to hold that a  district court cannot deprive a litigant of his right to a jury trial by  resolving an equitable claim before a jury hears a legal claim raising common  issues, but may accomplish the same result by erroneously dismissing the legal  claim.  Pp. 1335‑1337.
  (b) This conclusion is consistent with this Court's approach in cases  involving a wrongful denial of a petitioner's right to a jury trial on legal  issues, which is to reverse and remand each case in its entirety for a jury  trial rather than to accord the trial court's factual findings collateral‑  estoppel effect.  See, e.g., Granfinanciera, S.A. v. Nordberg, 492 U.S. 33,  109 S.Ct. 2782, 106 L.Ed.2d 26.  Furthermore, the purposes served by the  collateral‑estoppel doctrine‑‑to protect parties from multiple lawsuits and the  possibility of inconsistent decisions, and to conserve judicial resources‑‑do  not justify applying it here.  This case involves one suit in which the  plaintiff properly joined his legal and equitable claims.  Furthermore,  relitigation would not dissipate judicial resources in "needless litigation,"  because a new trial is essential to vindicating Lytle's Seventh Amendment  rights.  P. 1337.
  2. The argument that the Court of Appeals' judgment should be affirmed because  the District Court would have directed a verdict in Schwitzer's favor even if  the s 1981 claims had been tried before a jury is rejected.  The contention  that the court would have directed a verdict on the s 1981 discriminatory  discharge claim because it dismissed **1334 the similar Title VII claim  ignores the important distinction between dismissal under Rule 41(b), which  allows the court to determine the facts and the law in deciding whether to  render judgment against the plaintiff before the close of all the evidence, and  a directed verdict under Rule 50(a), which requires a court to draw all factual  inferences in favor of the nonmoving party.  The court‑‑which noted that  Lytle's interpretation of the evidence supporting his claim was "reasonable"‑‑  would not necessarily *547 have taken the case away from the jury.  Schwitzer's argument with respect to Lytle's retaliation claim is even further  off base, because the trial court declined to dismiss that claim, and nothing  in the record indicates that the court‑‑after hearing all the evidence‑‑reached  the only reasonable conclusions or that a jury could not have found the facts  differently and entered a different verdict.  Vacated and remanded.