U.S. Supreme Court
Hanna v. Plumer, 380
U.S. 460 (1965)
Hanna v. Plumer
No. 171
Argued January 21, 1965
Decided April 26, 1965
380
U.S. 460
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Syllabus
In a civil action in a federal court where jurisdiction is based
upon diversity of citizenship, service of process shall be made in
the manner set forth in Federal Rule of Civil Procedure 4(d)(1),
rather than in the manner prescribed by state law.
(a) Rule 4(d)(1) is authorized by the Rules Enabling Act. Pp.
380 U. S.
464-465.
(b) Even if there were no Federal Rule of Civil Procedure making
it clear that in-hand service is not required in diversity actions,
it is doubtful that
Erie R. Co. v. Tompkins, 304 U. S.
64, and the line of cases following it would have
obligated the District Court to follow the Massachusetts in-hand
service procedure. The "outcome determination" test of
Guaranty
Trust Co. v. York, 326 U. S. 99, was
never intended to be a talisman, but must be read in light of the
policies underlying the
Erie rule -- discouragement of
forum shopping and avoidance of inequitable administration of the
laws. Pp.
380 U. S.
466-469.
(c) In any event, the rule of
Erie and its progeny does
not constitute the appropriate test of the validity, and therefore
the applicability, of a Federal Rule of Civil Procedure. Pp.
380 U. S.
469-474.
(d) Rule 4(d)(1) does not exceed the constitutional bounds to
which the
Erie opinion alluded. The constitutional
provision for a federal court system carries with it congressional
power to make rules governing the practice and pleading in federal
courts. Pp.
380 U. S.
471-472.
331 F.2d 157 reversed.
Page 380 U. S. 461
MR. CHIEF JUSTICE delivered the opinion of the Court.
The question to be decided is whether, in a civil action where
the jurisdiction of the United States district court is based upon
diversity of citizenship between the parties, service of process
shall be made in the manner prescribed by state law or that set
forth in Rule 4(d)(1) of the Federal Rules of Civil Procedure.
On February 6, 1963, petitioner, a citizen of Ohio, filed her
complaint in the District Court for the District of Massachusetts,
claiming damages in excess of $10,000 for personal injuries
resulting from an automobile accident in South Carolina, allegedly
caused by the negligence of one Louise Plumer Osgood, a
Massachusetts citizen deceased at the time of the filing of the
complaint. Respondent, Mrs. Osgood's executor and also a
Massachusetts citizen, was named as defendant. On February 8,
service was made by leaving copies of the summons and the complaint
with respondent's wife at his residence, concededly in compliance
with Rule 4(d)(1), which provides:
"The summons and complaint shall be served together. The
plaintiff shall furnish the person making service with such copies
as are necessary. Service shall be made as follows:"
"(1) Upon an individual other than an infant or an incompetent
person, by delivering a copy of the summons and of the complaint to
him personally or by leaving copies thereof at his dwelling house
or usual place of abode with some person of suitable age and
discretion then residing therein. . . ."
Respondent filed his answer on February 26, alleging,
inter
alia, that the action could not be maintained because it had
been brought "contrary to and in violation of the
Page 380 U. S. 462
provisions of Massachusetts General Laws (Ter.Ed.) Chapter 197,
Section 9." That section provides:
"Except as provided in this chapter, an executor or
administrator shall not be held to answer to an action by a
creditor of the deceased which is not commenced within one year
from the time of his giving bond for the performance of his trust,
or to such an action which is commenced within said year unless
before the expiration thereof the writ in such action has been
served by delivery in hand upon such executor or administrator or
service thereof accepted by him or a notice stating the name of the
estate, the name and address of the creditor, the amount of the
claim and the court in which the action has been brought has been
filed in the proper registry of probate. . . ."
Mass.Gen.Laws Ann., c. 197, § 9 (1958). On October 17, 1963, the
District Court granted respondent's motion for summary judgment,
citing
Ragan v. Merchants Transfer & Warehouse Co.,
337 U. S. 530, and
Guaranty Trust Co. of New York v. York, 326 U. S.
99, in support of its conclusion that the adequacy of
the service was to be measured by § 9, with which, the court held,
petitioner had not complied. On appeal, petitioner admitted
noncompliance with § 9, but argued that Rule 4(d)(1) defines the
method by which service of process is to be effected in diversity
actions. The Court of Appeals for the First Circuit, finding that
"[r]elatively recent amendments [to § 9] evince a clear legislative
purpose to require personal notification within the year,"
[
Footnote 1] concluded that the conflict of
state
Page 380 U. S. 463
and federal rules was over "a substantive, rather than a
procedural, matter," and unanimously affirmed. 331 F.2d 157.
Because of the threat to the goal of uniformity of federal
procedure posed by the decision below, [
Footnote
2] we granted certiorari, 379 U.S. 813.
We conclude that the adoption of Rule 4(d)(1), designed to
control service of process in diversity actions, [
Footnote 3]
Page 380 U. S. 464
neither exceeded the congressional mandate embodied in the Rules
Enabling Act nor transgressed constitutional bounds, and that the
Rule is therefore the standard against which the District Court
should have measured the adequacy of the service. Accordingly, we
reverse the decision of the Court of Appeals.
The Rules Enabling Act, 28 U.S.C. § 2072 (1958 ed.), provides,
in pertinent part:
"The Supreme Court shall have the power to prescribe, by general
rules, the forms of process, writs, pleadings, and motions, and the
practice and procedure of the district courts of the United States
in civil actions."
"Such rules shall not abridge, enlarge or modify any substantive
right, and shall preserve the right of trial by jury. . . ."
Under the cases construing the scope of the Enabling Act, Rule
4(d)(1) clearly passes muster. Prescribing the manner in which a
defendant is to be notified that a suit has been instituted against
him, it relates to the "practice and procedure of the district
courts."
Cf. Insurance Co. v. Bangs, 103 U.
S. 435,
103 U. S.
439.
"The test must be whether a rule really regulates procedure --
the judicial process for enforcing rights and duties recognized by
substantive law and for justly administering remedy and redress for
disregard or infraction of them."
Sibbach v. Wilson & Co., 312 U. S.
1,
312 U. S. 14.
[
Footnote 4] In
Mississippi Pub. Corp. v.
Murphree, 326 U. S. 438,
this Court upheld Rule 4(f), which permits service of a summons
anywhere within the State (and not merely the district) in which a
district court sits:
"We think that Rule 4(f) is in harmony with the Enabling Act. .
. . Undoubtedly, most alterations
Page 380 U. S. 465
of the rules of practice and procedure may and often do affect
the rights of litigants. Congress' prohibition of any alteration of
substantive rights of litigants was obviously not addressed to such
incidental effects as necessarily attend the adoption of the
prescribed new rules of procedure upon the rights of litigants who,
agreeably to rules of practice and procedure, have been brought
before a court authorized to determine their rights.
Sibbach v.
Wilson & Co., 312 U. S. 1,
312 U. S.
11-14. The fact that the application of Rule 4(f) will
operate to subject petitioner's rights to adjudication by the
district court for northern Mississippi will undoubtedly affect
those rights. But it does not operate to abridge, enlarge or modify
the rules of decision by which that court will adjudicate its
rights."
Id. at
326 U. S.
445-446.
Thus, were there no conflicting state procedure, Rule 4(d)(1)
would clearly control.
National Equipment Rental, Limited v.
Szukhent, 375 U. S. 311,
375 U. S. 316.
However, respondent, focusing on the contrary Massachusetts rule,
calls to the Court's attention another line of cases, a line which
-- like the Federal Rules -- had its birth in 1938.
Erie R. Co.
v. Tompkins, 304 U. S. 64,
overruling 41 U. S. Tyson,
16 Pet. 1, held that federal courts sitting in diversity cases,
when deciding questions of "substantive" law, are bound by state
court decisions as well as state statutes. The broad command of
Erie was therefore identical to that of the Enabling Act:
federal courts are to apply state substantive law and federal
procedural law. However, as subsequent cases sharpened the
distinction between substance and procedure, the line of cases
following
Erie diverged markedly from the line construing
the Enabling Act.
Guaranty Trust Co. of New York v. York,
326 U. S. 99, made
it clear that
Erie-type problems were not to be solved
by
Page 380 U. S. 466
reference to any traditional or common sense substance-procedure
distinction:
"And so the question is not whether a statute of limitations is
deemed a matter of 'procedure' in some sense. The question is . . .
does it significantly affect the result of a litigation for a
federal court to disregard a law of a State that would be
controlling in an action upon the same claim by the same parties in
a State court?"
326 U.S. at
326 U. S. 109.
[
Footnote 5]
Respondent, by placing primary reliance on
York and
Ragan, suggests that the
Erie doctrine acts as a
check on the Federal Rules of Civil Procedure, that, despite the
clear command of Rule 4(d)(1),
Erie and its progeny demand
the application of the Massachusetts rule. Reduced to essentials,
the argument is: (1)
Erie, as refined in
York,
demands that federal courts apply state law whenever application of
federal law in its stead will alter the outcome of the case. (2) In
this case, a determination that the Massachusetts service
requirements obtain will result in immediate victory for
respondent. If, on the other hand, it should be held that Rule
4(d)(1) is applicable, the litigation will continue, with possible
victory for petitioner. (3) Therefore,
Erie demands
application of the Massachusetts rule. The syllogism possesses an
appealing simplicity, but is, for several reasons, invalid.
In the first place, it is doubtful that, even if there were no
Federal Rule making it clear that in-hand service is not required
in diversity actions, the
Erie rule would have obligated
the District Court to follow the Massachusetts procedure.
"Outcome-determination" analysis was never
Page 380 U. S. 467
intended to serve as a talisman.
Byrd v. Blue Ridge Rural
Elec. Cooperative, 356 U. S. 525,
356 U. S. 537.
Indeed, the message of
York itself is that choices between
state and federal law are to be made not by application of any
automatic "litmus paper" criterion, but rather by reference to the
policies underlying the
Erie rule.
Guaranty Trust Co.
of New York v. York, supra, at
326 U. S.
108-112. [
Footnote 6]
The
Erie rule is rooted in part in a realization that
it would be unfair for the character of result of a litigation
materially to differ because the suit had been brought in a federal
court.
"Diversity of citizenship jurisdiction was conferred in order to
prevent apprehended discrimination in state courts against those
not citizens of the state.
Swift v. Tyson introduced grave
discrimination by noncitizens against citizens. It made rights
enjoyed under the unwritten 'general law' vary according to whether
enforcement was sought in the state or in the federal court; and
the privilege of selecting the court in which the right should be
determined was conferred upon the noncitizen. Thus, the doctrine
rendered impossible equal protection of the law."
Erie R. Co. v. Tompkins, supra, at
304 U. S. 74-75.
[
Footnote 7] The decision was also, in part, a
reaction to the practice of "forum-shopping" which had grown up in
response to the rule of
Swift v. Tyson. 304 U.S. at
304 U. S. 73-74.
[
Footnote 8] That the
York test was an
attempt to effectuate these policies is demonstrated by the fact
that the opinion framed the inquiry in terms of "substantial"
variations between state
Page 380 U. S. 468
and federal litigation. 326 U.S. at
326 U. S. 109.
Not only are nonsubstantial, or trivial, variations not likely to
raise the sort of equal protection problems which troubled the
Court in
Erie; they are also unlikely to influence the
choice of a forum. The "outcome determination" test therefore
cannot be read without reference to the twin aims of the
Erie rule: discouragement of forum shopping and avoidance
of inequitable administration of the laws. [
Footnote
9]
The difference between the conclusion that the Massachusetts
rule is applicable, and the conclusion that it is not is, of
course, at this point, "outcome determinative" in the sense that,
if we hold the state rule to apply, respondent prevails, whereas,
if we hold that Rule 4(d)(1) governs, the litigation will continue.
But, in this sense, every procedural variation is "outcome
determinative." For example, having brought suit in a federal
court, a plaintiff cannot then insist on the right to
Page 380 U. S. 469
file subsequent pleadings in accord with the time limits
applicable in state courts, even though enforcement of the federal
timetable will, if he continues to insist that he must meet only
the state time limit, result in determination of the controversy
against him. So it is here. Though choice of the federal or state
rule will at this point have a market effect upon the outcome of
the litigation, the difference between the two rules would be of
scant, if any, relevance to the choice of a forum. Petitioner, in
choosing her forum, was not presented with a situation where
application of the state rule would wholly bar recovery; [
Footnote 10] rather, adherence to the state rule would
have resulted only in altering the way in which process was served.
[
Footnote 11] Moreover, it is difficult to argue
that permitting service of defendant's wife to take the place of
in-hand service of defendant himself alters the mode of enforcement
of state-created rights in a fashion sufficiently "substantial" to
raise the sort of equal protection problems to which the
Erie opinion alluded.
There is, however, a more fundamental flaw in respondent's
syllogism: the incorrect assumption that the rule of
Erie R.
Co. v. Tompkins constitutes the appropriate test
Page 380 U. S. 470
of the validity, and therefore the applicability, of a Federal
Rule of Civil Procedure. The
Erie rule has never been
invoked to void a Federal Rule. It is true that there have been
cases where this Court has held applicable a state rule in the face
of an argument that the situation was governed by one of the
Federal Rules. But the holding of each such case was not that
Erie commanded displacement of a Federal Rule by an
inconsistent state rule, but rather that the scope of the Federal
Rule was not as broad as the losing party urged, and therefore,
there being no Federal Rule which covered the point in dispute,
Erie commanded the enforcement of state law.
"Respondent contends, in the first place, that the charge was
correct because of the fact that Rule 8(c) of the Rules of Civil
Procedure makes contributory negligence an affirmative defense. We
do not agree. Rule 8(c) covers only the manner of pleading. The
question of the burden of establishing contributory negligence is a
question of local law which federal courts in diversity of
citizenship cases (
Erie R. Co. v. Tompkins, 304 U. S.
64) must apply."
Palmer v. Hoffman, 318 U. S. 109,
319 U. S. 117.
[
Footnote 12] (Here, of course, the clash is
unavoidable; Rule 4(d)(1) says -- implicitly, but with unmistakable
clarity -- that in-hand service is not required in federal courts.)
At the same time, in cases adjudicating the validity of Federal
Rules, we have not applied the York rule or other refinements of
Erie, but have to this day continued to decide questions
concerning the scope of the Enabling Act and the constitutionality
of specific Federal Rules in light of
Page 380 U. S. 471
the distinction set forth in
Sibbach. E.g.,
Schlagenhauf v. Holder, 379 U. S. 104.
Nor has the development of two separate lines of cases been
inadvertent. The line between "substance" and "procedure" shifts as
the legal context changes. "Each implies different variables
depending upon the particular problem for which it is used."
Guaranty Trust Co. of New York v. York, supra, at
326 U. S. 108;
Cook, The Logical and Legal Bases of the Conflict of Laws, pp.
154-183 (1942). It is true that both the Enabling Act and the
Erie rule say, roughly, that federal courts are to apply
state "substantive" law and federal "procedural" law, but from that
it need not follow that the tests are identical. For they were
designed to control very different sorts of decisions. When a
situation is covered by one of the Federal Rules, the question
facing the court is a far cry from the typical, relatively unguided
Erie Choice: the court has been instructed to apply the
Federal Rule, and can refuse to do so only if the Advisory
Committee, this Court, and Congress erred in their
prima facie
judgment that the Rule in question transgresses neither the
terms of the Enabling Act nor constitutional restrictions.
[
Footnote 13]
We are reminded by the
Erie opinion [
Footnote 14] that neither Congress nor the federal
courts can, under the guise of formulating rules of decision for
federal courts, fashion rules which are not supported by a grant of
federal authority contained in Article I or some other section of
the Constitution; in such areas state law must govern
Page 380 U. S. 472
because there can be no other law. But the opinion in
Erie, which involved no Federal Rule and dealt with a
question which was "substantive" in every traditional sense
(whether the railroad owed a duty of care to Tompkins as a
trespasser or a licensee), surely neither said nor implied that
measures like Rule 4(d)(1) are unconstitutional. For the
constitutional provision for a federal court system (augmented by
the Necessary and Proper Clause) carries with it congressional
power to make rules governing the practice and pleading in those
courts, which in turn includes a power to regulate matters which,
though falling with the uncertain area between substance and
procedure, are rationally capable of classification as either.
Cf. 17 U. S.
Maryland, 4 Wheat. 316,
17 U. S. 421.
Neither
York nor the cases following it ever suggested
that the rule there laid down for coping with situations where no
Federal Rule applies is coextensive with the limitation on Congress
to which
Erie had adverted. Although this Court has never
before been confronted with a case where the applicable Federal
Rule is in direct collision with the law of the relevant State,
[
Footnote 15] courts of appeals faced with such
clashes have rightly discerned the implications of our
decisions.
"One of the shaping purposes of the Federal Rules is to bring
about uniformity in the federal courts by getting away from local
rules. This is especially true of matters which relate to the
administration of legal proceedings, an area in which federal
courts
Page 380 U. S. 473
have traditionally exerted strong inherent power, completely
aside from the powers Congress expressly conferred in the Rules.
The purpose of the
Erie doctrine, even as extended in
York and
Ragan, was never to bottle up federal
courts with 'outcome determinative' and 'integral relations'
stoppers -- when there are 'affirmative countervailing [federal]
considerations' and when there is a Congressional mandate (the
Rules) supported by constitutional authority."
Lumbermen's Mutual Casualty Co. v. Wright, 322 F.2d
759, 764 (C.A.5th Cir. 1963). [
Footnote 16]
Erie and its offspring cast no doubt on the long
recognized power of Congress to prescribe housekeeping rules for
federal courts even though some of those rules will inevitably
differ from comparable state rules.
Cf. Herron v. Southern
Pacific Co., 283 U. S. 91.
"When, because the plaintiff happens to be a nonresident, such a
right is enforceable in a federal, as well as in a State, court,
the forms and mode of enforcing the right may at times, naturally
enough, vary because the two judicial systems are not identic."
Guaranty Trust Co. of New York v. York, supra, at
326 U. S. 108;
Cohen v. Beneficial Indus. Loan Corp., 337 U.
S. 541,
337 U. S. 555.
Thus, though a court, in measuring a Federal Rule against the
standards contained in the Enabling Act and the Constitution, need
not wholly blind itself to the degree to which the Rule makes the
character and result of the federal litigation stray from the
course it would follow in state courts,
Sibbach v. Wilson &
Co., supra, at
312 U. S. 13-14,
it cannot be forgotten that the
Erie rule, and the
guidelines suggested in
York, were created to serve
another purpose altogether. To hold that a Federal Rule of Civil
Procedure must cease to function whenever it alters the mode of
enforcing state-created rights would be to disembowel
Page 380 U. S. 474
either the Constitution's grant of power over federal procedure
or Congress' attempt to exercise that power in the Enabling Act.
[
Footnote 17] Rule 4(d)(1) is valid, and
controls the instant case.
Reversed.
MR. JUSTICE BLACK concurs in the result.
[
Footnote 1]
Section 9 is in part a statute of limitations, providing that an
executor need not "answer to an action . . . which is not commenced
within one year from the time of his giving bond. . . ." This part
of the statute, the purpose of which is to speed the settlement of
estates,
Spaulding v. McConnell, 307 Mass. 144, 146, 29
N.E.2d 713, 715 (1940);
Doyle v. Moylan, 141 F. Supp.
95 (D.C.D.Mass.1956), is not involved in this case, since the
action clearly was timely commenced. (Respondent filed bond on
March 1, 1962; the complaint was filed February 6, 1963; and the
service -- the propriety of which is in dispute -- was made on
February 8, 1963.) 331 F.2d at 159.
Cf. Guaranty Trust Co. of
New York v. York, supra; Ragan v. Merchants Transfer &
Warehouse Co., supra.
Section 9 also provides for the manner of service. Generally,
service of process must be made by "delivery in hand," although
there are two alternatives: acceptance of service by the executor,
or filing of a notice of claim, the components of which are set out
in the statute, in the appropriate probate court. The purpose of
this part of the statute, which is involved here, is, as the court
below noted, to insure that executors will receive actual notice of
claims.
Parker v. Rich, 297 Mass. 111, 113-114, 8 N.E.2d
345, 347 (1937). Actual notice is, of course, also the goal of Rule
4(d)(1); however, the Federal Rule reflects a determination that
this goal can be achieved by a method less cumbersome than that
prescribed in § 9. In this case, the goal seems to have been
achieved; although the affidavit filed by respondent in the
District Court asserts that he had not been served in hand nor had
he accepted service, it does not allege lack of actual notice.
[
Footnote 2]
There are a number of state service requirements which would not
necessarily be satisfied by compliance with Rule 4(d)(1).
See,
e.g., Cal.Civ.Proc.Code § 411, subd. 8; Idaho Code Ann. §
5-507, subd. 7 (1948); Ill.Rev.Stat., c. 110, § 13.2 (1963);
Ky.Rev.Stat., Rules Civ.Proc., Rule 4.04 (1962); Md.Ann.Code, Rules
Proc., Rule 104 b (1963); Mich.Rev.Jud.Act § 600.1912 (1961);
N.C.Gen.Stat. § 1-94 (1953); S.D.Code § 33.0807(8) (Supp.1960);
Tenn.Code Ann. § 20-214 (1955).
[
Footnote 3]
"These rules govern the procedure in the United States district
courts in all suits of a civil nature, whether cognizable as cases
at law or in equity, with the exceptions stated in Rule 81. . .
."
Fed.Rules Civ.Proc. 1. This case does not come within any of the
exceptions noted in Rule 81.
[
Footnote 4]
See also Schlagenhauf v. Holder, 379 U.
S. 104,
379 U. S.
112-114.
[
Footnote 5]
See also Ragan v. Merchants Transfer & Warehouse Co.,
supra; Woods v. Interstate Realty Co., 337 U.
S. 535;
Bernhardt v. Polygraphic Co.,
350 U. S. 198,
350 U. S.
203-204,
350 U. S.
207-208;
cf. Byrd v. Blue Ridge Rural Elec.
Cooperative, 356 U. S. 525.
[
Footnote 6]
See Iovino v. Waterson, 274 F.2d 41, 46-47 (C.A.2d
Cir.1959),
cert. denied sub nom. Carlin v. Iovino, 362
U.S. 949.
[
Footnote 7]
See also Klaxon Co. v. Stentor Electric Mfg. Co.,
313 U. S. 487,
313 U. S. 496;
Woods v. Interstate Realty Co., supra, note
5 at
337 U. S.
538.
[
Footnote 8]
Cf. Black & White Taxicab Co. v. Brown & Yellow
Taxicab Co., 276 U. S. 518.
[
Footnote 9]
The Court of Appeals seemed to frame the inquiry in terms of how
"important" § 9 is to the State. In support of its suggestion that
§ 9 serves some interest the State regards as vital to its
citizens, the court noted that something like § 9 has been on the
books in Massachusetts a long time, that § 9 has been amended a
number of times, and that § 9 is designed to make sure that
executors receive actual notice.
See note
1 supra. The apparent lack of relation among these
three observations is not surprising, because it is not clear to
what sort of question the Court of Appeals was addressing itself.
One cannot meaningfully ask how important something is without
first asking "important for what purpose?"
Erie and its
progeny make clear that, when a federal court sitting in a
diversity case is faced with a question of whether or not to apply
state law, the importance of a state rule is indeed relevant, but
only in the context of asking whether application of the rule would
make so important a difference to the character or result of the
litigation that failure to enforce it would unfairly discriminate
against citizens of the forum State, or whether application of the
rule would have so important an effect upon the fortunes of one or
both of the litigants that failure to enforce it would be likely to
cause a plaintiff to choose the federal court.
[
Footnote 10]
See Guaranty Trust Co. of New York v. York, supra, at
326 U. S.
108-109;
Ragan v. Merchants Transfer & Warehouse
Co., supra, at
337 U. S. 532;
Woods v. Interstate Realty Co., supra, note
5 at
337 U. S.
538.
Similarly, a federal court's refusal to enforce the New Jersey
rule involved in
Cohen v. Beneficial Indus. Loan Corp.,
337 U. S. 541,
requiring the posting of security by plaintiffs in stockholders'
derivative actions, might well impel a stockholder to choose to
bring suit in the federal, rather than the state, court.
[
Footnote 11]
Cf. Monarch Insurance Co. of Ohio v. Spach, 281 F.2d
401, 412 (C.A.5th Cir. 1960). We cannot seriously entertain the
thought that one suing an estate would be led to choose the federal
court because of a belief that adherence to Rule 4(d)(1) is less
likely to give the executor actual notice than § 9, and therefore
more likely to produce a default judgment. Rule 4(d)(1) is well
designed to give actual notice, as it did in this case.
See note 1 supra.
[
Footnote 12]
To the same effect,
see Ragan v. Merchants Transfer &
Warehouse Co., supra; Cohen v. Beneficial Indus. Loan Corp.,
supra, note 10 at
337 U. S. 556;
id. at
337 U. S. 557
(DOUGLAS, J., dissenting);
cf. Bernhardt v. Polygraphic Co.,
supra, note 5 at
350 U. S.
201-202;
see generally Iovino v. Waterson,
supra, note 6 274 F.2d at 47-48.
[
Footnote 13]
Sibbach v. Wilson & Co., supra, at
312 U. S. 13-15;
see Appointment of Committee to Draft Unified System of
Equity and Law Rules, 295 U.S. 774; Orders re Rules of Procedure,
302 U.S. 783; Letter of Submittal, 308 U.S. 649; 1A Moore, Federal
Practice § 0.501(2) at 5027-5028 (2d ed. 1961).
[
Footnote 14]
Erie R. Co. v. Tompkins, supra, at
304 U. S. 77-79;
cf. Bernhardt v. Polygraphic Co., supra, note 5 at
350 U. S. 202;
Sibbach v. Wilson & Co., supra, at
312 U. S. 10;
Guaranty Trust Co. of New York v. York, supra, at
326 U. S.
105.
[
Footnote 15]
In
Sibbach v. Wilson & Co., supra, the law of the
forum State (Illinois) forbade the sort of order authorized by Rule
35. However,
Sibbach was decided before
Klaxon Co. v.
Stentor Electric Mfg. Co., supra, note 7 and
the
Sibbach opinion makes clear that the Court was
proceeding on the assumption that, if the law of any State was
relevant, it was the law of the State where the tort occurred
(Indiana), which, like Rule 35, made provision for such orders. 312
U.S. at
312 U. S. 6-7,
312 U. S.
10-11.
[
Footnote 16]
To the same effect,
see D'Onofrio Construction Co. v. Recon
Co., 255 F.2d 904, 909-910 (C.A.1st Cir. 1958).
[
Footnote 17]
Mississippi Pub. Corp. v. Murphree, supra, at
326 U. S.
445-446;
Iovino v. Waterson, supra, note 6 274 F.2d at 46.
MR. JUSTICE HARLAN, concurring.
It is unquestionably true that, up to now,
Erie and the
cases following it have not succeeded in articulating a workable
doctrine governing choice of law in diversity actions. I respect
the Court's effort to clarify the situation in today's opinion.
However, in doing so, I think it has misconceived the
constitutional premises of
Erie and has failed adequately
to deal with those past decisions upon which the courts below
relied.
Erie was something more than an opinion which worried
about "forum shopping and avoidance of inequitable administration
of the laws,"
ante, p.
380 U. S. 468,
although, to be sure, these were important elements of the
decision. I have always regarded that decision as one of the modern
cornerstones of our federalism, expressing policies that profoundly
touch the allocation of judicial power between the state and
federal systems.
Erie recognized that there should not be
two conflicting systems of law controlling the primary activity of
citizens, for such alternative governing authority must necessarily
give rise to a debilitating uncertainty in the planning of everyday
affairs. [
Footnote 2/1] And it recognized that
the scheme of our Constitution envisions an allocation of lawmaking
functions between state and federal legislative processes which is
undercut if the federal judiciary can make substantive law
affecting
Page 380 U. S. 475
state affairs beyond the bounds of congressional legislative
powers in this regard. Thus, in diversity cases,
Erie
commands that it be the state law governing primary private
activity which prevails.
The shorthand formulations which have appeared in some past
decisions are prone to carry untoward results that frequently arise
from oversimplification. The Court is quite right in stating that
the "outcome determinative" test of
Guaranty Trust Co. of New
York v. York, 326 U. S. 99, if
taken literally, proves too much, for any rule, no matter how
clearly "procedural," can affect the outcome of litigation if it is
not obeyed. In turning from the "outcome" test of
York
back to the unadorned forum shopping rationale of
Erie,
however, the Court falls prey to like oversimplification, for a
simple forum shopping rule also proves too much; litigants often
choose a federal forum merely to obtain what they consider the
advantages of the Federal Rules of Civil Procedure or to try their
cases before a supposedly more favorable judge. To my mind, the
proper line of approach in determining whether to apply a state or
a federal rule, whether "substantive" or "procedural," is to stay
close to basic principles by inquiring if the choice of rule would
substantially affect those primary decisions respecting human
conduct which our constitutional system leaves to state regulation.
[
Footnote 2/2] If so,
Erie and the
Constitution require that the state rule prevail, even in the face
of a conflicting federal rule.
The Court weakens, if indeed it does not submerge, this basic
principle by finding, in effect, a grant of substantive legislative
power in the constitutional provision for a federal
Page 380 U. S. 476
court system (
compare 41 U. S. Tyson,
16 Pet. 1), and, through it, setting up the Federal Rules as a body
of law inviolate.
"[T]he constitutional provision for a federal court system . . .
carries with it congressional power . . . to regulate matters
which, though falling within the uncertain area between substance
and procedure,
are rationally capable of classification as
either."
Ante, p.
380 U. S. 472.
(Emphasis supplied.) So long as a reasonable man could characterize
any duly adopted federal rule as "procedural," the Court, unless I
misapprehend what is said, would have it apply no matter how
seriously it frustrated a State's substantive regulation of the
primary conduct and affairs of its citizens. Since the members of
the Advisory Committee, the Judicial Conference, and this Court who
formulated the Federal Rules are presumably reasonable men, it
follows that the integrity of the Federal Rules is absolute.
Whereas the unadulterated outcome and forum shopping tests may err
too far toward honoring state rules, I submit that the Court's
"arguably procedural, ergo constitutional" test moves too fast and
far in the other direction.
The courts below relied upon this Court's decisions in
Ragan
v. Merchants Transfer & Warehouse Co., 337 U.
S. 530, and
Cohen v. Beneficial Indus. Loan
Corp., 337 U. S. 541.
Those cases deserve more attention than this Court has given them,
particularly
Ragan, which, if still good law, would, in my
opinion, call for affirmance of the result reached by the Court of
Appeals. Further, a discussion of these two cases will serve to
illuminate the "diversity" thesis I am advocating.
In
Ragan, a Kansas statute of limitations provided that
an action was deemed commenced when service was made on the
defendant. Despite Federal Rule 3, which provides that an action
commences with the filing of the complaint,
Page 380 U. S. 477
the Court held that, for purposes of the Kansas statute of
limitations, a diversity tort action commenced only when service
was made upon the defendant. The effect of this holding was that,
although the plaintiff had filed his federal complaint within the
state period of limitations, his action was barred because the
federal marshal did not serve a summons on the defendant until
after the limitations period had run. I think that the decision was
wrong. At most, application of the Federal Rule would have meant
that potential Kansas tort defendants would have to defer for a few
days the satisfaction of knowing that they had not been sued within
the limitations period. The choice of the Federal Rule would have
had no effect on the primary stages of private activity from which
torts arise, and only the most minimal effect on behavior following
the commission of the tort. In such circumstances, the interest of
the federal system in proceeding under its own rules should have
prevailed.
Cohen v. Beneficial Indus. Loan Corp. held that a
federal diversity court must apply a state statute requiring a
small stockholder in a stockholder derivative suit to post a bond
securing payment of defense costs as a condition to prosecuting an
action. Such a statute is not "outcome determinative"; the
plaintiff can win with or without it. The Court now rationalizes
the case on the ground that the statute might affect the
plaintiff's choice of forum (
ante, p.
380 U. S. 469,
n. 10), but, as has been pointed out, a simple forum shopping test
proves too much. The proper view of
Cohen is, in my
opinion, that the statute was meant to inhibit small stockholders
from instituting "strike suits," and thus it was designed and could
be expected to have a substantial impact on private primary
activity. Anyone who was at the trial bar during the period when
Cohen arose can appreciate the strong state policy
reflected in the statute. I think it wholly legitimate to view
Federal Rule 23 as not purporting to deal
Page 380 U. S. 478
with the problem. But even had the Federal Rules purported to do
so, and in so doing provided a substantially less effective
deterrent to strike suits, I think the state rule should still have
prevailed. That is where I believe the Court's view differs from
mine; for the Court attributes such overriding force to the Federal
Rules that it is hard to think of a case where a conflicting state
rule would be allowed to operate, even though the state rule
reflected policy considerations which, under
Erie, would
lie within the realm of state legislative authority.
It remains to apply what has been said to the present case. The
Massachusetts rule provides that an executor need not answer suits
unless in-hand service was made upon him or notice of the action
was filed in the proper registry of probate within one year of his
giving bond. The evident intent of this statute is to permit an
executor to distribute the estate which he is administering without
fear that further liabilities may be outstanding for which he could
be held personally liable. If the Federal District Court in
Massachusetts applies Rule 4(d)(1) of the Federal Rules of Civil
Procedure instead of the Massachusetts service rule, what effect
would that have on the speed and assurance with which estates are
distributed? As I see it, the effect would not be substantial. It
would mean simply that an executor would have to check at his own
house or the federal courthouse as well as the registry of probate
before he could distribute the estate with impunity. As this does
not seem enough to give rise to any real impingement on the
vitality of the state policy which the Massachusetts rule is
intended to serve, I concur in the judgment of the Court.
[
Footnote 2/1]
Since the rules involved in the present case are parallel,
rather than conflicting, this first rationale does not come into
play here.
[
Footnote 2/2]
See Hart and Wechsler, The Federal Courts and the
Federal System 678.
Byrd v. Blue Ridge Rural Elec. Coop.,
Inc., 356 U. S. 525,
356 U. S.
536-540, indicated that state procedures would apply if
the State had manifested a particularly strong interest in their
employment.
Compare Dice v. Akron, C. & Y. R. Co.,
342 U. S. 359.
However, this approach may not be of constitutional
proportions.