03 Sibbach Reading for 1L orientation

Orientation Reading, 2025 The Origin and Impact of Rules Sibbach v. Wilson & Co., Inc. (1941)1 Supreme Court of the United States 312 U.S. 12 Mr. Justice Owen Roberts delivered the opinion of the Court.3 This case calls for decision as to the validity of Rules 35 and 374 of the Rules of Civil Procedure for District Courts of the United States.5 In an action brought by the petitioner in the District Court for Northern Illinois6 to recover damages for bodily injuries, inflicted in Indiana, respondent answered denying the allegations of the complaint, and moved for an order requiring the petitioner to submit to a physical examination by one or more physicians appointed by the court to determine the nature and extent of her injuries. The court ordered that the petitioner submit to such an examination by a physician so appointed. Compliance having been refused, the respondent obtained an order to show cause why the petitioner should not be punished for contempt. In response, the petitioner challenged the authority of the court to order her to submit to the examination, asserting that the order was void.7 It appeared that the courts of Indiana, the state where the cause of action arose, hold Take note of the year here – the Federal Rules of Civil Procedure were first adopted in 1938. On Westlaw, this case prints out at about 12 pages, so remember that cases you read in classes are heavily edited from their original form. Once you learn to decipher edited cases, you can level up and decipher unedited cases and pick out the relevant portions on your own. 3 This is the majority opinion. It means that a majority of the Supreme Court agreed with this outcome and reasoning, even though just one justice authored the opinion. 4 Okay, here it is (and the court will rarely make it this easy), the issue! This case is about the validity of particular rules. But really, it’s about whether all the rules are valid, this is just a test case. 5 I would stop here and use my rule book to look up the actual text of rule 35 and rule 37 to give myself some context for the rest of this opinion. 6 That’s the court that this case was started in (where the complaint was originally filed) – the trial court level of federal courts. 7 So plaintiff sued defendant for physical injuries. The defendant denied that he caused the injuries and wanted a doctor to physically examine the plaintiff. The plaintiff said no, so the defendant went to the court. The court said the plaintiff must submit (be examined) or be “punished for contempt.” Instead of giving a reason for why she didn’t want an examination, she argued instead that the court didn’t have the authority to order one. 1 2 1 Orientation Reading, 2025 such an order proper, whereas the courts of Illinois, the state in which the trial court sat, hold that such an order cannot be made.8 The court adjudged the petitioner guilty of contempt, and directed that she be committed until she should obey the order for examination or otherwise should be legally discharged from custody.9 The petitioner appealed. The Circuit Court of Appeals10 decided that Rule 35, which authorizes an order for a physical examination in such a case, is valid, and affirmed the judgment.11 The writ of certiorari was granted because of the importance of the question involved.12 The Rules of Civil Procedure were promulgated under the authority of the Act of June 19, 1934, which is: Be it enacted … That the Supreme Court of the United States shall have the power to prescribe, by general rules, for the district courts of the United States and for the courts of the District of Columbia, the forms of process, writs, pleadings, and motions, and the practice and procedure in civil actions at law. Said rules shall neither abridge, enlarge, or modify the substantive rights of any litigant. They shall take effect six months after their promulgation, and thereafter all laws in conflict therewith shall be of no further force or effect.13 This is a conflict among state courts – a horizontal conflict. One state would say yes but another state would say no. Her argument is that the federal court here is geographically located in a state that would say no, so the federal court should also say no. The real question is whether federal courts have to do things the way that state courts would do them (and if so, which state court should the federal court follow?). 9 This is the outcome at the district court level, the trial court. The trial court said you have to submit to the examination or be in contempt and we (the court) have the power to make you do so. 10 Now we’re at the next level, the appellate level. The plaintiff thought the trial court was wrong, so she asked the appellate court to review the decision. 11 So the appellate court agreed with the district court and said it made the right decision. 12 The plaintiff thought the appellate court was wrong about the district court – this is her last chance to appeal to the supreme court at the very top of the hierarchy. The United States Supreme Court granted her “writ” or “request” to review the case at that level. 13 Compare this with the language below in the Rules Enabling Act. What does it mean? 8 2 Orientation Reading, 2025 The text14 of the relevant portions of Rule 35 and 37 is: Rule 35. Physical and Mental Examinations of Persons a) Order for Examination. In an action in which the mental or physical condition of a party is in controversy, the court which the action is pending may order him to submit to a physical or mental examination by a physician. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.’ Rule 37. Refusal To Make Discovery: Consequences a) Refusal to Answer. … b) Failure to Comply With Order. 1) Contempt. If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court in the district in which the deposition is being taken, the refusal may be considered a contempt of that court. 2) Other Consequences. If any party … refuses to obey … an order made under Rule 35 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following: i. An order that … the physical or mental condition of the party … shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; ii. An order … prohibiting (the disobedient party) … from introducing evidence of physical or mental condition; iii. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; iv. An order striking out pleadings or orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination. The contention of the petitioner, in final analysis, is that Rules 35 and 37 are not within the mandate of Congress to this court. This is the limit of permissible debate, since argument This is SUPER important, whenever a court is interpreting a statute or a rule, it should always first start with the text. Bonus, if you looked up these rules earlier, you are just reviewing this part now and can see if there is any difference between this and the current rule phraseology. Remember the closeness in time between the adoption of the rules and the decision of this case. 14 3 Orientation Reading, 2025 touching the broader questions of Congressional power and of the obligation of federal courts to apply the substantive law of a state is foreclosed.15 Congress has undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes or Constitution of the United States;16 but it has never essayed to declare the substantive state law, or to abolish or nullify a right recognized by the substantive law of the state where the cause of action arose, save where a right or duty is imposed in a field committed to Congress by the Constitution. On the contrary, it has enacted that the state law shall be the rule of decision in federal courts.17 Hence, we conclude that the Act of June 19, 1934, was purposefully restricted in its operation to matters of pleading and court practice and procedure.18 Its … provisos and caveats emphasize this restriction. [For example,] the court shall not ‘abridge, enlarge, or modify the substantive rights,’ in the guise of regulating procedure. … Whatever may be said as to the effect of the Conformity Act19 while it remained in force, the rules, if they are within the authority granted by Congress, repeal that statute, and the District Court was not bound to follow the Illinois practice respecting an order for physical examination. On the other hand if the right to be exempt from such an order is one of substantive law, the Rules of Decision Act required the District Court, though sitting in Illinois, to apply the law of Indiana, the state where the cause of action arose, and to order the examination. To avoid this dilemma the petitioner admits, and, we think, correctly, that Rules 35 and 37 are rules of procedure. She insists, nevertheless, that by the prohibition against abridging substantive rights, Congress has banned the rules here challenged. In order to reach this result she translates ‘substantive’ into ‘important’ or ‘substantial’ rights. And she urges that if a rule affects such a right, albeit the rule is one of procedure merely, So we’re not going to argue about whether Congress can write the Rules Enabling Act, it can. The only question is whether these rules (35 and 37) are properly within the language of that statute. 16 Where does this “undoubted power” come from? Congress can “ordain and establish” lower federal courts according to the constitution. If Congress can create a court, it can also tell the court what kind of procedure it may have. That means the constitutional question is not, can Congress give procedure? 17 Let’s think about the Rules Enabling Act and the Rules of Decision Act and where this divide is. The Rules Enabling Act or REA says that Congress wants the Supreme Court to decide what procedure looks like in federal court. But the Rules of Decision Act or RDA says that federal courts need to apply state substantive law when substantive law is required. 18 The REA is only for rules that are truly procedural, so the REA is within Congress’ constitutional power. 19 This is the statute that was in place before the Federal Rules of Civil Procedure were written, which required federal courts to just use procedure of the state courts in the same geographical location. 15 4 Orientation Reading, 2025 its prescription is not within the statutory grant of power embodied in the Act of June 19, 1934.20 She contends that our decisions and recognized principles require us so to hold. … But if Rule 35 is within the authority granted, the federal legislature sanctioned it as controlling all district courts. … Finally, it is urged that Rules 35 and 37 work a major change of policy and that this was not intended by Congress. Apart from the fact already stated, that the policy of the states in this respect has not been uniform, it is to be noted that the authorization of a comprehensive system of court rules was a departure in policy, and that the new policy envisaged in the enabling act of 1934 was that the whole field of court procedure be regulated in the interest of speedy, fair and exact determination of the truth. The challenged rules comport with this policy. Moreover, in accordance with the Act, the rules were submitted to the Congress so that that body might examine them and veto their going into effect if contrary to the policy of the legislature. The value of the reservation of the power to examine proposed rules, laws and regulations before they become effective is well understood by Congress.21 It is frequently, as here, employed to make sure that the action under the delegation squares with the Congressional purpose. Evidently the Congress felt the rule was within the ambit of the statute as no effort was made to eliminate it from the proposed body of rules, although this specific rule was attacked and defended before the committees of the two Houses. … That no adverse action was taken by Congress indicates, at least, that no transgression of legislative policy was found. We conclude that the rules under attack are within the authority granted. The District Court treated the refusal to comply with its order as a contempt and committed the petitioner therefor. Neither in the Circuit Court of Appeals nor here was this action assigned as error. We think, however, that in the light of the provisions of Rule 37 it was plain error of such a fundamental nature that we should notice it. Section (b)(2)(iv) of Rule 37 exempts from punishment as for contempt the refusal to obey an order that a party submit to a physical or mental examination. The District Court was in error in going counter to this express exemption.22 The remedies available under the rule in such a case are those enumerated in Section (b)(2)(i)(ii) and (iii). For this error we reverse the judgment and remand the cause to the District Court for further proceedings in conformity to this opinion. The plaintiff’s argument here is that if a procedural rule even IMPACTS a substantive right, then it’s not appropriate. 21 Congress has the ability to review the rules that the Supreme Court writes and labels as procedural. Therefore, if Congress really had a problem with these rules, they would have been flagged or rejected by Congress. 22 So the district court was right to impose the rules – either comply with the medical examination order or the plaintiff would be in contempt. But the court has to follow all the rules, and it made an error by going too far here. 20 5 Orientation Reading, 2025 Reversed and remanded.23 Mr. Justice Frankfurter (dissenting opinion omitted). Relevant Constitutional and Statutory Provisions: U.S. Constitution, Article III, §1 The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. … 28 U.S.C. §1331 The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1332 The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs, and is between … citizens of different states. 28 U.S.C. § 2071 Rule-making power generally (a) The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed under section 2072 of this title. (b) Any rule prescribed by a court, other than the Supreme Court, under subsection (a) shall be prescribed only after giving appropriate public notice and opportunity for comment. Such rule shall take effect upon the date specified by the prescribing court and shall have such effect on pending proceedings as the prescribing court may order. (c) (1) A rule of a district court prescribed under subsection (a) shall remain in effect unless modified or abrogated by the judicial council of the relevant circuit. (2) Any other rule prescribed by a court other than the Supreme Court under subsection (a) shall remain in effect unless modified or abrogated by the Judicial Conference. (d) Copies of rules prescribed under subsection (a) by a district court shall be furnished to the judicial council, and copies of all rules prescribed by a court other than the The Supreme Court is sending this case all the way back to the District Court (remand) so that the District Court can make a new decision about Rule 35 and contempt. But the lower court is empowered with the knowledge that the rules are valid and controlling. 23 6 Orientation Reading, 2025 Supreme Court under subsection (a) shall be furnished to the Director of the Administrative Office of the United States Courts made available to the public. (e) If the prescribing court determines that there is an immediate need for a rule, such court may proceed under this section without public notice and opportunity for comment, but such court shall promptly thereafter afford such notice and opportunity for comment. (f) No rule may be prescribed by a district court other than under this section. 28 U.S.C. § 2072 Rules of procedure and evidence; power to prescribe (aka Rules Enabling Act) (a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals. (b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. (c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title. 28 U.S.C. § 2073 Rules of Procedure and Evidence; method of prescribing (a) (1) The Judicial Conference shall prescribe and publish the procedures for the consideration of proposed rules under this section. (2) The Judicial Conference may authorize the appointment of committees to assist the Conference by recommending rules to be prescribed under sections 2072 and 2075 of this title. Each such committee shall consist of members of the bench and the professional bar, and trial and appellate judges. (b) The Judicial Conference shall authorize the appointment of a standing committee on rules of practice, procedure, and evidence under subsection (a) of this section. Such standing committee shall review each recommendation of any other committees so appointed and recommend to the Judicial Conference rules of practice, procedure, and evidence and such changes in rules proposed by a committee appointed under subsection (a)(2) of this section as may be necessary to maintain consistency and otherwise promote the interest of justice. (c) (1) Each meeting for the transaction of business under this chapter by any committee appointed under this section shall be open to the public, except when the committee so meeting, in open session and with a majority present, determines that it is in the public interest that all or part of the remainder of the meeting on that day shall be closed to the public, and states the reason for 7 Orientation Reading, 2025 (2) so closing the meeting. Minutes of each 6meeting for the transaction of business under this chapter shall be maintained by the committee and made available to the public, except that any portion of such minutes, relating to a closed meeting and made available to the public, may contain such deletions as may be necessary to avoid frustrating the purposes of closing the meeting. Any meeting for the transaction of business under this chapter, by a committee appointed under this section, shall be preceded by sufficient notice to enable all interested persons to attend.(d)In making a recommendation under this section or under section 2072 or 2075, the body making that recommendation shall provide a proposed rule, an explanatory note on the rule, and a written report explaining the body’s action, including any minority or other separate views.(e)Failure to comply with this section does not invalidate a rule prescribed under section 2072 or 2075 of this title. 28 U.S.C. § 2074 Rules of procedure and evidence; submission to Congress; effective date (a) The Supreme Court shall transmit to the Congress not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. The Supreme Court may fix the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies. (b) Any such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress. 28 U.S.C. § 1652 aka Rules of Decision Act The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply. 8 Orientation Reading, 2025 Directed Reading Questions: 1) What is the issue in this case? Don’t just think about what the parties want, think about what the court is trying to decide. Why are we reading this case now and what do we hope to learn from it? 2) What generally do 28 U.S.C. §§ 2071-2074 permit the courts to do? 3) What are the federal district courts? 4) If you examine 28 U.S.C. § 2071 carefully, it uses the word “may,” which is generally interpreted as giving permission. 28 U.S.C. §2071 is a federal statute, and federal statutes are laws passed by the legislative branch or Congress. What in Article III might indicate that it is necessary for Congress to give the Supreme Court permission to create rules for District Courts, even though the judiciary is a separate branch of government? 5) Describe the parallels between 28 U.S.C. §§ 2071-2074 and “the Act of June 19, 1934,” referred to in the Sibbach case. 6) 28 U.S.C. §§ 1331 and 1332 are also federal statutes enacted by Congress which describe the categories of actions a federal district court may entertain. Do you understand now why Congress and not the Supreme Court determines what actions a federal district court may entertain? 7) Do you think the Sibbach case was a §1331 or §1332 case and why? 8) The Federal Rules of Civil Procedure became effective on September 16, 1938, and the Sibbach case was decided only three years after that date. In order to comprehend the impact of the rules and what the Court was struggling with, answer the following questions: a. In what state did the accident that is the subject of the suit occur? b. In what state was the suit filed? c. What substantive law would apply to the Sibbach case if the Federal Rules of Civil Procedure did not exist? Why would that particular substantive law apply? d. Did the Federal Rules of Civil Procedure render a change in the applicable substantive law? Could they? e. What procedural law would apply to the Sibbach case if the Federal Rules of Civil Procedure did not exist, and why would that particular procedural law apply? f. Did the Federal Rules of Civil Procedure render a change in the applicable procedural law? 9) Why, according to the Sibbach case, might lawyers be supportive of the Federal Rules of Civil Procedure? 10) The Plaintiff in Sibbach faces a dilemma because she will have to submit to a medical exam if she argues that the issue of whether a medical exam is permitted is substantive. But she will also have to submit to a medical exam if she argues that the issue of whether a medical exam is permitted is procedural. Explain the plaintiff’s dilemma. 9 Orientation Reading, 2025 11) What does the plaintiff, therefore, try to argue about the impropriety of a medical exam? 12) The plaintiff successfully argues that the Federal Rules of Civil Procedure do not permit her to be held in contempt for refusing to submit to a Rule 35 medical examination. In support of this argument she cites FRCP 37(b)(2)(vi). Turn to FRCP 37 in your rule books and find Rule 37(b)(2)(vi). Why the discrepancy? 13) Please describe the ‘Rules Enabling” process provided for in 28 U.S.C. §§ 2071-2074. Hypotheticals: • Orientation.1: Henry from West Dakota sues Laura from West Dakota for negligence, but the jury finds that he was partly at fault in causing the accident. The judge therefore enters judgment for Laura, based on West Dakota’s rule that a plaintiff in a negligence case cannot recover if he was partially at fault in causing an accident – the contributory negligence rule. Henry appeals to the West Dakota Supreme Court, which affirms the decision. May Henry seek review in the United States Supreme Court? Why or why not? • Orientation.2: Suppose that Kyle sues Acme for the negligence of Sadie. He alleges that he had an accident with Sadie, that Sadie works for Acme, and that Sadie’s negligent driving caused his injury. He demands damages from Acme. In order to recover the accident must have occurred on the job. Should the complaint be dismissed for failure to state a claim? Can you tell whether this is a proper claim based only on the claims of the plaintiff? Why or why not? • Orientation.3: Suppose that Kyle sues Acme for the negligence of Sadie. He alleges that he had an accident with Sadie, that Sadie works for Acme, that Sadie was making deliveries for Acme at the time of the accident, and that Sadie’s negligent driving caused his injury. He demands damages from Acme. Upon receiving the complaint, Acme checks its records and interviews Sadie’s supervisor. Both confirm that Sadie was not on the job at the time of the accident – the accident was on a Monday and she never works Mondays. If Acme moves to dismiss for failure to state a claim, should the motion be granted? Why or why not? • Orientation.4: Joan witnesses an accident in which a woman she does not know is run down by a speeding car driven by Bill. She is emotionally traumatized by the experience. She sues Bill for infliction of emotional distress, and pleads that Bill had a duty to drive with due care, failed to do so, and that Bill’s negligent driving caused her serious emotional distress for which she has been treated ever since through psychotherapy. Most American states would not recognize a right to sue for emotional distress due to witnessing injury to a stranger. Should this case be dismissed? Why or why not? • Orientation.5: Suppose that the incident reports state unequivocally that the fish had been defrosted too early, leaving a danger of contamination and resulting food poisoning. You represent Goliath’s, a long-term and lucrative client. What would you advise them about their obligation to produce the reports? 10 Orientation Reading, 2025 • Orientation.6: Jones sues Smith for negligence. The case is tried before a jury, based on extensive evidence about the circumstances of the accident. The jury finds that Smith was not negligent, and therefore returns a verdict finding Smith not liable to Jones. Jones disagrees; he thinks Smith’s two main witnesses lied at the trial, because they were his friends, and that the jury should have believed his own testimony that Smith crossed the center line before the accident. He demands that Li, his attorney, appeal the case. What advice should Li give? 11