Dissent in Hanna v. Plumer
380 U.S. 460 (1965) (1965) · Supreme Court of the United States
Hanna established the framework for resolving conflicts between the Federal Rules of Civil Procedure and state law in diversity cases. It held that a valid Federal Rule, promulgated under the Rules Enabling Act, governs even if it differs from state law, as long as the Rule is within Congress's constitutional authority and does not abridge, enlarge, or modify substantive rights. The case clarified and refined the Erie doctrine.
What was the dissent in Hanna v. Plumer?
Justice Harlan concurred in the result but wrote separately to argue that the majority's analysis was too permissive. He believed the test should focus on whether the choice between the federal and state rule would substantially affect the primary decisions of parties — i. e.
Case Overview
Facts
Louise Plumer Osgood, a citizen of Ohio, was killed in a car accident in South Carolina allegedly caused by Mrs. Louise Amis Hanna, a citizen of Massachusetts. Osgood's executor, Plumer, filed a diversity action in the District of Massachusetts. Service was made on Hanna by leaving copies of the summons and complaint at her residence with a person of suitable age, as authorized by Federal Rule of Civil Procedure 4(d)(1). Under the Massachusetts statute governing service on executors, personal in-hand delivery was required.
Majority Holding
The Supreme Court held that the Federal Rule of Civil Procedure governed. When a Federal Rule directly addresses the issue in question, the Rule applies if it is valid under the Rules Enabling Act — that is, if it is arguably procedural and does not abridge, enlarge, or modify any substantive right. The Erie outcome-determinative test does not apply when a Federal Rule is on point.
Majority Reasoning
Chief Justice Warren's opinion established a two-track analysis for Erie questions. When a Federal Rule of Civil Procedure directly conflicts with state law, the court asks whether the Rule is valid under the Rules Enabling Act (the 'Hanna test'): is the Rule rationally capable of classification as procedural, and does it abridge, enlarge, or modify a substantive right? If the Rule is valid, it applies regardless of the state rule. Only when there is no Federal Rule directly on point does the court apply the broader Erie analysis, asking whether applying federal rather than state law would lead to forum shopping or inequitable administration of the law. FRCP 4(d)(1) was a valid procedural rule that did not affect substantive rights, so it governed over the Massachusetts statute.
The Dissenting Opinion
Justice Harlan concurred in the result but wrote separately to argue that the majority's analysis was too permissive. He believed the test should focus on whether the choice between the federal and state rule would substantially affect the primary decisions of parties — i.e., whether the federal rule would affect behavior outside the courtroom.
Key Quotes
“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 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.”
“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 either the Constitution's grant of power over federal procedure or Congress's attempt to exercise that power in the Enabling Act.”
Impact and Legacy
Hanna provided the essential analytical framework that students and courts use to resolve Erie problems. Its two-track approach — one track for direct conflicts with Federal Rules and another for unguided Erie questions — remains the governing test. The case also affirmed the strong presumption of validity for Federal Rules of Civil Procedure, making it difficult for parties to argue that a duly promulgated Federal Rule must yield to contrary state law.
Exam Relevance
Hanna v. Plumer is tested alongside Erie on virtually every civil procedure exam. Students must be able to identify whether a Federal Rule directly conflicts with state law (Hanna track) or whether the issue is unguided by any Federal Rule (Erie track). Exam questions frequently present a potential conflict between a Federal Rule and a state procedural requirement and ask students to determine which governs.
Study Tips
- Master the two-track Hanna framework: Track 1 (Federal Rule on point) applies the Rules Enabling Act test; Track 2 (no Federal Rule) applies the Erie twin aims analysis.
- Remember the key question for Track 1: Is the Federal Rule 'arguably procedural' and does it abridge, enlarge, or modify substantive rights? The bar is set very low for validity.
- Note Justice Harlan's concurrence, which many professors consider more protective of state interests and may be the preferred analysis in some courses.
- Practice identifying whether a Federal Rule truly conflicts with state law or whether the Rule's scope can be interpreted narrowly to avoid the conflict.
Read the Full Case Analysis
View the complete brief for Hanna v. Plumer including full reasoning, doctrine, and study resources.
More Civil Procedure Dissents
Pennoyer v. Neff
95 U.S. 714 (1878) (1878)
Justice Hunt dissented, arguing that the Oregon statute authorizing service by publication was a valid exercise of state legislative power and that the procedure followed was sufficient to confer jurisdiction over nonresidents with property in the state.
World-Wide Volkswagen Corp. v. Woodson
444 U.S. 286 (1980) (1980)
Justice Brennan dissented, arguing that the majority's approach was too restrictive and that the defendants placed their products into the stream of commerce knowing they might reach any state. He contended that when a product causes injury in a forum state, the interests of the state and the injured plaintiff should weigh heavily in the jurisdictional analysis.
Daimler AG v. Bauman
571 U.S. 117 (2014) (2014)
Justice Sotomayor concurred in the judgment but disagreed with the majority's 'at home' test. She argued that the majority's approach was too restrictive and that the Court should have resolved the case by holding that the exercise of jurisdiction would be unreasonable, rather than by narrowing the general jurisdiction test itself.
Bristol-Myers Squibb Co. v. Superior Court of California
582 U.S. 255 (2017) (2017)
Justice Sotomayor dissented, arguing that BMS's extensive activities in California, combined with its nationwide marketing of Plavix, created sufficient contacts for specific jurisdiction. She warned that the decision would impede the efficient resolution of mass tort litigation by preventing plaintiffs from consolidating their claims in a single forum.
Ford Motor Co. v. Montana Eighth Judicial District Court
592 U.S. 351 (2021) (2021)
Justice Gorsuch concurred in the judgment but wrote separately, joined by Justice Thomas, questioning the majority's reliance on the 'relate to' language. He argued that the majority's approach was vague and suggested that the original understanding of the Fourteenth Amendment might support a broader basis for jurisdiction. Justice Barrett took no part in the decision.
Erie Railroad Co. v. Tompkins
304 U.S. 64 (1938) (1938)
Justice Butler dissented, joined by Justice McReynolds, arguing that the question of overruling Swift had not been briefed or argued by the parties and that the doctrine of stare decisis counseled against overturning nearly a century of precedent without full adversarial consideration.